Introduction

Due in part to Netflix and the rise in popularity of the true crime genre, many wrongly believe that search warrants are used only to gather evidence involving murder, illegal drugs and firearms.

However, search warrants have become a common means of obtaining evidence from businesses in all industries. Consequently, many companies are being forced to deal with these warrants in haste and without sufficient knowledge of their immediate impact on business operations.

While a basic understanding of the judicial process that authorises a person to enter and search a workplace for certain items is important, an understanding of what can be done to protect business operations in all provinces and sectors across the country is vitally so.

Authorisation

A search warrant is an order issued by a judge or justice of the peace that authorises a person to enter a location and seize evidence relevant to an alleged offence – the person need not be a police officer. Search warrants can be executed by (for example) a Ministry of Labour inspector, public health inspector, environmental enforcement officer or an officer of the Integrity Services Branch.

Information

Information contained on the search warrant must include the precise location to be searched and the timeframe for which the search warrant is valid. Night searches are granted only in exceptional circumstances. If the order authorises multiple days, then the warrant must indicate the date and time that the search will end. The warrant must also indicate what will be searched for and seized. An overly broad or vague search warrant can be challenged – warrants are not intended to authorise a 'fishing expedition'.

The validity of a search warrant and the release of items that are seized can be challenged in court. These legal challenges do not move quickly, are costly and rarely make up for the harm caused at the time of their execution.

Impact

The impact of the execution of a search warrant at a workplace can be short and long term. Immediate harm on business operations can include:

  • stopping or slowing production;
  • gathering, copying or removing documents;
  • removing equipment;
  • taking photographs of the workplace; and
  • questioning employees and managers.

The longer-term impact relates to public perception and protracted litigation involving the seized items and information.

Preparation

Appoint a point person

Advance notice of the execution of a search warrant at a workplace is rarely given . In fact, notice is often referred to as 'knock notice' (ie, when law enforcement arrive at the door, abrupt interference will follow).

Appointing a 'nice guy' as your first line of defence is seldom the way to go. Law enforcement will not be charmed by nice, funny or polite people when searching for evidence under a search warrant. Select someone observant, thoughtful and strategic. An ideal choice is a person who will answer questions clearly and provide the necessary information without oversharing.

Cooperate and (where possible) maintain control

It is understandable that when served with a search warrant, you will want to cooperate. In fact, you are legally obligated to do so. However, providing access to rooms, equipment and documents that are not clearly listed on the search warrant is not required and should be avoided at all costs. Making inadvertent and careless statements to law enforcement, or allowing the investigation to start early and end late, can have irreversible and unintended consequences on your business. Maintaining control while cooperating must be a top priority throughout the execution of the warrant.

Unless specified on the warrant, there is no obligation to provide statements to law enforcement. If you agree to voluntarily provide a statement or document, then you have done so willingly and have likely waived your protection and privacy rights. It cannot be overstated that cooperation must be deliberate and strategic. While you do not want an obstruction of justice charge, you also do not want to waive your protections or have misstatements used against the business in a prosecution.

Delay and consult

There is no obligation for law enforcement to delay the execution of a search warrant. Nevertheless, it is worthwhile:

  • asking to see the warrant;
  • looking at the order critically;
  • telling law enforcement that you are prepared to cooperate, but would like to consult counsel before the search begins;
  • providing a copy of every page of the warrant to external counsel;
  • considering the deficiencies, if any, on the face of the warrant; and
  • discussing the nature and order of any necessary additional steps.

Plan

It is worth discussing and developing a plan on how to deal with a search warrant at your business. A well-executed response in the minutes and hours after law enforcement begin their search and seizure can steer the process and influence the outcome of an entire investigation.

For further information on this topic please contact Deanah Shelly at Fasken Martineau DuMoulin LLP by telephone (+1 604 631 3131) or email (dshelly@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

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