SEARCH WARRANT CHALLENGE LAWYER ONTARIO

Search Warrant Lawyer Ottawa • Search Warrant Lawyer Toronto

What are Search Warrants

Search warrants are a grab bag of judicially authorized investigative techniques that would be illegal but for the prior authorization of a court because of the degree of intrusion they constitute on a person's privacy. The classic warrant authorizes looking in a physical place for physical evidence of an offence linked to a particular person. 

Section 487 of the Criminal Code is most often used to obtain the place-thing-offence-person kind of warrant, but lots of other federal and provincial statutes also provide for similar search warrant powers. Other judicially authorizations are sometimes called "warrants" even though they officially go by other names like "production orders" and are authorized under different sections of the Criminal Code or other statutes.

The tests that police must satisfy for issuance of different kinds of judicial investigative authorizations varies, thus a common mistake among those seeking warrants is failure to justify an authorization to a court on the particular terms required by the applicable legislation. 

Why Challenge Search Warrant Validity

Attacking the validity of search warrants remains one of the most effective ways to have all seized evidence excluded from your trial, leading to your acquittal on all charges. And warrants are very vulnerable to challenge.

A study conducted several years ago in Toronto by three lawyers - two of whom are now judges - examining 100 randomly selected search warrants on file in a courthouse (and never challenged at trial) demonstrated that the majority of them were legally invalid, and should never have been issued. But because they were never challenged at trial, lots of evidence was likely gathered through their use, and many people were probably convicted of criminal offences.

What Makes a Search Warrant Illegal: How to Challenge a Search Warrant With 4 Winning Pre-Trial Strategies

Often the police are overly focussed on getting a warrant as quickly as possible during an investigation, and don't consider the steps needed to make that warrant defensible at trial. There are four particularly common vulnerabilities in warrants, though other serious defects are possible. 

1. Serious technical defects on the face of the warrant makes it illegal

A warrant requires strict technical compliance with the legislation permitting its issuance and court imposed limitations on where, how, what, why and against whom it can be executed. Major problems include: 

  • incorrect or illegal addresses to be searched;
  • incorrect times or dates of execution;
  • incorrect naming of persons who are the subject of the warrant;
  • inadequate or unsubstantiated listing of items to be searched for;
  • unsubstantiated listing of alleged offences.

2. Inadequate supporting information to obtain a warrant makes it illegal

The sworn supporting affidavit known as the "information to obtain" that accompanies a warrant application to a court must sufficiently link:

  • an offence, 
  • to a person,  
  • to a place to be searched,
  • to a thing believed to be found in that place, connected to that person and that offence.

Sometimes the police are legitimately suspicious about people or places, but suspicion alone is an insufficient basis upon which to get a warrant. 

3. Redacted version of information to obtain no longer supports original issuance of warrant

Sometimes confidential informer information is included in an information to obtain a warrant that would compromise the identity of the informer, on the erroneous belief of the police that that information can later be redacted and still relied upon at trial to support the warrant.

In fact, redacting it will mean it's no longer available as warrant support, and the warrant must be reconsidered by the trial judge as to whether it should have been issued in the first place based on the still available supporting facts after the redactions. If too much needs to be redacted to protect an informer - like how the informer acquired the knowledge detailed in the information to obtain, and why the informer should be considered reliable - then the warrant might collapse at trial. 

4. Wrong type of warrant obtained makes it illegal

Several types of warrant are available under the Criminal Code, Controlled Drugs and Substances Act, and other statutes. The police or other law enforcement officials need to request from an issuing justice or judge the right kind of warrant to do the particular things sought to be done.

The traditional s. 487 Criminal Code search warrant is designed to seize physical items from physical places, rather than engaging in other creative investigative techniques which have their own separate authorization provisions created by Parliament. Sometimes the police will choose the wrong kind of warrant, leading to it being found at trial to be invalid as authorization for the kinds of investigative techniques used. 

When to Challenge a Search Warrant: You Don't Need to Wait Until Trial

You don't have to wait until trial to challenge the validity of a search warrant. The best way to avoid being convicted of a criminal offence is to ensure there is no admissible evidence upon which to even charge you in the first place.

A lawyer can bring a challenge to a search warrant's validity at any time after its execution, possibly leading to the return of all seized property and ensuring the police have no evidence for criminal charges. 

The sooner, the better, is usually the soundest advice for search warrant challenges, so long as you can establish "standing" for the challenge. Standing can usually be based on being the owner of a seized thing, or being in control of the location that was searched.

If you aren't in a position to admit to ownership, then wait until trial for the challenge. Being accused of offences connected to a warrant would give you the standing you need.

Why Retain Our Firm to Pursue Your Search Warrant Challenge

The firm has extensive experience with the intricacies of search warrants. The firm's Managing Lawyer Gordon S. Campbell has taught law enforcement officers throughout Canada including at the RCMP Depot Division best search warrant drafting practices, and has published three books on search warrant drafting. The firm has successfully handled numerous search warrant cases at trial and appeal. We understand the common (and not so common) weaknesses of search warrants, and how they are best challenged before a court.