section 256(5)

INTRODUCTION AND BRIEF DESCRIPTION

A peace officer must provide a copy of a warrant for blood sample collection to the person from whom the sample is taken.

SECTION WORDING

256(5) When a warrant issued under subsection (1) is executed, the peace officer shall, as soon as practicable, give a copy of it or, in the case of a warrant issued by telephone or other means of telecommunication, a facsimile to the person from whom the blood samples are taken.

EXPLANATION

Section 256(5) of the Criminal Code of Canada outlines the procedural requirements that a peace officer must adhere to when executing a warrant to procure a blood sample from an individual suspected of committing a criminal offence. The subsection requires that when a warrant is executed under subsection (1), a copy of the warrant - or in the case of a warrant issued by telephone or other means of telecommunications, a facsimile - must be given to the person from whom the blood samples are taken. The provision is aimed at ensuring that individuals are aware of the legal process being undertaken against them, and are made aware of the warrant being executed against them. This requirement is central to safeguarding the rights of individuals as enshrined in the Canadian Charter of Rights and Freedoms. The Charter guarantees that everyone has the right to be informed promptly of the reasons for their arrest or detention, and the right to obtain legal counsel. By providing a copy of the warrant to the individual from whom the blood samples are taken, they are given the opportunity to seek legal counsel and determine if they wish to challenge the legality of the warrant. Further, this requirement helps to ensure that the warrant was executed in accordance with the law, and any evidence gathered as a result of it may be admissible in court. Therefore, the provision is an important aspect of the Canadian criminal justice system, ensuring that individuals' rights are protected, and that the procedures used to gather evidence are lawful and fair.

COMMENTARY

Section 256(5) of the Criminal Code of Canada is a provision that outlines the obligations of peace officers who execute a warrant under subsection (1) of the same section. The subsection is an integral part of Canada's legal framework that defines the powers of police officers to collect blood samples from individuals suspected of committing a crime involving impaired driving or other related offences. The importance of this section is evident in the significant role it plays in ensuring justice for victims that suffer harm resulting from impaired driving, which is a notorious problem in Canada. The subsection compels peace officers executing a warrant to provide a copy of the warrant to the person from whom the blood samples are taken as soon as practicable. The provision also allows for copies to be made by facsimile transmission in cases where the warrant is issued by telephone or other means of telecommunication. The implicit implication of this section is that the individual suspected of a crime has the right to know why they are being arrested, and the reason for the collection of their blood samples. It provides transparency and ensures that the process is fair to the accused, which is fundamental in maintaining the rule of law. The importance of this section of the Criminal Code of Canada lies in the balance it creates between the rights of individuals to know the reasons for their arrest and the legal authority of the police to investigate and collect evidence related to the commission of a crime. The provision seeks to ensure that the accused knows the grounds for their detainment and enables them to defend themselves against any charges that may arise from the collection of their blood samples. It also serves as a deterrent to police officers who may be tempted to abuse their powers by not providing copies of the warrant, and it makes them accountable for their actions in the execution of their duties. Despite its importance, some may argue that the provision is inadequate in its protections for the rights of individuals. For example, there is no provision that penalizes police officers who do not comply with the requirement to provide copies of the warrant. Moreover, the term "as soon as practicable" is open to interpretation, and the provision does not specify a timeline within which the officer should provide the copy of the warrant. These shortcomings may create opportunities for abuse of power by police officers, particularly in situations where there is a lack of oversight or where the legal system is not accessible to the individual. In summary, section 256(5) of the Criminal Code of Canada is a critical provision that safeguards the rights of individuals suspected of committing a crime involving impaired driving or related offences. The provision ensures that the accused knows why they have been arrested and why their blood samples have been taken, providing transparency and fairness in the criminal justice system. However, there is the need for clearer guidelines on compliance by police officers, an aspect that should be addressed to enhance the protections of individuals' rights in Canada's legal system.

STRATEGY

Section 256(5) of the Criminal Code of Canada lays down the obligation on peace officers executing a warrant for blood samples to provide a copy of the warrant to the person from whom the samples are drawn. This provision is critical in ensuring that the police exercise their investigative powers within the legal framework established by the Criminal Code. The provision calls for strategic considerations on the part of the police. First and foremost, the peace officer tasked with executing the warrant must ensure that the warrant is properly authorized and valid. Any defects or errors in the warrant might render it invalid and unlawful. Suppose the police officer executes an invalid warrant. In that case, they risk infringing the rights of the person from whom the blood samples were obtained and may face disciplinary action or legal consequences. Therefore, it is essential for the peace officer to verify the validity of the warrant before proceeding to execute it. Another strategic consideration is the timing of the execution and provision of the warrant copy. The provision requires the peace officer to provide the warrant copy as soon as practicable after executing the warrant. This implies that the police officer must prioritize providing the warrant copy immediately after obtaining the blood samples. However, in some situations, this might not be possible, especially if there are logistical or practical limitations to providing the warrant copy on-site. In such instances, the police may be required to exercise discretion in determining the most appropriate time to provide the warrant copy within a reasonable timeframe. The strategy regarding the mode of delivering the warrant copy is also essential. The provision allows for the use of facsimile or other electronic means of communication, such as email or electronic transmission, to provide the warrant copy. Since this provision was enacted before the digital era, some police officers may not be conversant with the legal implications of using electronic means of communicating the copy. The police officer tasked with executing the warrant must, therefore, be well-versed with the legal requirements of electronic communication to avoid invalidating the warrant. In conclusion, the duty imposed on peace officers by Section 256(5) of the Criminal Code of Canada to provide a copy of the warrant to the person from whom blood samples are taken underscores the importance of protecting the legal rights of the accused person. The police must undertake strategic considerations to ensure that the warrant is valid, the timing of provision of the warrant copy is appropriate, and the mode of communication is in full compliance with legal standards. Failure to execute these strategic considerations may expose the police officer to disciplinary action, legal consequences, or the accused person's legal challenge to the legality of the warrant.