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Section 487 Warrant Drafting Checklist

From Criminal Law Notebook


Documents For Review

  • ITO (Form 1)
    • Appendices to ITO
  • Warrant (Form 5)
    • Appendices/Riders/Protocols
  • Report to Justice (Form 5.2)
  • Detention Order(s)
  • Affiant's handwritten notes and typed reports from the investigation up to the search
  • Records of search
  • Affiant's notes and reports from the investigation up to the search
  • police generated records from search
    • Search briefing materials
    • search participants' notes and reports from the execution of the search
    • search scene photographs or videos
  • Collateral records
    • record or evidence referenced in the ITO (e.g. videos/photos, audio statements, source docs, etc)
    • any record that could show what the officer knew at the time of the application


Facial Validity of Order

Key Section 487 Elements:

  1. place to be searched
  2. thing to be searched for
  3. crime under investigation
  4. range of date(s) and time authorized
  5. ID person who will be authorized to search
  6. ID that the person is a peace officer
  7. JUDGE/JUSTICE SIG.:
  8. DATE ISSUED:
  9. orders seized items to be brought before a justice or make a s. 489.1 Report;
"Place" Requirement
  1. document authorizes a search of a (a) building, (b) receptacle or (c) place (other than vehicle or persons)
"thing" and "crime" requirement
  1. authorization is for:
    1. "anything" on or in respect of which an offence has been committed;
    2. Anything that will afford evidence with respect of the commission of an offence ;
    3. will reveal the whereabouts of a person who is believe to have committed an offence ;
    4. anything intended to be used for the purpose of committing an offence "against the person" for which a person may be arrested without a warrant; OR
    5. any "offence-related property"
  • review these items to ensure accurate (no mistakes in the description) and "precise" (written with specificity)

Information to Obtain (ITO)

INFO TO OBTAIN:

  1. AFFIANT:
  2. DATE SWORN:

Initial Report to Justice:

  1. OFFICER:
  2. LOCATION OF SEIZURE:
  3. INVENTORY PROPERTY:
  4. DATE OF FILING:

ORDER OF DETENTION:

  1. DETAINED PROPERTY LISTED:
  2. JUDGE/JUSTICE SIG.:
  3. DATE ISSUED:

Issue: whether form or content of the document is invalid.


  1. Use of Form 1
  2. Under oath, signed and dated

Drafting

Legal Requirements
  1. The author is a peace officer;
  2. There is a belief of an offence has been committed. The offences are listed.
    1. the narrative supports belief that all elements were committed.
  3. there is a location identified that is a (a) building (b) receptacle or (c) place (other than vehicle or persons)
  4. there is a belief that location there is
    1. "anything" on or in respect of which an offence has been committed;
    2. Anything that will afford experience with respect of the commission of an offence ;
    3. will reveal the whereabouts of a person who is believe to have committed an offence ;
    4. anything intended to be used for the purpose of committing an offence "against the person" for which a person may be arrested without a warrant; OR
    5. any "offence-related property"
  5. the person being authorized is a peace officer;
Grounds for Sealing
  1. reason to seal including source info, protect ongoing investigation, protect victim, protect investigative technique.


Deeper Dive into Search Docs

ITO ISSUES
  • police check PROPER boxes describing the basis of seizure under s. 487(1)(a) to (d)?
  • linking between elements:

Drafting Practices

ITO Form
  • the ITO for a 487 warrant should use Form 1
  • the ITO must be sworn and dated (watch out for using templates with wrong dates!)
Three Components of Section 487 Warrant
  1. Does ITO identify a physical "thing" of interest?
  2. Does ITO identify a specific criminal offence?
  3. Does the "thing" support the criminal offence?
  4. Does ITO identify a place (including vehicles), receptacle, or building?
  5. Is there reason to belief the "thing" is in the place, receptacle or building?


Relationship Between "thing" and criminal offence
  1. is/does the thing:
    1. "on or in respect of which has been committed"? or
    2. "afford evidence with respect to the commission of an offence"? or
    3. "intended to be used for the purpose of committing an offence" against the victim?
    4. offence-related property
Criminal Offence
  1. each offence is described properly
  2. detailed and accurate description of thing to be searched for
  3. detailed and accurate description of place to be searched
  4. evidence that supports factual findings necessary to prove each essential element of the offence.
  5. Search Authority is identified
  6. the confidential informant's reliability and history is described
  7. the identifying information of the confidential informant is eassily removable.


  1. Does the ITO require a sealing order?
  2. Reason of the order is
    1. Jeopardy of Ongoing Investigation
    2. Confidential Source
    3. investigative techniques
  1. Duration of the order is _________
  1. does the face of the warrant name the peace officer?
  1. Are all necessary members named?
  2. Are the named members required?
  1. The wording from the warrant match the wording in the ITO
  2. Basis for a Night Search Warrant?
  3. Basis for a telewarrant?
Time of Search
  • is the time of search specified
  • if an extended period of time is being requested are the reasons detailed in the ITO?
  • is it during daytime (6am to 9pm)
  • if it is at night, is the type of warrant captured by s. 488 requiring additional grounds for night warrants?
After Search
  1. delivered a copy of the warrant
  2. comply with s. 489.1 and bring anything seized to the authorizing justice.
  3. Form 5.2 filled out and filed with the Justice of the Peace
  • Copy of warrant served on home-owner(s) and/or occupants. Copy left at location of search.
  • Document any damage done to the location of search.
  • Document any voluntary/consent searches performed.
  • Are all seized items recorded and request for Detention Order is made to Authorizing Justice.
  • Document the return of any seized items.
  • Any forms required by police policies are completed.
  • Should warrant not be executed, the warrant should be returned to the court.
  1. identify the type of warrant sought as well as relevant sections.
  2. the judicial authority the request is made to (JP, Superior Court Justice, Provincial Court Judge)
  3. detail the identity of the affiant
    1. name, title, rank, length of employment,
    2. working group, mandate, my role in ground, type of offences investigated
    3. personal relevant experience
  4. sources of information
    1. databases relied upon
    2. personal sources (name, age, residence, criminal record)
  5. persons of interest (name, age, residences, charges, criminal record)
  6. property at issue: (if forfeiture or seizure)
    1. describe it (location, size, who is in possession of item, all information on ownership/owners)
    2. avoid over-breadth, vagueness
  7. location to be searched
    1. address, region, description of location
  8. summary of investigation
  9. previous applications
  10. reasons for any special requests (telewarrant, night-time search)
  11. conclusion / requested order

Tips for contents:

  • if any evidence was obtained unconstitutionally, indicate what amount if any that evidence formed the basis of the warrant
  • make sure to sign the document
  • Verify and initial a copy of warrant and ITO for the police file.
  • Does the wording of (a) offence, (b) place to be searched, and (c) items to be searched, for as found in ITO match wording found in warrant?
  • Does the warrant and ITO identify the person authorized to search.
  • Reliance on Confidential Sources
    • Detail history and reliability of confidential source
    • The wording in the ITO able to protect identity of source.
  • Grounds for Sealing Order (487.3):
    • protect on-going investigation (complete sealing with time limitation)
    • protect source (sealing of portions that would tend to reveal identity of source)
    • protect young individuals, witnesses, victims or accused (sealing of portions that would tend to reveal identity)
    • protect investigative technique (sealing of portions that would tend to reveal identity of source)
    • protect _________________
  • Prepared a draft redaction of ITO in case of unsealing.
  • (For Residential) Find Open Source Intelligence, including Google Maps, street view. Consider whether there are any outbuildings or vehicles that may store relevant evidence that may be written to for the purpose of the warrant.

Facial Validity

Consider:

  • Is the scope of authorization within the bounds of the Code provision?
  • Was the authorization signed by the proper judge or justice (e.g. DNA orders or wiretap orders are restricted)

Execution

  1. left a copy of warrant at search.
  2. documented any damage done
  3. returned non-executed warrant to the authorizing justice
  4. Report to Justice filed
  5. Detention order obtained
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