ENDORSEMENT

Ontario Court of Justice College Park - Toronto

In The Matter Of an application for the issuance of a General Warrant under section 487.01 of the Criminal Code of Canada.

And In the Matter of the Information of Guy Kama, a Peace Officer of the Toronto Police Service.

And In the Matter of H.M.N., a missing person.

W.B. Horkins, J.:

Decision

[1] This is an application for a General Warrant under s. 487.01 of the Criminal Code. The material filed and attached to this endorsement does not satisfy the statutory pre-conditions for the issuance of such a warrant and therefore, the application must be refused.

[2] The applicant is conducting a missing person investigation. The subject's family is very anxious as he has been missing for about six months and they fear that he lacks the mental capacity to care for himself. The missing person suffers with some significant mental health issues and has been dependent on and in receipt of government assistance both in the past and since his disappearance. The officers of the Toronto Police Service are attempting to assist the family in locating this individual. Their investigation has developed a reasonable basis for believing that the Ministry of Health, Health Information Office, has information in their files that would assist in locating H.M.N. The Ministry will not release any information to the police without a "Court Order."

[3] This application is clearly a well-intentioned effort by the police to assist the family in locating H.M.N. While I sympathize with the good intentions of such an effort, the proposed issuance of a Criminal Code General Warrant in these circumstances is simply not authorized by law.

Legal Framework

[4] A Criminal Code General Warrant is an extraordinary investigative tool available only in a criminal investigation. Section 487.01 of the Code requires that there be reasonable grounds to believe that a criminal offence has been, or is anticipated to be, committed and that the proposed investigative measures will produce information concerning that offence.

Application of the Law

[5] This application expressly states that the information believed to be held by the Ministry of Health is sought to locate the missing person. The application does not state a belief that any particular criminal offence has been, or will be, committed; nor, obviously, does the affiant claim to have a belief that the warrant would lead to any information concerning an offence. These missing ingredients are the fundamental pre-conditions set out in s. 487.01 for the judicial authorization of such investigative procedures as proposed in this application.

[6] Even if there was a criminal investigation underway in this matter, a General Warrant is probably not available. A General Warrant will not issue if other authorized measures or warrants are available. This application does not address this issue and it may well be that there are civil processes under the Mental Health Act, or other provincial legislation, that could be pursued.

Conclusion

[7] The Court has no authority to issue the Order sought and the application is denied.

[8] As a footnote, this matter came to my desk without any apparent review by Crown Counsel. There is a longstanding, but not infrequently ignored, protocol in the Toronto Region that mandates that applications for Orders such as this be vetted by the Crown prior to being submitted to the Court. This application is an illustration as to why that protocol exists. Crown Counsel reviewing this matter would have advised the applicant police officer that a warrant was simply not available for these purposes.

Dated: February 28, 2014.

W. B. Horkins, J.