You’ve watched True Detective and Law & Order. You’ve seen search warrants in action. The police need them to gather evidence involving murder, illegal drugs, and firearms. But beware! Search warrants can also be served on your workplace.
Search warrants have become a regular means of obtaining evidence at workplaces in all industries and all provinces across Canada. Consequently, many employers are being forced to deal with these warrants, in haste, and without sufficient knowledge of their immediate impact on the operation of a business.
A basic understanding of the judicial process that authorizes a person to enter and search a workplace for certain items is important. But more important is an understanding of what can be done today, proactively, to protect your employees and the operation of your business in Canada.
Authorized by statute
A search warrant is an order issued by a judge or justice of the peace. The order authorizes a person to enter into a location and seize evidence that is relevant to an alleged offense. The person does not have to be a police officer. Once granted, a search warrant can be executed by a Ministry of Labour inspector or public health inspector, environmental enforcement officer, or an officer of the Integrity Services Branch, to name a few.
Information on a search warrant
Information contained on the search warrant must include the precise location to be searched and the time frame the search warrant is valid. Night searches are granted only in exceptional circumstances. If the order authorizes multiple days, then the warrant must indicate the date and time the search will end. The warrant must also indicate what is to be searched for and seized. An overly broad or vague search warrant can be challenged because warrants are not intended to authorize 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.
Immediate and long-term impact
The impact of the execution of a search warrant at your workplace can be both short and long term. Immediate harm on the operation of your business can include:
• Stoppage and/or slowing of production;
• Gathering, copying, or removing documents;
• Removing equipment;
• Taking photographs of the workplace; and
• Asking questions of employees and managers.
Longer-term impact relates to public perception and protracted litigation involving the items and information seized.
Prepare now (easy as 1, 2, 3)
1. Point-Person: There is rarely any advance notice given in relation to the execution of a search warrant at a workplace. In fact, notice is often referred to as “knock notice,” meaning once law enforcement arrives at your door, abrupt interference will follow.
Choose a point-person—now! Appointing the “nice guy” as your first line of defense 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 over sharing.
2. Cooperate and (where possible) maintain control: It is understandable that when served with a search warrant you want to cooperate. In fact, employers are legally obligated to do so. However, providing access to rooms, equipment, and documents not clearly listed on the search warrant is not required and should be avoided at all costs. 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 still cooperating must be top of mind throughout the execution of the warrant.
Unless specified on the warrant, there is no obligation to provide statements to law enforcement. If asked to voluntarily provide a statement or document and you agree, then you have done so willingly and have likely waived (surrendered) your protection and privacy rights. It cannot be overstated that cooperation must be deliberate and strategic. While you don’t want an obstruction of justice charge, you also don’t want to waive your protections or have misstatements used against the business in a prosecution.
3. Delay and consult: There is no obligation for law enforcement to delay the execution of a search warrant. Nevertheless, it is worthwhile asking.
• Ask to see the warrant.
• Look at the order critically.
• Tell law enforcement that you are prepared to cooperate but you would like to speak to counsel before the search begins.
• Take a moment to provide a copy of every page of the warrant to external counsel.
• Together consider the deficiencies, if any, on the face of the warrant.
• Discuss what additional steps should be taken next and in what order.
Being proactive pays off
Be proactive. Take time now to discuss and develop a plan on how to deal with a search warrant at your workplace. A well-executed response in the minutes and hours after law enforcement begins its search and seizure can steer the process and impact the outcome of an entire investigation.
