Search warrants are a staple of criminal and courtroom dramas on television and in the movies. Their portrayal is so frequent that most Canadians know that the police generally need a search warrant to search someone’s property legally. However, some people are unaware that Canadian law allows police to conduct warrantless searches under certain conditions. Additionally, you might be surprised to learn that there are several different types of search warrants in Canada.
“Clients arrested for DUI frequently assume that we’ll be able to get the charges dismissed because the police searched their car without a warrant,” says criminal defence lawyer Robbie Tsang , co-managing partner of the Greater Toronto Area’s Mass Tsang law firm. “We have to explain to them that the police have the right under law to conduct such searches incident to the arrest.”
Robbie’s co-managing Mass Tsang partner, Jeff Mass , adds, “Canadian law provides police with other exceptions that allow them to conduct warrantless searches. However, legal principles that allow warrantless searches are subject to interpretation by the courts, and some police officers may be prone to overstepping known legal boundaries or lack understanding of what they are,” he continues. “Thus, we carefully examine the role of searches and search warrants in every criminal case we handle.”
Given the public’s limited understanding of search warrants, we’re going to use this blog post to educate you about the types of warrants in Canada and answer some of the most frequently asked questions we hear about them.
Section 487 (1) of the Criminal Code lays out the basic parameters authorising police to conduct a lawful search under the authorisation of a search warrant, while other sections of the Code contain additional provisions guiding specialised warranted searches, such as:
Section 11 of the Controlled Drugs and Substances Act contains similar provisions authorising and guiding police searches for illegal drugs.
In general, the codified language in these laws requires police to seek a search warrant from a judge or justice of the peace by submitting information under oath that there are reasonable grounds to believe that a distinct search will uncover evidence relating to a criminal offence. Most search warrants allow a one-time entry into a specific location and authorise police to seize any evidence specifically named in the warrant. Once police have completed their search, they must leave and apply for a new warrant to conduct any additional searches.
Police searches and search warrants tread a delicate balance between codified law and Section 8 of the Canadian Charter of Rights and Freedoms, which protects Canadians against unreasonable searches and seizures of their property. Because “unreasonable” is a subjective construct, it is often open to interpretation, with criminal defendants frequently challenging the reasonableness of a search and/or a search warrant.
When a criminal defence lawyer — such as those at Mass Tsang — challenges a search warrant, they typically assert that it fails to meet the statutory Code requirements, constitutional Section 8 protections, or both. Common challenges that defence lawyers raise to invalidate search warrants include:
Under Section 24 (2) of the Charter, judges are required to exclude evidence obtained in a manner that infringes upon the Charter Rights of a defendant, if “the admission of the evidence would bring the administration of justice into disrepute.”
Given the delicate balance between the Criminal Code and the Charter in relation to searches, Canadian court precedents have established when police may conduct a search without a warrant. However, these precedents remain open to continuing court interpretation and application, so the Crown always has the burden of proving that a warrantless search was reasonable under the law. Common reasons for a legal warrantless search include:
| Warrant / Order Type | Authorising Law | What Police Can Do | Key Limitations | Common Defence Challenges |
|---|---|---|---|---|
| General Search Warrant | Criminal Code s.487(1) | Enter a specific place once and seize listed evidence | Must specify location & items; one-time entry | Lack of reasonable grounds; overbroad scope |
| Telewarrant | Criminal Code s.487.1 | Obtain a warrant remotely (phone/digital) | Used only when in-person appearance impractical | Insufficient urgency; affidavit deficiencies |
| DNA Warrant | Criminal Code ss.487.05–487.09 | Collect bodily substances (blood, saliva, hair) | Limited to designated serious offences | Disproportionate intrusion; Charter s.8 |
| Tracking Warrant | Criminal Code s.492.1 | Track location/movements over time | Ongoing surveillance; higher privacy threshold | Excessive duration; insufficient grounds |
| Production Order | Criminal Code ss.487.012–487.017 | Compel third parties to produce records | No physical search permitted | Overbreadth; privacy violations |
| Wiretap Authorization | Criminal Code Part VI | Intercept private communications | Highest threshold; strict necessity test | Failure to meet “last resort” requirement |
| CDSA Drug Warrant | CDSA s.11 | Search for controlled substances | Drug-specific evidentiary requirements | Informant reliability; stale information |
| Search Type | Legal Basis | When Allowed | Who Bears the Burden in Court |
|---|---|---|---|
| Search with Warrant | Criminal Code / CDSA | Judge authorises based on sworn grounds | Defence challenges validity |
| Consent Search | Common law | Informed, voluntary consent | Crown must prove valid consent |
| Search Incident to Arrest | Common law | Safety & evidence preservation | Crown must justify scope |
| Exigent Circumstances | Common law | Imminent danger or evidence loss | Crown must prove urgency |
| Plain View Seizure | Common law | Evidence immediately visible | Crown must show lawful presence |
A: A DNA authorises police to secure DNA samples from an individual’s blood, saliva, hair, or skin cells using minimally invasive methods. The Criminal Code restricts the granting of such warrants for specific offences like murder, sexual assault, robbery, arson, major drug trafficking, and other severe crimes.
A: A telewarrant is any search warrant that is applied for, issued, and transmitted electronically, digitally, or by any other non-person-to-person means. Police and the courts use telewarrants when it is impractical for an officer to appear in person before a judge or justice of the peace due to remoteness or time constraints.
A: A tracking warrant authorises police to install and use an electronic tracking device to monitor the location and movements of a person or vehicle over time. It is distinct from a search warrant because it does not involve seizing evidence and it authorises ongoing and future digital collection of potential evidence (i.e., the alleged offender’s location and movements).
A: A production order is a court order that compels a third party, such as your bank or telecom provider, to provide police with data or documents under their control, though it does not authorise police to enter or search the third party’s property.
A: If police arrive at your home with a search warrant, try to stay calm and cooperative, and follow these steps:
With decades of criminal defence experience in the Greater Toronto Area, the legal experts at Mass Tsang have mounted numerous successful challenges to questionable search warrants and warrantless searches. In every criminal case involving a police search, our legal team vigorously examines police conduct and the reasonableness and constitutionality of the basis for their search and/or warrant.
If you’re facing criminal charges based on what you believe was an unlawful search in Greater Toronto, schedule a free case evaluation by contacting us today.
