Mandats de localisation
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Principes généraux
The tracking warrant provision under s. 492.1 permits for forms of data tracking warrants:
- tracking of "transactions and things" relating to the offence (s. 492.1(1)) and
- tracking of "individuals" (s. 492.1(2))
Section 492.1 states:
- Warrant for tracking device — transactions and things
492.1 (1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament and that tracking the location of one or more transactions or the location or movement of a thing, including a vehicle, will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.
- Warrant for tracking device — individuals
(2) A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.
- Scope of warrant
(3) The warrant authorizes the peace officer or public officer, or a person acting under their direction, to install, activate, use, maintain, monitor and remove the tracking device, including covertly.
- Conditions
(4) A warrant may contain any conditions that the justice or judge considers appropriate, including conditions to protect a person’s interests.
- Period of validity
(5) Subject to subsection (6) [mandats de localisation – période de validité - infraction de criminalité organisée et de terrorisme], a warrant is valid for the period specified in it as long as that period ends no more than 60 days after the day on which the warrant is issued.
- Period of validity — organized crime and terrorism offence
(6) A warrant is valid for the period specified in it as long as that period ends no more than one year after the day on which the warrant is issued, if the warrant relates to
- (a) an offence under any of sections 467.11 to 467.13 ;
- (b) an offence committed for the benefit of, at the direction of, or in association with a criminal organization; or
- (c) a terrorism offence.
- Execution in Canada
(6.1) A warrant issued under this section may be executed at any place in Canada. Any public officer or peace officer who executes the warrant must have authority to act in that capacity in the place where the warrant is executed.
- Removal after expiry of warrant
(7) On ex parte application supported by an affidavit, the justice or judge who issued a warrant or another justice or judge who has jurisdiction to issue such warrants may authorize the covert removal of the tracking device after the expiry of the warrant under any conditions that the justice or judge considers advisable in the public interest. The authorization is valid for the period specified in it as long as that period is not more than 90 days.
[omis (8)]
...
1993, c. 40, s. 18; 1999, c. 5, s. 18; 2014, c. 31, s. 23; 2019, c. 25, s. 207.
[annotation(s) ajoutée(s)]
This section was an amendment due to case law finding that the warrantless monitoring of movements by way of a tracking device was an intrusion on the s. 8 right to privacy.[1]
The standard to be applied to authorization is one of "reasonable suspicion."[2]
Due to the lack of reference to telewarrants they are likely not available for this form of warrant.
- Constitutionality
The version of s. 492.1 prior to 2014 does not violate s. 8 of the Charter.[3]
- History and Amendments
This form of authorization was enacted March 9, 2015 with the passing Protecting Canadian from Online Crimes Act, SC 2014, C-13.[4]
Section 492.1 does not have retrospective application.[5]
- ↑ R c Wise, 1992 CanLII 125 (SCC), [1992] 1 SCR 527, par Cory J
- ↑
R c Scott et al, 2009 BCPC 235 (CanLII), par Bayliff J
see also Reasonable and Probable Grounds
- ↑
R c Grandison, 2016 BCSC 1712 (CanLII), par Bracken J, au para 126
- ↑ see List of Criminal Code Amendments (2010 to 2019)
- ↑
, ibid., au para 128
Definitions
492.1
[omis (1), (2), (3), (4), (5), (6), (6.1) and (7)]
- Definitions
(8) The following definitions apply in this section.
...
"data" means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device.
...
"public officer" means a public officer who is appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
...
"tracking data" means data that relates to the location of a transaction, individual or thing.
...
"tracking device" means a device, including a computer program within the meaning of subsection 342.1(2) [unauthorized use of computer – définitions], that may be used to obtain or record tracking data or to transmit it by a means of telecommunication.
1993, c. 40, s. 18; 1999, c. 5, s. 18; 2014, c. 31, s. 23; 2019, c. 25, s. 207.
[annotation(s) ajoutée(s)]