The Warrant Application Process

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 67-90



The Warrant

Application

Process

3

I. Forms and Templates ...................................... 

II. Ex Parte Application ....................................... 

III. Court Protocols .......................................... 

IV. Telewarrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

A. Impracticable ....................................... 

B. Telewarrants for Other Federal Oences . . . . . . . . . . . . . . . . . 

V. Formal Requirements of an ITO ............................. 

VI. General Content Requirements of an ITO ..................... 

A. Drafting and Organization of the ITO ................... 

B. The Aant’s Statement of Belief ....................... 

C. The Demonstration and Explanation of the Aant’s

Grounds ........................................... 

D. Condential Informers ............................... 

E. Anonymous Informers ............................... 

F. Full, Frank, and Fair Disclosure ........................ 

VII. Reapplication Following Refusal ............................. 

© [2021] Emond Montgomery Publications. All Rights Reserved.

Search and Seizure

This chapter focuses on the process for applying for a search warrant or related ju-

dicial authorization (production order, general warrant, etc.) to gather evidence in a

criminal investigation. We deal as well with the forms to be used; telewarrants; some

discussion of drafting the Information to Obtain (ITO); how to deal with information

from a confidential informer (CI); the topic of full, frank, and fair disclosure; and re-

application following initial refusal. Some of these topics overlap with the discussion

in other chapters.

Search warrants are traditionally applied for by a police ocer or public ocer,

ex parte, to a judicial ocer who may be a justice of the peace or a provincial court

judge exercising the powers of a justice of the peace, depending on local practice. In

some cases, the application must be made to a judge. General warrants, for example,

can only be issued by a provincial court judge or superior court judge. It is important

for the applicant/aant ocer to look to the authorizing statute to see which judicial

ocer may grant the warrant or order. For example, a DNA warrant under Criminal

Code section 487.05 may only be issued by a provincial court judge, not a justice or a

superior court judge. A general warrant authorizing video surveillance likely may only

be granted by a superior court judge, although this is not patently obvious from the

language of the Criminal Code and the jurisprudence is unsettled.

The ex parte nature of the process invokes a duty on the applicant/aant to be

fair and to provide full and frank disclosure because aected parties are not normally

informed of or involved in the application. Some procedural rules (e.g., the oath)

and some substantive rules (e.g., as to the content of the supporting material and the

establishment of grounds) are critical.

I. Forms and Templates

The Criminal Code prescribes Forms 5 and 1, respectively, for a section 487 search

warrant and supporting ITO. Some outdated police templates that are still in use for

Form 5 have incorrect language, leading to a Branton error,1 as discussed in Chap-

ters4 and 6. Forms 5.001-5.008 are for one of the various preservation demands and

production orders; Forms 5.01-5.062 relate to warrants and orders for DNA samples;

Form 5.1 is for a telewarrant; Form 7.1 is for a Feeney warrant to enter a dwelling

house. Where a form is prescribed for a particular type of warrant or order it should

be used, because often the form contains a reference to statutory criteria that the

applicant might otherwise overlook. For example, Form 5.1 (telewarrant) contains a

requirement that the peace ocer report on the search and seizure “as soon as practi-

1 As explained in greater detail in Chapter 6, a Branton error occurs where the warrant exceeds

the scope of the authorizing statute by authorizing the seizure of evidence relating to a crime

that has not yet occurred. See R v Branton, 2001 CanLII 8535 at paras 35-37, [2001] OJ No 1445

(QL) (CA). The Branton error typically arises when police use an outdated Form 5—the pre-

scribed form in the Criminal Code for a regular section 487 warrant to search—which includes

the words “commission, suspected commission or intended commission of an oence.”

© [2021] Emond Montgomery Publications. All Rights Reserved.