Search warrants have long been a trope of television and film crime dramas to the extent that some Canadians mistakenly believe police must get a warrant before searching a home or vehicle. In Canada, police generally need a judge to issue a search warrant based on reasonable grounds that evidence of a specific crime has been committed. However, there are distinct exceptions based on Common law that allow police to conduct warrantless searches.
“Whenever we learn that one of our GTA criminal defence clients was subjected to a warrantless search, we conduct deep-dive research to determine whether it was legal. says criminal defence lawyer Jeff Mass , managing partner of the Greater Toronto Area’s Mass Tsang law firm. “Section 8 of the Charter of Rights and court precedents provide criminal defendants with some protections against unreasonable warrantless searches. When police fail to follow proper procedures in a warrantless search, it gives us potential grounds to nullify the Crown’s introduction of any related evidence at trial.”
Mass Tsang managing partner Robbie Tsang adds, “Nevertheless, Canadian police do have somewhat broad authority to search a home or car without a warrant. And this surprises many of our clients.”
Since many Canadians are confused about police authority to conduct searches, let’s examine search warrants and when police can search without a warrant. We’ll use a question-and-answer approach based on the most frequently asked questions about the topic by our clients.
A search warrant is a legal authorization from a judge for police to search a specific place for the purpose of seizing items believed to be evidence of a criminal offence or that can help police locate the whereabouts of a suspected criminal offender. A search warrant can also authorize seizure of digital data and bodily fluids. In some cases, judges can issue warrants to search and seize evidence that will assist in the police investigation of a criminal offence not yet committed.
To get a judge to issue a search warrant, an officer must prepare an affidavit called “Information to Obtain” (ITO), which outlines the reasonable grounds to believe that an offence has or will be committed and that they will find related evidence at the identified location. Upon legal review, if a judge or justice of the peace believes the affidavit’s reasonable grounds in support of the search and seizure, they will approve the warrant.
The time it takes a police officer to secure a search warrant in Ontario depends on numerous factors, including the complexity of the case, evidence availability, urgency of the situation, and availability of a judge or justice of the peace. In general, drafting, submitting, and securing judicial review for an ITO for most criminal cases takes one to three days, but highly complex cases with significant evidence and legal complexities can take up to a week. The process is usually streamlined if there’s a sense of urgency about the case relating to public safety or evidence destruction.
Police execution of a search warrant is dictated by the Criminal Code (primarily Section 487 ) and judicial precedents. By default, search warrants must be executed between 6 a.m. and 9 p.m. unless the issuing judge explicitly authorizes other timing due to public safety, potential evidence destruction, or operational necessity.
Judges issue search warrants as any of more than a dozen Form 5 legal documents that detail elements for the search and seizure of different items (i.e., physical, digital, bodily fluid). The warrants specifically name areas police can search, evidence police can seize, and, in some cases, the duration of the search. Warrants must precisely detail the search parameters using what’s known as the “fellow officer rule.” That is, an officer unfamiliar with the criminal case would be able to comprehend the scope of the search and what can be seized.
Police can only conduct a lawful search of your house with a warrant or as allowed by four exceptions supported by Common Law and court precedents, including searches:
Note that a warrant allowing police to search your house does not automatically extend to investigating digital devices in the home. To search such devices, the warrant must contain provisions identifying them as part of the search or secure a separate warrant.
Police can conduct a warrantless search of your car under the same common law parameters as a warrantless house search. However, police have more latitude to conduct warrantless searches of a car than a house because Section 8 of the Charter of Rights and Freedoms affords a home more expectations of privacy than a motor vehicle because the latter is used in public spaces. Additionally, the vehicle’s mobility inherently creates an exigency because it can be driven away, potentially removing evidence. Thus, courts generally give police far more leeway in conducting warrantless searches of cars.
Canadian police must follow distinct protocols when conducting searches, whether with a warrant or without. Thus, skilled criminal defence lawyers carefully review all search elements to ensure the police search did not violate their client’s Charter Rights against unreasonable search or seizure. If you believe that Greater Toronto Area police may have conducted an unlawful search concerning your arrest on criminal charges, contact us for a free initial consultation to learn if you can mount an effective Charter Rights challenge.
