Applications for Judicial Authorizations: Difference between revisions

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==Introduction==
==Introduction==


A warrant is a judicial order by a Judge or Justice of the Peace under statute authorizing a named person to enter into a location and seize specified evidence that is relevant to an offence.<ref>Nova Scotia v MacIntyre, [1982] 1 SCR 175, [http://canlii.ca/t/1lpbn 1982 CanLII 14] 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")</ref>  
A warrant is a judicial order by a Judge or Justice of the Peace under statute authorizing a named person to enter into a location and seize specified evidence that is relevant to an offence.<ref>Nova Scotia v MacIntyre, [1982] 1 SCR 175, [http://canlii.ca/t/1lpbn 1982 CanLII 14]{{perSCC|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")</ref>  


The warrant has the effect permitting intrusion of a person's reasonable expectations of privacy. This is not dependent on ownership.<ref>R v Pugliese, [http://canlii.ca/t/1npnm 1992 CanLII 2781], (1992), 71 CCC 295 (Ont. CA) - building owner unable to assert privacy rights over apartment</ref>
The warrant has the effect permitting intrusion of a person's reasonable expectations of privacy. This is not dependent on ownership.<ref>R v Pugliese, [http://canlii.ca/t/1npnm 1992 CanLII 2781], (1992), 71 CCC 295 (Ont. CA){{perONCA|Finlayson JA}} - building owner unable to assert privacy rights over apartment</ref>


A search warrant is an "staple" investigative tool that assist police officers in determining the nature of a criminal offence and the identity of the culprit.<ref>
A search warrant is a "staple" investigative tool that assist police officers in determining the nature of a criminal offence and the identity of the culprit.<ref>
R v Cunsolo, R v Cunsolo, [http://canlii.ca/t/20wwp 2008 CanLII 48640] (ON SC), [2008] O.J. No. 3754 at para 135
R v Cunsolo, R v Cunsolo, [http://canlii.ca/t/20wwp 2008 CanLII 48640] (ON SC), [2008] O.J. No. 3754{{perONSC|Hill J}} at para 135
</ref>
</ref>


'''Source of Authority'''<br>
'''Source of Authority'''<br>
A justice of the peace has no common law authority to issue a warrant, he may only issue warrants as provided by statute.<ref>
A justice of the peace has no common law authority to issue a warrant, he may only issue warrants as provided by statute.<ref>
See Hutchison, The Law of Search and Seizure s. 16(b) citing R v Paint (1917) 28 CCC 171 (NSCA), [http://canlii.ca/t/gw6wx 1917 CanLII 493] (NS CA), 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.")</ref>
See Hutchison, The Law of Search and Seizure s. 16(b) citing R v Paint (1917) 28 CCC 171 (NSCA), [http://canlii.ca/t/gw6wx 1917 CanLII 493] (NS CA){{perNSCA|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.")</ref>


'''Presumptions'''<br>
'''Presumptions'''<br>
A warrant is presumed valid.<ref>
A warrant is presumed valid.<ref>
R v Sadikov, [http://canlii.ca/t/g2tgn 2014 ONCA 72] (CanLII), 305 CCC (3d) 421, at para 83</ref>
R v Sadikov, [http://canlii.ca/t/g2tgn 2014 ONCA 72] (CanLII), 305 CCC (3d) 421{{perONCA|Watt JA}}, at para 83</ref>
The onus is upon the party who challenges the sufficiency of the ITO supporting the warrant.<ref>
The onus is upon the party who challenges the sufficiency of the ITO supporting the warrant.<ref>
R v Campbell, [http://canlii.ca/t/flz50 2011 SCC 32] (CanLII), [2011] 2 SCR 549, at para 14
R v Campbell, [http://canlii.ca/t/flz50 2011 SCC 32] (CanLII), [2011] 2 SCR 549{{perSCC|Charron J}}, at para 14
</ref>
</ref>


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* [[Section 487 Search Warrants|Search Warrant]] ([http://canlii.ca/t/7vf2#sec487 s. 487])
* [[Section 487 Search Warrants|Search Warrant]] ([http://canlii.ca/t/7vf2#sec487 s. 487])
* General Warrant ( [http://www.canlii.ca/t/7vf2#sec487 s. 487.01])<ref>R v Multiform Manufacturing Co, , [1990] 2 SCR 624 [http://canlii.ca/t/1fssb 1990 CanLII 79]<br> R v Grant [1993] 3 SCR 223 [http://canlii.ca/t/1fs0r 1993 CanLII 68];</ref>
* General Warrant ( [http://www.canlii.ca/t/7vf2#sec487 s. 487.01])<ref>R v Multiform Manufacturing Co, , [1990] 2 SCR 624 [http://canlii.ca/t/1fssb 1990 CanLII 79]{{perSCC|Lamer CJ}}<br> R v Grant [1993] 3 SCR 223 [http://canlii.ca/t/1fs0r 1993 CanLII 68]{{perSCC|Sopinka J}}</ref>
* Firearms warrant ( [http://www.canlii.ca/t/7vf2#sec117 s.117.04])
* Firearms warrant ( [http://www.canlii.ca/t/7vf2#sec117 s.117.04])
* [[Seizure and Forfeiture of Obscene or Child Pornographic Materials|Obscene materials]] (s. 164)
* [[Seizure and Forfeiture of Obscene or Child Pornographic Materials|Obscene materials]] (s. 164)
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==Purpose of a Warrant==
==Purpose of a Warrant==
A search warrant makes valid act which would otherwise be considered trespass.<ref>
A search warrant makes valid act which would otherwise be considered trespass.<ref>
R v Pugliese, [http://canlii.ca/t/1npnm 1992 CanLII 2781] (ON CA) ("entry upon private lands by officials of the state was a trespass unless there was a lawful authorization for the entry.")</ref>
R v Pugliese, [http://canlii.ca/t/1npnm 1992 CanLII 2781] (ON CA){{perONCA|Finlayson JA}} ("entry upon private lands by officials of the state was a trespass unless there was a lawful authorization for the entry.")</ref>


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."<ref>
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."<ref>
R v Vu, [http://canlii.ca/t/fpfws 2011 BCCA 536] (CanLII) at para 30 citing CanadianOxy Chemicals Ltd. v Canada (Attorney General), [http://canlii.ca/t/1fqns 1999 CanLII 680] (SCC), [1999] 1 SCR 743 at 20-22</ref>
R v Vu, [http://canlii.ca/t/fpfws 2011 BCCA 536] (CanLII){{perBCCA| Frankel JA}} at para 30 citing CanadianOxy Chemicals Ltd. v Canada (Attorney General), [http://canlii.ca/t/1fqns 1999 CanLII 680] (SCC), [1999] 1 SCR 743{{perSCC|Major J}} at 20-22</ref>


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.<ref>Descôteaux v Mierzwinski, [http://canlii.ca/t/1lpc6 1982 CanLII 22] (SCC), [1982] 1 SCR 860 at 891 <br>  
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.<ref>Descôteaux v Mierzwinski, [http://canlii.ca/t/1lpc6 1982 CanLII 22] (SCC), [1982] 1 SCR 860{{perSCC|Lamer J}} at 891 <br>  
R v Vu [http://canlii.ca/t/fpfws 2011 BCCA 536] (CanLII) at para 29</ref>
Vu{{supra}} at para 29</ref>


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."
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."
<ref>
<ref>
R v Vu at para 31 citing R v Canadian Broadcasting Corp., (1992), 77 CCC (3d) 341 at 351 (Ont. Ct. (G.D.)){{NOCANLII}}</ref>
Vu{{supra}} at para 31 citing R v Canadian Broadcasting Corp., (1992), 77 CCC (3d) 341 at 351 (Ont. Ct. (G.D.), [http://canlii.ca/t/g9dl9 1992 CanLII 12752] (ON SC){{perONSCC|Moldaver J}}</ref>


{{reflist|2}}
{{reflist|2}}


==Procedure for Obtaining a Warrant==
==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 basis to issue a warrant.<ref>
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.<ref>
R v Debot, [http://canlii.ca/t/1npn0 1986 CanLII 113] (ON CA), (1986) 30 CCC 207 (Ont.CA)<br>
R v Debot, [http://canlii.ca/t/1npn0 1986 CanLII 113] (ON CA), (1986) 30 CCC 207 (Ont.CA){{perONCA|Martin JA}}<br>
R v Richard, [http://canlii.ca/t/1mpv9 1996 CanLII 5594] (NS CA), (1996) 150 NSR 232 (NSCA)</ref>
R v Richard, [http://canlii.ca/t/1mpv9 1996 CanLII 5594] (NS CA), (1996) 150 NSR 232 (NSCA){{perNSCA|Freeman JA}}</ref>


An application for a warrant is an ''ex parte'' motion and as such must "make full, fair and frank disclosure of all material facts".<Ref>
An application for a warrant is an ''ex parte'' motion and as such must "make full, fair and frank disclosure of all material facts".<Ref>
R v Araujo, [http://canlii.ca/t/5231 2000 SCC 65] (CanLII), [2000] 2 SCR 992, at para 46</ref>
R v Araujo, [http://canlii.ca/t/5231 2000 SCC 65] (CanLII), [2000] 2 SCR 992{{perSCC|Lebel J}}, at para 46</ref>


A justice of the peace must act judicially in issuing warrants.<ref>
A justice of the peace must act judicially in issuing warrants.<ref>
see Hunter v Southam</ref>   
see Hunter v Southam{{supra}}</ref>   
This requires that they maintain their independence.<ref>
This requires that they maintain their independence.<ref>
R v Gray, [http://canlii.ca/t/1npk7 1993 CanLII 3369] (MB CA)
R v Gray, [http://canlii.ca/t/1npk7 1993 CanLII 3369] (MB CA){{perMBCA|Scott
CJ}}
</ref>
</ref>
They may not take part in the drafting process by reviewing incomplete application and give advice on them.<ref>
They may not take part in the drafting process by reviewing an incomplete application and give advice on them.<ref>
Gray</ref>
Gray{{ibid}}</ref>


'''Signatures'''<br>
'''Signatures'''<br>
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.<Ref>
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.<Ref>
R v Ho, [http://canlii.ca/t/ftx71 2012 ABCA 348] (CanLII)
R v Ho, [http://canlii.ca/t/ftx71 2012 ABCA 348] (CanLII){{TheCourt}}
</ref>
</ref>


{{reflist|2}}
{{reflist|2}}
===Rejecting Warrants===
===Rejecting Warrants===
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.<ref>R v Truong, [http://canlii.ca/t/fqq5n 2012 ABQB 182] (CanLII) </ref>
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.<ref>R v Truong, [http://canlii.ca/t/fqq5n 2012 ABQB 182] (CanLII){{perABQB|Macklin J}} </ref>


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.
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.
<ref>
<ref>
R v Krist, [http://canlii.ca/t/1dxmj 1998 CanLII 6105] (BC CA), at para 8<br>
R v Krist, [http://canlii.ca/t/1dxmj 1998 CanLII 6105] (BC CA){{perBCCA|McEachern CJ}}, at para 8<br>
R v Gray, [http://canlii.ca/t/1npk7 1993 CanLII 3369] (MB CA),
R v Gray, [http://canlii.ca/t/1npk7 1993 CanLII 3369] (MB CA){{perMBCA|Scott
("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")
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")
</ref>
</ref>


'''Appealing a Rejected Warrant'''<br>
'''Appealing a Rejected Warrant'''<br>
There is not normally a right of appeal for a rejected search warrant. However, an application of certiorari or mandamus may be available.<ref>
There is not normally a right of appeal for a rejected search warrant. However, an application of certiorari or mandamus may be available.<ref>
R v Duchcherer and R v Oakes, [http://canlii.ca/t/1n04k 2006 BCCA 171] (CanLII), at para 33<br>
R v Duchcherer and R v Oakes, [http://canlii.ca/t/1n04k 2006 BCCA 171] (CanLII){{perBCCA| Thackray JA}}, at para 33<br>
</ref>
</ref>


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.<ref>
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.<ref>
Duchcherer<br>
Duchcherer{{ibid}}<br>
</ref>
</ref>


Revision as of 23:54, 12 November 2018

Introduction

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

The warrant has the effect permitting intrusion of a person's reasonable expectations of privacy. This is not dependent on ownership.[2]

A search warrant is a "staple" investigative tool that assist police officers in determining the nature of a criminal offence and the identity of the culprit.[3]

Source of Authority
A justice of the peace has no common law authority to issue a warrant, he may only issue warrants as provided by statute.[4]

Presumptions
A warrant is presumed valid.[5] The onus is upon the party who challenges the sufficiency of the ITO supporting the warrant.[6]

  1. ↑ Nova Scotia v MacIntyre, [1982] 1 SCR 175, 1982 CanLII 14, 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 Pugliese, 1992 CanLII 2781, (1992), 71 CCC 295 (Ont. CA), per Finlayson JA - building owner unable to assert privacy rights over apartment
  3. ↑ R v Cunsolo, R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] O.J. No. 3754, per Hill J at para 135
  4. ↑ See Hutchison, The Law of Search and Seizure s. 16(b) citing R v Paint (1917) 28 CCC 171 (NSCA), 1917 CanLII 493 (NS CA), 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.")
  5. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 83
  6. ↑ 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:

  • 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)
  • 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] 2 SCR 624 1990 CanLII 79, per Lamer CJ
    R v Grant [1993] 3 SCR 223 1993 CanLII 68, per Sopinka J

Purpose of a Warrant

A search warrant makes valid 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]

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.[3]

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." [4]

  1. ↑ R v Pugliese, 1992 CanLII 2781 (ON CA), 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), per Frankel JA at para 30 citing CanadianOxy Chemicals Ltd. v Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 SCR 743, per Major J at 20-22
  3. ↑ Descôteaux v Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860, per Lamer J at 891
    Vu, supra at para 29
  4. ↑ Vu, supra at para 31 citing R v Canadian Broadcasting Corp., (1992), 77 CCC (3d) 341 at 351 (Ont. Ct. (G.D.), 1992 CanLII 12752 (ON SC)Template:PerONSCC

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 warrant is an ex parte motion and as such must "make full, fair and frank disclosure of all material facts".[2]

A justice of the peace must act judicially in issuing warrants.[3] This requires that they maintain their independence.[4] They may not take part in the drafting process by reviewing an incomplete application and give advice on them.[5]

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.[6]

  1. ↑ R v Debot, 1986 CanLII 113 (ON CA), (1986) 30 CCC 207 (Ont.CA), per Martin JA
    R v Richard, 1996 CanLII 5594 (NS CA), (1996) 150 NSR 232 (NSCA), per Freeman JA
  2. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per Lebel J, at para 46
  3. ↑ see Hunter v Southam, supra
  4. ↑ R v Gray, 1993 CanLII 3369 (MB CA), per Scott CJ
  5. ↑ Gray, ibid.
  6. ↑ R v Ho, 2012 ABCA 348 (CanLII), per curiam

Rejecting Warrants

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.[1]

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. [2]

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.[3]

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.[4]

  1. ↑ R v Truong, 2012 ABQB 182 (CanLII), per Macklin J
  2. ↑ R v Krist, 1998 CanLII 6105 (BC CA), per McEachern CJ, at para 8
    R v Gray, 1993 CanLII 3369 (MB CA), 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")
  3. ↑ R v Duchcherer and R v Oakes, 2006 BCCA 171 (CanLII), per Thackray JA, at para 33
  4. ↑ Duchcherer, ibid.

Different Territorial Divisions

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

Telewarrants

See also: Telewarrants

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:

Topics

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