While several types of judicial authorization can be issued, the most common type is the search warrant.
A search warrant is a written order issued by a judge or justice of the peace giving the police the authority to perform a search at a specific location, to look for particular items and take into custody specific items they find.
We understand how stressful it can be to see the police knocking at your door with a search warrant, but even in this situation, you have rights and knowing these rights is critical. This blog will look at what to do when a search warrant is executed.
What is a Valid Search Warrant?
The first step is to understand what makes a search warrant valid.
The general requirements of a valid search warrant are:
- It must be issued by a judge or justice of the peace;
- Identify the address of the place be searched;
- Contain details of the items the police are looking for;
- Be based on reasonable grounds that an offence has been or is about to be committed and the evidence is located at the place to be searched; and,
- Be executed in a reasonable time and manner after it was issued.
These parameters are critical as they outline what the police can and cannot do when they arrive at your home or property.
Your Rights When the Police Have a Search Warrant
Section 8 of the Canadian Charter of Rights and Freedoms protects you from unreasonable search and seizure, meaning that the police must strictly abide by the information outlined in the search warrant.
What must the police do when executing a search warrant?
There are three essential steps the police must take when executing a search warrant:
- “Knock, Announce and Notice”
As a general rule, the police must knock and announce their presence before entering a home to execute a search warrant, which includes (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.
Force is only justified where necessary and exigent circumstances exist. For example, if entry is refused by the occupants; or, there is an objective basis that the safety of police would be at risk or a concern respecting the destruction of evidence.
The greater the departure from knock and announce (for example, if a battering ram or a “flash grenade” was used to enter the residence), the greater the burden on the Crown is to demonstrate that such an approach was necessary. Importantly, if the Crown cannot justify the police conduct as necessary, a judge may conclude your Charter rights were violated and find any evidence seized to be inadmissible at your trial.
- Search for Evidence, Not Destroy Property
A search warrant authorizes the police to search for evidence, not destroy property. As one judge put it, the power to search is not “a license to ignore the property rights of the occupant of the premises“. Consequently, the police are not authorized to destroy property or generally leave a premises in a shambles or state of disrepair. Once an item has been searched and it is determined to be lawfully possessed and not subject to seizure, it should be returned to where it was found. Unfortunately, all too often, there is an attitude that returning items to the place where they were found is not police work, which is a serious misunderstanding of the limit of their power.
The operative question is: Was the police conduct necessary? If it was not—if property was destroyed without reason or the premises were left in a state of disrepair after the search warrant was executed—there may be a viable argument that your rights under the Charter of Rights were violated.
- Provide Right to Counsel
The police must provide and implement rights to counsel immediately to anyone arrested or detained during the execution of a search warrant. The suspension of the right to counsel is an exceptional step, which can only be justified where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Accordingly, the right to counsel cannot be suspended simply on the basis that a search warrant is pending; nor will a general or bald assertion of “officer safety” or “destruction of evidence”.
It will be obvious if an arrest occurred. The police will advise the individual that they are under arrest for a specific offence, complete an initial safety “pat down” search, and place them in handcuffs. In contrast, whether a detention occurred can be less clear. If, upon entering the residence, the police advised that you are free to go, a detention will likely not be found. However, if the police ordered you to stay within the residence and made directions (for example, where you should sit), you were detained.
In either case, the right to counsel should have been provided and efforts made by the police to put you in touch with a lawyer. If the police did not make these steps, there is a strong argument that your right to counsel under s.10(b) of the Charter of Rights was violated.
Questions to Ask After a Search Warrant
There are three important questions to ask after a search warrant was executed:
- Did the police knock and announce their presence prior to entering the residence?
- Was any property unnecessarily damaged or was the residence left in a state of disrepair?
- Did the police provide and implement rights to counsel immediately to anyone detained or arrested?
If the police failed in any of the above, you may have a strong argument that your rights under the Charter of Rights and Freedoms were violated, which can lead to the exclusion from a trial of any evidence located during the search.
What Should You Do When a Search Warrant Is Executed?
From our experience as criminal defence lawyers, we suggest the following:
Ask to see the search warrant.
The first step is to ask to see the search warrant and carefully read it. The police are required to show it to you. The warrant must include the correct address, date and time and be signed by a judge or justice of the peace to be valid. You can refuse the police entry to your property if you find errors in the warrant.
However, you must remember that under certain circumstances, warrants may still be valid even if they contain minor errors. We also suggest you never forcefully attempt to prevent the police from entering. If the police have a reasonable belief that there is a threat of violent behaviour, they have the right to enter your property without providing notice or showing a warrant.
The warrant also allows the police to use reasonable force to enter the property, for example, if you refuse to open the door despite them having a valid search warrant or you not being at home.
Allow the police to enter.
Once you have verified that the search warrant is valid, you must allow the police to enter your home or property to conduct their search. Refusing to allow the police to enter your property entitles the police to use reasonable force and may lead to a charge of obstructing the police.
If you feel the police are using excessive force or damaging your property, record all details, as they may be helpful in your defence.
Remain civil.
Whatever happens, remain civil and calm. Do not get confrontational, and cooperate if the warrant is valid and free of errors. You cannot refuse a valid search warrant, and cooperating is the best way to ensure a smooth operation.
Ask the police whether you can leave.
If the police have a valid search warrant, they can enter and secure the property. This may include preventing you or other occupants from leaving and entitling them to restrain you with handcuffs initially.
Once the property is secured, you may ask if you are free to leave. The police must inform you if you are detained or arrested. In this case, confirm which of the two, as they are not the same.
Either way, you have the right to speak to a criminal defence lawyer and the police must advise you of your right to do so. You also have the right to talk to your lawyer in private.
Unless you are detained, you are free to leave once the initial search is conducted, but it may be in your best interest to record what is happening during the execution of the search warrant. If the police go beyond the extent of the warrant, this can significantly aid your defence if you are charged with a crime. Any evidence discovered during an illegal search and seizure may be deemed inadmissible in court.
Allow the police to conduct their search.
The warrant may restrict the police to certain areas of your property, so it is critical to read the search warrant when the police present it to you to ensure you are aware of the limitations.
The police cannot damage your property during the search but are allowed to move furniture, empty drawers, and search through private belongings without putting them back.
They don’t have a general right to search you or other occupants but are allowed to frisk you if they have reasonable suspicion you may have a weapon or pose a threat to their safety.
Remain silent during the search and do not try to assist the police.
Record what happened.
Take photos or videos of the search, especially if the police cause damage to your property. You are legally allowed to do so, even if the police may protest and ask you not to. If you do not have access to a phone, take precise notes of what was said and happened after the police arrived at your property. This information may be helpful in your defence.
Have You Been Served With a Search Warrant in Ontario?
If you have been served with a search warrant in Toronto and believe your rights have been violated or an unlawful search may have been conducted, contact the experienced criminal lawyers of Fedorowicz Law today for legal advice. Richard Fedorowicz has over 20 years of experience in criminal defence and a proven track record of success. He will fully assess any elements of a criminal case that could help the most effective defence for each of his Greater Toronto Area clients.
Call Fedorowicz Law today at 249-266-4222 or fill out our convenient online form to learn how we can help you with your criminal defence in Toronto!