Business Under the Microscope: Navigating a Search Warrant

You arrived at the office early to get some work done before the urgencies of the day take over. There’s a knock on the office door, and a team of police officers appears with a search warrant, demanding, not requesting, to enter and search the premises.

Your response in this moment of a “Dawn Raid” is critical. Knowing how to handle this situation calmly and responsibly is crucial to mitigating legal, financial, and reputational risk for your business. This article provides an overview on how businesses should prepare for and navigate this situation.   

Best Practices During the Execution of a Search Warrant

Being presented with a search warrant is alarming and stressful. The first step is to politely advise the officers at the scene that you wish to contact your company’s legal counsel before the police begin their search. While the police are not required to grant this request, it is still worth asking so you can inform your lawyer of the situation, including what the officers are searching for and the reasons behind it. Your lawyer can then provide you with the appropriate guidance and may communicate with police on your behalf, to the extent possible in the circumstances, which may include counsel’s attendance at the site where the warrant is being executed.

If the police refuse to wait for you to contact your company’s legal counsel, it is essential to permit the police to continue their search as any conduct that could be perceived as interfering or obstructing the police could be the subject of a criminal charge. As discussed below, you should take notes of what happened in order to review them with your counsel at the earliest opportunity following the execution of the search.

Substance and scope of the search warrant

If police do not provide a copy of the search warrant initially, you should request a copy as soon as possible. Obtaining a copy of the warrant will allow you to determine whether the warrant appears valid on its face — for example, whether it is being executed at the correct address. The warrant will include several details regarding the nature and parameters of the search that the court authorized through the issuance of the warrant. Here is some important information to keep in mind, some of which may also become relevant for your counsel later on:

• the date, time, and place that the court authorized for the warrant’s execution;
• those who are authorized to carry out the warrant and conduct the relevant search;
• the scope of the documents, records, electronic files, or devices that may searched or seized;
• the target(s) of the criminal investigation and the charges that are being investigated;
• when the warrant was issued; and
• who issued the warrant (i.e., a judge or justice of the peace). 

It is important to determine the scope of the search warrant as soon as possible. Some warrants may be more narrowly focused on certain areas of a premises. Others may be issued to facilitate the search of digital evidence on devices or servers located therein. A warrant may permit the police to do any of the following, among other things:

• access electronic devices and servers;
• demand that computer data be preserved if the data would assist in the investigation;
• take samples;
• open containers or receptacles, including filing cabinets;
• operate devices and use certain equipment; or
• maintain control of the searched premises, including sealing off particular rooms.

While it is important to ascertain the scope of the search warrant as soon as possible, do not attempt to block police in their execution of the warrant. If you believe the police are exceeding their authority, you may tell them so and you should document it yourself, but do not attempt to impede their investigation.   

In certain situations, police may be authorized to extend the scope of their search beyond the four corners of a warrant. For example, s. 489 of the Criminal Code provides broad authority for the seizure of items not explicitly listed in the warrant “if the officer has reasonable grounds to believe that the items have been obtained by, or used in, the commission of an offence.”^[1] Additionally, officers are vested with expanded authority in situations where their safety, public safety, or the preservation of evidence is at stake.

But even authorized searches are not without their limits. Police are prohibited from doing a number of other things including, but not limited to, compelling individuals to provide them with oral or written statements; or using physical force (except in exceptional circumstances — once again in the case of threats to officer or public safety). The police also cannot arrest you solely for the mere fact that they are executing a warrant; however, they can detain you in certain circumstances.

The importance of documenting

Contemporaneously documenting the steps taken during the course of the execution of a search warrant is vital for seeking advice from your company’s lawyer and determining next steps, including, as discussed below, whether the search warrant may be subject to challenge. For this reason, your business should appoint a designated point person responsible for taking detailed notes, including the following:

• what the police or other employees said during the search, including any conversations with the police;
• where the police conducted their search;
• the documents or electronic devices seized;
• the time of both the police’s entry and exit of the premises;
• any issues that arose during the course of the search, including those related to the police’s conduct; and
• any requests by the police for documents that may be protected by lawyer-client privilege, so that those documents can be sealed and privilege claims can be assessed at a later stage.^[2] 

Search of electronic devices

If the police want to seize or access an electronic device, they require a particular authorization to do so in their search warrant. It is not enough for the police to search or seize these devices with their general authorization to search a business; rather, they must have a warrant that specifies the given device with some level of particularity.^[3]

Where the police have a warrant for an electronic device, it is important to guard against destruction of electronic and/or digital evidence that could be regarded as obstructing the investigation. Businesses should establish clear protocols for IT personnel during investigations to ensure their compliance with the law. Legal advice should be sought to address questions relating to (i) the handling of data that may be relevant to a criminal investigation, as well as (ii) the nature and extent of permissible law enforcement searching of electronic data.

When the police copy computer hard drives for later review, it would be beneficial to prepare a backup copy of the IT system and copies of all files, folders, and other data. Of course, this must not occur in a way that hinders the investigation. 

Do not obstruct the police

Finally, and to reiterate, it is important for anyone present during the execution of a search warrant to avoid obstructing the search. This includes willfully impeding or preventing an inquiry, or destroying or altering records sought by the police. Such conduct could be the subject of a criminal charge. Moreover, in some circumstances, there may be a positive obligations on those who are present during the search to assist the police in obtaining or preserving particular data.^[4]

You may encounter a situation where, after reviewing the search warrant and speaking with counsel, you disagree with the police regarding the scope of the warrant and its execution. In some cases, it may even be clear to the trained observer that the warrant is invalid. In any event, the best practice is to notify the police once of your concerns, and thereafter allow them to carry out their duties. Be sure to take notes of your concerns and your conversation with the police. Above all, avoid conduct that could be construed as obstructing the search.  

The Aftermath of a Search Warrant

Following the execution of a search warrant, it is important to follow up with your business’ lawyer to relay all relevant information. Ensure to provide a detailed account of the event, including any of the above-noted concerns or observations. Your lawyer will be in the best position to help you consider your next steps and any necessary subsequent action, including challenging the search warrant or handling privilege claims relating to seized information.   

Your lawyers may consider a host of reasons to challenge a search warrant. For example, they may challenge the sufficiency of the Information to Obtain (the “ITO”), which is the evidentiary basis on which the warrant was based.^[5] Once again, they will be in the best position to make this determination.

Conclusion

Generally speaking, there is no practical way — nor is there a reason — to control what the police search or seize. The relevant information lies in the search warrant (and at a later date, in the ITO, if it is obtained). Once again, the police are not at liberty to search whatever they want, whenever they please. For the most part, their search must be confined to the scope of their authorization.

The topics we have discussed in this article are crucial to keep in mind when a search warrant is executed on your business. There is no question that the protecting your company’s legal position and maintaining organizational integrity are among the most important concerns. Following these steps can help you achieve these objectives and support your lawyers in defending your case.

If you are, or your business is, subject to a search warrant, McCarthy Tétrault’s White Collar Defence and Investigations Group assists companies and individuals in responding to criminal and regulatory risks associated with responding to search warrants.

^[1] Wang v. British Columbia (Director of Civil Forfeiture), 2024 BCCA 371, at para. 11.

^[2] However, issues involving consumer data privacy obligations are not grounds to object to the seizure of digital evidence (or other documents) given that cooperation is necessary.

^[3] See R. v. Vu, 2013 SCC 60. 

^[4] See Criminal Code, ss. 487(2.2), 487.012(1). For example, see Peel Regional Police, supra note 2, with respect to assistance orders.

^[5] See Criminal Code, s. 492.1; R. v. Abdullahi, 2023 SCC 19, at para. 79.