Review of Search Warrants

The Honourable Selwyn R. Romilly
Attendees of the CLEBC CLE-TV: Search and Seizure Series will receive an exclusive digital copy of Review of Search Warrants by retired BC Supreme Court Justice the Honourable R. Selwyn Romilly. This 600-page reference work provides a comprehensive analysis of the law of search and seizure in Canada.

Table of Contents

CHAPTER 33
33.1   CONSTITUTIONAL STANDARD FOR SEARCHES IS JUDICIAL PRE-AUTHORIZATION
33.1.1   Exigent circumstances exception
33.1.1.1   Common law and statutory duty of the police to protect life
33.1.1.1.1   Discovering evidence in answer to a 911 call
33.1.1.2   Impracticable to obtain a warrant
33.1.1.3   Section 11 (7) of CDSA
33.1.1.4   The Common law power to search for evidence in exigent circumstances
33.1.1.5   “Exigent circumstances” and the impracticability of obtaining a warrant cannot be created by the police
33.1.1.6   Police have a common law duty to preserve life and powers to carry out that duty
33.1.2   Plain view doctrine
33.1.2.1   S. 489(2) is not a codification of the common law "plain view" doctrine
33.1.3   Warrantless Search Prima Facie Unreasonable
33.1.3.1   Overarching legal principles for warrantless searches
33.2   WHAT IS A SEARCH UNDER SECTION 8 OF THE CHARTER?
33.2.1   What a Search Includes
33.2.1.1   The use of sniffer dogs
33.2.1.1.1   The meaning of objectively reasonable suspicion
33.2.2   What A Seizure Includes
33.2.2.1   Requiring a document to be produced
33.2.2.2   Restraint warrants
33.2.3   What a search does not include
33.2.3.1   A conversation between an informer or a police officer
33.2.3.2   A restraint order under s. 462.33 of the Criminal Code
33.2.4   Is transfer of control a search or seizure?
33.3   AMERICAN PRECEDENT TO BE USED WITH CAUTION
33.4   CERTIORARI TO CHALLENGE VALIDITY OF SEARCH WARRANT
33.4.1   Where there are Substantial Defects going to Jurisdiction
33.4.1.1   Where a third party wishes to quash a search warrant
33.4.2   Return of seized items after Certiorari Granted
33.5   SEARCH WARRANT A FUNDAMENTAL TOOL OF INVESTIGATION
33.6   NATURE OF SEARCH WARRANTS
33.7   SCOPE OF SEARCH WARRANT
33.8   S.8 OF THE CHARTER AND SEARCH WARRANTS
33.8.1   S.8 principles
33.8.2   Relationship between s. 7 and s. 8 of the Charter
33.8.3   The concept of “reasonableness” pursuant to s. 8 of the Charter
33.8.3.1   Striking a Balance Between Privacy Interests and Law Enforcement
33.8.3.2   Example of Reasonable Search
33.8.3.3   Reasonableness of Warrantless Searches -- Crown Onus
33.8.3.4   Reasonableness of a search where accused co-operating and providing documents
33.8.3.5   Reasonableness of x-ray search of package
33.8.3.6   Police must be judged by what was or should reasonably have been known to them at the time
33.8.4   S.8 protects people, not places
33.8.5   S.8 of the Charter protects against unreasonable searches
33.8.5.1   Control of subject matter not determinative in s. 8 inquiry
33.8.6   Minor s. 8 violations
33.9   S.8 ANALYSIS
33.9.1   An example of application of s. 8 principles - Aerial surveillance
33.10   REVIEW OF AUTHORIZATION VERSUS REVIEW OF SEARCH WARRANT
33.10.1   Disclosure for wiretap authorizations and search warrants
33.10.2   Wiretap authorization application more stringent than application for search warrant
33.10.3   Wilson applications –superior court’s jurisdiction to review its own ex parte orders
33.11   DISCLOSURE IN ORDER TO MAKE APPLICATION TO CROSS-EXAMINE AFFIANT ON GAROFOLI APPLICATION
33.11.1   Availability of police files for cross-examination
33.11.2   The right to disclosure and confidential informer privilege
33.12   PREREQUISITES FOR ISSUING A S. 11 CDSA WARRANT
33.13   SCOPE OF WARRANT REVIEW
33.13.1   Relevance of fraud and non-disclosure
33.13.2   The Effect of New Evidence, Fraud, Non-disclosure, and Misleading Statements
33.13.3   Misstatements, Omissions and Half-Truths
33.13.4   Where the shortcomings were in furtherance of a deliberate intent to mislead
33.14   ROLE OF REVIEWING JUDGE
33.14.1   Role of a reviewing judge and the reasonable grounds standard
33.14.2   The reviewing judge is not to independently verify the affiant’s opinion and interpretations of the information in the ITO
33.15   COURT IN WHICH REVIEW OF SEARCH WARRANT SHOULD TAKE PLACE
33.16   PROCEDURE WHERE APPLICANT WISHES TO REPLACE VALID EXISTING WARRANT
33.17   IMPORTANCE OF SCRUTINIZING AFFIDAVIT IN SUPPORT OF A SEARCH WARRANT
33.18   PROCEDURE FOR REVIEWING A SEARCH WARRANT
33.18.1   Notice
33.18.2   Warrant review proceeding is quite distinct from a trial proceeding
33.18.3   No Absolute Entitlement to a Voir Dire - Vukelich hearing
33.18.4   Leave Required for Cross-Examination of Affiant
33.18.4.1   The overarching principles
33.18.4.2   At what point can it be said that a "Basis" for Cross-Examination has been shown
33.18.4.2.1   Where cross-examination “may” turn up something
33.18.4.3   Examples of what forms a "Basis" for cross-examination of Affiant
33.18.4.4   When Leave to Cross-Examine Affiant Must be Granted
33.18.4.5   Cross-Examination of Affiant to be limited by Trial Judge
33.18.4.6   Cross-Examination of Sub-Affiant
33.18.4.7   Access to police files to test the reliability of informers
33.18.4.8   Leave required to cross-examine the affiant and sub-affiant at the preliminary hearing
33.18.4.9   Crown’s consent to cross-examination of informant
33.18.4.9.1   Manner of conducting voir dire –procedure that should be followed on cross-examination application
33.18.4.10   Crown tipping off Informant of type of cross-examination to expect
33.18.5   Amplification on review
33.19   STANDING
33.19.1   Overarching principles
33.19.2   Standing - Who may Challenge a Search Warrant?
33.19.2.1   Mere presence in premises not sufficient to establish standing to challenge search warrant
33.19.2.2   Where counsel would not admit that the accused was in control of the premises
33.19.2.3   Where the accused has keys to, and some measure of control of the premises searched
33.19.2.4   Even if an accused is not listed as a target, he has standing to challenge the authorization
33.19.3   Standing of solicitor to quash search warrant for client’s records
33.19.4   Standing of a health care professional to protect patients privacy interests
33.19.5   Standing relating to user data relating to another subscriber’s cell phone
33.20   FACIAL AND SUB FACIAL VALIDITY REVIEW
33.21   REASONABLE EXPECTATION OF PRIVACY
33.21.1   Expectation Of Privacy In Regulatory Context
33.21.2   Overarching legal principles
33.21.2.1   Personal Privacy
33.21.2.2   Territorial Privacy
33.21.2.3   Informational Privacy
33.21.2.4   How is a reasonable expectation of privacy evaluated?
33.21.2.5   Subjective expectation of privacy
33.21.2.6   Subjective expectation of privacy and the objective reasonableness of that expectation – in analysing the s. 8 issue
33.21.2.7   Objective reasonableness
33.21.2.7.1   “Objective reasonableness” of an expectation of privacy is not a matter of probability
33.21.2.8   The totality of circumstances test
33.21.3   No expectation of privacy, no s.8 violation
33.21.4   Anonymity as an aspect of the right to privacy under s. 8 of the Charter
33.21.5   No search under s.8 of the Charter if the court finds that the detainee did not have a reasonable expectation of privacy
33.21.6   Legislation and expectation of privacy
33.21.7   Onus on Accused to Prove Expectation of Privacy and Standing
33.21.8   The nature of the activity ought not to enter into the reasonable expectation analysis
33.21.9   Plain view doctrine and Expectation of privacy
33.21.10   Dwelling house - Expectation of privacy
33.21.11   Abandoned house - Expectation of privacy
33.21.12   House Number -Privacy Interest
33.21.13   Driveway - Expectation of Privacy
33.21.14   Hallway Of An Apartment Building – Privacy interest
33.21.15   Multi unit dwelling - One unit in it
33.21.16   Common area of multi-unit dwelling – Privacy interest
33.21.17   Apartment In Which Accused Was No Longer Living- Privacy interest
33.21.18   Guest Privacy Interest In The House In Which They Are Staying
33.21.19   Hotel room - Expectation of privacy
33.21.20   House where undercover officer makes drug buys – expectation of privacy
33.21.21   Business Premises During Working Hours – Privacy interest
33.21.22   Computers and cell phones
33.21.23   Medical records
33.21.24   Garbage – Privacy interest
33.21.24.1   Abandonment
33.21.25   Student In School – Expectation of privacy
33.21.26   Airport –expectation of privacy at
33.21.27   Information Given To Ambulance Attendant – expectation of privacy
33.21.28   Automobile - Expectation of privacy
33.21.28.1   Establishing privacy interest in motor vehicle
33.21.28.2   Expectation of privacy in the sleeping quarters of a tractor trailer
33.21.28.1   Motor vehicle data in Event Data Recorder (EDR) or SDM
33.21.28.2   Expectation of privacy in a stolen vehicle
33.21.28.3   Driver of the vehicle claims that he was loaned the vehicle by an unknown person
33.21.28.4   Privacy interest of driver as opposed to a passenger
33.21.28.5   When does a passenger have a reasonable expectation of privacy in a vehicle?
33.21.28.6   Privacy interest in the trunk of a car
33.21.28.6.1   Briefcase in the trunk of a vehicle
33.21.29   Digital camera
33.21.30   Jail Cell – expectation of privacy
33.21.30.1   Institutional setting – expectation of privacy
33.21.30.2   Personal effects taken from accused before he is booked into cells – expectation of privacy
33.21.31   Border Crossing  - expectation f privacy at
33.21.32   Fingerprints – expectation of privacy in
33.21.33   Items held in a bus depot locker – Expectation of privacy
33.21.34   Dead Body - Expectation of privacy in
33.21.35   Package Sent To Accused by Courier – expectation of privacy
33.21.36   Personal Financial Records In A Foreign Bank –Privacy interest
33.21.36.1   Financial records in regulated activities
33.21.37   Letter of Request - Privacy Interest
33.21.38   Fisheries Act - Expectation of privacy under the
33.21.39   Difference Between X-Rays And Forward-Looking Infrared (FLIR)
33.22   DISCLAIMER OF PRIVACY INTEREST IN AN OBJECT
33.23   TEST FOR DETERMINING WHETHER A SEARCH WARRANT WAS PROPERLY ISSUED
33.24   SWEARING AN ITO BEFORE A COMMISSIONER
33.25   STANDARD OF REVIEW
33.25.1   Where the evidentiary record provided to the warrant judge is more substantial than the one submitted to the reviewing court
33.25.2   Meaning of "Amplified on the Review"
33.25.2.1   Scope of amplification
33.25.2.2   Amplification to correct errors in affidavit in support of authorization
33.25.3   Credibility of the affiant should not be a determining factor on review
33.25.4   Standard of Proof that must be met to establish Reasonable Grounds
33.25.4.1   The reasonable grounds standard
33.25.5   Mere Suspicion versus "Reasonable Probability"
33.25.5.1   Key elements that must be shown to establish “credibly based probability”
33.25.5.2   The meaning of “reasonable grounds to believe”
33.25.5.2.1   Police cannot obtain a search warrant for a residence based on the proposition that, because the accused is trafficking in drugs, there must be drugs at his home
33.25.5.3   Police not able to corroborate or confirm the criminal act being investigated
33.25.6   "May Afford Evidence" - Is that Sufficient Test for a Warrant?
33.25.7   Pledging Belief
33.25.8   The accuracy of officer’s beliefs does not affect their reasonableness
33.25.9   Relying on the opinion of the affiant
33.25.10   No requirement that affiant expressly refer to the testimonial reliability of the informant
33.25.11   The doctrine of severability
33.25.12   Five Questions to be addressed to ensure Adequacy of Grounds for Belief
33.25.13   Interpretation Placed on the Evidence by the Justice Decisive
33.26   INFORMER PRIVILEGE AND REVIEW OF SEARCH WARRANTS AND AUTHORIZATIONS
33.26.1   Procedure for dealing with claim of informer privilege
33.26.2   Procedure where "innocence at stake" exception is claimed
33.26.3   Procedure at a preliminary inquiry
33.26.4   Abuse of process in drafting technique used in affidavit in support
33.27   IN CAMERA HEARING IN RELATION TO ESTABLISHING INFORMER PRIVILEGE
33.27.1   Procedure for in camera hearing
33.28   CONFIDENTIAL INFORMANTS
33.28.1   When information relied on comes from a confidential informant
33.28.2   Informer Privilege almost absolute
33.28.1   Identity of confidential informant
33.28.1.1   Informer privilege and redacted ITO
33.28.1.2   Conclusory Statement Made by an Informer
33.28.2   No rule or expectation that more than one informant will be required
33.28.3   Evidence from a confidential informant
33.28.3.1   Failure to Substantiate Credibility, Reliability or Veracity of Confidential Source
33.28.3.1.1   Information from a CI Informant need not bear the entire burden of establishing the necessary evidentiary foundation for a finding of reasonable and probable grounds
33.28.4   The criminal record of the confidential informant
33.29   GAROFOLI STEP SIX PROCEDURE
33.29.1   Procedure that should be followed
33.29.2   Constitutionality of step six procedure
33.29.3   Informer privilege
33.29.4   The right to make full answer and defence
33.29.5   An accused must be able to mount a facial and sub-facial challenge at step six
33.29.6   Assessing the sufficiency of the summary and ITO at step six of Garofoli
33.29.7   Redacted ITO
33.29.7.1   The Crown must establish the existence of claimed privilege
33.29.7.2   The ITO must be read as a whole in a common sense manner and having regard to its author
33.29.7.3   Redacted ITO where confidential informant is a co-accused
33.29.7.4   Procedural mechanism that might properly permit the Crown to establish the existence of the asserted confidential informant privilege
33.30   PROCEDURE ON A VOIR DIRE FOR REVIEW OF SEARCH WARRANT
33.31   DUTY TO MAKE FULL AND FRANK DISCLOSURE OF MATERIAL FACTS
33.32   OTHER MAJOR CONSIDERATIONS ON REVIEW OF SEARCH WARRANTS
33.32.1   Object and Purpose of s. 487 of the Criminal Code and s. 11 of the Controlled Drugs and Substances Act
33.32.1.1   Warrant to search for evidence in anticipation of defence
33.32.2   Minimum criteria that must be met before a search warrant is issued
33.32.2.1   Candour of police at the prior authorization process
33.32.3   What Review should be Based On
33.32.4   Review not Microscopic Analysis
33.32.4.1   Not necessary that "all" Information in possession of Police be included in Affidavit
33.32.4.2   The Meaning of Full, Frank and Fair Disclosure
33.32.4.3   Where the Justice of the Peace is Intentionally Misled
33.32.4.4   Evidence of an Offence
33.32.4.5   Failure to Set Out a Factual Link Between Offence and Items to be Seized
33.32.4.5.1   Section declared unconstitutional because of failure to need reasonable and probable grounds that items would be found in place to be searched.
33.32.4.6   Nexus between Thing searched for and Offence could be Inferred
33.32.4.7   Tip from an Anonymous Informant
33.32.4.7.1   Uncompelling tip but good subsequent police investigation
33.32.4.7.2   The effect of an unsourced tip
33.32.4.8   Statements of Informants
33.32.4.8.1   Absence of a statement from the affiant attesting to his perception of or a belief in the informer’s reliability is not necessarily fatal to the authorization.
33.32.4.9   Examples Where Crimestoppers Tips were Held to be Sufficient
33.32.4.10   Hearsay Evidence of an informant
33.32.4.11   Description of Accused as "suspected drug trafficker"
33.32.4.12   Inclusion of the prior criminal record of the target in the Search Warrant
33.32.4.13   Inclusion of dismissed charges in information in support
33.32.4.14   Bald Opinion Bereft of Factual Underpinning Insufficient
33.32.4.15   Relying on Intercepts from Intercepted Communications as Basis for Warrant
33.32.4.16   Inadvertent error in the Information or in the Warrant Itself
33.32.4.17   Warrant on the Basis of Facts Found to be Inadmissible
33.32.4.18   Excised Facts - Charter Breach
33.32.4.19   Lack of Particularity of Things to be Searched For
33.32.4.20   Particularizing Items to be Seized in a Complex Case
33.32.4.21   Currency or Recency of Information
33.32.4.21.1   Examples of "Recent" Information
33.32.4.22   Incorrect Address in warrant
33.32.4.23   Entry Code to Apartment did not specify the Targeted Apartment
33.32.4.24   Search of Home - Wrong Address
33.32.4.24.1   Multi-unit Premises and Rural Property
33.32.4.24.2   Where Warrant authorizes Search of a Residence but does not include Search of Vehicles or outbuildings
33.32.4.25   Agnostic deponent swearing information in support of search warrant
33.32.4.26   Validity of s. 487 Warrants in Narcotic Investigations
33.32.4.27   Naming of the Officer authorized to execute the Search Warrant
33.32.4.27.1   Officer not named in warrant
33.32.4.28   Propriety of designating persons acting under direction of Peace Officers to Intercept
33.32.4.29   The use of boiler-plate language in the affidavit in support
33.32.4.30   Obtaining affidavit material from those with first-hand knowledge
33.32.4.31   Where the accused receives edited copies of information in support of search warrant
33.32.4.32   Not necessary to disclose whether alternative sources from which information could be obtained
33.32.4.33   Smell versus Sight
33.32.4.34   Information in search warrant obtained as a result of breach of s. 10(b) of the Charter
33.32.4.35   Information from unconstitutional search of third parties
33.32.4.36   The effect of the loss of the unamended information in support of the search warrant
33.32.4.37   Search warrant process is location critical
33.32.4.38   The importance of the jurat in the information to obtain
33.32.4.39   Where the name of the justice issuing the search warrant is omitted from the search warrant
33.32.4.40   Sufficiency of evidence before the issuing judge
33.32.4.41   Police alerted to theft of electricity by B.C. Hydro Technician
33.32.4.41.1   The sufficiency of evidence from Hydro employee
33.32.4.41.1.1   Comparables with other hydro users on the street
33.32.4.42   Important to source information relied upon and to provide information as to the education, training or qualifications of outside consultants
33.32.4.43   Challenging the opinion of the affiant
33.32.4.43.1   Reasonable belief that child pornography remained on the accused's computer
33.32.4.44   Police trespassing on neighbour’s property to get grounds for search warrant
33.32.4.45   Other investigative steps that should have been taken before applying for warrant
33.32.4.46   Summary of Review Guidelines
33.32.4.47   Subversion of the prior authorization process
33.32.4.48   Summary of review guidelines where a warrant is obtained on the basis of information from an informant
33.32.4.49   Drafting the ITO
33.32.4.49.1   The effect of careless drafting of informations in support of search warrants
33.32.4.49.2   Where the police provide misleading information on application for a warrant
33.32.4.49.3   Exclusion where there was Negligence or carelessness in preparing the information in support of the warrant
33.32.4.50   Factual assertions must be sourced to some investigative resource
33.32.4.51   Reference to race or ethnicity
33.32.4.52   Video clips vs accurate description
33.32.4.52.1   Innocent explanations for certain observations when considered individually
33.32.4.53   Access to police of examination for discovery evidence
33.32.4.54   Minimizing conditions attached to warrant
33.32.4.55   Failure to depose that it is impracticable for peace officer to personally appear before a justice
33.32.4.56   Where information relied on by the affiant proves to be false
33.32.4.57   Inattention to constitutional standards
33.32.4.58   Flaws in the ITO
33.32.4.59   Prior unconstitutional conduct
33.32.4.60   Where the item that is the subject of the search warrant is discarded
33.33   SEARCH AT THE LOCATION LISTED IN THE WARRANT
33.34   DESCRIPTION OF PLACE TO BE SEARCHED
33.34.1   Description of Motor Vehicle
33.34.2   Premises and curtilage
33.35   PARTICULARIZATION IN WARRANT OF THINGS TO BE SEARCHED FOR
33.36   COMPUTER SEARCHES
33.36.1   Not much distinction between cell phones and computers
33.36.2   Privacy interest in computers different from privacy interest in other receptacles
33.36.2.1   Reduced expectation of privacy when accused takes computer to a technician for repair of computer
33.36.3   Authority to search a computer does not give unfettered access to all data there located
33.36.3.1   How specific must the description of the items to be searched for in the computer be?
33.36.4   Time frame for search of the computer
33.36.5   Computer technician as “informer”
33.36.6   Expectation of privacy in an IP address
33.36.6.1   Spencer distinguished
33.36.6.2   Drawing an inference of identity of user of a computer from a person’s IP address
33.36.7   Does an Accused have an expectation of privacy in recipient’s copy of text messages?
33.36.8   Expectation of privacy in a personal computer
33.36.8.1   Expectation of privacy in a work place computer
33.36.8.1.1   Is further warrant necessary to search hard drives of computers found in home?
33.36.8.2   Failure of the Issuing Justice to Limit the Manner of Search is not Fatal
33.36.8.3   Document identifying ownership and /or occupancy is impermissibly vague
33.36.8.4   Does the Personal Information and protection of Electronic Act (PIPEDA )preclude the police from obtaining  customer related information from businesses?
33.36.8.5   Possession of pornography cases
33.36.8.5.1   Search of a computer
33.36.8.5.2   Where there is expert opinion about the behaviour of pedophiles in the ITO
33.36.8.5.3   Police should be very careful with the preparation of ITO’s in child pornography cases
33.36.8.5.4   Police should be very careful with the preparation of ITOs in child pornography cases
33.36.8.5.5   Reliability of the Wyoming Toolkit software program
33.36.8.6   Authorizing judge does not have to set out the protocol for the searching of the computer
33.37   WARRANTLESS SEIZURES OF THE NAME ASSOCIATED WITH A TELEPHONE NUMBER
33.38   SEARCH OF A CELL PHONE INCIDENT TO ARREST
33.38.1   Privacy interest in a cell phone
33.38.2   Password protected cell phones
33.38.3   Nature of a cell phone search and privacy
33.38.4   Warrant to search a cell phone does not give the police “a licence to scour the devices indiscriminately”
33.38.5   Search of premises where computers or cell phones are expected to be found
33.39   SECURITY CHECKS WHILE EXECUTING A SEARCH WARRANT
33.40   WHAT THE POLICE COULD SEIZE WHEN THEY EXECUTE A SEARCH WARRANT
33.41   EMERGENCY WARRANTS
33.42   POLICE’S OBLIGATION TO TAKE NOTES OF SEARCH
33.43   POLICE OFFICERS HAVE A DUTY TO ENFORCE THE LAW AND INVESTIGATE CRIMES
33.43.1   Police officers seeking search warrants
33.44   EXECUTION OF THE SEARCH WARRANT
33.44.1   Execution of CDSA warrant
33.44.2   Form 5.2 under CDSA
33.44.2.1   Effect of late filing of Form 5.2
33.44.3   Reasonable search
33.44.4   Who May Participate in the Execution of a Search Warrant?
33.44.5   Production of Search Warrant
33.44.6   Recording the Search
33.44.7   Knock and announce principle
33.44.7.1   Dynamic entry (Hard entry)
33.44.7.2   Unreasonable searches where there was a dynamic entry
33.44.7.2.1   Entry with guns drawn and with some officers wearing masks
33.44.8   When an accused challenges the “Manner” of a search
33.45   TRACKING WARRANT AND DNR WARRANT
33.46   RETURN OF SEIZED ITEMS AFTER WARRANT FOUND TO BE INVALID
33.47   PRODUCTION ORDERS
33.47.1   Amendment to the production order section of the Criminal Code
33.47.1.1   Application for “transmission data” and “tracking data” must meet the higher standard of “reasonable grounds to believe”.
33.47.2   Process for challenge of Production orders
33.47.2.1   Application to quash production orders made against the media
33.47.2.2   Meaning of “a judge of the same territorial division as the judge or justice who issued the order”.
33.47.3   Review of production orders
33.47.3.1   The law regarding search warrants applies to production orders
33.47.3.2   Reasonable suspicion that an offence has been committed is all that is required for the issuance of a production order
33.47.3.3   Production order to seize text messages from the accused’s service provider
33.47.3.4   Seizure of stored text messages from service provider
33.47.3.5   Seizure of third party text messages
33.47.3.6   The argument that the production of text messages by the service provider contravenes Section 193(1) of the Code
33.47.3.7   Tower dump production orders
33.47.3.8   An example of information in support of production order that was deemed to be sufficient
33.47.3.9   Where the details of the informer’s tip are not included in the application for a production order
33.47.3.10   Production order for lawyer’s home telephone records and cellular records
33.47.3.11   Service and timing of response on Facebook
33.47.3.12   Recovery of costs in the production order scheme
33.48   SEARCH OF A LAWYER’S OFFICE
33.48.1   Constitutionality of s. 488.1 of Criminal Code
33.48.2   Duty to minimize
33.48.3   The privileged nature of information about lawyers' fees and disbursements
33.49   SEARCH WARRANT FOR HEALTH RECORDS
33.49.1   In a physiotherapy clinic
33.49.2   Search of psychiatrist’s office
33.50   SEARCH OF MEDIA PREMISES
33.50.1   The effect of failure to give media notice of ex parte application for search warrant for their premises
33.50.1.1   General warrant and assistance order quashed where Justice of the Peace did not have adequate Charter information
33.50.2   Failure to provide a possible alternative source for the material sought
33.50.3   Review of search warrant before charges laid
33.50.4   The use of the media in undertaking a search under a search warrant
33.51   REGULATORY SEARCHES
33.52   TAX INVESTIGATIONS AND CRIMINAL CODE SEARCH WARRANTS
33.52.1   Investigations under the audit function of the CRA and penal investigation
33.52.2   Use of a Criminal Code warrant for investigation under the Income Tax Act
33.53   THE INDEPENDENCE OF THE JUSTICE OF THE PEACE
33.53.1   Justice of the peace is entitled to draw reasonable inferences from grounds in ITO
33.53.1.1   Justice of the peace identifying deficiencies in affidavit in support of warrant
33.53.2   Does the Justice of the Peace have to include a statement in the warrant that she was satisfied that reasonable and probable grounds existed?
33.53.3   Grounds of belief relating to things to be searched for
33.53.4   Magistrate Helping with Framing of Information
33.53.5   Conversations between an Informant and a Justice of the Peace
33.53.6   Justice of the Peace not a Compellable Witness
33.54   TIME OF EXECUTION OF THE SEARCH
33.54.1   Night-time searches
33.54.2   Night-time searches under the Controlled Drugs and Substances Act
33.54.2.1   Constitutionality of s. 11 of the Controlled Drugs and Substances Act
33.54.3   Where search takes place outside the time stipulated in search warrant
33.55   SUCCESSIVE APPLICATIONS FOR WARRANTS
33.56   VIDEOTAPING SEARCH CONDUCTED UNDER SEARCH WARRANT
33.57   EX POST FACTO JUSTIFICATION INSUFFICIENT
33.58   REVIEW OF FOREIGN SEARCH WARRANTS
33.58.1   Could Constitutionality of foreign legislation be determined in Canadian Courts?
33.59   SEARCHES IN FOREIGN JURISDICTIONS
33.60   JURISDICTION TO QUASH WARRANT ISSUED IN ANOTHER PROVINCE
33.61   RETURN OF ITEMS SEIZED PURSUANT TO A WARRANT
33.61.1   Return of items seized under a s. 487.01 warrant (General Warrant)
33.61.1.1   Legislative history and intention of parliament with respect to the enactment of s. 489.1 of the Code
33.61.1.2   S. 489.1 of the Criminal Code applies to items seized pursuant to a search incident to arrest
33.61.2   Section 490
33.61.3   Lack of a Report or Return
33.62   FORM OF PRIOR JUDICIAL AUTHORIZATION
33.63   GENERAL WARRANTS
33.63.1   Difference between conventional search warrant and general warrant
33.63.2   Statutory interpretation of s. 487.01 of the Code
33.63.3   Covert entry and search
33.63.4   The extension of the general warrant to offences that will be committed
33.63.4.1   Warrant for Video surveillance
33.63.5   "No other provision" - s. 487.01(1)(c) of the Code
33.63.6   "The best interests of the administration of justice" - s. 487.01(1)(b) of the Code
33.63.7   Fishing expedition
33.63.8   Is “could be found” a lesser standard than “will be obtained”
33.63.9   General warrant power is residual
33.63.10   The hybrid nature of the General warrant
33.63.11   Notice provisions in General warrants
33.63.12   Specificity of anticipatory warrants issued under the General Warrant section of the Criminal Code
33.63.13   Use of General warrant to search residence
33.63.13.1   Using a General warrant to verify the presence of drugs on property
33.63.14   Re-advising accused of right to counsel when general warrant served on him
33.63.14.1   Not allowing offender access to counsel before execution of search warrant
33.63.15   Intrusive measures that could compromise bodily integrity would exceed the scope of a general warrant
33.63.15.1   General warrant to spread one’s buttocks in order that it could be photographed
33.63.15.2   Bedpan vigil search is a search that can be authorized by a general warrant
33.63.16   Tracking device versus General warrant
33.63.17   General warrant and assistance order
33.63.18   The requirements for the issue of a general warrant are stricter than those for a conventional warrant
33.63.19   Using a general warrant to intercept text messages
33.63.20   Is s. 487.01 of the Criminal Code contrary to s. 8 of the Charter?
33.64   ANTICIPATORY WARRANTS
33.65   RETURN OF ITEMS SEIZED UNDER A VIDEO SURVEILLANCE WARRANT
33.66   DNA WARRANTS
33.66.1   Relevant sections of the Code
33.66.1.1   Where DNA warrant obtained on the basis of information provided as a result of a conviction that was overturned
33.66.2   Pre-Conditions to the Applicability of s. 487.05(1)
33.66.3   Use of General warrant to seize biological samples
33.66.4   Penile washings for presence of menstrual blood
33.66.4.1   Obtaining DNA from accused’s penis after allegation of unprotected sexual assault
33.66.5   Constitutionality of DNA warrants
33.66.5.1   Are the DNA provisions contrary to s. 11(i) of the Charter
33.66.5.2   The need for notice on applications under s. 487.055(1) of the Criminal Code
33.66.5.3   The meaning of two murders "committed at different times" under s. 487.055(1) of the Code
33.66.6   Retrospectivity
33.66.7   The execution of the DNA warrant
33.66.8   The meaning of the words “will provide evidence” -certainty not required.
33.66.9   Do other investigative means have to be exhausted before a DNA warrant should be granted?
33.66.10   Is the standard of “reasonable grounds” appropriate for DNA warrants?
33.66.11   Bias and the Crown presenting the judge with reasons for granting DNA warrant
33.67   33.29  FEENEY WARRANTS
33.68   NUMBER RECORDER WARRANTS
33.68.1   Difference between Number recorder warrants and telephone records orders
33.68.2   Alternative methods and s. 24(2) of the Charter
33.69   TRANSMISSION DATA RECORDER WARRANT (“TDRW”) AND ASSISTANCE ORDER
33.69.1   The function of a transmission data recorder warrant
33.70   MLAT AND WARRANTS UNDER S. 487 OF THE CODE
33.70.1   The difference between an evidence gathering order an a search warrant
33.71   SEARCHES FOR FIREARMS AND AMMUNITION
33.72   STANDARD OF REVIEW FOR REVIEW OF SEARCH WARRANT AT APPEAL COURT LEVEL
33.73   SEALING AND UNSEALING OF SEARCH WARRANTS
33.73.1   Difference between Publication ban and sealing order
33.73.2   Procedure for unsealing information in support of search warrant while protecting informer privilege
33.73.3   Granting access to accused against whom information is stayed
33.73.4   Criminal Code provision dealing with sealing search warrants
33.73.5   The interpretation of s. 487.3(4) of the Criminal Code
33.73.5.1   Court before which application to unseal should be made
33.73.5.2   The Presumption of Openness and the Burden of Rebutting that Presumption
33.73.5.3   The Criteria for Determining Whether the Presumption of Openness Can Be Rebutted
33.73.5.4   The Standard of Review
33.73.6   Challenging order of Provincial Court by Certiorari
33.73.7   Considerations to be taken into account on sealing and unsealing applications
33.73.7.1   Inherent jurisdiction of the Court to review its ex parte order
33.73.8   The meaning of serious risk
33.73.9   Burden of displacing the general rule of openness
33.73.10   Financial loss is insufficient to satisfy onus
33.73.11   Privacy interest not usually sufficient to displace presumption of openness
33.73.12   The Protection of innocence exception
33.73.13   Where charges are not laid against the subject of the search
33.73.14   The effect of publicity
33.73.15   The wiretap regime is intended to be confidential
33.73.16   Investigative technique privilege- Public interest privilege
33.73.17   Litigation privilege
33.73.18   Editing
33.73.19   The time limits that should be placed on a sealing order
33.73.19.1   What if the sealing order has expired?
33.73.20   Review of issuance of sealing order by certiorari
33.74   RULES WITH RESPECT TO EX-PARTE APPLICATIONS
33.75   REVIEW OF SPECIAL WARRANTS AND RESTRAINT ORDERS
33.75.1   Garofoli procedure does not apply to review of restraint orders and general warrants of seizure
33.75.2   No Invasion of Privacy in Restraint Order
33.75.3   Duration of seizures and restraint orders
33.75.4   Return of Property to Applicant After Warrant Successfully Attacked
33.75.5   Grounds on Which Warrant Could be Attacked
33.75.5.1   Failure to Adequately Describe Location of Property or to Specify the Property to be Subject to Forfeiture
33.76   NOTICE OF EXECUTION OF WARRANT
33.76.1   Failure to give notice a breach of s. 8 of the Charter
33.77   EXECUTION OF WARRANT
33.77.1   Date of execution of warrant not specified in warrant
33.77.2   Searches Not Completed Within the Time Frame Specified
33.77.3   Search of vehicle - seizure of items in plain view
33.77.4   Overseizure
33.77.4.1   What should be done with illegally overseized documents?
33.78   FAILURE TO FILE REPORT IDENTIFYING PROPERTY SEIZED
33.78.1   Is the failing to file the report a breach of s.8 of the Charter?
33.78.2   Grant s. 24(2) analysis where there is a failure to file
33.78.3   Failure of Attorney General to Provide Undertaking
33.78.4   Restraint Order Restraining Disposition of Property
33.78.4.1   Procedure for Obtaining Order Restraining Disposition of Property
33.78.4.2   Contents of Judge's Restraining Order
33.78.4.3   Execution and Enforcement of Restraint Order
33.78.4.4   Lifting a Restraint order
33.78.4.5   The connection between restraint and seizure proceedings and orders of forfeiture
33.78.4.6   There is no right of appeal from s. 462.35
33.78.4.7   The effect of a stay of proceedings on charge of possession of the proceeds of crime on restrain order
33.78.4.8   Is there an implied power to order the return of seized items as a Charter remedy under s. 490(9)  of the Criminal Code?
33.78.5   Collateral attack on Restraint Order
33.79   TELEWARRANTS
33.79.1   Statutory Requirements for the Issuance of a Telewarrant
33.79.2   The meaning of “impracticable”  in s.487.1 (1) of the Criminal Code
33.79.3   The lack of face to face interaction between the police and the JJP’s
33.79.4   Failure to comply with the form 5.1 requirement
33.79.5   24(2) analysis where there is failure to explain that a justice of the peace was not available within the jurisdiction
33.79.6   Non-compliance with section 487.1(2)
33.79.7   The effect of the affiant’s failure to disclose his efforts to find a local JP in the ITO
33.79.8   Where the JJP changes the affidavit document without the knowledge of the affiant
33.79.8.1   What is the effect of the "typo" made by officer in the report under subsection (9)
33.79.9   Telewarrants and Feeney warrants
33.80   DISCRETION TO NOT ISSUE WARRANT
33.81   APPLICATION TO RESTRAIN DISSEMINATION OF INFORMATION GATHERED UNDER IT PENDING DETERMINATION OF CHALLENGE
33.82   STANDARD OF REVIEW ON APPEAL
33.83   “OBTAINED IN A MANNER” – TIME & PLACE TO BE CONSIDERED
33.83.1   Causal Link Between Charter Breach & Evidence Obtained
33.83.2   Relevant time to be considered in determining if evidence was “obtained in a manner”
33.84   GRANT ANALYSIS UNDER S. 24(2)
33.84.1   Introduction
33.84.2   Seriousness of state conduct
33.84.2.1   Good faith
33.84.2.2   If the police officer is not truthful
33.84.2.3   Lack of police training
33.84.2.4   Where the affiant sought, and obtained, prior judicial authorization
33.84.2.5   Where the law is unsettled
33.84.2.6   Defective warrant
33.84.2.6.1   Negligence/carelessness in preparing information to support warrant
33.84.3   The Impact of the Breach on the Charter-Protected Interests of the Accused
33.84.3.1   Where evidence would inevitably have been discovered
33.84.3.2   The expectation of privacy in a person’s residence
33.84.4   The balancing process
33.84.4.1   Guns and drugs
33.85   THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ACT 
33.85.1   The Scheme
33.85.2   Constitutionality of the Mutual Legal Assistance in Criminal Matters Act
33.85.3   The Purpose of the Act
33.85.4   The requirement of reciprocity
33.85.5   Application of the Charter
33.85.6   Standing to seek a remedy for a violation of s. 8 of the Charter
33.85.7   Procedure – the meaning of “competent authority” to bring application
33.85.8   Applications under the Act are usually ex parte
33.85.9   Constitutionality of ex parte proceedings under the Act
33.85.10   MLACMA is not the exclusive means for gathering and sending evidence from Canada to a foreign state
33.85.11   The relationship between MLAT proceedings and extradition proceedings
33.85.12   Confidentiality of the MLAT application
33.85.13   Analysis of the legislative provisions
33.85.14   Difference between the ministerial and judicial roles
33.85.15   Limited judicial discretion
33.85.16   What role, if any, does the judiciary have in determining whether an offence, for which the Minister has approved a request for assistance, is an offence within the meaning of the Act?
33.85.17   The nature of the hearing under s. 15 of the Mutual Legal Assistance in Criminal Matters Act (Sending order)
33.85.18   Conditions in evidence gathering order
33.85.19   Different terms in sending order for evidence gathered under s.18 from those under a s.12 search warrant
33.85.20   Sending order where warrant overbroad
33.85.21   Test for review and function of the reviewing judge
33.85.22   Sufficiency of an information to obtain a warrant based on information from a confidential informer
33.85.23   Sufficiency of edited information in support of an information to obtain a search warrant
33.85.24   The use of hearsay evidence in the affidavit in support of the search warrant
33.85.25   The naming requirement
33.85.26   Naming an officer from the requesting state as an observer of the search
33.85.27   Seizure of multiple documents
33.85.28   Manner of execution — foreign official examining each item
33.85.29   The propriety of foreign officers reviewing the things seized before Sending Order
33.85.30   Documents seized from a Solicitor or Accountant
33.85.31   Files held by a Solicitor on behalf of a Client
33.85.32   Cross-examination of the Affiant:  the information in support of the search warrant
33.85.33   Where the application for the search warrant did not consist of proof of approval of the Minister
33.85.34   Lack of candour by the person who swore the information in support of the search warrant
33.85.35   Failure to disclose intention to obtain an evidence-gathering order
33.85.36   The description of the offence in the warrant
33.85.37   Amplification of record
33.85.38   The applicability of s. 490 of the Criminal Code to the Act
33.85.39   Review of evidence on a Gathering Order
11.1.1   The Use of Hearsay Evidence on Applications for Gathering Orders
33.85.40   Terms and conditions imposed in sending order limiting the use to be made of seized material
33.85.41   Gatekeeping function of the Minister
33.86   APPLICANTS FOR COSTS IN MLAT PROCEEDINGS
33.86.1   Reimbursement for expenses:  Mutual Legal Assistance in Criminal Matters Act