This week’s top three summaries: R v Duke, 2026 SKCA 65: position of #trust, R v CATSA, 2026 ONSC 3077: general #warrant, R v Berg, 2026 SCC 21: W(D) trumps JJRD

R v Duke, 2026 SKCA 65

[May 25, 2026] Position of Trust and Authority: Dissipation of Authority Over Time [Reasons by Tholl J.A. with Caldwell and McCreary JJ.A. concurring]

AUTHOR’S NOTE: In cases involving complainants aged 16 or older, consent may be vitiated where the accused occupies a position of trust or authority in relation to the complainant. While positions of authority are often relatively easy to identify—such as teacher-student, coach-athlete, or employer-employee relationships—the concept of a position of trust is more nuanced and fact-specific.

Relationships of trust frequently arise from an established position of authority, but they can also persist after the formal authority relationship has ended. For that reason, the courts have developed a non-exhaustive set of factors to assist in determining whether a relationship of trust continued to exist at the time of the alleged offence. The inquiry focuses on the substance of the relationship rather than its formal label.

Here, there was evidence that any formal position of authority had ended. The accused was no longer acting as the complainant’s teaching assistant, and the social connection arising from the complainant’s friendship with the accused’s son had weakened after a period during which the families were no longer close. These circumstances made the existence of a continuing relationship of trust a live issue for the jury’s determination.

In those circumstances, the jury required a tailored instruction explaining the legal framework governing positions of trust and identifying the factors relevant to determining whether such a relationship continued despite the apparent termination of any formal authority. Without that guidance, the jury was left to resolve a legally significant issue without the necessary analytical tools.

The Court of Appeal concluded that the charge failed to adequately instruct the jury on this central issue. Because the jury was not properly equipped to assess whether a relationship of trust existed at the time of the alleged offences, a new trial was ordered.

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I. INTRODUCTION

[1] Stacey Duke was charged with six offences in relation to allegations that she had sent sexually explicit material and engaged in sexual communications with two 17-year-old boys. Ms. Duke admitted sending the material to one of the young persons and communicating with him in the manner alleged but asserted that she was not in a position of trust or authority in relation to him….

[4] For the following reasons, Ms. Duke’s appeal should be allowed only for the convictions related to the child where the position of trust was contested and dismissed for the convictions related to the other complainant….

[18] I now turn to the allegations regarding B.B. He had attended the same school as A.A. from grade 7 up until part-way through grade 9. During that time, he was best friends with Ms. Duke’s son. He attended the Duke house virtually every weekend and took part in recreational activities with Ms. Duke’s son multiple times each month. When at the Duke house, B.B. would engage in small talk with her.

[19] In approximately January of 2020, part-way through grade 9, B.B. transferred to a different school in a nearby town for the purpose of playing sports. Ms. Duke never worked at this second school. After he changed schools, B.B. and Ms. Duke’s son drifted apart and were in different social circles. B.B. had little communication of any kind with Ms. Duke after his move. He had no interactions with her of any kind at a school after he transferred to his new school.

[20] B.B. described his connection with Ms. Duke before transferring schools. It arose out of her role as an educational assistant. He indicated that she was in his classroom in addition to other classrooms and that she may have occasionally worked individually with him on schoolwork, but he agreed in cross-examination that she did not have many sessions with him on an individual basis. She was not his teacher or coach, did not grade his assignments, and was not involved in his extracurricular activities. As an educational assistant, Ms. Duke would talk to him if he were “being an idiot” or “being rough with the other guys, swearing around”. He described her as a fun educational assistant, who would let the kids get away with things such as “[j]ackassing around in class, swearing”. B.B. testified that the school rules were enforced by teachers, educational assistants, and the principal.

[21] In her testimony, however, Ms. Duke denied that she was an educational assistant at B.B.’s school when he attended there, saying that she only started working there in 2021, after he had moved to a different school.

[22] On October 7, 2022, two weeks after B.B. turned 17 years old, Ms. Duke messaged him “out of the blue” on the Facebook Messenger application. He was in grade 12 at the time and living near his new school. This message exchange took place over 2.5 years after B.B. had moved schools. Ms. Duke and B.B. had not had any contact in at least a year at this point.

[23] Ms. Duke had been drinking, ended up sitting in her car in an abandoned farmyard near her home, and started sending messages to B.B….

[24] ….but he also confirmed to her during the text exchange that he was not yet 18 in response to her inquiry.

[25] ….Ms. Duke told him of her sexual fantasies about A.A. and B.B., including describing in explicit detail the manner in which she would like to engage in sexual intercourse with the two of them. In his testimony, B.B. provided other graphic details of the sexually explicit communications made by Ms. Duke. At one point during the interaction, Ms. Duke sent B.B. a video of herself masturbating….

[28] The next day, Ms. Duke sent a Facebook message to B.B. requesting him “not to tell her son … about last night or she’ll kill herself”, which was the last message she sent him. By the time B.B. spoke with the police, he had deleted Ms. Duke’s Facebook messages, including the video, except for this last message, which was tendered as an exhibit at the trial….

IV. ANALYSIS

A. Conviction appeal

1. Overview of a position of trust or authority

[46] The offence under s. 153(1)(b), as charged and particularized here, contains an element requiring an accused to be in a certain type of relationship with a complainant expressed as who is in a position of trust or authority towards a young person. The section uses is, which connotes that the accused must have been in the position towards the complainant at the time of the commission of the offence. A prior relationship of trust or authority that no longer exists at the time of the events, or one that arises afterward, is insufficient. If the sexual conduct with a young person occurs outside the time frame of the existence of such a relationship, an offence under s. 153(1) has not been committed. Further, the use of the word towards means that the occupation of a position of trust or authority in general does not suffice because the position must be in relation to the complainant. Additionally, a young person for the purpose of s. 153(1) is defined in s. 153(2) to encompass 16- and 17-year-old persons. None of these elements are in contention.

[48] A position of authority and a position of trust are different but related concepts: R v Aird, 2013 ONCA 447 at para 34. They frequently overlap and both can be present in many situations. Other than as noted immediately above, there is no definition or guidance as to either of their meanings in the Criminal Code, nor is there an enumerated list of relationships that satisfy this element. The leading Supreme Court case on their interpretation is R v Audet, 1996 CanLII 198, [1996] 2 SCR 171 (SCC). I shall examine each of the two types of relationships separately: although, as noted by the majority in Audet, each should be interpreted according to their plain meaning but with reference to one another (for a more expansive treatment, see paragraphs 34 to 36 of Audet).

2. Relationships of authority

[49] A relationship of authority is a stronger position than one of trust. It covers situations where an accused person has power or control over the conduct and actions of the complainant. This usually arises out of an external circumstance and involves situations where the adult has the power to command the young person, at least to a certain extent, and where obedience is expected. It is a more formal relationship than that of one of trust, but the focus remains on “the nature of the relationship” as opposed to any particular label that is attached to it (Audet at para 34).

[50] From a practical viewpoint, I note that some situations are more readily seen as fitting within the statutory provision as relationships of authority. Examples of such include the following:

Case                                                           Nature of the Authority

R v J.B.S., 2009 ABCA 347                          step-parent–child

Audet                                                            teacher–student

R v Osmond, 2015 SKQB 148                     teacher–student

R v Allard, 2023 ABKB 555 [Allard 2023]     case worker–client

R v Sheehy-Tremblay, 2003 CMAC 2          officer–officer cadet

[51] However, each case turns on its own facts and must be one where the accused has actual power over the complainant. For example, in R v R.T., 2017 ONSC 2625, the accused was found to not be “in a position of authority towards the complainant” because, even though he had been the complainant’s mother’s romantic partner and had previously lived in the home, he was not acting as a step-parent and had no power over the complainant or her life (at para 24).

[52] The jurisprudence accepts that once an accused ceases to have any authority or control over the young person, the relationship of authority ends for the purposes of a s. 153 offence. In Osmond, the Saskatchewan Court of Queen’s Bench described this as having “flipped a switch in their relationship” (at para 57). As an example, in this teacher–student situation, the end of employment in the complainant’s school was that point: similarly, see R v Selby, 2025 ABCJ 70 at para 136. In a different context, see paragraph 148 of Allard 2023. However, relationships do not necessarily terminate the moment the formal interaction ceases. A relationship of trust may endure even after the position of authority ends because it attaches to the person rather than their function.

3. Relationships of trust

[53] ….As noted by the majority in Audet, the meaning of a position of trust must be examined in light of the purpose of protecting the interests of young persons who are, because of the relationship, “in a position of vulnerability and weakness in relation to those persons” (emphasis in original, at para 36).

[54] Positions of trust, as opposed to ones of authority, have a more subjective component. The majority in Audet commented that trust is meant in the sense of whether the young person has a subjective belief or “[c]onfidence in or reliance on some quality or attribute” of the accused, with confidence being defined as a “mental attitude” (at para 35). Such relationships are more contextdependent than those of authority and are often “the most difficult to define”: J. Patrick, “Sexual Exploitation and the Criminal Code” (2006) 43:4 Alberta Law Review at p 1062. The jurisprudence demonstrates that a wide variety of situations can result in such relationships:

Case                                                                               Relationship of Trust

R v Howell, 2012 ONSC 846, aff’d 2015 ONCA 728      spiritual healer–client

R v Frost, 2015 MBQB 96, aff’d 2017 MBCA 43             adult family member–family helper

R v Edwards, 2003 BCCA 47                                          dance instructor–student

Aird                                                                                  private tutor–student

Such circumstances have all been found to result in relationships of trust.[Emphasis by PJM]

[55] On the other hand, many seemingly equivalent relationships have been found not to be positions of trust:

Case                                                 Found to not be a Relationship of Trust

R v Poncelet, 2008 BCSC 202                there existed no “inherent power imbalance and vulnerability” between                                                                    an older, experienced ranch hand who shared knowledge with his                                                                            younger co-worker (at para 57)

R v Underwood, 2015 MBQB 66             complainant babysitter not in a relationship of trust with the father of the                                                                   children she was babysitting

R v Caskenette, 1993 CanLII 6879, 80 CCC (3d) 439 (BCCA)     arcade manager not in a relationship of trust to                                                                                                            patrons

Osmond                                                  teacher not in a trust relationship with a former student

[56] These cases illustrate that each situation turns on its own circumstances and categorization is to be avoided.

[57] While each matter depends on its own facts, the jurisprudence has developed guidelines to assist in determining whether a relationship of trust is present. The recent decision of the Ontario Court of Appeal in R v J.B., 2026 ONCA 44 at paras 58-77, 87, assembled a framework for analyzing whether a relationship of trust exists in any given situation. J.B. was issued after the trial here, but the factors identified were present in the jurisprudence at the time of the trial. However, J.B. has helpfully collated a non-exhaustive list of relevant considerations from extant case law:

[11] … Those factors include: (1) the age difference between the accused and the young person; (2) the evolution of their relationship; (3) the status of the accused in relation to the young person; (4) the degree of control, influence or persuasiveness exercised by the accused over the young person; and (5) the expectations of the parties affected, including the accused, the young person and the young person’s parents or guardians: Aird, at para. 28.

[66] Importantly, these factors are not a legal test or a mechanical checklist (e.g., three or more factors equals a position of trust). Rather, they are relevant considerations that include indicia or hallmarks of relationships of trust for purposes of s. 153(1). They also include other relevant considerations. No one consideration is determinative of a trust relationship, and all are to be interpreted in accordance with the primary meaning of “trust” … .[Emphasis by PJM]

[58] Other cases have referenced additional considerations to those found in J.B. For example, Selby sets out the same list of factors as J.B. but also lists “any grooming, pressuring or incentivising behaviour by the adult” as an additional separate consideration (at para 120). Selby further notes the relevance of “the young person’s circumstances, maturity, sophistication, independence and agency” (at para 120). The decision in R.T. had previously considered these same two factors to be relevant, albeit in a slightly different formulation: see paragraph 36 for a more comprehensive list. In my view, these additional circumstances are adequately captured in the framework set out in J.B. but certainly may be a relevant part of the analysis in any given case.

[60] Lastly, as will be recalled, the Crown must prove that a relationship of trust existed at the time of the offence. The beginning, duration, and end of the alleged relationship are often key issues at a s. 153(1) trial. The authorities support the contention that a relationship of trust can continue long after a position of authority is no longer in play: see, for example, R.T., Osmond, and Selby. However, a relationship of trust that existed in the past, and persisted over time, may no longer have stood as of the date of the offence. Trial courts have referred to the slow dissolving of the relationship as dissipation: Selby at para 111, Osmond at para 55, and R v Chung, 2018 ONSC 4406 at para 48. This is an apt term because it is a realistic view of how many human relationships function. While some such relationships may end abruptly, a relationship of trust often simply fades over time and eventually ceases to be one because the required closeness of the complainant and the accused will no longer be present. The factual question for trial is whether it remained in place as of the date of the alleged offence.

5. Jury instructions for position of trust or authority regarding B.B.

[77] It is my view that the charge to the jury did not adequately accomplish its required function regarding whether such a position of trust or authority existed from Ms. Duke towards B.B. in October of 2022.

[79] However, despite this change, the trial judge did not adequately explain how the law related to the nuanced situation regarding whether Ms. Duke continued to be in a position of trust or authority in relation to B.B. Unlike A.A., who attended the school where Ms. Duke worked as an educational assistant at the time of the offences, there was no basis to conclude that Ms. Duke was still in a position of authority over B.B. He had left his original school almost three years prior to the date of the events involving him. Given the tenuous connection that remained between Ms. Duke and B.B., which represented the central issue in contention for all three charges, it was incumbent on the trial judge to provide a more detailed explanation of what factors should be considered when determining whether the Crown had proven beyond a reasonable doubt that a relationship of trust existed as of October 7, 2022.

[80] The trial judge did not set out the factors in detail that should have been considered by the jury in determining whether a position of trust or authority continued to exist for B.B. as of October 7, 2022. The trial judge only told the jury about the age difference, the passage of time, and the status between the two. Defence counsel asked for a more detailed instruction on the evolution of the relationship and highlighted a more expansive list of factors in her final submissions to the jury, but this was not reflected in the charge to the jury in an adequate manner. The responsibility for the charge to the jury always remains with a trial judge: Abdullahi at para 67.[Emphasis by PJM]

[81] Given the centrality, importance, and tenuous nature of a possible relationship of trust, an instruction to use a multifactor analysis, such as that described in J.B., was required to adequately equip the jury to determine if a position of trust or authority existed. In my judgment, it was necessary to provide a further instruction to the jury to carefully and thoroughly consider the specific factors related to the matter in front of them and not to rely on any categorical determinations regarding such a position.

[82] The trial judge noted the age difference between Ms. Duke and B.B. and correctly told the jury that this was not a determinative factor. He also highlighted the nature of the relationship as an important factor, without further explanation. While the trial judge did review some of the facts, he did not adequately discuss the evolution of the relationship, the role of Ms. Duke vis-à-vis B.B. as of October 7, 2022, the degree of control, influence, or persuasiveness exercised by Ms. Duke over B.B., or the expectations of the parties.[Emphasis by PJM]

[83] As a result of the circumstances of this matter, the trial judge should have provided an explicit instruction regarding how the possible dissipation or erosion of a former relationship of trust or authority – the evolution of the relationship – is relevant to this element of the offence. A mere reference to the passage of time was not sufficient. Absent such an instruction, the jury was not equipped to address this crucial factor in its assessment of this critical element of the offences. This was particularly important given the stark differences in the relationships between Ms. Duke and B.B. and between Ms. Duke and A.A., where the position of trust or authority was obvious and not particularly contested.[Emphasis by PJM]

[86] Without attempting to provide a comprehensive list, it is my view that, within the direction to the jury to consider the five J.B. factors, additional attention should also have been brought to the following facts along with a discussion of their significance:

(a) the grade-9-to-grade-12 passage of time since B.B. had been a student at the school where Ms. Duke worked as an educational assistant;

(b) the absence of any professional contact between B.B. and Ms. Duke since he changed schools;

(c) the fact that Ms. Duke remained employed in a position where there was previously an alleged relationship of trust and authority is not determinative of the situation vis-à-vis B.B., as of the date of the alleged offence;

(d) the end of the friendship between Ms. Duke’s son and B.B. and the concurrent lack of any contact between Ms. Duke and B.B. in her capacity as his friend’s parent; and

(e) the evidence of an absence of control and influence by Ms. Duke over B.B. in October of 2022, taking into account B.B.’s

(i) circumstances,

(ii) maturity,

(iii) sophistication, and

(iv) independence from Ms. Duke,

as reflected in the fact that he completely and repeatedly rebuffed her invitations, did not feel any pressure to comply, did not worry about any repercussions from reacting to her in the manner in which he did, and promptly told many people about the messages.[Emphasis by PJM]

[87] Further, based on the instructions given to the jury, the jurors easily may have been left with the impression that, if they found that Ms. Duke was an educational assistant when B.B. had attended his previous school and that she continued to be so employed as of the date of the offences relating to B.B., then that element of the offence was proven beyond a reasonable doubt. From the instructions given, there is a substantial risk the jury could have concluded that Ms. Duke was in a position of authority by virtue of her current employment, despite no longer being an educational assistant in relation to B.B. There is an argument to be made that the jurors could have reached a categorical determination rather than examining the facts in a holistic manner.[Emphasis by PJM]

[88] Ms. Duke has established that the jury was not adequately equipped to determine whether the Crown had proven that a position of trust or authority existed from her towards B.B. on October 7, 2022. As a result of this error, the convictions for the three offences regarding B.B. – counts 4 to 6 of the indictment – should be set aside and a new trial ordered for those three charges.

V. CONCLUSION

[134] Ms. Duke’s appeal should be allowed for the convictions related to B.B. but dismissed for the convictions related to A.A. A new trial should be ordered on the charges for which the appeal is allowed.

 

R v Canadian Air Transport Security Authority, 2026 ONSC 3077

[May 26, 2026] General Warrants: Need for Specific Offence  [S.J. Wojciechowski J.] 

AUTHOR’S NOTE: Police sought a general warrant authorizing the use of airport security screening procedures to search the luggage of all passengers arriving at the Thunder Bay airport for controlled substances. In substance, the application sought a 30-day dragnet search directed at uncovering drug trafficking offences among the travelling public.

The Court rejected the application. Although a general warrant permits investigative techniques not otherwise authorized by statute, it does not dispense with the constitutional requirement that the search be supported by reasonable grounds. The search authority sought must still be connected to a reasonable belief that evidence of a specific criminal offence will be discovered through the proposed investigative measure.

Here, the police relied on prior cases involving drugs transported by air and argued that additional trafficking offences would likely be uncovered through broad screening of arriving passengers. The Court accepted that such offences were conceivable and perhaps even likely to occur from time to time. However, that level of suspicion fell well short of the constitutional standard.

The possibility that criminal activity may be detected through a mass search does not provide reasonable grounds to search everyone. As the Court observed, criminal activity may be “plausible, possible, tenable or conceivable,” but those considerations do not satisfy the requirement of reasonableness necessary to justify a state intrusion into privacy interests.

The proposed warrant was fundamentally overbroad because it was not directed at evidence relating to a sufficiently particularized offence or investigation. Instead, it authorized a speculative search of the general public in the hope that criminal conduct would be uncovered. Given the significant impact on the privacy and liberty interests of innocent travellers, the Court concluded that the warrant could not be issued.

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[1] The applicant, Canadian Air Transport Security Authority (“CATSA”), brings this application to determine the validity of a General Warrant and Assistance Order which was issued by Burton J. of the Ontario Court of Justice on April 20, 2023 (collectively “the General Warrant and Assistance Order”, and individually “the General Warrant” and “the Assistance Order”) pursuant to ss. 487.01 and 487.02 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The General Warrant and Assistance Order authorized the Ontario Provincial Police (“the OPP”) to search the baggage of passengers who went through security screening at the Thunder Bay International Airport over a period of 30 days, to be scheduled within three months of the issuance of the General Warrant and Assistance Order. In addition, the General Warrant and Assistance Order compelled CATSA to assist the OPP in its efforts to search passengers’ baggage to determine whether there was evidence which could support the offences of money laundering, possession of property obtained by crime, or possession of drugs for the purposes of trafficking.

[7] As per the language of s. 6 of the CATSA Act, the mandate of CATSA is to take actions for the effective and efficient screening of persons who access aircraft, the property in their possession and the baggage that they give to an air carrier for transport….

[8] Section 4.85 of the Aeronautics Act mandates that no one may enter an aircraft unless they have been screened….

[9] The list of prohibited items is set out in the Canadian Aviation Security Regulation, and includes items such as weapons, explosive substances and incendiary devices, and other items which would cause serious injury or threaten an aircraft’s safety (“the List of Prohibited Items”)….

[10] Screening officers are not required nor trained, on the other hand, to screen for controlled drugs and substances or evidence of money laundering or other crimes. Unless these items were identified as a risk to passenger or air safety and included in the List of Prohibited Items, screening for them would be outside CATSA’s mandate.

[16] Having said that, if illegal drugs are discovered pursuant to a screening officer performing his or her regular duties, then the police are typically contacted so that a further investigation may occur.

[17] With respect to large sums of money, if found on a domestic flight, these are not reported to police if found by a screening officer. It is not an offence to carry large sums of money to and from places within Canada, and doing so does not pose any safety risks.

[18] On the other hand, on international flights, sums in excess of $10,000 which are found are reported to police because traveling outside of Canada with large sums of money is regulated by Canadian laws. However, there are no international flights which operate out of the TB Airport.

Basis for General Warrant and Assistance Order

[21] In the ITO, Detective Constable David George (“DC George”) set out his belief of offences being committed at the TB Airport. This belief was based upon historical incidents which had occurred at the TB Airport in 2019, 2022 and 2023 and resulted in the seizure of significant amounts of controlled drugs and currency.

[23] In issuing the General Warrant pursuant to s. 487.01 of the Criminal Code, along with the Assistance Order under s. 487.02 of the Criminal Code, the OPP was authorized, with the assistance of CATSA employees and other airport employees, to:

i. enter the TB Airport at any time during a 30 day period which was to commence at the discretion of the OPP;

ii. search all baggage of all passengers for evidence in support of the offences listed above;

iii. seize any evidence found in support the named offences;

iv. return any currency which is determined not to be proceeds of crime; and

v. lay appropriate charges based upon the evidence which was found.

[24] In terms of providing assistance to the OPP, the Assistance Order directed CATSA employees to identify bulk currency or controlled substances while utilizing scanning equipment and/or while conducting physical searches of individuals during the normal course of their duties, and then notifying the OPP if currency or controlled substances were found.

Focus on Secondary Searches

[27] It is clear from the terms of the General Warrant and Assistance Order that there were no specific individuals targeted, nor were there any specific instances of anticipated unlawful activity identified. The General Warrant and Assistance Order was to be executed during a random period of 30 consecutive days which was to commence at the discretion of the OPP.

[29] In this regard, the General Warrant and Assistance Order was not directing CATSA to specifically search or screen for currency or controlled substances. If someone walked through the screening device which was activated by something the person was wearing or carrying, or was randomly identified for a secondary search, CATSA was expected to carry out its regular duties and conduct the secondary search as per CATSA’s training.

[30] Similarly, if a bag or piece of luggage was tagged by the screening equipment as requiring a secondary search, or if CATSA employees in examining the screening results saw something which triggered a secondary search, then any controlled substances or currency discovered as a consequence of that secondary search would be reported to the OPP. The screening equipment was not reprogrammed to identify currency or controlled substances, and CATSA employees were not required to view the screening results for the purposes of finding currency or controlled substances. Only those items discovered pursuant to secondary searches, and which were covered by the General Warrant and Assistance Order, would be reported to the OPP.

Decision

[63] For the following reasons, I am prepared to grant the application of CATSA, and have determined that the General Warrant and Assistance Order should not have been issued.

[65] No Charter rights of CATSA were infringed by the operation of the General Warrant and Assistance Order. CATSA does not have standing to seek a Charter ruling nor any associated remedies. There are no privacy rights of CATSA in play based upon the evidence filed in this application, which precludes consideration of the Charter.

[66] This would be an entirely different analysis if a passenger, who was reported to the OPP and investigated, was subsequently charged with an offence of either possessing proceeds of crime or controlled substances. In that instance, the constitutionality of the General Warrant and Assistance Order could be assessed within the context of the passenger’s Charter rights, assuming, of course, that the passenger asked a court to adjudicate this very issue.

[69] Accordingly, my decision on the application before me does not rely upon Charter principles nor the application of any Charter remedies.

2. General Warrant

[70] Pursuant to s. 487.01(1) of the Criminal Code, a warrant may be issued:

a) if the judge reviews the information submitting under oath that reasonable grounds exists to believe an offence has been or will be committed;

b) if the judge is satisfied that issuing the warrant serves the best interests of the administration of justice; and

c) there are no other legislative provisions providing for a warrant, authorization or order supporting the search technique being sought.

Reasonable Grounds

[71] Reasonable grounds that an offence has been or will be committed are made out “where credibly-based probability replaces suspicion”: see Hunter v. Southam, [1984] 2 S.C.R. 145, at p. 167. It is not enough if the grounds are plausible, possible, tenable, or conceivable: see R. v. Ricciardi, 2017 ONSC 2788, at para. 90.

[75] An authority seeking a general warrant must identify a specific offence which has or will be committed in a specific transaction such that a focussed investigation can be authorized.

[76] In the present case, the impact of the illicit drug trade upon Northwestern Ontario and Thunder Bay is identified, and the fact that in the past, controlled substances and large quantities of cash have been transported between Thunder Bay and the GTA through air travel. However, there are no individuals identified who are reasonably expected to be in possession of drugs or proceeds of crime while traveling on a flight departing from the TB Airport. There are also no specific transactions identified when drugs or cash are suspected to be traveling from Thunder Bay with a passenger.

[77] The General Warrant authorized random searches of all passengers in order to hopefully find someone who appears to be committing a crime, within a random period of 30 days, and if something suspicious was found, these individuals would be the subject of further investigation.

[78] No specific person was identified in the ITO. No specific crime was identified in the ITO. And without particularized and anticipated activities identified, the investigation conducted in support of the warrant would be nothing more than a fishing expedition.

[81] However, the Criminal Code does not authorize this broad ambit of a search. While s. 487.01 supports a wide range of investigative techniques, see R. v. Ha (2009), 96 O.R. (3d) 751 (C.A.), at para. 36, it nonetheless mandates using these techniques toward a focussed target for focussed reasons, and generic reasons for searching random members of the public are not statutorily supported nor authorized.

[82] I accept the position taken by CATSA that the warrant which was issued in this case purports to authorize ongoing intrusions on the reasonable expectations of privacy of the traveling public in a sort of dragnet operation, without identifying any specific transaction which is actually being investigated.[Emphasis by PJM]

[83] I agree with CATSA’s submission that the intention of the General Warrant and Assistance Order was simply a speculation that searching the baggage of every presumptively innocent person who wishes to leave Thunder Bay by air travel might assist law enforcement. Based upon the evidence set out within the ITO, there is an expectation that some evidence of some illicit activities would be found. However, this is merely a suspicion based upon past similar occurrences at the TB Airport.

[84] The law does not support this kind of approach, and requires much more than a sweeping and generalized attack on the liberties of its citizens.

[85] It was not reasonable to assume that controlled substances or proceeds of crime would pass through the TB Airport during the execution of the General Warrant and Assistance Order. Based upon the ITO, such activities may be plausible, possible, tenable or conceivable, but this does not meet the reasonableness threshold required to engage s. 487.01(1).[Emphasis by PJM]

Best Interests of the Administration of Justice

[86] It therefore stands to reason that without a more robust and fact based focus on the objects of a warrant, s. 487.01(b) is also not satisfied, and failing to demand this level of rigour does not further the interests of the administration of justice: see R. v. Finlay (1985), 52 O.R. (2d) 632.

[88] Section 487.01 general warrants issued on the basis of possibilities are, in my view, presumptively without reasonable grounds, and thus fail to meet the s. 487.01(b) test.

Other Means

[89] In terms of considering whether the actions authorized by the General Warrant and Assistance Order included techniques which are contemplated by other Federal legislation, the interpretation of s. 487.01(c) is to be broadly construed. A general warrant should not be used presumptively but instead sparingly, ensuring it does not become “an easy back door for other techniques that have more demanding pre-authorization requirements”: see R. v. Telus Communications Co., 2013 SCC 16, at paras. 19 and 56.

[93] There are no “other means” which exist and are displaced by the General Warrant and Assistance Order. The search techniques authorized are not already contemplated by other legislative schemes.

3. Assistance Order

[94] The Assistance Order was issued pursuant to s. 487.02(1) of the Criminal Code, which provides:

If an authorization is given under section 184.2, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant. The order has effect throughout Canada.

[95] Given my decision regarding the validity of the General Warrant, there can be no jurisdiction supporting the issuance of the Assistance Order.

Conclusion

[105] The nature of the General Warrant sought is not in compliance with s. 487.01 based upon its lack of specificity and reasonable grounds.

[106] Without a valid General Warrant, the Assistance Order cannot stand.