The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.
[2], Generally, an approving justice should be satisfied that:[3], It has been recommended the following principles be considered:[4], The main question the reviewing judge must ask is, upon reviewing the ITO and the warrant "whether either the officers conducting the search or the Applicants whose premises were being searched would have any reasonable doubt about the things being searched for or the offences alleged to have been committed. [1], The affiant must establish a link between the believed committed offences as well as any evidence of the offence and the belief that it will be found on the premises. A judge may infer the reasons based on the evidence given in the ITO.
Officers must not remove more material than is necessary. The item(s) being sought. The ITO does not need to state every step a police officer takes in obtaining information.
27-28; R. v. Vu at para.
Training and experience permits an officer to draw inferences and make deductions not otherwise available to a lay person.
Following execution of a warrant, information contained within a warrant application can be disclosed. See Commissioner of Police for the Metropolis v Bangs [2014] EWHC 546 (Admin).
40, R. v. Turcotte 1987 CanLII 984 (SK CA), (1987), 39 C.C.C.
Where a warrant is granted, it must be executed in accordance with the terms set out in the warrant and supporting legislation. ), 1930 CanLII 487 (AB CA), per Harvey CJ.
It is improper for the warrant to contain incomplete, misleading or misrepresented information on the investigation.
evidence potentially being declared inadmissible in court, the power under which the warrant will be issued. The other officer or staff member should make comprehensive contemporaneous notes of any discussion as well as any questions and answers. If it is anticipated that legally privileged material may be on the premises to be searched, this must be clearly stated on the application and sufficient safeguards should be put in place to avoid its seizure. H.C.), at p.190; C.B.C. [10], The base requirements of an ITO include facts establishing grounds of belief for:[1].
Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered. When entering the premises, a copy of the Warrant and a Notice to Occupier should be handed to the occupant. that an offence has been committed or is suspected of being committed; that the location of the search is a building, receptacle or place; that the item sought will provide evidence of the commission of the offence or that the possession thereof is an offence of itself; that the grounds stated are current so as to lead credence to the reasonable and probable grounds; that there is a nexus between the various considerations set out.
The affiant police officer's role is to provide a "factual foundation" to justify the issuing of a warrant.
There is some suggestion that it should not be fatal. [15], The document should be reliable, balanced and material. [5], The searching officer may in some cases also rely upon their experience "of individuals who access and possess child pornography on their computers" which tells them that "often these individuals kept images for “long periods of time” and “rarely deleted collections”." ), (1989), 52 C.C.C. What are the grounds for saying that the things to be searched for are at the place to be searched?
See also: College of Policing (2019) APP Search (Official sensitive). ); affd 1993 CanLII 83 (SCC), [1993] 3 S.C.R. [5], Establishing "credibly based probability" in an ITO requires it include:[6], It is not necessary that the police demonstrate that the evidence sought will be sufficient to prove the offence.
Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. peace officers should be given some latitude in describing things as they are still at the investigative stage; the description may be limited to classes of documents if it is sufficiently limited to the crime for which they are alleged to afford evidence; the Information sworn to obtain the Search Warrant must be read together with the Search Warrant; the nature of the offence(s) must be considered; in considering all of the factors, appropriate inferences may be made; there need not always be a time limit set out with respect to the documents sought; overly broad or vague descriptions can be severed leaving validly described things remaining; each case must be considered on its own facts.
It should also be clear, concise, legally and
Applications to Court This guidebook contains an overview of the procedure for applications, set out in Part 8 of the rules. Article 8 of the European convention on Human Rights. [2], The ITO must specify a particular offence that is being investigated. It would invite reliance on "stereotypes and prejudices" instead of evidence. Under section 9 and schedule 1 of PACE a constable can apply to a judge for access to special procedure material or excluded material. [11], A justice has no obligation to make inquiry of the affiant into the grounds of his belief. 56 (NWTSC) at para. "[1], The justice of the peace loses jurisdiction where the description is over-broad or too vague such that it essentially allows the officer to conduct a "carte blanche" search for any evidence within the premises.
[4], 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. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality. [1], A warrant authorizing the search of a dwelling-house will generally not include motor vehicles, particularly where the ITO does not address the existence and relevance of the motor vehicle. 2175 (ONCA) at para. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. This search must be authorised in writing by an officer of inspector rank or above. [7], In any ex parte application process, the applicant must disclose "material facts" that may affect the outcome of the application. A judicial officer may independently weigh the conflicting interests of the private individual and the state's interest to investigate. See also: Accessing special procedure or excluded material. Inaccurate information can be excised from the ITO, and re-evaluated without the offending information.[12]. 46, Hunter v. Southam Inc., 1984 CanLII 33 (SCC), 1984 CanLII 33 (SCC), [1984] 2 S.C.R. [3], However, where the justice "could have" granted the warrant regardless of the deception, it may still be valid.
It should also be clear, concise, legally and factually sufficient, but it need not include “every minute detail of the police investigation” [3], A warrant is still valid where the address is wrong or vague in one section of the ITO but valid in another section. the first-hand source of information attested to by the affiant) where the affiant is largely relying upon the hearsay evidence of others. A supervisor with experience of warrant applications and hearings should review and authorise all applications. [6], It is not necessary that the suspect be named. If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so. [3], All rooms within a rooming house has the same level of privacy as a single residence. [1], The ITO must sufficiently describe the location to be searched. A single family home should include municipal address, including number, street, town or city. "[1], The justice of the peace loses jurisdiction where the description is over-broad or too vague such that it essentially allows the officer to conduct a "carte blanche" search for any evidence within the premises. [3], The authorizing justice need not be satisfied that the offence was committed or that the items seized will afford evidence in proving the offence. [15], It is not necessary that the officer spell out all possible reasons that they want to rely upon for seizing certain evidence. at 365, R v. MacKenzie 2011 SKCA 64 at para.
[6], A flagrant, deliberate, or wilfully blind failure to make full and complete disclosure can be fatal to the warrant. If suspects are known, they should be named in the application. No. [11], It is also generally not necessary to include in the ITO the absence of any other potentially relevant observations. The ITO cannot be based on any information that was learned through an warrantless search of an agent of the state. This will provide an audit trail. It should only be those that are "material facts".
Where material is removed under section 50 or 51, a written notice should be provided to the occupier or person from whom the material has been seized, setting out: Due regard should be given to allowing the person with an interest in the property to be present or represented at the examination (section 53(4) of CJPA). [3], The standard of reasonable grounds to believe is greater than mere suspicion but less than on a balance of probabilities when the totality of the circumstances are considered.
This includes requesting voluntary disclosure.
Leave should be granted where it would assist in the determination of whether there is a basis upon which the authorizing judge could have granted the order.
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