Fighting Search Warrants In Canada

Though it may not always seem the case, the police are bound by rules that limit their ability to search and seize property. Search warrants are a legal document that allows an officer to look for specific things, within a specific place, related to a specific offence. If items are found that lead to a Criminal offence, those items may not be allowed into evidence in Court if the police did not do their job correctly.

In 2017, a well respected panel – including a Judge, lawyers, and a senior RCMP officer – examined a series of search warrants approved in September of 2013. The purpose of the study was to take a look at the quality of warrants being approved, to determine what, if any, should not have been approved, and to quantify those findings with actual numbers:

• 125 warrant applications reviewed

• 23% should not have been authorized

  • 20% would not have survived a challenge in court

This means that an estimated 1 in 5 warrants would not have held up in court and the evidence would have been tossed out.

A search warrant does not automatically mean that that there will be a conviction or that someone will go to jail. Too many people give up before carefully looking through all of the documents that are the basis for the warrant, especially the Information to Obtain (ITO). The ITO must provide reasonable grounds to allow the police to interfere with a person’s reasonable expectation of privacy. These grounds include:

1. Legal description of offence

   • Must be specific about the criminal transaction that is being investigated

   • Must be nexus between evidence sought and grounds demonstrated in the ITO

2. Reasonable grounds for offence

   • Police must establish that an offence is being committed with reasonable probability

3. Legal description of location

   • Warrant must properly describe the place where the items are believed to be

     • Ex. phone in a police detachment, correct address on a house, etc.

4. Reasonable grounds for location

   • Reasonable grounds must exist to believe a location will produce evidence of an offence

5. Legal description of things

   • Description must pass the “fellow officer test”:

     “Would another police officer unfamiliar with the rest of the investigation be able to execute the warrant without reference to the Information to Obtain or other material? Would such an officer know from the warrant (and nothing else) what to seize, and what to leave behind?”

6. Reasonable grounds for things

   • Police must establish a “nexus” between the offence being investigated and the things the police believe they will find, and the place in which they believe they will find it

Fighting search warrants is an extremely technical area of the law, often requiring detailed motions and experience in niche topics. But if there is any chance that your case is the 1 in 5 where the warrant is not enough, isn’t that worth finding out?

For more reading, please see here.

Please note that the above is for informational purposes only and is NOT legal advice. Legal advice can only be properly given by a lawyer who has met with you to discuss the details of your case and your personal circumstances. If you require legal advice, please use the Contact page to arrange for a free consultation.