All about search warrants in BC with criminal defence lawyer Troy Anderson in Vancouver.
Mark: Hi, it’s Mark Bossert from Top Local Lead Generation and we’re here with criminal defence attorney Troy Anderson in Vancouver. How’re you doing today Troy?
Troy: I’m well thank you, how are you?
Mark: Good. So we’re talking about an important subject, I know we’ve have conversations about this in the past, so how do search warrants actually work in the province of BC?
Troy: Well, search warrants are pretty standard throughout the country because criminal law is a federal jurisdiction, the criminal code applies Canada wide. But we’ll begin with the obvious question, the one that requires the most immediate answer. So what do I do if the police show up with a search warrant? Well the short answer is that they’re going to come into your house one way or another. If they have been authorized by a judge or Justice of the Peace and if they’ve been granted a search warrant, they’re coming in. So if you’re home, the simplest thing is to probably just open the door and let them in, otherwise they’re going to break it down one way or the other. So save yourself the repair bill. But that’s where your cooperation, I think, should generally end. You want to stay out of the way, so you don’t get charged with any additional offences for obstructing a police officer, for example. What you don’t want to do is start showing them where the evidence may be, because that’s what they’re there looking for, they’re looking for a piece of evidence, be it a weapon, some drugs or some other forensic evidence if we’re dealing with a more serious crime. And the search warrant may or may not be a valid search warrant in the sense that it may have some problems with it and you may later succeed at having that search warrant set aside and succeed in having a Court rule that the evidence is not admissible. But when you start pointing out where the evidence is and actively assisting the police, that’s actually a statement you’re giving against your interest and may undermine some arguments they have in the future. What you have to remember is, you are under no obligation to assist the police if they’re at your home or place of business with a search warrant, you consider yourself a suspect and you exercise your right to silence. So that’s the short answer to what to do if the police come knocking with a search warrant.
Mark: So, how do they get a warrant in the first place?
Troy: Well, what happens, certainly in British Columbia is the police will undertake an investigation and during the course of that investigation, they will presumably gather some evidence. So it may be surveillance, it may be witness statements, it may be evidence from a confidential informant and what they have to do is gather enough evidence to satisfy a Justice of the Peace with sufficient grounds to believe that there is evidence in a particular place, that will afford proof of some particular offence and if can’t be some generalized offence, it has to be a particular offence. So what they do is they will attend either by fax or in person in front of a Justice of the Peace and present, what is called Information to Obtain Search Warrant, and that is a sworn document, looks very much like an affidavit, where they lay out the evidence, that as the basis for their belief that if they’re allowed entry into a certain place if will afford evidence of a particular offence. They will lay out what they’re looking for and why they think it’s there and if the Justice of the Peace is satisfied the search warrant is authorized. It’s authorized for a discreet time period and sometimes the police will have to literally wait at the door until the time named in the warrant and then they can go in.
Mark: So, if they find something, how do I know what they’ve seized?
Troy: Well, that’s an interesting point because a lot of times a search warrant will be executed when there’s nobody at the residence or if it’s a storage locker, for example, there’s probably nobody there and they will go in and you come come and there’s a copy of the warrant sitting on your kitchen table for example, and your place has been turned upside down and you don’t know what they taken and what they haven’t. It becomes particularly important when the warrant for example authorizes the seizure of documents to prove ownership, it may be authorized in the seizure of cash for example. So you may or may not know what’s missing and what has been taken versus what has perhaps been misplaced. So what the police are required to do is file what’s called the Form 5.2 and that’s to be done basically as soon as reasonably possible with the Court Registry. It’s called a Form 5.2 Report To A Justice and it is to contain a list of everything that was seized when they executed a warrant. I should probably say, that applies to anything that is seized by the police even without a warrant. So if you’re pulled over and they seize something from your car, without a warrant or you’re arrested and they seize something from your person without a warrant they still have to file their report. so basically anytime the police take something that belongs to you or that you have an interest in, you’re entitled to go down to the Court Registry and look for a copy of the Form 5.2 to find out exactly what’s been taken and where it is now.
Mark: What about the warrant? Can I find out the reason? Do I know any kind of reason, if this is a surprise in any way, do I have a way to find out what the basis that the warrant was executed or was granted?
Troy: In most cases you can. The information to obtain search warrant is filed in the Court register, so if you learn that a search warrant has been executed on your property, you can go down to the Court Registry and ask the Registry staff to provide you a copy of the information to obtain search warrant. Often times what I will do, is I’ll go on behalf of a client and I will get a copy of this information to obtain search warrant. It’s a very valuable opportunity to learn very early on, what the case may be, because it will contain generally, an outline of the investigation up to that point and what they hoped to find. Now of course, the exception is on some serious cases, particularly when there are confidential informants involved, the police will sometimes seek and obtain what is called a Sealing Order which means that the information to obtain search warrant is in the Court Registry but there’s an order of the Court not allowing anyone to have a look at it until a further order of the Court is made. So in a scenario like that, you have to go through a process where you deal with the Crown and you bring in application to unseal the warrant. If there is information relating, for example to a confidential informant in that information to obtain, that is vetted out so that it doesn’t compromise the safety or identity of the confidential informant and then you get what is called a redacted version of that information. So sometimes you can get it right away, sometimes you have to wait but in basically every case I can think of, you get a copy of that eventually. It’s better to get it early, if it’s possible and that’s my practise but eventually you will get it.
Mark: So I guess, maybe you said this and maybe I didn’t understand, which is normal, but if there’s a search warrant executed or granted and they’re at my door, they collect my stuff, they leave is there automatically going to be charges after that or will they have maybe not found anything and so they don’t do any charges. How does it go forward from there?
Troy: What happens then is if a search warrant is granted, that’s an investigative step. What occurs at that point, let’s assume that they found a bag of drugs for example, they then need to assess the evidence that they have, they may recommend a series of charges to the Crown Prosecutor who will then assess whether there is sufficient evidence to lay a charge. So for example, if you live in a house with four roommates, the police executed search warrant and there’s a bag of cocaine for example, sitting in a drawer in the living room, the Crown may be of the view that they’re not going to be able to prove which of the four of five people living there actually possess that because it wasn’t in plain view and there may not be fingerprints on it. So if the police have a search warrant and they find something in your house, chances are you’re probably going to be charged but it’s not a certainty.
Mark: Right, it’s a bit of a fishing expedition but with for cause basically,that’s what they have to have.
Troy: That sort of leads us into the next obvious question is there any way to challenge that search warrant and of course you can only challenge it after it’s been executed and if you have been charged. So your term “fishing expedition” is exactly what the police are not supposed to be engaged in. There needs to be evidence to point to a reasonable belief that there is evidence in a location of a particular crime. It’s not to be a fishing expedition. So if you are charged or if you are going through civil forfeiture, then you will probably want to have a good, long look first at the facial validity of the warrant, that is, was it validly issued for this particular location, at this particular time and probably and you’ll probably want to have a look at the information to obtain, to bring an application if it’s warranted to try to convince the Court that the JP ought not to of issued this warrant – because of, for example, carless drafting, information that tended to mislead the issuing Justice. There may be things that are outright incorrect in the information to obtain and if that is the case, certain paragraphs may be excised from the information to obtain search warrant and it may be that the Court considering your trial is of the view that it ought not to have been issued and therefore you can have an application to exclude the evidence. So just because the come knocking at your door with the warrant and they find something in your house that’s the start of the fight, not the end.
Mark: Right, and the assumption would be, well geez if they’ve got this down they’re probably already got me. But you actually defend people and are successful with getting this kind of stuff quashed…not like automatically or all the time, but on a certain level, there’s mistakes made. Is that right?
Troy: There are mistakes made and there are instances where the police have been found to be misleading the initial inJustice. There’s also a requirement that, this is what they sometimes forget about, the requirement that if you have sought a warrant in relation to a particular investigation and have been declined and then you go back and try again, you have an obligation to tell the Justice that you’ve been denied a warrant previously. So those are the sorts of cases where you sometimes, you can almost see the frustration in the affidavits, and they keep trying to come up with another reason why they should be allowed in. It’s not a foregone conclusion that a warrant will be upheld, nor is it a foregone conclusion that it will be found to be invalid. Each case has to be looked at in it’s own merits and if you’ve got an experienced defence lawyer, sometimes you get to know some of the tricks a particular officer’s like to use, you know some of the shortcuts they like to try and in cases like that, it can be quite effective.
Mark: This doesn’t pass go.
Troy: Yeah, well, that’s what you hope.
Mark: Awesome thanks Troy. This is fascinating stuff, I mean to know our rights I think is one of our duties as residents of a free and lawful country and thank god there’s great criminal lawyers like you looking after us. We’ve been talking with Troy Anderson, he’s a criminal defence attorney here in Vancouver. You can reach him at troyandersonlaw.com or call him at 604-638-9188. Thanks Troy
Troy: Thanks Mark