CITATION: R. v. Canadian Air Transport Security Authority, 2026 ONSC 3077

COURT FILE NO.: CR-23-0191-MO

DATE: 2026-05-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Respondent

-and-

CANADIAN AIR TRANSPORT SECURITY AUTHORITY

Applicant

Allyson Ratsoy and Giuseppe Cipriano, for the Federal Crown

Scott Hutchison and Conor Wickham, for the Applicant

HEARD: August 7, 2025, and November 28, 2025, at Thunder Bay, ON

Mr. Justice S.J. Wojciechowski

Decision on Application

Introduction

1The 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.

2The 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.

3CATSA maintains that the General Warrant and Assistance Order was not properly issued pursuant to s. 487.01 of the Criminal Code, which requires evidence supporting reasonable grounds that an offence has been or will be committed, that it is in the best interests of the administration of justice, and that there are no other provisions of the Criminal Code which provide for the issuance of the General Warrant and Assistance Order or which authorize the specific search techniques sought.

4In addition, CATSA submits that the General Warrant and Assistance Order is unconstitutional, breaching s. 8 of the Canadian Charter of Rights and Freedoms (“the Charter”).

Background

5CATSA was established pursuant to the Canadian Air Transport Security Authority Act, S.C. 2002, c. 9, s. 2 (“the CATSA Act”) and amongst other functions, it carries out security screening at designated airports across Canada, including the Thunder Bay International Airport (“the TB Airport”).

6In addition to the CATSA Act, CATSA is governed by provisions of the Aeronautics Act, R.S. 1985, c. A-2, and the Canadian Aviation Security Regulations, SOR/2011-318.

7As 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. Further, the CATSA Act establishes that screening is necessary to prevent immediate and serious danger to the safety of the public: see CATSA Act, s. 27(1).

8Section 4.85 of the Aeronautics Act mandates that no one may enter an aircraft unless they have been screened. Regarding the manner in which screening is conducted, s. 10(1) of the Canadian Aviation Security Regulations states that persons shall only pass beyond a screening checkpoint following a determination of a screening officer that the person does not possess nor control any items listed in the general list of prohibited items, and that the person does not pose an immediate threat to aviation security.

9The 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”). Screening officers are therefore trained to identify the items on the List of Prohibited Items which pose threats to passenger and air safety.

10Screening 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.

11CATSA uses a number of techniques to screen passengers and their belongings.

12Passengers are required to pass through a metal detector, which if triggered by something the passenger was wearing or carrying, would require the passenger to submit to an additional screening, also referred to as a secondary screening.

13Passengers might also be randomly selected for the purposes of a secondary screening.

14Alternatively, personal property passing through an x-ray screening device might result in an operator identifying an item which is concerning. In this circumstance, the personal item is subjected to a secondary screening.

15In all situations, secondary screenings could involve a body scan, explosive trace detection, and/or a physical search of the person and/or that person’s personal items. And in all situations, like the initial screening process, CATSA is not searching for and identifying items which may be illegal. In all situations, CATSA is searching for and identifying items which are on the List of Prohibited Items and pose a risk to air and passenger safety.

16Having 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.

17With 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.

18On 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

19The General Warrant and Assistance Order was issued by Burton J. of the Ontario Court of Justice on April 20, 2023, pursuant to ss. 487.01 and 487.02 of the Criminal Code.

20The Information to Obtain which was sworn by OPP Detective Constable David George (“the ITO”) provided the evidence upon which the General Warrant and Assistance Order was issued.

21In 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.

22The relevant offences being committed at the TB Airport, according to DC George, included:

a. possession of property obtained by crime, contrary to s. 354(1)(a) of the Criminal Code;

b. laundering proceeds of crime, contrary to s. 46.31(1) of the Criminal Code; and

c. possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

23In 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.

24In 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.

25In addition, the Assistance Order mandated CATSA to conduct detailed briefings for security screeners in order to outline the responsibilities of CATSA employees during the execution of the General Warrant and Assistance Order.

26In a Briefing Package for CATSA Security Screeners, which summarizes the expectations of the OPP with respect to the role of CATSA pursuant to the Assistance Order, a number of issues are addressed, including:

a) CATSA is required to execute their duties as mandated by applicable legislation;

b) In complying with the Assistance Order, the safety of aircraft, passengers and others in the airport are prioritized;

c) During the regular course of performing CATSA duties, if large volumes of cash or controlled substances – which are specifically described – are observed, then the OPP shall be informed; and

d) In complying with the Assistance Order, CATSA employees are not being asked to look for large volumes of cash or controlled substances, and there is no obligation for CATSA employees to actively look for the items.

Focus on Secondary Searches

27It 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.

28The Assistance Order directed CATSA to share information it came across in the normal course of CATSA employees performing their regular duties when screening passengers. If currency or controlled substances were found as part of a passenger’s belongings pursuant to secondary searches, then CATSA was to notify the OPP, and the OPP would investigate the passenger based upon the evidence which was found.

29In 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.

30Similarly, 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.

Expert Evidence of Dr. Colin Drury

Nature of Expert Evidence

31CATSA sought to introduce evidence through an expert, Dr. Colin G. Drury, over the objections of the Crown.

32Dr. Drury is with Applied Ergonomics Group Inc., and provided evidence on the impact of directing employees to search for non-threat items, such as currency or controlled substances, on a CATSA employee’s ability to detect threat items through the x-ray screening devices used by CATSA at Canadian airports.

33In addition, if not “adding” non-threat items to a CATSA employee’s duties, Dr. Drury was asked to address the impact, if any, on employees detecting prescribed threat items where CATSA employees were told to not look for non-threat items, but to simply report any currency or controlled substances which they happened to discover to the OPP.

34Before Dr. Drury gave his evidence, the Crown made known its objections to this evidence being considered in the present application.

35Mr. Cipriano submitted that the nature of this application was narrow, focussing on whether or not Burton J. could have issued the General Warrant and Assistance Order based upon the information provided in the ITO. Because Burton J. did not have the expert opinions of Dr. Drury before her at the time she considered the General Warrant and Assistance Order, there is no basis for his evidence to be considered in this application.

36In addition, the Crown submitted that the proposed expert evidence did not meet the test set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, in that it was not necessary and, accordingly, should be excluded as part of the gatekeeping function which judges exercise when asked to accept the introduction of expert evidence.

37With these objections put on the record, it was agreed that Dr. Drury would be permitted to testify, and whether his evidence should be considered in deciding CATSA’s application would be addressed in closing arguments.

38Generally, Dr. Drury’s opinion was that adding non-threat items, such as currency and controlled substances, to the List of Prohibited Items would negatively impact the threat detection performance of CATSA employees, i.e., the ability to detect items which would pose a risk to passenger safety would be reduced.

39This opinion seems to be rooted in simple logic. The more items someone has to look for, the longer it will take that person to perform the inspection task. In addition, the more items a person is directed to look for, the more likely it is that something will be missed.

40If there are only four items which are prescribed as targets, it may take a person five seconds to process an image to determine if one or more of the four items is present. But if eight items are possible targets, it will take greater than five seconds to process the information which is presented to rule out or identify whether any of the eight targets are present. If more than five seconds are not available to perform the inspection, then it is more likely that errors could result.

41Similarly, if someone is tasked with looking for eight items, undertaking the analysis which has to assess the possible presence of eight items will be more difficult than only looking for four items. Therefore, the risk of error increases proportionately to the number of items which are being screened.

42Put another way, adding more items to a list of things to be screened decreases the effectiveness of the screening, because the screener now must search for an increased number of items within the target set. Looking for more is harder than looking for less since increasing the number of targets increases the workload.

43In terms of what happens to performance when a CATSA employee is not asked to screen for non-threat items, but to simply report non-threat items if any are found while performing the core duties of risk assessment screening, Dr. Drury indicated that there were no studies which assessed this situation, but he surmised that this would not have any appreciable impact upon the employee’s ability to screen for targeted threat items.

44In addition, it was clear that Dr. Drury’s opinions were based upon studies which assessed the performance of CATSA employees reviewing a monitor showing x-ray images in order to recognize threat items. He was not, on the other hand, providing opinions with respect to the hands-on secondary searches performed by CATSA employees to evaluate a risk which had been identified by a metal detector or x-ray machine.

45In cross examination, Dr. Drury confirmed that he had not reviewed the General Warrant and Assistance Order, nor the briefing note of the OPP which provided CATSA with directions on how to implement the General Warrant and Assistance Order. Dr. Drury also did not attend the TB Airport nor inspect the screening area which passengers must pass through and engage with CATSA employees. Dr. Drury did not speak to CATSA, nor any employees of CATSA working at the TB Airport, and he had no information on whether CATSA employees at the TB Airport were provided with a prescribed time in order to complete their screening tasks.

Assessment of Dr. Drury’s Expert Opinions

46In exercising a court’s gatekeeping function, the starting point is R. v. Mohan, [1994] 2 S.C.R. 9, at para. 22, which directs a judge to consider whether the expert opinion is relevant, necessary, not subject to an exclusionary rule, and put forth by a properly qualified expert.

47Assuming these factors are not assessed so as to exclude the opinion evidence, a judge should then determine if the benefits of admitting the evidence outweigh the costs of its admission, with consideration of factors such as relevance, necessity, reliability and absence of bias. In assessing these factors, the time required to receive the opinion evidence, any prejudice which could result from the testimony, and any confusion which could be created by the opinion should also be considered: see R. v. Abbey, 2017 ONCA 640, at paras. 46-49; White Burgess, at paras. 20 and 24.

48In my assessment of the threshold admissibility of Dr. Drury’s evidence, first it was clear that he was qualified to provide the opinion evidence presented based upon his background and experience detailed in his CV. Also, his evidence was not precluded by any exclusionary rule.

49In terms of relevance and necessity, the opinion evidence addressed issues relating to the impact of the General Warrant and Assistance Order, specifically the portion which directed CATSA to assist the OPP in its efforts to find those in possession of proceeds of crime and/or controlled substances. While these considerations were not directly before Burton J. when she reviewed the ITO, CATSA argued that this information should have been provided to the justice issuing the General Warrant and Assistance Order based upon the expert opinion of Dr. Drury as a relevant consideration within the ITO.

50Without an expert to sort through the various studies which had been undertaken addressing the nature of CATSA’s work and how it would be impacted by the General Warrant and Assistance Order, the court would have been unable to do so on its own. And while the conclusion on the first question addressed by Dr. Drury seemed to be somewhat of a common sense analysis – and perhaps not necessary – the second question reflected a closer description of what was being asked of CATSA employees. Without specific scientific studies relevant to this issue, it made it more necessary for opinion evidence in this regard.

51Therefore, on a preliminary review of the threshold issue of admissibility, I find that it was appropriate to allow Dr. Drury to testify and provide his opinion evidence. While it took the better part of a day, ultimately no prejudice existed with the admissions of his opinions, and despite his written report being composed of scientific jargon which he recognized was not accessible, his oral evidence cut through the terminology used in the written report and was presented in a comprehensible manner.

52Moving beyond the question of admissibility, and upon considering the entirety of the evidence of Dr. Drury, I agree with the Crown’s submissions that ultimately his opinion on the first question was rather logical and gave rise to questions about the necessity of this opinion evidence.

53Unfortunately, it was not until most of his opinion evidence was entered that Dr. Drury admitted no studies existed which looked at the impact of CATSA employees notifying police of currency or controlled substances which were found along the normal course of CATSA performing its duties. It was also through cross examination that Dr. Drury admitted to knowing nothing about the operation at the TB Airport, or what the specific group of CATSA employees working at the TB Airport were faced with on a day-to-day basis. As such, his opinions were ultimately irrelevant, not providing anything beyond generalizations which were not tied specifically to the activities addressed in the General Warrant and Assistance Order, i.e., to CATSA employees working at the TB Airport.

54There was also no evidence provided which specifically addressed the operation of the TB Airport security screening process, and to what extent the CATSA employees were impacted during the implementation of the General Warrant and Assistance Order. Dr. Drury’s opinions therefore had no grounding in the experiences at the TB Airport, and he was unable to apply the various studies he reviewed and his corresponding opinions on the very fact issues before me.

55On this basis, I have not taken into account any of the expert evidence put forth by Dr. Drury in this decision.

Position of the Parties

Position of CATSA on the Merits

56CATSA argues that the General Warrant and Assistance Order did not comply with s. 487.01 of the Criminal Code, and in addition offends s. 8 of the Charter.

57The General Warrant was also non-compliant with s. 8 in light of the fact it granted the OPP the right to undertake a generalized search without identifying any specific target or grounds. In this regard, while based upon past incidents in which controlled substances and/or currency were found to be transported by airline passengers, the General Warrant was not issued on the basis of an offence which was known or suspected to be committed.

58Finally, with respect to the Assistance Order issued in conjunction with the General Warrant, CATSA’s assistance was not necessary, and in any event, there was no compliance with s. 487.02 of the Criminal Code.

Position of the Crown

59First, the Crown maintained that s. 8 of the Charter is not in play because CATSA does not have standing to advance that argument. Since CATSA was not the target of any searches authorized by the General Warrant and Assistance Order, its privacy rights were not engaged. Passengers who were searched and found to possess controlled substances or proceeds of crime might have standing, but their rights cannot be asserted by CATSA on the basis of a Charter breach.

60Second, the General Warrant and Assistance Order was in compliance with ss. 487.01 and 487.02 of the Criminal Code in that it was reasonably foreseeable that persons with controlled substances and currency would be travelling as airline passengers during the relevant time period.

61In addition, the direction to CATSA to provide assistance was necessary and reasonable in the circumstances, since no other statutory provision existed to allow CATSA employees to provide the requested assistance to the OPP.

62Finally, the General Warrant and the Assistance Order did not interfere with the mandate of CATSA nor direct them to do anything which could impact CATSA’s ability to properly identify threat items that, if undetected, would jeopardize the safety of airline passengers.

Decision

63For 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.

1. [Section 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

64I agree with the position of the Crown with respect to the application of the Charter in the circumstances presented by this case.

65No 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.

66This 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.

67In this regard, airline passengers arguably do not have any reasonable expectation that luggage or personal items brought onto an airplane could not be searched for security and safety reasons. However, a court could be asked by an accused to assess the balance between the need to search for security and safety risks, and searches for non-security purposes in light of the protections afforded by s. 8 of the Charter: see Steven Penney, Hon. Vincenzo Rondinelli, and Hon. James Stribopoulos, Criminal Procedure in Canada, 3^rd Ed., (Toronto: LexisNexis Canada Inc., 2022), at §3.202-3.203.

68While not making any determination on the s. 8 issue, CATSA has identified the challenge available to an accused to advance, and based upon a similar situation involving a warrant authorizing a general search as discussed in R. v. Mengstu, 2025 ONSC 6897, there could also be Charter related challenges applicable to the General Warrant and Assistance Order.

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

2. General Warrant

70Pursuant 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

71Reasonable 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.

72In Hunter v. Southam, Dickson J., as he then was, discussed the problem with the nature of the administrative powers provided in s. 10 of the Combines Investigation Act insofar as deciding whether to authorize officers to enter premises and examine documents of a corporation. In finding the standard for permitting authorization unacceptably intrusive, he set out the need for a purposive approach in these terms at p. 167:

The problem [with the legislation] is with the stipulation of a reasonable belief that evidence may be uncovered in the search. Here again it is useful, in my view, to adopt a purposive approach. The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour or the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free form unreasonable search and seizure.

73In order to assess the reasonableness of the grounds, an offence needs to be identified with some specificity and particularized to ensure those executing upon the warrant know what they are authorized to do: see Criminal Code (Re), [1997] O.J. No. 4393 (S.C.), at para 38. As Hill J. observed, a warrant should not be issued where the offence is described in terms which are ambiguous, bald, summarized, and providing no assistance to the execution of the warrant: see R. v. Cunsolo (2008), 180 C.R.R. (2d) 174 (Ont. S.C.), at para. 138.

74Cunsolo also references various jurisprudence throughout para. 135 in an attempt to describe what goes into an assessment of the validity of a search warrant, including:

• A reviewing court shall not simply substitute its decision for that of the issuing justice, but instead must determine if there is a reasonable and judicial basis for the original decision that a warrant should issue;

• A warrant intrudes on a reasonable expectation of privacy, and should describe the things to be searched for and seized with some particularity in order to give notice to the person whose privacy is invaded and so the authority executing the warrant can determine towards what things the search should be directed;

• When describing the offences referenced in the warrant, the crime or crimes must be stated with reasonable particularity;

• A warrant can only issue following an independent assessment of the reasonable grounds in order to determine if they satisfy a reasonable person that the things to be searched for exist and are in the identified location, that the alleged offence has been committed, and that the things will afford evidence of the specified offence; and

• The broad powers of s. 487(1) of the Criminal Code do not authorize fishing expeditions, and there is a vast difference between a sufficiently grounded belief and a mere suspicion.

75An 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.

76In 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.

77The 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.

78No 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.

79It is possible that in some neighbourhoods in Thunder Bay, stopping and searching everyone on a particular street would result in quantities of controlled substances or money being found which could suggest criminal activity.

80It is likely that stopping and searching every motor vehicle traveling along the Trans Canada Highway either entering or departing Thunder Bay would produce similar results which could form the basis of criminal charges.

81However, 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), 2009 ONCA 340, 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.

82I 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.

83I 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.

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

85It 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).

Best Interests of the Administration of Justice

86It 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.

87The mere possibility that evidence of a crime might be uncovered through the execution of the General Warrant and Assistance Order, and permitting law enforcement objectives to be carried out on the basis of this possibility, cannot be in the best interests of justice when weighed against the liberty and privacy interests of all the passengers subjected to the proposed search by CATSA employees.

88Section 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

89In 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.

90CATSA submits that the Federal government has spoken through the CATSA Act, the Aeronautics Act, and the Canadian Aviation Security Regulations, all of which provide CATSA with the mandate to search passengers using air travel as a mode of transportation for the express purpose of preventing danger to the safety of the public. The Federal government has therefore had the opportunity to clothe CATSA with the power to search for proceeds of crime or controlled substances. Because it did not, CATSA’s position is that it should be assumed this was done with the express intent to limit interactions between passengers and law enforcement authorities. And with Telus stating that general warrants should be used sparingly, CATSA argues that it follows the General Warrant and Assistance Order in this case should not have been issued because the space was already occupied by the decision of the Federal government not to endorse such search techniques.

91I do not adopt this reasoning, and find nothing in the current case which flies in face of s. 486.01(c).

92The legislation governing CATSA is designed to address potential dangers to the air traveling public. The arguments advanced in this hearing which focused on the implications of diverting attention from the List of Prohibited Items highlight the differences in what CATSA does and what CATSA was asked to do through the Assistance Order.

93There 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

94The 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.

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

96In addition, CATSA submits that the nature of the Assistance Order was not to assist police, but rather fulfill the role of the police and conduct the investigation proper.

97CATSA relies upon R. v. TELUS Communications Company, 2015 ONSC 3964, at para. 44, for the proposition that an Assistance Order cannot expand upon the search powers of the police, but instead should only provide assistance to the police order to support the powers provided by the General Warrant and Assistance Order.

98There is no doubt that the Assistance Order required CATSA to be a front line observer of air travel passengers, and to let the OPP know if items suspected of being controlled substances or large sums of money were found in the normal course of performing CATSA’s duties. In this regard, the observations of CATSA were used as reasonable grounds for the OPP to conduct a further investigation.

99Assistance orders play an essential role in supporting the execution of general warrants: see Canada Post Corp. v. Canada (Attorney General), 95 C.C.C. (3d) 568, at paras. 21-22, where O’Driscoll J. describes the importance of assistance orders:

[W]ithout the assistance order, the warrant would be reduced to words on paper; it would be devoid of any ability to accomplish its purpose. It would be useless as a device or investigative technique. The order for assistance breathes life and muscle into the frame of the second warrant.

100It would be pursuant to this further investigation that a determination would be made whether charges were warranted. Substances appearing to be controlled substances might turn out to be something entirely benign. And large sums of money are not, in and of themselves, supportive of an activity deserving of criminal sanction. So, while CATSA was being asked to provide assistance which would become integral if illegal activities were identified by further investigation by police, I do not find that CATSA was conducting the entire job assigned to the OPP through the operation of the General Warrant and Assistance Order.

101CATSA also asserts that the Assistance Order is far more reaching than was described in the OPP briefing note issued in response to concerns expressed by CATSA. Originally, the Assistance Order was interpreted to direct CATSA to look for drugs and large sums of money during the course of undertaking their screening tasks. CATSA maintained being directed to search for items which were not a security threat, and which were in addition to the List of Prohibited Items, would create an environment in which risks and threats to passenger safety would be missed.

102Simply put, CATSA was trained to focus their inspections on targeted items within a defined risk pool. In looking for additional items, CATSA might be distracted and miss seeing items which pose a risk to passenger safety. Accordingly, this might not be a reasonable ask of CATSA within the ambit of s. 487.02.

103However, I find that CATSA was not directed to search for, identify and report on items beyond its legislative mandate. The General Warrant and Assistance Order provided that detailed briefings would be conducted with CATSA employees for the purposes of discussing their responsibilities. The briefing note filed by the OPP supported its position that it was simply requesting CATSA to let the OPP know if it came across anything which looked like controlled substances or large quantities of cash. This is different from being asked and directed to conduct secondary searches for the purpose of identifying evidence supporting possible criminal activities.

104In addition, there was no evidence filed by CATSA which supports a factual finding that CATSA employees in some way altered the way in which they performed their duties, or that its procedures were amended to conform to the directions provided in the Assistance Order. While CATSA argued that the General Warrant and Assistance Order specifically mandated a change in how security screening would be conducted in their efforts to comply with its terms, no such evidence was filed.

Conclusion

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

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

107An order for certiorari is hereby granted, striking out the General Warrant and Assistance Order issued by the Honourable Justice E.A. Burton of the Ontario Court of Justice dated April 20, 2023.

The Hon. Mr. Justice S.J. Wojciechowski