Drafting and Reviewing Search Warrants

This opening session will give you comprehensive and up-to-date coverage of the organizing principles governing search and seizure, including:

• Reasonable expectations of privacy
• When is judicial pre-authorization required?
• The role of the issuing justice
• Reasonable grounds for belief or suspicion

Taking you through examples, the faculty will address the fundamentals of warrant drafting and reviewing, including:

• Analyzing fact situations, spotting issues and developing investigative strategies to acquire evidence
• Reviewing fact situations to identify issues with sourcing and confidential information
• Analyzing and drafting outlines for complex fact patterns
• Writing to the section and three question writing

Whether searching computers and tech devices on site, seizing them for later examination, or accessing “cloud” data remotely, all pose unique challenges to investigators, issuers, reviewers and litigators. In the last decade, the Supreme Court of Canada’s decisions in Vu, Telus Communications, Fearon, Spencer, Marakah, Reeves, and Mills, have repeatedly changed the landscape, making this a particularly dynamic area of search law. This session will teach participants the new state of the law, with the challenges it poses for drafting and lawfully executing warrants. It will also teach a practical approach to structuring computer warrants that can help meet those challenges.

• Data breaches: When is there a reasonable expectation of privacy in stolen data that police find on the Internet?
• Social media: When is there a reasonable expectation of privacy in one-to-many communications that police obtain from social media?
• IP addresses: When is an IP address private?  When there is a reasonable expectation of privacy in an IP address, what tools can police use?
• Gathering Internet evidence internationally (options within Canada and with foreign assistance)

• The key distinctions between criminal search warrants and regulatory warrants
• Principles of drafting and interpretation, and their application to regulatory warrants
• Considerations when sharing information between police and regulatory investigations, including two-way information sharing

Learn about the perils and pitfalls of search warrants from a lively and interactive discussion by an expert panel, followed by a Q & A session for online questions from participants.

Even when the ITO is well-written, how a warrant is later executed can itself constitute a breach of Section 8.  The potential issues include over seizure by misuse of the plain view doctrine, failing to keep appropriate records that explain how the search was executed (and why).  This session will focus on the myriad of issues that arise when assessing the legality of execution including:

• Whether there is a right to detain or search occupants on scene
• The requirement for detailed records
• The limits of “plain view”
• In and out rule
• After the fact documents including Reports to a Justice
• Return of seized items not needed post warrant execution
• Authority to photograph

In this learn-by-doing workshop, participants in small groups will review and analyze selected portions of search warrants. Prior to the workshop, participants will review a crime fact pattern and the ancillary documents needed to draft an Information To Obtain and will submit drafting exercises for pre-review and selection by the workshop leader. During the workshop, samples of selected exercises will be reviewed and critiqued and will form the basis for discussion.

Our workshop leaders, with years of search warrant drafting (and attacking) experience, will teach you:

• Warrant writing strategies
• How to organize and outline complex Information To Obtain
• How to identify and develop cross examination strategies

Note: Participants will be required to submit a brief written assignment one week prior to the workshop. All submissions will be anonymous.

Matthew Asma, Crown Counsel, Crown Law Office – Criminal, Ministry of the Attorney General (Ontario)
Katie Doherty, Crown Counsel, Crown Law Office – Criminal, Ministry of the Attorney General (Ontario)
Lynda Morgan, Addario Law Group LLP