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Search Warrant & Wiretap Cases

Fire Arms Offence

Adam Steven Boni LL.B. -Search Warrant Lawyer in Toronto

Challenging a Search Warrant or Wiretap is a complex and difficult process. Challenging these warrants and orders requires a strong knowledge of a complex area of the law, good judgment and excellent strategic sense. Adam Steven Boni is one of the most experienced Search Warrant Lawyers in Toronto. Mr. Boni has written numerous articles on the subject of Search Warrants and Production Orders including "The ABC's of Search Warrant Review", "The Practitioner's Guide to Search Warrant Review" and "Bill C-13: Laying the Foundation for the Modern Canadian Surveillance State". He has been invited to lecture to police officers, lawyers, and Justices of the Peace on constitutional challenges to Search Warrants and Wiretaps on several occasions over the course of his career. Most recently in October 2020, he was invited to lecture on Search Warrant challenges at the 48th Annual Ontario Criminal Lawyers’ Association Fall Conference.

In 2012, Mr. Boni was qualified as an expert in the prosecution and defence of wiretap cases, and gave expert testimony on this subject in the Federal Court of Canada. He is one of a handful of lawyers who has successfully challenged a Wiretap order at trial. Most recently, in July of 2022, he was successful in demonstrating the very rare circumstance of subversion of the pre-authorization process by a sub-affiant in a search warrant challenge that resulted in exclusion of a very large quantity of cocaine, firearms and cash from his client's trial. You can read the judgment here: https://canlii.ca/t/jr2mg.

Mr. Boni is regularly retained by individuals charged with criminal and quasi-criminal offences involving search warrants and wiretaps, and by other lawyers handling such cases, to assist them and/or attend court with them as a special team member. His work in this area has led to innumerable withdrawals and stays of proceedings by the crown even before charges make it to trial, and he has also obtained the remedy of the exclusion of evidence at trial.

Contact Adam Steven Boni, LL.B. and let him bring his extensive knowledge, skill and experience to your side of the courtroom if you are facing a Search Warrant or Wiretap case.

Search Warrant Lawyer Toronto

Police have increasingly resorted to applying for and obtaining Search Warrants in order to collect evidence during the course of their investigations. Challenging the issuance of these warrants requires a very strong command of the applicable law, search and seizure jurisprudence under the Charter of Rights and Freedoms, the law of privilege, and a highly strategic and determined approach by counsel.

What Is a Search Warrant?

A Search Warrant is an investigative tool. During the investigative phase, the police are given latitude to search for all evidence that is relevant to the commission of an offence. A Search Warrant is a document that records an Order issued by a Justice of the Peace or a Judge, that authorizes the police to enter a dwelling-house, office, building, motor vehicle or other receptacle during a specified time period and to search it and seize evidence of a criminal offence listed in the search warrant.

Who Can Apply for a Search Warrant and How Are They Issued?

Generally speaking, police officers or a “public officer” who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of that law can apply for a Search Warrant to a Justice of the Peace or a Judge. Search Warrants are applied for in writing, and under oath, by police officers. The written application package must comply with strict terms and conditions set out in the applicable statute. The sworn application form filled out by police is known as an "ITO" (Information to Obtain").

The ITO must set out a full, fail and frank account of all relevant information that the police rely on to establish "reasonable and probable grounds, under oath, to believe that an offence has been committed and that evidence with respect to that offence will be found at the place to be searched." The "reasonable grounds" standard is a credibly-based probability that an offence has or is being committed and that evidence of that offence will be found at the place to be searched.

Mere suspicion that an offence may have been committed or that evidence might be found at a place to be searched is not enough.

At the same time, the "reasonable and probable grounds" standard does not require the police to have proof beyond a reasonable doubt or even a prima facie case in order to obtain a Search Warrant.

The ITO may draw on a number of information sources that would never be admissible at a criminal trial, including hearsay, confidential informer and anonymous tipster information, and a person’s prior contacts with police and previous convictions that are relevant to the application.

The Justice of the Peace or Judge who reviews these applications is not a "rubber stamp". They are required to consider the evidence contained in the ITO and make a judicial determination as to whether to grant or refuse to issue the Search Warrant in writing. It does not matter that the police believe that reasonable grounds exist for the search. What matters is whether the Justice or Judge is properly satisfied that reasonable grounds exist for the Search Warrant. The Judge or Justice who authorizes the search must arrive at this conclusion "in an entirely neutral and impartial manner", understanding that "constitutional rights are at stake" and "the constitutional principles protecting privacy interests"

As a result, there must be "no real or apprehended perception of partiality" that infects the application process. It is improper for the issuing Judge or Justice to review a draft of the ITO and to advise the police as to how to best frame the grounds. "Judge shopping" by the police brings the administration into disrepute and, if proven, will invalidate the warrant. Finally, it is improper for a justice to permit an insufficient ITO to be supplemented before rendering a decision.

How Many Times Can Police Apply for Search Warrants in an Investigation?

Courts are sensitive to the fact that circumstances change during police investigations. Investigative leads can emerge unexpectedly and new evidence may be discovered that transforms what was once mere suspicion into "reasonable and probable grounds". Therefore, police are permitted to make several applications to search a number of places during an investigation. If a Justice of the Peace or Judge refuses to issue a Search Warrant, the police are allowed to re-apply for the Search Warrant based on further information that is acquired during their investigation.

Can My Lawyer Attend the Search Warrant Application and Argue Against Its Issuance?

No. Your lawyer cannot attend the Search Warrant application and contest the police application on your behalf. A Search Warrant application, being a part of the investigative phase is different from the trial phase. The search warrant application process is an ex parte process involving only the police and the Justice of the Peace or Judge. There is no notice requirement to be given to persons of interest in the investigation, their lawyers or the public. The applications are received an considered in camera, and not in open court. In certain special circumstances, the police may ask the Justice of the Peace or Judge to seal the ITO and application materials, if certain requirements are met.

Does a Search Warrant Need to Name a Target of the Investigation?

No. There is no requirement that police name a specific person as a target of the Search Warrant. Often times, police do not know or may yet be unsure who may be responsible for a crime when they apply for a Search Warrant. The police need only establish “reasonable and probable grounds, under oath, to believe that an offence has been committed and that evidence with respect to that offence will be found at the place to be searched.”

How Can a Search Warrant Be Challenged by a Person Charged With an Offence?

There are many ways to challenge a Search Warrant. This has to be done at trial on written application by the accused person's lawyer. The trial judge will hold a special hearing called a voir dire to consider the accused person's challenge to the Search Warrant and whether the items seized should be excluded from the trial under the Charter of Rights and Freedoms.

Facial Defects Challenge

The issuance of a Search Warrant involves an exercise of jurisdiction by a Justice of the Peace or a Judge that is conferred by a statute. It is essential, therefore, that all of the requirements of the statute are properly met by the police in their written application. Defects on the face of a search warrant may render it invalid. It is essential that counsel obtains an actual copy of the search warrant and carefully inspects it for defects and errors. For example:

  • The Search Warrant must be addressed to a "peace officer" or "public officer…who is named".
  • It must contain a sufficiently accurate description of the "building, receptacle or place". Errors in the address of the property to be searched may render the search warrant invalid.
  • The description of the offence in the search warrant must be "sufficiently clear to enable the person whose premises are being searched to know the exact object of the search." It cannot authorize a search for evidence in respect of the commission of a "suspected offence".
  • The items to be searched for cannot be "so broad and vague as to give the searching officers carte blanche to rummage through the premises of the target". The items to be searched for must be items that "will" afford evidence of the offence.
  • The search warrant must contain a time period for execution. Counsel should double-check to confirm that it was executed during the time specified for execution on the face of the search warrant.

Sufficiency Challenge

It is not enough for a police officer to swear that she has reasonable grounds. The ITO must contain sufficient reliable details to support a reasonable judicial decision that the reasonable and probable grounds standard has been met and the Search Warrant should properly issue. It is essential that the police carefully set out in the ITO not only the evidence to support reasonable grounds to believe that an offence has been committed, but also to support reasonable grounds to believe that evidence in respect of the offence will be found at the place to be searched. This requires that the information relied upon by the affiant is sufficiently current to sustain this belief. If the information they relied on in the ITO was too old or “stale”, the Search Warrant may be invalidated by the trial judge.

Sub-Facial Defect Challenge

The police are required to make "full, fair and frank" disclosure of all relevant facts in the ITO. They are not allowed to lie, mislead, mis-state or leave out relevant information in order to obtain a Search Warrant. The police must state the facts fairly and must inform the Justice of the Peace or Judge of any points of fact or law that both support and do not support the issuance of a Search Warrant.

An accused person's lawyer cannot automatically cross-examine the police officer who prepared and swore to the ITO. Leave of the Court must be sought to permit such cross-examination. This is known as a Garofoli application, after the landmark Supreme Court of Canada case Her Majesty the Queen v. Garofoli. If successful, the trial judge will allow the accused person's lawyer to cross-examine the police officer who prepared and swore to the ITO.

There are very technical and special rules that apply in this context. The Courts acknowledge a "spectrum of misconduct" that may affect a Search Warrant. Spelling errors, minor mis-statements, innocent mistakes and errors can be erased and, in certain circumstances, corrected. If what remains after this process is "sufficiently reliable" information upon which a Justice of the Peace or Judge could have reasonably issued the Search Warrant, then there will be no section 8 Charter violation and the Search Warrant will be upheld. However, if the defence lawyer is able to demonstrate that the police deliberately misled the issuing Justice or Judge, that will likely result in the invalidation of the Search Warrant and a finding that the police violated section 8 of the Charter.

Execution Phase Challenge

In Canada, s.8 of the Charter of Rights requires that the police abide by the law and act reasonably when the execute Search Warrants, especially in private dwelling homes. If the police behave illegally during the search this can give rise to a s.8 Charter violation. In addition, the police must comply with s.10(a) and s.10(b) of the Charter during Search Warrant executions, meaning that they must advise people inside of the reason for their detention or arrest and of their right to counsel immediately. If the police fail to comply with these obligations, that can also give rise to s.10 Charter violations. These violations, once established, may lead to the exclusion of evidence obtained by police during their search.

If the Search Warrant Issuance or Execution Violated the Charter Will the Evidence Seized Be Automatically Excluded From Trial?

In Canada, unlike the United States, there is no rule of automatic exclusion when a Search Warrant is invalidated and Charter violations are established. Defence Counsel is required to go a step further and argue that the remedy of exclusion is required under s.24(2) of the Charter. At this stage of the voir dire, the trial judge will have to examine a series of factors in order to determine whether to exclude the evidence from trial. The trial judge will examine factors that include the seriousness of the police misconduct, and the impacts of the police misconduct on the accused person’s privacy interests, and the long-term reputation of the justice system.

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