Drafting and Reviewing Search Warrants 2022

Erin Dann
Embry Dann LLP

Mabel Lai
Counsel, Crown Law Office-Criminal, Ministry of the Attorney General (Ontario)

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

Fraser M. Kelly
General Counsel, Ministry of the Attorney General (Ontario)

David Tice
Assistant Crown Attorney, Ministry of the Attorney General (Ontario)

Taking you through examples, these speakers 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

10:30 a.m.
Refreshment Break

Matthew Asma
Crown Counsel, Crown Law Office – Criminal, Ministry of the Attorney General (Ontario)

Maggie Loda
General Counsel, Vancouver Regional Office, Public Prosecution Service of Canada

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.

12:15 p.m.
Break

Eric V. Gottardi, Q.C.
Partner, Peck and Company Barristers (Vancouver)

Sarah Shaikh
General Counsel, Public Prosecution Service of Canada

Sgt. Eric Boucher
Covert Operations Branch, Human Source Program, RCMP National Headquarters

The investigation of offences often involves the use of information from anonymous or confidential sources – tipsters and informers. This multi-disciplinary panel will examine some of the challenges and common problems with affidavits relying on information from confidential sources, and strategies for anticipating trial litigation issues involving the recently reinvigorated “step six” of Garofoli.

Pierre-Yves Guay
Associate Deputy Commissioner, Cartels Directorate, Competition Bureau

Inspector Alexandre Beaulieu
RCMP-GRC National Division, OIC Technical Investigative Services

Emily Lam
Partner, Kastner Lam LLP

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 and 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

2:45 p.m.
Break

Moderator

Matthew Asma
Crown Counsel, Crown Law Office – Criminal, Ministry of the Attorney General (Ontario)

Rebecca De Filippis
Crown Counsel, Crown Law Office – Criminal, Ministry of the Attorney General (Ontario)

Mary Cremer
Cremer Barristers

How can investigators overcome a password or a biometric lock that stands in the way of executing the warranted search of a digital device or cloud account? This panel will explore possible means of obtaining passwords and biometrics, both from suspects and third parties: production orders, assistance orders, general warrants, and issues of self-incrimination, consent, and rights to counsel.

Hon. Justice Scott Latimer
Ontario Court of Justice

Diana Lumba
Counsel, Public Prosecution Service of Canada

Sergeant David Younan
London Police Service

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

5:00 p.m.
Day One Concludes