There are various provisions in statutes like the Criminal Code, Controlled Drugs and Substances Act and other pieces of legislation that provide the power to issue search warrants.
As we covered in the first post about warrants, the default standard is a system of prior authorization. The general framework then for the issuance of a search warrant is
- prior authorization;
- granted by a neutral and impartial arbiter capable of acting judicially;
- based on reasonable grounds to believe that an offence has been committed and there is evidence to be found at the place to be search.
The first two simply refer to permission being granted by either a Judge or Judicial Justice. This serves as a screening function to ensure that there is a proper basis for the search which places an important limit on police powers and prevents baseless searches.
Reasonable grounds to believe is the onus of proof that must be met by the officer who is seeking to have the warrant issues. This standard is the Canadian version of the American term (what we see on TV) of probable cause. Reasonable grounds is a credibly‑based probability or reasonable probability. It has been described as the point at which suspicion gives way to credibly‑based probability. It should be clear that this is a much lower threshold than proof beyond a reasonable doubt. As noted, this applies to both the commission of an offence and that there will be evidence at the location to be searched. So even if there are reasonable grounds to believe that someone has trafficked in drugs, a warrant can only issue for their home if there is evidence connecting the home to the drug trafficking.
In terms of the process to obtain a warrant, an officer will draft an Information to Obtain (ITO). That officer is referred to as the Affiant. The ITO must contain a full and frank disclosure of all material facts and not just those favourable to the state. This is especially important given that this is an ex parte process. That means there is no counter argument to the police presentation of the facts. Given that, it is critical that the police present the facts in a complete, fair and balanced way.
ITO’s can vary in length and complexity just like the investigations they are outlining. A months long undercover operation with surveillance and all sorts of evidence gathering steps will require a much different ITO than an investigation that came together over a couple days.
Once the ITO is complete the affiant will attend before a Judge or Judicial Justice and submit their application – the ITO. If it is “impracticable” to make an application in person before either a judge or justice of the peace the affiant may apply for a telewarrant. That simply means they submit the material to the Judge or Justice through fax.
The Judge or Justice will then review and make a determination as to whether the reasonable grounds standard has been met in relation to an offence having been committed and that there is evidence to be found at the place to be searched.
If the warrant is issued then it will specify a limited timeframe within which the search must be completed.
Those are the basic steps in an application for a warrant. Next time, what can be done if the search authorized by the warrant leads to discovery of evidence and the laying of charges.