Applying for Judicial Authorizations

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95731)

Introduction

A warrant is a judicial order by a Judge or Justice of the Peace under a statute authorizing a named person to enter into a location and seize specified evidence that is relevant to an offence.[1]

One of the reasons for judicially authorizing searches ahead of time is to safeguard against improper exercise of discretion.[2]

The warrant has the effect of permitting intrusion of a person's reasonable expectations of privacy. This is not dependent on ownership.[3]

A search warrant is a "staple" investigative tool that assists police officers in determining the nature of a criminal offence and the identity of the culprit.[4] In some circumstances, the process is said to be "not an onerous investigative step... [that] would unduly interfere" with police investigations.[5]

Source of Authority

A justice of the peace has no common law authority to issue a warrant. They may only issue warrants as provided by statute.[6]

Presumptions

A warrant is presumed valid.[7] The onus is upon the party who challenges the sufficiency of the ITO supporting the warrant.[8]

  1. ↑ Nova Scotia v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175, per Dickson J, at p. 179 [SCR] ("an order issued by a Justice under statutory powers, authorizing a named person to enter a specified place to search for and seize specified property which will afford evidence of the actual or intended commission of a crime")
  2. ↑ R v Rao, 1984 CanLII 2184 (ON CA), 12 CCC (3d) 97, per Martin JA at pp. 121-122 ("The requirement of a warrant provides a safeguard against an intrusion at the discretion of a police officer, and is designed to ensure that the justification for the intrusion will be determined in advance by an impartial judicial officer, rather than left for determination by the officer making the search.")
  3. ↑ R v Pugliese, 1992 CanLII 2781, 71 CCC 295 (Ont. CA), per Finlayson JA - building owner unable to assert privacy rights over apartment
  4. ↑ R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] OJ No 3754, per Hill J, at para 135
  5. ↑ R v Bykovets, 2024 SCC 6 (CanLII), per Karakatsanis J, at para 85
  6. ↑ See Hutchison, The Law of Search and Seizure s. 16(b) citing R v Paint, 1917 CanLII 493 (NS CA), (1917) 28 CCC 171 (NSCA), per Harris JA, ("At common law the dwelling of the subject is held to be immune from intrusion, unless there is express authority to justify the intrusion, and the 'person" of the subject is held equally sacred.")
  7. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 83
  8. ↑ R v Campbell, 2011 SCC 32 (CanLII), [2011] 2 SCR 549, per Charron J, at para 14

Types of Warrants

The Criminal Code provides for several types of search warrants:

  • Impaired Driving Blood Samples (s.256)
  • Proceeds of Crime (s. 462.32)
  • DNA Samples ( 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)
  • 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. Most notable include:

  • Income Tax Act,
  • Excise Act,
  • Competition Act (s. 16),
  • Canadian Environmental Protection Act (s. 220),
  • Antarctic Environmental Protection Act (s. 32),
  • Hazardous Products Act (s. 22),
  • Bankruptcy and Insolvency Act, and
  • Fisheries Act
  1. ↑ R v Multiform Manufacturing Co, 1990 CanLII 79 (SCC), [1990] 2 SCR 624, per Lamer CJ
    R v Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223, per Sopinka J

Omnibus Applications

As long as the level of court has jurisdiction over the matters, it is often acceptable to make a single application for various authorizations in relation to a single investigation.[1]

  1. ↑ R v Todorov, 2008 ONCA 849 (CanLII), at para 4
    R v Thompson, 1990 CanLII 43 (SCC), [1990] 2 SCR 1111, 59 CCC (3d) 225 at p. 276 (CCC)

Purpose of a Warrant

A search warrant makes valid an act which would otherwise be considered trespass.[1]

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."[2]

It is also designed to "gather information to assist in the investigation of [criminal] activity."[3]

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.[4]

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." [5]

  1. ↑ R v Pugliese, 1992 CanLII 2781 (ON CA), 71 CCC (3d) 295, per Finlayson JA ("entry upon private lands by officials of the state was a trespass unless there was a lawful authorization for the entry.")
  2. ↑ R v Vu, 2011 BCCA 536 (CanLII), 285 CCC (3d) 160, per Frankel JA (appealed on other grounds) citing CanadianOxy Chemicals Ltd. v Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 SCR 743, per Major J at 20-22
  3. ↑ Vu, supra at para 29
  4. ↑ Descôteaux v Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860, per Lamer J at 891
    Vu, supra, at para 29
  5. ↑ Vu, supra, at para 31 citing Canadian Broadcasting Corp, 1992 CanLII 12752 (ON SC), 77 CCC (3d) 341, per Moldaver J at 351 (CCC)

General Requirements

Under the Charter, an authorization that permits intrusion upon a fully recognized zone of privacy is one of "credibility-based probability". Sometimes referred to as "reasonable grounds" or "reasonable and probable grounds."[1]

Components of an authorization requires that:

  • the item of interest exists;
  • the item will be found in the location that is the subject of the search;
  • the offence under investigation has been committed (in certain circumstances, the offence may be prospective); and
  • the item would be of some evidential value toward proof of the offence or discovery of other evidence of the offence.
Authorizing Justice

Before authorizing a warrant, the justice must "decide whether there are reasonable grounds to believe the statutory preconditions for issuance of the warrant are met."[2]

  1. ↑ R v Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
    R v Campbell, 2011 SCC 32 (CanLII), [2011] 2 SCR 549, per Charron J
  2. ↑ R v Mackey, 2020 ONCA 466 (CanLII), per Thornburn JA

Affidavit Contents

See also: Information to Obtain a Judicial Authorization

It is the duty of the affiant to submit a factual foundation that the application relies upon to issue the order.[1] The court has discretion to reject an application on the basis of poor drafting.[2] Note that a reviewing judge will not be able to exercise as much discretion on review.[3]

It is recommended that an affidavit be (1) full, fair and frank; (2) clear and concise; (3) avoid boiler-plate language; (4) do not mislead the reader; (5) use first-hand knowledge whenever possible.[4]

Fact-based information

it is not appropriate for the affiant to simply state that they have "determined" a fact. Such statements are more properly expressed as inferences and beliefs. Any claim of fact must specify the source of the information and provide details to support the issuing justice that there are reasonable grounds.[5]

Full, Frank and Fair

An officer seeking an ex parte authorization must give "full, fair, accurate, and frank disclosure of material facts" sufficient for the judge to make "judicial assessment as to whether the facts meet the standard required for the order to issue."[6]

This includes revealing facts known that "tend to disprove the existence of either reasonable and probable grounds or investigative necessity."[7]

Signature

An affidavit that has not been signed by the person taking sworn statement will not necessarily invalidate the application.[8]

Editorial Judgement

An affiant must exercise judgment in deciding what to include and exclude from an "effective" affidavit. [9]

Courts should not be expected to receive the whole investigative case.[10]

Drafting Style

It is important that the affiant properly source all information they rely upon.[11]

While it is preferred for longer text, there is no requirement to cross-reference segments.[12]

An affidavit cannot simply recite facts and leave the judge to "analyze the evidence on her own." [13]

  1. ↑ R v Knight, 2008 NLCA 67 (CanLII), 241 C.C.C. (3d) 353 at para. 32 (leave to appeal refused [2009] S.C.C.A. No. 43)
  2. ↑ Re Criminal Code, [1997] O.J. No. 4393 (Gen. Div.) at paras. 9 to 11
  3. ↑ R v Rafferty, 2012 ONSC 703 (CanLII), at para 31
  4. ↑ Araujo
  5. ↑ R v Grant, 1999 CanLII 3694 (ON CA)
  6. ↑ This is the same as all warrants, see Applying for Judicial Authorizations,
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 46 to 47
    R v Agensys International Inc, 2004 CanLII 17920 (ON CA), 71 OR (3d) 515, per Gillese JA, at paras 42 to 43
  7. ↑ R v Bogiatzis, 2003 CanLII 46485 (ON CA), [2003] O.J. No. 3335 (SCJ), per Morden JA, at para 11
  8. ↑ R v Dixon, 2012 ONSC 181 (CanLII), per Taliano J
  9. ↑ R v Ebanks, 2009 ONCA 851 (CanLII), at para 43
  10. ↑ e.g. see Ebanks, ibid., at para 43
  11. ↑ R v Pham, 2009 CanLII 60792 (ON SC), per Hill J
    also R v Knight, 2008 NLCA 67 (CanLII) at 32
  12. ↑ see R v Alvarez, 2009 CanLII 48828 (ON SC)
  13. ↑ R v Ebanks, 2007 CanLII 23028 (ON SC), per Trafford J

Procedure for Obtaining a Warrant

An application for a search warrant consists of a request under the enabling provision along with evidence, usually in written form, supporting the application. This evidence usually takes the form of an "Information to Obtain" (ITO) with a draft warrant. Both are then 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 a basis to issue a warrant.[1]

An application for a judicial authorization is a "judicial act" that is usually done ex parte and in camera.[2]

As it is an ex parte motion the affiant is expected to "make full, fair and frank disclosure of all material facts."[3]

A justice of the peace is exercising a judicial function when issuing warrants.[4] This requires that they maintain their independence.[5] They may not take part in the drafting process by reviewing an incomplete application and give advice on them.[6]

An issuing justice cannot be subpoenaed to give evidence concerning their judicial decision-making when issuing a warrant.[7] However, they are compellable on issue of "administrative functions."[8]

Signatures

A warrant that was signed before the ITO was sworn does not invalidate it. It is the "issuance" of the warrant, not the signing, that requires that it be supported by a sworn ITO.[9]

Notice

Judicial authorizations are generally done ex parte without any requirement of notice. However, the judge or justice retains overriding discretion to require notice where it is "deemed appropriate."[10]

Forms

a judicial authorization under section 47 requires a Form 5.[11]

The use of an outdated Form 5 can have the effect of including language that broadens the search beyond what is authorized under section 487(1)(b). This is sometimes referred to as a "Branton Error."[12]

The consequence of a Branton error include a complete invalidation of the warrant.[13] Alternatively, the warrant may be rectified through the principle of severance.[14]

Errors Before Execution

If an error is found to the authorization after it is granted. It is not possible to amend a warrant once granted.[15]

Questions from JP Seeking More Information

The assessing justice should not be reluctant to ask the affiant questions when considering granting an authorization.[16] The answers however should not be provided orally. They should be put in the ITO as part of a new application.[17] The JP is not permitted to receive "information" that has not been recorded or under oath.[18]

  1. ↑ R v Debot, 1986 CanLII 113 (ON CA), 30 CCC 207, per Martin JA
    R v Richard, 1996 CanLII 5594 (NS CA), (1996) 150 NSR 232, per Freeman JA
  2. ↑ AG (Nova Scotia) v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175, per Dickson J ("The issuance of a search warrant is a judicial act on the part of the justice, usually performed ex parte and in camera, by the very nature of the proceedings.")
    R v Dombrowski, 1985 CanLII 182 (SK CA), 18 CCC (3d) 164, per Tallis JA
  3. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per Lebel J, at para 46
  4. ↑ see R v Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
    Mackeigan v Hickman, 1989 CanLII 40 (SCC), [1989] 2 SCR 796, per McLachlin J
  5. ↑ R v Gray, 1993 CanLII 3369 (MB CA), 81 CCC (3d) 174, per Scott CJ
  6. ↑ Gray, ibid.
  7. ↑ Mackeigan, supra
  8. ↑ R v Butler, [2014] N.J. No. 148 (S.C.)(*no CanLII links)
  9. ↑ R v Ho, 2012 ABCA 348 (CanLII), 293 CCC (3d) 185, per curiam
  10. ↑ R v Vice Media, 2018 SCC 53 (CanLII), [2018] 3 SCR 374, per Moldaver J
  11. ↑ Criminal Code Forms
  12. ↑ R v Kramshoj, 2017 ONSC 2951 (CanLII), per Healey J
  13. ↑ e.g. 2017 ONSC 2147
  14. ↑ R v Nguyen, 2017 ONCA 1341 (CanLII)(*no CanLII links) , per Fairburn J
  15. ↑ Sieger v Barker, 1982 CanLII 634 (BC SC), 65 CCC (2d) 449, per McEachern CJ
    R v Jamieson, 1989 CanLII 202 (NS CA), 48 CCC (3d) 287, per Macdonald JA
  16. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per Lebel J
  17. ↑ Gorman, W, "The Issuing and Reviewing of Search Warrants" [1]
  18. ↑ , ibid.

Different Territorial Divisions

See also: Definitions of Parties, Persons, Places and Organizations and Special Search Issues

Telewarrants

See also: Telewarrants

Rejecting Application for Judicial Authorizations

Just because a warrant is rejected does not mean that the judge or justice is declaring the police are prohibited from ever being able to access the zone of privacy. The police have the right to reapply with new evidence.[1]

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.[2] The justice may advise that more information is necessary for the authorization to be granted.[3] Any new information must however be provided within a new ITO and not orally.

A judge or justice may indicate to the police seeking authorization that the process is believed to be wrong and brought under a different section. They may also advise on what further information may be needed and point out deficiencies.[4]

Providing Advice

There is nothing wrong with the justice advising the officer on what additional information would be required before the warrant can be granted.[5]

Appealing a Rejected Warrant

There is not normally a right of appeal for a rejected search warrant. However, an application of certiorari or mandamus may be available.[6]

Since there is no right of appeal, there is no prohibition against re-applying to the same or another judge or justice for the warrant with the same materials.[7]

Re-Applying

There is no rule against police filing the same rejected application before another justice, so long as they provide the following information:[8]

  • the existence of the prior application
  • the reasons for rejection
  • what has transpired since the prior application
  • any clarifying information

It would likely be advisable to indicate some reason for going to a different justice so as not to appear to be "judge shopping".

  1. ↑ R v Buchanan, 2020 ONCA 245 (CanLII), at para 41 ("The denial of a search warrant does not act as a legal declaration that the police are prohibited from using the grounds contained within the Information to Obtain the warrant to furnish grounds for other purposes. It is important to distinguish between the role of a justice in determining whether to issue a search warrant and the role of the police in determining whether they have sufficient grounds to arrest. These are two fundamentally different acts.")
  2. ↑ R v Truong, 2012 ABQB 182 (CanLII), per Macklin J
  3. ↑ e.g. R v Clark, 330 CCC (3d) 448, 2015 BCCA 488 (CanLII), per Frankel JA
  4. ↑ R v Krist, 1998 CanLII 6105 (BC CA), 130 CCC (3d) 347, per McEachern CJ, at para 8 ("In my view, the justice of the peace was entitled, having an application before him, to indicate to the police that he thought that the process was wrong and should be brought under the other section; nor do I think there was anything wrong with the justice of the peace advising the officers what further information, if any, he needed in order to issue a warrant; so I would not give effect to that submission.")
    R v Gray, 1993 CanLII 3369 (MB CA), 81 CCC (3d) 174, per Scott CJ ("It is of course open to a magistrate hearing an application for a warrant and considering the evidence presented to identify deficiencies and to reconsider the application when these deficiencies have been remedied by the police")
  5. ↑ R v Clark, 2015 BCCA 488 (CanLII), 330 CCC (3d) 448, per Frankel JA
  6. ↑ R v Duchcherer and R v Oakes, 2006 BCCA 171 (CanLII), 208 CCC (3d) 201, per Thackray JA, at para 33
  7. ↑ Duchcherer, ibid.
  8. ↑ R v Strussi, 2014 BCCA 195 (CanLII), per Newbury JA

Exceptions to Requirement for Prior Judicial Authorizations

There are several common law and statutory exceptions to the rule that requires a judicial authorization to intrude upon a person's privacy rights:

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