In order to search your house with a warrant, the police need to swear an affidavit (known as an ITO) to get authorization from a judicial officer. The ITO sets out the reasons, and the supporting evidence, why the police believe there will be evidence, such as drugs, found in the residence. But just because the police obtained a warrant that doesn’t mean they didn’t breach your rights under the Charter of Rights and Freedoms.
At trial, you can challenge the grounds the police used to obtain the warrant. One of the ways to do that is to show that the information they had was dated or stale. A belief that the items “may” or “possibly” be at the premises is insufficient to meet the preconditions for obtaining a warrant. The material supporting the application for a warrant or authorization must set out evidence and not merely bare, conclusory statements.
The presence of items or drugs at a place to be searched requires more than mere speculation before a warrant can be issued. The test for a search warrant is credibly based probability, not a credibly based possibility. In determining whether reasonable grounds exist to search a location, the currency or freshness of the evidence is important. Numerous courts have held that an Information to Obtain a search warrant must contain information that is recent enough to satisfy the issuing justice that it is probable that the things sought will still be at the location, and not that it is merely possible that they are still there. If that were not the case police relying on extremely outdated information, could seek and obtain a warrant to search a dwelling house. Such was not the intention of the legislators. The fact that it may be difficult in some cases for the police to obtain recent information supporting the belief that items would be found in a particular location is irrelevant.
If you have been charged with an offence arising from the execution of a search warrant, it is important to have your lawyer assess the grounds set out in the ITO. A successful challenge to the warrant can result in evidence being excluded at trial.
