Canadian Criminal Procedure and Practice/Search and Seizure/Warrant Searches

Introduction

A Search Warrant is an Order issued by a Justice of the Peace under statute that authorizes a person to enter into a location and seize specified evidence that is relevant and material to an offence. The warrant is a substitute for consent to enter a private premises or any other places with reasonable expectations of privacy.

The criminal code provides for several types of search warrants:

General Search Warrant ( s. 487) Firearms warrant ( s.117.04) Obscene materials (s. 164) Consent wiretap (s. 184.2) Wiretap (s. 186) Impaired Driving Blood Samples (s.256)

Proceeds of Crime (s. 462.32) DNA Sample ( s. 487.05) Tracking (s.492.1) Number recordings (s. 492.2) Telephone records ( s. 492.2(2)) Bodily impressions (s. 487.091)

Drug offences (s. 11 CDSA) Telewarrants ( 487.1) Explosives Warrant (492) Entry for Arrest (529, 529.1) Production Order (.s 487.011-013)

There are other search and seizure powers found under a variety of other federal Acts that are not directly criminal in nature.

Purpose of a warrant

The purpose of a search warrant is to allow investigators to "locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability."

A search warrant can be used not only for collecting evidence supporting a criminal charge but also as an investigative tool for alleged criminal activity.

The items sought need not necessarily afford evidence of the actual commission of the offence under investigation. Rather it "must be something either taken by itself or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime."

A search warrant makes valid act which would otherwise be considered trespass.

Procedure for Obtaining a Warrant

An application for a search warrant consists of an "Information to Obtain" (ITO) and usually a draft warrant that presented to a justice of the peace or judge. An ITO consists of a statement under oath or an affidavit of an informant detailing the facts known (both first hand or second hand) that would provide basis to issue a warrant.

An application for a warrant is an ex parte motion and as such must "make full, fair and frank disclosure of all material facts".

Issuing of Warrant: Reasonable and Probable Grounds

The Charter requires that for all warrants police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure"

In more recent times the standard is called "reasonable grounds to believe".

The standard of reasonable grounds to believe is greater than mere suspicion but less than on a balance of probabilities when the totality of the circumstances are considered. It is a standard of reasonable probability and is credibility based. It must be more than mere possibility or suspicion. It is a standard of "credibly-based probability"

The key elements to credibility-based probability includes:

1. The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place
2. The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage.”
3. The affiant’s reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant’s belief: R. v. Yorke 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.); affd 1993 CanLII 83 (SCC), [1993] 3 S.C.R. 647.

The court may consider the experience of a police officer when assessing whether the officer's subjective belief was objectively reasonable.

The Justice of the Peace may draw reasonable inferences from the information found in the ITO.

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.

The Information to Obtain the search warrant (ITO) does not need to state every step a police officer takes in obtaining information.

An ITO can be read in a practical, non-technical, common-sense fashion.

The officer’s are not held to the same drafting quality as counsel.

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include “every minute detail of the police investigation”.

The ITO cannot be based on any information that was learned through an warrantless search of an agent of the state.

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered. Generally, the requirement will increase "the level of verification required" where "credibility cannot be assessed", "fewer details are provided", and "the risk of innocent coincidence is greater".

Generally, an approving justice should be satisfied that:

1. that the items specified exist;
2. that the items specified will be found in the place to be searched at the time of the search;
3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed;
4. that the items specified will afford evidence of the offence alleged; and
5. that the place to be searched is the location where the items will be located.

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include “every minute detail of the police investigation”

Standard of Review: The Garofoli Application

A "Garofoli Application" refers to the defence motion to exclude evidence collected under a search warrant.

Before a party can make such an application, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

Presumptions and Burdens
A warrant is presumed valid. The applicant bears the burden to establish that there was insufficient basis for issuing the warrant. This presumption applies not only to the warrant but the ITO as well.

Degree of Deference
The reviewing judge is not examining police conduct with great attention to minor details or dissection. Rather the judge must look at whether there is sufficient evidence for the warrant.

The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.

The reviewing judge should not "substitute his or her own view for that of the authorizing judge."

A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".

Quality of Drafting
Flaws are to be expected. Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.

Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."

The ITO is examined as a whole and not one piece of evidence at a time.

Excised Portions of ITO
Inaccurate or omitted information in an ITO does not necessarily render it invalid.

Inaccurate information can be excised from the ITO, and re-evaluated without the offending information.

Amplification Evidence
Where information was omitted from an ITO or where information has been excised for other reasons, it is possible to remedy it by adducing amplification evidence.

This form of evidence can be adduced to correct innocent, minor or technical errors.

Contents of an ITO

Basic elements

It was suggested by Justice Hill in R. v. Chhan, 1996 CanLII 7025 (SK QB) that there are five basic questions that all ITO's must address at a minimum:

1. What are the grounds for believing the things to be searched for exist?
2. What are the grounds for saying that the things to be searched for are at the place to be searched?
3. What are the grounds for saying the offence has been committed as described?
4. How will the things to be searched for afford evidence of the commission of the offence alleged?
5. What are the grounds for saying that the place to be searched is at the location identified?

It has also been suggested the justice must be satisfied:

1. that an offence has been committed or is suspected of being committed;
2. that the location of the search is a building, receptacle or place;
3. that the item sought will provide evidence of the commission of the offence or that the possession thereof is an offence of itself;
4. that the grounds stated are current so as to lead credence to the reasonable and probable grounds;
5. that there is a nexus between the various considerations set out.

A search warrant must specify the premises that is to be searched.

The ITO must specify a particular offence that is being investigated. As well, it must not simply include "conclusory" statements but rather the factual grounds for the conclusions.

An unsigned affidavit supporting a wiretap warrant is not necessarily fatal to the application.

Drafting Practices

A properly drafted warrant, as a best practice, should generally involve the following elements:

1. identify the type of warrant sought as well as relevant sections.
2. the judicial authority the request is made to (JP, Superior Court Justice, Provincial Court Judge)
3. detail the identity of the affiant
   1. name, title, rank, length of employment,
   2. working group, mandate, my role in ground, type of offences investigated
   3. personal relevant experience
4. sources of information
   1. databases relied upon
   2. personal sources (name, age, residence, criminal record)
5. persons of interest (name, age, residences, charges, criminal record)
6. property at issue: (if forfeiture or seizure)
   1. describe it (location, size, who is in possession of item, all information on ownership/owners)
   2. avoid over-breadth, vagueness
7. location to be searched
   1. address, region, description of location
8. summary of investigation
9. previous applications
10. reasons for any special requests (telewarrant, night-time search)
11. conclusion / requested order

Tips for contents:

• make the source of information clear for each statement of fact
• if any evidence was obtained unconstitutionally, indicate what amount if any that evidence formed the basis of the warrant
• make sure to sign the document

Full, Frank and Fair Disclosure

The affiant must make "full, frank and fair" disclosure of all information known to the officer relevant to the matter before the authorizing justice. This obligation arises due to the ex parte nature of the application.

This does not require disclosing every fact that might possibly be relevant.

Procedure

A judge or justice of the peace rejecting a search warrant application can provide the applicant with a list of errors or omissions that make the warrant deficient without losing their responsibility as a neutral arbiter.

Description of the Place to be Searched

A warrant of a premises must accurately describe the location to be searched. If it fails to do so the warrant will be invalid.

The sufficiency of the description of the place must be assessed based on the face of the warrant, separately from the contents of the ITO or the manner it was executed. Failure to name a place on the warrant "is not a mere matter of procedural defect, but so fundamental as to render the document of no legal effect."

Error in Addresses

If the address in the warrant is wrong, the search becomes warrantless.

For a search of an apartment building, the warrant must specify the unit number.

A warrant is still valid where the address is wrong or vague in one section of the ITO but valid in another section.

Where the ITO is inconsistent with the warrant some level of error is permissible as long as the location remains sufficiently clear.

Description of Thing(s) to be Seized

The warrant's description of things to be seized "operates as a guide for the officers conducting the search."

The justice of the peace loses jurisdiction where the description is over-broad or too vague such that it essentially allows the officer to conduct a "carte blanche" search for any evidence within the premises.

It has been recommended the following principles be considered:

1. peace officers should be given some latitude in describing things as they are still at the investigative stage;
2. the description may be limited to classes of documents if it is sufficiently limited to the crime for which they are alleged to afford evidence;
3. the Information sworn to obtain the Search Warrant must be read together with the Search Warrant;
4. the nature of the offence(s) must be considered;
5. in considering all of the factors, appropriate inferences may be made;
6. there need not always be a time limit set out with respect to the documents sought;
7. overly broad or vague descriptions can be severed leaving validly described things remaining;
8. each case must be considered on its own facts.

see also R. v. Church of Scientology, supra; Re: Lubell and The Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.J.); R. v. Silverstar Energy Inc., [2004] B.C.J. No. 1767 (B.C.S.C.); R. v. Sanchez and Sanchez 1994 CanLII 5271 (ON SC), 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.); R. v. PSI Mind Development Institute Ltd. (1977), 37 C.C.C. (2d) 263 (Ont. H.C.))

Types of Evidence Used

Statement by Accused

Where the ITO contains a statement from the accused, the document must also show that the accused was properly cautioned and given a right to counsel.

The statement cannot be involuntary.

Criminal Records

A copy of the informer's criminal record should be included in the ITO except where it may tend to reveal the identity of the informer.

Where the ITO states that the informer has a criminal record when in fact the informer was merely charged, it may be sufficient to void the warrant.

There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great.

Hearsay

The applicant should always indicate whether they are relying on hearsay or direct knowledge.

An ITO relying upon hearsay does does not exclude it from establishing "probable cause".

An ITO may contain hearsay as long as it is sourced and details are given about the source so the Justice can review the source's reliability and weigh its evidentiary value.

Details on the source should be used to distinguish the information from rumor or gossip.

Where the hearsay source is not set out the part of the ITO may be defective.

It has been recommended that where the source is the notes or reports of other officers there should be detail on how it was obtained and why it is reliable. It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.

It has been further suggested that where it is from a written statement of a witness, details of identity and their involvement should be provided.

Whether the confidential informant was paid should be provided as well.

Debot factors are to be applied when considering hearsay.

Expert Evidence

For expert evidence to be used in an ITO, it must contain details on the expert's qualifications and experience as well as show the methods the expert used to come to their conclusion.

Frequent Errors

Omissions, mischaracterizations, Material Non Disclosure

It is improper for the warrant to contain incomplete, misleading or misrepresented information on the investigation.

This can occur where the affiant is deliberately kept out of the investigation and only given favourable information to support the warrant.

The warrant will typically be invalid if the misstatement or omission was deliberate or a finding of bad faith. The quashing is necessary to avoid corruption of the process.

However, where the justice "could have" granted the warrant regardless of the deception, it may still be valid.

However, at times a poorly drafted and misleading warrant will, on its own, invalidate the warrant.

Nexus between Offence Evidence and Premises

The informant must pledge that the items not simply "could" be found but would be found.

Overbroad Authority

It is essential that the warrant not be overly broad. The description of the targets of the search should not be so vague as to give the police the ability to rummage through the premises.

Special Issues

Computer Investigations

The connection of an IP address with an ISP account can form reasonable grounds to believe that a computer will be present at the address, but will often need something more.

Where a warrant permits the police to search a residence and seize computers, the police are permitted to complete full forensic analysis on the computer without any additional warrants needed.

The searching officer may draw the inference upon learning of the download of suspected child pornography that the files may remain on the computer well after download and even where efforts to delete the materials have been made.

The searching officer may in some cases also rely upon their experience "of individuals who access and possess child pornography on their computers" which tells them that "often these individuals kept images for “long periods of time” and “rarely deleted collections”."

Law Offices

A justice of the peace should follow the following principles when considering a search of a law office os that solicitor-client privilege is protected:

1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.
2. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.
3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.
4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession.
5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents.
6. The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.
7. If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.
8. The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.
9. Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.
10. Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.

A "law office" includes "any place where privileged documents may reasonably be expected to be located".

A search warrant of law office must impose conditions to protect potential privilege "as much as possible". Without proper protections the warrant is invalid.

Section 488.1 concerning search of law offices was found to be unconstitutional.

Sealing and Unsealing of Warrants

Once a warrant is executed, it and the ITO must be made available to the public unless the warrant is placed under a sealing order.

Under s. 487.3(1), an application to seal a warrant and ITO can be made prohibiting disclosure of any information related to the warrant on the basis that access to it would subvert the ends of justice or the information would be put to an improper purpose.

Under s. 487.3(2), set out the basis of how the ends of justice would be subverted.

The applicant must be specific on the grounds of sealing, there must be "particularized grounds". Generalized assertions are not enough.

Under s. 487.3(4), the sealing order may be varied or terminated.

Vetting Procedure

Where unsealing an unvetted ITO, the court should follow the procedure set out in Garofoli:

1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
4. After the determination has been made in (3), the packet material should be provided to the accused.
5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

Topics

• Execution of Warrants
• Specific Types of Warrant
  • General Warrants
  • Bodily Samples (including s.256, s. 487.05, s. 487.091)
  • Wiretaps
  • Tracking Warrant (492.1)
  • CDSA Warrants
  • Foreign Warrants
  • Telewarrants
  • Production Orders

See Also

• Case law
• Seizure of Property
• Search Warrant Chart