Obtaining A Search Warrant

How fresh should the Information To Obtain (ITO) a search warrant be, for a warrant to be validly issued?

Generally speaking, before the police can search a place (whether it is a vehicle, house, office, etc. …) they need to obtain a search warrant. A search warrant is a document signed by a justice authorizing the police to search a place. In order for a justice to issue a search warrant, a police officer must provide information in and ITO explaining why the warrant should be issued and asking the justice to authorize the search of a specific place. The information in the ITO should allow the justice to form reasonable grounds to believe that the evidence that the police are looking for is in the place in question.

Example: R v. James

Mr. James challenged the ITO on the basis that the information in the ITO was too stale to support the belief that there were reasonable grounds to believe that drugs will be found in his vehicle on the day the warrant was issued. The trial judge agreed with Mr. James’ position and exercised his discretion to exclude the evidence under s. 24(2) of the Charter to exclude the evidence obtained by the police. The majority of the Court of Appeal upheld the trial judge’s decision. Justice Nordheimer from the Ontario Court of Appeal, however, dissented.

Can You Challenge A Search Warrant?

This section will cover...

• What is a search warrant?
• What is an information to obtain?
• And is it legal for the police to enter a place and search it?
• Is there a way that search can be challenged?

This post provides general and basic information about the subject of search warrants.

Unreasonable Search

Section 8 of the Canadian Charter of Rights and Freedoms provides protection against unreasonable search or seizure. This is a constitutional right that protects individuals against state intrusion into their privacy in order to search for evidence. In other words, the police are allowed to enter places and to search for evidence; however, they are allowed to do so if the search is legal. Otherwise they will be violating a person’s privacy right to be protected against an unreasonable search.

Reasonable Search

One way in which a search could be considered reasonable is if it is made pursuant to a search warrant. A search warrant is a judicial pre-authorization for the police to enter a place in order to search it for evidence and sometimes to seize that evidence. In order to obtain a search warrant, usually a police officer will give information under oath that s/he has reasons to believe that an offence has been committed and that evidence will be found at the place to be searched.

Information To Obtain

The information in which the officer states the reasons or grounds to believe that there is evidence at the place to be searched, thus justifying the search, is called an Information To Obtain (ITO). A justice then reads the ITO containing the sworn information and if the justice is convinced that there are reasonable grounds to believe that evidence will be found, based on the information contained in the ITO, a warrant will issue allowing the search.

Is it easy to obtain a search warrant?

The standard to obtain a search warrant is pretty low which makes it difficult to challenge a search warrant once it has been issued. It is possible, however, to challenge the validity of a search warrant. For that, a reviewing judge, will have to reviwe the ITO and determine whether the warrant should have issued, not whether it could have issued. In order to do so, the reviewing judge will have to apply three criteria that were stated by the Supreme Court of Canada (SCC) in the case of R . v. Debot , [1989] 2 S.C.R. 1140.

The three criteria in Debot according to which a warrant is validly issued are that the information contained in the ITO, based on which the warrant was issued, is:

(1) Credible

The source of the information in the ITO has to be credible. If the source of the information contained in the ITO is a confidential informant, the informant has to be someone who is believable in order to be considered credible. Some factors that increase the credibility of the informant are the fact that s/he does not have a criminal record, whether the informant has already provided similar type of information to the police in the past and that information led to search warrants.

(2) Compelling

The information provided in the ITO has to be compelling. Factors that make the information in the ITO compelling are the specificity of the information, the level of details it contains, whether it is biographical information or whether it is information that would not be readily available.

(3) Corroborated

In cases where the information in the ITO comes from an informant, before the police request a search warrant based on that information, they have to make efforts to corroborate the information provided by the informant. What this means is that the police cannot simply rely on what the informant tells them about the fact that there is evidence contained in a place, the police need to gather evidence that supports and confirms the information provided by the informant.

All three of the above-cited factors must be present in order for a warrant to issue. However, strengths in one of the factors can compensate for weaknesses in others. So if for example the information in an ITO is somewhat compelling but very credible and strongly corroborated, then a warrant can still issue despite the fact that it is not very compelling.

If a search warrant is successfully challenged, then the resulting search is unreasonable and the evidence obtained pursuant to the search may be excluded under section 24(2) of the Charter.