Section 8 of the Canadian Charter of Rights and Freedoms provides that ‘[e]veryone has the right to be secure against unreasonable search or seizure.” This limits the power of the police (or sometimes Occupational Health and Safety officers/investigators depending on the jurisdiction or government agents) to search people and their property; and seize objects, documents and contraband. The Supreme Court of Canada has set a general rule regarding searches and seizures, that fair investigative practices require preauthorization of searches by a neutral, independent person based on evidence under oath that an offence has been committed and that evidence of that offence is likely to be found at the place to be searched.
A search warrant is a court order signed by a judge, that allows the police (government investigators or agents) to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, or important evidence/documents will be found in specified locations on the property.
As a general rule, any search that is conducted without a warrant is presumed to be unreasonable.
Once the police (government investigators or agents) have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant.
Being subject to a search warrant can be unexpected, shocking and upsetting. If served with a search warrant in connection with a government or regulatory investigation, it is essential for the organization to contact legal counsel immediately.
The following checklist provides guidance in such circumstances, but there is no substitute for involving experienced counsel immediately.
- Examine the search warrant. It must be issued by a judge and identify the location and type of documents to be searched. Searches without warrants are permitted in rare cases. Request time to consult counsel.
- Contact personnel named in the warrant.
- Contact legal counsel: in-house and/or outside.
- Contact appropriate senior officials in company.
- Request a delay to the search in order to contact legal counsel and until they arrive.
- Further to item 1, now read the warrant very carefully. Note time frame permitted, any special terms or conditions. LIMIT SEARCH to parameters set out in warrant.
- Appoint one person to co-ordinate as the search team leader.
- If activity is being carried out in an area accessible or viewable by the public, consider appropriate action, such as suggesting more private location, or restricting access to the public.
- Instruct staff to be co-operative and courteous.
- Identify privileged documentation. This includes communications between employees and legal counsel, both in-house and external. If privileged documents are being seized, ask to place them in sealed boxes or envelopes.
- Review process for information stored on computer systems, and how privilege will be protected for such information.
- Keep a photocopy or duplicate copy of all information seized.
- Make detailed notes of conversations, events, objections expressed, documents and data examined but not seized.
- Review everything with legal counsel and consider next steps.
You’ll also want to record the names, dates and times associated with all steps: who was involved and who recorded the information.
The upcoming update release (2013-04) of Finance and Accounting PolicyPro published by First Reference will include an updated chapter on litigation including search warrants.
Jeffrey D. Sherman
BComm, MBA, CIM, FCA
C0-Author of Finance and Accounting PolicyPro