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Daniel Urbas is a lawyer with Woods & Partners. His practice focuses on media law, intellectual property, e-commerce and litigation. He can be reached at

The contents of Publishing Law should not be construed as legal advice offered by Masthead or Mr. Urbas. Readers should consult their own lawyers before acting.

Column for June 2001

Search and Seizures at Magazine Offices: Part 1

An effective and free media depends on their ability to gather, analyse and distribute information independent from any police or governmental restrictions. A police search and seizure can seriously affect the manner in which the media operates. This month, we take a look at search warrants issued against the media and how those warrants can disrupt the media's newsgathering function. Next month, in Part Two, we review what the Courts look for when deciding whether or not to issue the search warrants. The article also flags some special considerations that magazines might raise when responding to search warrants.

The Legislation

Section 487 of the Criminal Code provides for search warrants and reads in part as follows:

"487.(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place ...

(b) anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act or any other Act of Parliament,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for such thing
and to seize it
, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to,
the justice of the peace or some other justice for the same territorial division in accordance with section 489.1" (underlining added)

The request is made by police to a justice of the peace who must receive sworn evidence which creates a reasonable grounds to believe that evidence relating to a criminal offence could be obtained if the warrant is issued.

The Courts

The leading case on police search and seizures is CBC v. Lessard, a 1991 Supreme Court judgment. (A complete copy of the decision is available in electronic format at
. A print version is reported at [1991] 3 Supreme Court Reports 421). The case involved video footage generated by a CBC camera group. The video footage contained images of people occupying and damaging a Canada Post office building.

Without prior notice to CBC, police sought and obtained a warrant authorizing them to enter, search and seize videotapes from CBC's offices. Several tapes were seized and CBC brought an application to quash the search warrant. The Québec Superior Court dismissed CBC's application and upheld the search warrant. A majority of the Court of Appeal allowed CBC's appeal and quashed the search warrant. On further appeal, the Supreme Court of Canada in a 6-1 decision allowed the appeal and upheld the search warrant.

Key issues were that: (a) CBC broadcast portions of the video footage on its English and French television networks before the seizure, and (b) police were not present during the vandalism and had no images of their own.

Though six of the seven Supreme Court judges agreed in the result, the reasons were not all shared. Mr. Justice Cory wrote for four of the judges while Mr. Justice La Forest and Madam Justice L'Heureux-Dubé each wrote their own reasons. Madam Justice McLachlin, now the Chief Justice of the Supreme Court of Canada, was the sole dissenting judge and would have quashed the search warrant. She wrote separate reasons.

The Supreme Court recognized that the values of freedom of expression also supported freedom of the press and included the pursuit of truth and the ability to participate in one's community by collecting facts and opinions and commenting on ideas and events.

How media may be affected by search warrants

Though she disagreed in the result, Madam Justice McLachlin in CBC v. Lessard noted at least six ways in which the media might be affected by search warrants.

"First, searches may be physically disruptive and impede efficient and timely publication.

Second, retention of seized materials by the police may delay or forestall completing the dissemination of the news.

Third, confidential sources of information may be fearful of speaking to the press, and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities.

Fourth, reporters may be deterred from recording and preserving their recollection for future use.

Fifth, the processing of news and its dissemination may be chilled by the prospect that searches will disclose internal editorial deliberations.

Finally, the press may resort to self-censorship to conceal the fact that it possesses information that may be of interest to the police in an effort to protect its sources and its ability to gather news in the future."

These six effects were not far from the majority's thoughts because the majority's reasons recognized that the media ought to be treated differently from other private businesses, given the important role the media plays in newsgathering.


The current practice in obtaining a search warrant is a two-step process. First, an application for a search warrant is made by the police to the justice of the peace in the absence of the media. Such an application is known as an ex parte application, or "by or for one side only." The first notice the media may have of the warrant is a knock on the door.

Next, a media organization is allowed to apply to the Courts for the judicial review of the warrant after it has been issued and executed. This second step imposes a somewhat higher burden on the media because the Court is not asked to decide whether or not a warrant should issue but whether or not the justice of peace exercised his or her discretion in a reasonable manner in issuing the warrant.