Search Warrants
A search warrant allows the police to enter your home or access your private information (such as your banking and cell phone records) without warning or your knowledge.
How Police Obtain a Search Warrant
Police need to file an information to obtain (ITO) that sets out their grounds for seeking the court ordered authorization. Some common types of authorizations are:
- Authorization to intercept communications (part VI authorization)
- Search warrant
- Production order
- Tracking warrant
Challenging a Search Warrant
Any authorization can be challenged in court. The law presumes that a warrant is valid and it is your lawyer’s job to confirm why the warrant is invalid. Some common ways that your lawyer could challenge the validity of the search warrant are:
- Challenging the accuracy of the information the police presented to the court in order to obtain the warrant. Was the affiant full frank and fair?
- Challenging whether the warrant met the necessary requisite grounds.
- Whether there was sufficient information that evidence would be located in the residence, premise or item being searched.
- Whether the police exceeded the scope of the warrant or conducted their search in an unreasonable manner.
A successful challenge of a search warrant could lead to the exclusion of evidence in your case.
The criminal defence lawyers at LZZ have extensive experience successfully challenging search warrants. If you or someone you know has been charged with a criminal offence and had police officers search your home, vehicle or anything else belonging to you pursuant to a search warrant you should contact a criminal lawyer immediately to help determine the best course of action. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Search Warrants
What is a Search Warrant?
A search warrant is a court order that is judicially authorized by a Justice of the Peace or a judge that allows the police to search a specific location, place or thing, for evidence that is relevant to a criminal charge or investigation. The parameters of the authorization (place, items, etc) are set out in the search warrant.
What Types of Authorization can the Police Obtain?
The Criminal Code allows the police to seek authorization for several different warrants, including but not limited to production orders, tracking warrants (cell phone or vehicle), Transmissions Data Recorders, an authorization to intercept private communication, and a warrant to enter a premises and/or residence.
Can the Police Record my Conversations?
Yes, the police can apply to intercept your private communication such as text messages and phone calls. This is regularly used when the police are investigating large cases such as gang projects, criminal organizations, or large conspiracies.
Known as a wiretap, the test for naming a person in this specialized warrant is a modest one. Governed by the Criminal Code s. 184.4, the investigators must know the identity of the person and have reasonable and probable grounds to believe that the interception of that person’s private communications may assist the investigation of an offence.
If your private communications were intercepted, you will receive notice after the fact that your communications were intercepted by the police.
What is a General Warrant?
A general warrant found in s. 487 of the Criminal Code allows a judge to issue a warrant authorizing the police to use any device, investigative technique, procedure, or do anything described in the warrant that would, if not authorized, constitute an unreasonable search and search. One example is commonly known as a “sneak and peak” warrant, which authorizes the police to enter a specific location in a covert manner. This is commonly used in large drug investigations where the police believe substances and other paraphernalia are being stored, and they would like to confirm their beliefs without allowing the target to know.
What is an Information to Obtain (ITO)?
An Information to Obtain is an affidavit drafted by a police officer setting out the grounds for the requesting warrant. The ITO is reviewed by a Justice of the Peace or a judge who may issue a warrant. The ITO should establish reasonable and probable grounds that an offence has been committed and that a search of a location will produce specific evidence in furtherance of the criminal investigation.
Do Police have to Show Me a Copy of the Warrant?
The police should show you the search warrant. If they do not show it to you, ask to see it. Make sure that the information on the warrant is correct. Check whether your address is correct and see if the warrant shows the dates and hours when it can be used.
When can the Police Execute a Search Warrant?
If the search warrant is pursuant to the Criminal Code, the search must occur during the day between the hours of 6 a.m. and 9 p.m. The police can also apply pursuant to s. 488 of the Criminal Code to execute the warrant at night.
If the search warrant is pursuant to the Controlled Drugs and Substances Act (CDSA), the police can execute the warrant day or night.
Can the Police Use Force to Enter my Home?
Regularly the police will execute a search warrant with a dynamic entry. A dynamic entry can include the use of a battering ram, flash grenades, or armed police officers. The choice to use force can be reviewed by a Court. The manner of search must be reasonable, and if the Court finds the manner of search was not reasonable, it will constitute a breach of your s. 8 Charter rights. This is even true if the police had proper grounds to conduct the search.
Can the Police Seized Items which are not Listed in the Warrant?
Yes. The police conducting any search can seize any item which is found to be in plain view. For example, if the police were granted authorization to search for a firearm, but when they entered the residence they located controlled drugs, such as cocaine, the police are allowed to seize that controlled substance.
Do the Police need a Search Warrant to Conduct a Search?
The police are allowed to conduct warrantless searches, but the Crown then bears the onus of proving that the warrantless search was unlawful. In a case where there is a warrant, the onus is on the Accused-Applicant to show that the search was unreasonable
There are several exceptions to warrantless searches:
• Exigent Circumstances: The Criminal Code allows the police to conduct a search where it would be impracticable to obtain a search warrant and there is immediately danger of harm or destruction of evidence.
• Search Incident to Arrest: Upon arrest, the police have the power to search a person and their immediate surroundings incident to arrest. The search must be conducted for one of the following purposes: (i) to ensure the safety of the police or the public; (ii) to prevent the destruction of evidence by the arrested person and others; or (iii) to discover evidence of the offence for which the arrest was made that can be used at the arrested person’s trial.
• Investigative Detention: A police office may detain an individual if there are reasonable grounds to suspect in all the circumstances that the persons is connected to a particular crime, and the detention is reasonably necessary on an objective view of the circumstances. During an investigative detention, a police office can conduct a pat-down search for safety reasons.
• Emergency Calls: If the police are responding to a 911 call and have reasonable and probable grounds to believe that a person inside the house is in distress, they may enter the residence.
• Consent Search: A police officer can always conduct a search if it is on consent. For example, you can consent to the police searching your residence. For the consent to be considered valid, the person giving consent must be the person affected by the search and in control of the residence. It is important to know that you are under no obligation to consent to a search of your home.
How Can I Defend Myself Against an Unreasonable Search?
Lockyer Zaduk Zeeh has an exceptional record of defending people based on unreasonable search and seizure. If you have been the target of a search warrant, intercepted communications, or a search incident to arrest, please give LZZ a call to schedule a consultation. We represent people charged with criminal offences regularly across Ontario, such as Durham (Oshawa, Whitby, Ajax), Lindsay, Peterborough, Cobourg, Belleville, Napanee, and Kingston.
