Warrant
A warrant is judicial authorization for the exercise of significant state power — arrest, search, seizure, surveillance, or compelled production of evidence. Warrants are central to the constitutional structure of Canadian criminal investigation: section 8 of the Charter (against unreasonable search and seizure) and section 9 (against arbitrary detention) presuppose that significant intrusions on liberty and privacy require prior judicial authorization. Warrants are issued by justices of the peace or judges on the basis of sworn evidence presented by police.
Mass Tsang's criminal lawyers review every warrant on every file for procedural and substantive grounds for challenge.
Major types of warrants
Canadian criminal practice uses several types of warrants. (1) Arrest warrants — issued under sections 504-507 for arrest after charges are laid; warrants of committal under section 597 for failure to attend court; and bench warrants for non-attendance. (2) Search warrants — section 487 (the general search warrant for evidence) and many specialized provisions. (3) Feeney warrants — sections 529-529.5, authorizing entry into a dwelling to make an arrest. (4) Production orders — sections 487.014-487.018, compelling third parties to produce records. (5) Wiretap authorizations — section 184.2 and following. (6) Telewarrants — section 487.1, permitting urgent applications by phone or other communication.
Grounds for warrants
Most warrants require reasonable and probable grounds to believe specified facts — an offence has been committed, evidence will be found, the person sought is in the dwelling, etc. The standard is more than reasonable suspicion (the lower threshold for some investigative powers) and less than proof beyond a reasonable doubt (the trial standard). The Information to Obtain (ITO) — a sworn affidavit — must establish the grounds.
Warrantless action
Certain investigative powers do not require a warrant: arrest without warrant under section 495 (where conditions are met); searches incident to arrest (limited scope); plain view seizures; exigent circumstances (genuine emergency); consent searches; and certain regulatory searches under specific statutes. Warrantless searches are presumptively unconstitutional under section 8 and must be justified by police as reasonable in the circumstances.
Challenging warrants
Defence challenges to warrants commonly focus on: deficiency of the underlying ITO (insufficient grounds, omissions, misleading content); overbreadth (the warrant authorizes more than necessary); improper execution (departures from the warrant's scope); reliance on tainted information (information derived from prior breaches); and the Garofoli challenge — cross-examination of the affiant to test the foundation of the warrant. Successful challenges can lead to evidence exclusion under section 24(2).
Bench warrants
A bench warrant is issued by a court — without an underlying ITO — when an accused fails to attend a scheduled court date. The warrant authorizes any peace officer to arrest the accused and bring them before the court. Bench warrants remain in effect until executed; they can hang over a person for years. Resolution typically involves voluntary surrender to the court, with counsel arranging the appearance.
Related glossary terms
