Drafting and Reviewing Search Warrants 2023

Jennifer Conroy
Head of Appeals Unit, Public Prosecution Service of Canada

Lynda Morgan
Addario Law Group

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

Katie Doherty
Crown Counsel, Crown Law Office – Criminal, Ministry of the Attorney General (Ontario)

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

10:30 a.m.
Health Break

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

Diana Lumba
Legal Counsel, 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.
Health Break

Travis Johnson
Senior Counsel, British Columbia Regional Office, Public Prosecution Service of Canada

Emily Lam
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 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

David Fraser
McInnes Cooper LLP

Andrew Hotke
Crown Counsel, Crown Law Office – Criminal, Ministry of the Attorney General (Ontario)

Provincial and international borders pose significant jurisdictional challenges in both obtaining and executing search warrants. The jurisdictional breadth of Criminal Code production orders can engage international conflict of law issues. This can be particularly challenging in relation to social media evidence, often collected and stored by multinational companies with whom many Canadians interact. These speakers will address some of the key issues in this area including:

• What do production orders permit and against whom?
• Advantages and disadvantages of using treaty provisions
• The types of data that is most likely to raise litigation
• Some of the drafting challenges to writers attempting to obtain data stored abroad

2:45 p.m.
Health Break

Maya Borooah
Henein Hutchison LLP

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

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 password and biometrics (both from suspects and third parties), production orders, assistance orders, general warrants, and issues of self‑incrimination, consent and rights to counsel.

The Hon. Justice Nancy Dennison
Superior Court o of Justice (Ontario)

Tony Paisana
Partner, Peck & Company, Vancouver

Aaron Rankin
Prosecutor, Appeals and Specialized Prosecutions Office, Alberta Crown Prosecution Service

Det. Dave Webster
Toronto Police Service

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

5:00 p.m.
Day One Ends

Workshop Leaders:

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

In this learn-by-doing workshop, participants in small groups (in-person or virtual) 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.

There will be a 15‑minute break during the workshop.