Search Warrants - An Introduction

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Generally speaking, a search warrant is an order of the court issued by a judge or justice of the peace that authorizes law enforcement officials (or some other government agents) to conduct a search of a person or location for evidence of a crime and to seize evidence if it is found. Since the enactment of the Canadian Charter of Rights and Freedoms, the Supreme Court has, on my occasions, commented and defined the circumstances surrounding the issuing and enforcement of search warrants.

Hunter v. Southam was the first post-Charter case that dealt with search warrants to reach the Supreme Court. One of the central issues identified in Hunter was whether the newly enacted sec. 8 of the Charter – the right to privacy – changed how search warrants should be issued. In Hunter, the director of the Anti-Competitive Trade Board was statutorily empowered to issue a search warrant allowing investigators to search and seize documents of companies suspected in engaging in anti-competitive practices. Southam challenged the constitutionality of the director’s power to issue search warrants, arguing that he was not a neutral arbitrator who could weigh the competing interests objectively, since he was too closely linked to the investigatory role of the Board. By competing interests, one is referring to society’s interest in investigating anti-competitive practices versus the individual’s interest in being free from government intrusion. The Supreme Court agreed with Southam’s position and held that the person charged with issuing a search warrant must be an impartial arbitrator who can act judicially, and who is devoid of any interest in the outcome of the search. Additionally, the neutral arbitrator had to be satisfied on the evidence presented to him that there exists reasonable and probable grounds that the offence has been committed, and that evidence pertaining to the offence would be found at/on the place or person in question. Moreover, in order to safeguard the interest of the individual to be free from arbitrary search and seizer, the Supreme Court added the further requirement that a search warrant be obtained before the search. This might seem like an obvious precondition, but what had actually occurred until the decision of this case was that investigators would justify the need for the search on materials or information that was obtained through a warrantless search. This is known as justification on an ex post facto basis. The Supreme Court unequivocally denounced this practice.

Three years after Hunter, the Supreme Court heard the case of R v. Collins. The main issues decided in this case were what burden of proof the accused bore in proving a violation of his/her sec. 8 (privacy) rights, what circumstances give rise to a presumption that an unreasonable search took place, and what factors to consider in rebutting that presumption. The Collins Court held that where the accused claimed his sec. 8, right to privacy, was infringed, he/she bore the burden of proving that this was so, on the balance of probabilities (otherwise known as the civil standard of proof). However, where the search or seizure was conducted without a warrant, the search is automatically presumed to be unreasonable. The prosecution may attempt to rebut that presumption by showing on the balance of probabilities that (1) the search was authorized by law (this includes both statute and common-law), (2) the law itself is reasonable, and (3) the search was conducted in a reasonable manner. If the prosecution is unable to establish that these three requirements existed, then the search or seizer is deemed to be unreasonable.

Unfortunately, that is not the end of the inquiry. Even if the search or seizer is held to be unreasonable, the burden shifts back to the accused to prove that the evidence should nonetheless be excluded. This is known as the sec. 24(2) analysis. This section is the remedies provision of the Charter, and as such, possesses its own inquiry. This inquiry was recently refined by the Supreme Court in the joint-cases of R v. Grant and R v. Harrison. For all practical purposes, the Supreme Court has now made it much harder for the accused to exclude what is otherwise unlawfully obtained evidence. In order to exclude unlawfully/improperly obtained evidence under sec. 24(2), the accused must: (1) convince the court that the breach is serious enough; (2) the impact on the Charter-protected interests of the accused is significant enough to outweigh society’s interest in the adjudi­cation of the case on its merits. In conducting this balancing exer­cise, the Court must assess each of these three factors to determine whether a reasonable person, fully informed of the all of the cir­cumstances and the values underlying the Charter, would conclude that the (3) admission or exclusion of the evidence could bring the administration of justice into disrepute. When asking this question, the focus is on the damage that condoning the Charter violation by accepting or rejecting the fruits of an unlawful search or seizure could do to the long-term interest in maintaining the integrity and public confidence in the justice system.

Under part one of the sec. 24(2) test – seriousness of the breach – the main focus is on assessing the blame­worthiness of the conduct. This focuses most intently on the state of mind of the officer (or other government agent) about his/her Charter compliance, but extends to include systemic or institutional failures in Charter compliance. Moreover, the Charter-infringing state conduct will be more ser­ious where it is part of a larger pattern of Charter violations com­mitted during the investigation of the accused – Ex. If the accused’s “right to counsel” was also infringed during the search.

Under part two of the sec. 24(2) test – significance of the impact of the unreasonable/unlawful search – the signifi­cance of the impact of the violation on the accused is garnered by examining the nature and degree of intrusion of the Charter breach into the Charter-protected interests of the accused. The way the impact is assessed varies with the kind of evidence sought to be admitted. Is the evidence an inculpatory statement, a bodily sample or other physical evidence that would have been discoverable? Generally speaking, the degree of intrusion that occurs when statements are unconstitutionally obtained is high. The degree of intrusion caused when bodily samples are secured depends upon the extent to which privacy, bodily integrity, and human dignity are compromised given the nature of the samples and the manner in which they are se­cured. The significance of the im­pact of the violation where non-bodily physical evidence is obtained turns primarily on the manner of discovery and the degree to which the manner of discovery undermines the Char­ter-protected privacy interests of the accused, although privacy interests related to the nature of the non-physical evidence also fall to be considered. For example, unreasonable pat-down searches are more offensive than property searches; but property searches can further be broken down into one’s home, one’s car, one’s office, etc…

Finally, under part three of the sec. 24(2) test – society’s interest in adjudication on the merits — the weight to be accorded to society’s interest in the adjudication of the case on its merits varies according to (1) the reliability of the evidence and (2) the importance of that evidence to the case for the prosecution. Courts are to determine whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking function of the criminal trial.

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