Search warrants: grounds, drafting and execution

When Kyle Brandt was arrested, only three drills and a saw were in his backpack. The store's receiving binder showed four drills, two impact drivers and a saw missing. Detective Sergeant Hassan Ali, who took over the file the next morning, learned from Brandt's phone records, obtained later with a production order, and from a neighbour that Brandt rented a single-car garage behind a house on Birch Lane. Ali wanted to search it. Desjardins tells the class that the decision Ali faced, and the document he wrote to get permission, are at the heart of search law. The Charter's protection against unreasonable search and seizure starts from a presumption, set out in Hunter v. Southam (1984), that a search without prior judicial authorization is unreasonable. The warrant is the rule; everything else is an exception.

Why warrants matter

A warrant puts a neutral judicial officer between the police and the person whose privacy is at stake. The officer must set out the grounds in writing, under oath, before acting. The judicial officer decides whether the grounds are enough and sets limits on what can be searched, where and when. The written record makes it possible for a court later to review exactly what the police knew and why the search was authorized. Desjardins tells the class that a good warrant protects the officer as much as the suspect: an officer who executes a valid warrant within its terms is on the strongest legal ground there is.

What a section 487 warrant requires

The general search warrant is in section 487 of the Criminal Code. A justice who is satisfied by information on oath that there are reasonable grounds to believe that there is in a building, receptacle or place anything on or in respect of which an offence has been or is suspected to have been committed, or anything that will afford evidence with respect to the commission of an offence, may issue a warrant authorizing a peace officer to search the place and seize the thing. The information to obtain, often called the ITO, must therefore show three connections: that an offence was committed, that the things sought will afford evidence of it, and that the things are at the place to be searched now. Other statutes and sections create specialized warrants: section 11 of the Controlled Drugs and Substances Act for drugs, section 487.05 for DNA, section 492.1 for tracking devices, section 487.01 for the general warrant covering techniques not otherwise authorized, and production orders under sections 487.014 to 487.018 for records held by third parties such as phone companies and banks.

The requirement that the things be there now is called freshness, or staleness when it is missing. Information that drugs were in a house six months ago may say little about whether they are there today. Information that stolen tools were taken to a garage three days ago is much fresher, especially if there is no sign they have been moved. The ITO must explain why the officer believes the items are still at the place, considering how easily they could be moved, sold or destroyed.

Drafting the information to obtain

Ali's draft followed the structure taught in every Canadian detective course. It began with his own experience, then set out the offence: the break-in, the alarm times, the witness, Brandt's arrest with three drills and a saw whose serial numbers matched the store's records, and the four items still missing. It explained the connection to the garage: the neighbour's statement that Brandt had been seen carrying boxes into the garage two days before the break-in, the lease in Brandt's name found in his wallet at arrest, and Brandt's phone location data placing it in the area of the garage, two blocks east of the store, at 02:20 that night, nine minutes before he was stopped carrying only part of the stolen property. It described the place precisely, with the address, a description of the garage and a photograph, and the things sought, listed by type, make and serial number.

The most important duty in drafting is full, frank and fair disclosure. In R. v. Araujo (2000), the Supreme Court said the affiant must present all material facts, favourable or not, so that the justice can make an informed decision, and should avoid boilerplate and overstatement. Ali disclosed that the neighbour had once been convicted of a fraud offence, that the phone location data showed only an area, not the exact garage, and that Brandt had denied involvement. An ITO that hides weaknesses invites a court later to excise misleading passages and find the warrant could not have issued, as happened in R. v. Morelli (2010), where an officer's misleading description of computer evidence led to exclusion.

Desjardins tells the class that the best affiants write for a skeptical reader. Every sentence should be a fact with a source: 'Mira Osei told Constable Malhotra at 02:21 that...' rather than 'a witness saw...'. Opinions should be labelled as opinions and explained. Hearsay is allowed, but the source and the reason to believe it must be stated. And the document should be short enough that a busy judicial officer can read it carefully, often late at night.

Review: the justice and later the trial judge

The issuing justice must act judicially, reading the ITO and deciding independently whether the grounds are met. At trial, the accused can challenge the warrant under the procedure in R. v. Garofoli (1990). The reviewing judge does not ask whether they would have issued the warrant, but whether, on the record as amplified on review to correct minor, good-faith errors and excised of erroneous or misleading information, there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. Defence counsel may cross-examine the affiant with leave, if they show a basis for it. Ali knows his ITO may be read line by line in a courtroom a year from now.

Telewarrants make it possible to get judicial authorization quickly when it is impracticable to appear in person. Section 487.1 allows an officer to apply by telephone or other means of telecommunication, and in Ontario an online system allows applications to be submitted and reviewed electronically at any hour. Desjardins tells the class that the speed of modern warrant systems has narrowed the argument that there was no time to get one.

Executing the warrant

A warrant must be executed by day, defined in section 2 of the Criminal Code as between 6 a.m. and 9 p.m., unless the justice is satisfied there are reasonable grounds for executing it at night and authorizes that in the warrant, under section 488. Officers must have the warrant with them where feasible and produce it on request under section 29. Before forcing entry, they should announce their presence and purpose, as the common law knock-and-announce rule and cases such as R. v. Cornell (2010) require, unless there are reasonable grounds to believe that announcing would create a risk of harm or destruction of evidence. The search must be carried out reasonably, without unnecessary damage, and within the scope of the warrant: officers may search only the place named, for the things named, and may look only where those things could be.

Officers who find things not listed in the warrant may seize them if they are found in plain view during a lawful search and the officer has grounds to believe they are evidence of an offence, as Lesson 8 explains. Section 489 codifies this for warrant searches. After the search, section 489.1 requires the officer to report to a justice, usually on Form 5.2, listing what was seized, and section 490 then governs how long the items may be held. Ali's team executed the warrant at 10:15 a.m. on a Tuesday, three days after it was issued. They found the fourth drill and both impact drivers on a shelf in the garage, along with a box of tools from a different store.

# Checking a warrant's execution window (illustrative times)
from datetime import datetime
issued = datetime(2026, 3, 17, 16, 40)
executed = datetime(2026, 3, 20, 10, 15)
day_start, day_end = 6, 21          # 6 a.m. to 9 p.m.
limit_days = 3                      # execution period written into the warrant
in_day = day_start <= executed.hour < day_end
elapsed = executed - issued
print("executed during permitted hours:", in_day)
print("days after issue:", round(elapsed.total_seconds() / 86400, 2))
print("within the execution period:", elapsed.days < limit_days or elapsed.total_seconds() <= limit_days * 86400)

executed during permitted hours: True
days after issue: 2.73
within the execution period: True

The program checks two of the conditions a reviewing court will look at: whether the search happened during the permitted hours and within the period the warrant allowed. The search was in daylight hours, and it took place about 2.73 days after issue, within the three-day period written on Ali's warrant. The Criminal Code itself does not set a general expiry for section 487 warrants, but justices usually set one in the warrant, and a search after that date is a warrantless search. Desjardins notes that a simple check like this, done before the team leaves the station, has saved more than one investigation.

Common drafting errors

Desjardins shows the class a list of the drafting errors that Port Ardent's legal advisor sees most often in warrant applications sent for review. The most common is boilerplate: paragraphs copied from an old application that describe what drug dealers or thieves usually do, without connecting it to this suspect or this place. Judicial officers have read the same paragraphs hundreds of times and give them little weight. The second is unattributed hearsay: statements such as 'police received information that' without saying who received it, from whom, and why that source should be believed. The third is the missing link: an application that proves an offence and identifies a suspect but never explains why the evidence is at the place to be searched.

Other errors are smaller but still costly. Addresses are copied wrongly, so the warrant names the wrong unit in a building. The items are described too vaguely, such as 'evidence of the offence', leaving the executing officers with no clear limit. Dates in the application do not match the dates in the notes. And applications sometimes overstate the officer's experience or the certainty of a source. Each of these gives a defence lawyer a reason to cross-examine the affiant, and some can lead a court to find the warrant invalid.

The remedy is review. Port Ardent requires every warrant application, other than a true emergency, to be read by a supervisor before it goes to a justice, and serious cases to be read by the legal advisor. Detective Sergeant Ali's garage application went through both. The supervisor caught one error: the store's receiving binder listed the missing saw by a model number that differed by one digit from the one Ali had typed. Ali corrected it before the application was sworn. A small mistake like that would not have defeated the warrant, but it would have given the defence something to question in front of the trial judge.