By Skiddie2003 (Own work) [Public domain], via Wikimedia Commons

By Toronto Criminal Lawyer

Have you been charged with a crime after a search warrant has been used to gather evidence against you?  Do you have a search warrant issued against you?  Probably the most important step you can take is to speak to a criminal lawyer.

Many criminal charges arise out of search warrants being executed.   In Ontario, in order to get a warrant, the police need to go to a Justice of the Peace with an “Information to Obtain” (“ITO”). The Information to Obtain must contain details of why the police believe evidence will be acquired by executing a warrant on a particular person or place.  This is a reviewable decision – in other words the granting of the search warrant can be challenged in court.

Recently, in the case of R. v. Rocha, 2012 ONCA 707 , the Ontario Court of Appeal has increased the amount of specific and reliable information that must be brought before a Justice of the Peace.  In Rocha, a confidential informant told the police that Mr. Rocha was dealing drugs out of his restaurant/bar. The informant had seen this activity take place. The informant also told the police that the “stash” was being kept at Mr. Rocha’s place of residence.

A search warrant was obtained and executed on Mr. Rocha’s place of residence. Drugs, cash and firearms were seized in the execution of the search warrant.

At trial, Mr. Rocha’s lawyers argued that his right to be free from unreasonchargedable search and seizure was breached and the evidence ought to be excluded. The trial judge agreed. The information with respect to Mr. Rocha’s house was not specific or reliable enough to merit a search.

The Crown appealed that decision to the Ontario Court of Appeal. The Court of Appeal denied the appeal and upheld the decision of the trial judge because the informant had never seen any drugs at Mr. Rocha’s residence. Essentially, a search warrant can only be executed when the ITO is sufficiently detailed to justify infringing someone’s liberty. Otherwise, even if they find evidence of criminal activity, that evidence will be excluded from the trial.

The Rocha case is a favourable decision for defendants who have had search warrants executed on their property where evidence was obtained by the police. It will aid defence counsel in arguing that the search was unlawful and that the evidence cannot be used against the accused at trial.  So if you are an accused person as a result of a search warrant executed at your place of residence, and not based on specific or reliable information, then there is hope.  The information to obtain the search warrant that the police used to get the warrant may be successfully challenged at trial. And if a Charter violation is found by the trial judge, the evidence against you may not be admissible.

Again, the author of this article highly recommends that you hire a competent lawyer to help you defend charges arising out of evidence obtained after the police execute a search warrant because the ITO may be deemed insufficient and the evidence may be excluded by a trial judge.