Brad Hanna is a lawyer at the Toronto law firm of McMillan Binch and a member of the firm’s Litigation and Dispute Resolution Group.

It’s amazing how often businesses in almost every industry are faced with an officer standing at the door holding a piece of paper with the words ‘search warrant’ printed on it.

Most of the time it’s because there is an investigation into the affairs of someone with whom you’ve done business. Sometimes it’s because your own company is suspected of having violated some law – whether it be price-fixing, securities rules, tax evasion, or even criminal fraud.

What’s a search warrant?

A search warrant is an order that permits an officer to enter a specified building to search for, and seize, specified property that is believed to afford evidence of a specified crime. Search warrants can be issued under a variety of statutes, including the Criminal Code, the Income Tax Act and the Securities Act.

It’s important for you to know how to respond appropriately when an officer is at the door waving a warrant in your face. Typically, you don’t have much time to react. Here are some general comments and suggestions to assist you should this situation arise.

Be prepared

It is wise to adopt a procedure for handling this situation well before an officer ever shows up with a search warrant. In this regard, your company might want to do the following:

1. Designate a company spokesperson(s) to be responsible for dealing with officers who are conducting investigations.

2. Ensure that the spokesperson has sufficient authority to direct other employees in the company and knows who the company’s in-house and outside lawyers are and how to contact them, day or night.

3. Ensure that company employees know who the designated spokesperson is and that they are to immediately contact the spokesperson if an officer shows up at the door.

How to respond if it happens

Great, now you might be asking what the spokesperson is actually supposed to do. How does he or she respond when the officer presents the warrant and wants to begin the search? Follow these steps:

1. Record the officer’s name, title, badge number, time and date of the attendance.

2. Ask for and obtain a copy of the search warrant before the officer commences any search.

3. Contact the company’s lawyer immediately and ask the officer to await his or her arrival before beginning the search.

4. If the officer refuses to wait, don’t try to stop the officer. The officer may not be legally obliged to wait for your counsel to arrive. If you try to interfere with or impede the officer you could be charged personally for obstruction.

5. Instead, you should read the warrant very carefully to determine:

* the specific premises authorized by the warrant to be searched

* the specific documents or objects covered

* the alleged offence authorizing the warrant

* whether, if it is a night search, the warrant expressly authorizes this.

If there is a defect in the warrant, (for example, the area that an officer wants to search is not described in the warrant), notify the officer of your concern (but do not obstruct any search) and record your objection.

6. Before the officer begins the search, ask if he or she intends to question anyone. If the answer is yes, obtain a list of the individuals to be questioned and ask the officer not question anyone until counsel is present.

7. Once the officer begins, you or your designate should physically accompany the officer throughout the entire search. In doing so, you or your designate should follow the remaining steps set out below.

8. Ensure that the search does not exceed the precise limits of the warrant, and if the officer attempts to search beyond these limits, object and record the objection. For example, if the warrant specifies documents relating to only certain areas of the company and the officer attempts to go through filing cabinets in other areas you should object and record your objection. If the officer persists, ask that the documents that you believe to be beyond the scope of the warrant be placed in a sealed envelope and delivered to your counsel pending a ruling by a judge.

9. Don’t ‘agree’ that the search can be expanded beyond the limits or objects described in the warrant. If the officer wants more access or materials than described in the warrant, he or she must obtain a broader warrant from the court.

10. Make a detailed record of the specific files and documents that the officer(s) searched. For example, ‘Officer Jones began searching the file cabinet located in Mr. Smith’s office at 3:05 p.m. He reviewed each document in the cabinet and completed his search of this cabinet at 4:30 p.m. The documents in Mr. Smith’s file cabinet related to company finance and budget information.’

11. Ask to make copies of all documents that are seized during the search and ensure that the copies identify precisely where they were taken from. If necessary, explain to the officer that these are working files and copies are necessary for the company’s operations and its lawyer’s representation of the company.

12. Ask that any documents that contain communications between your company and its counsel for the purpose of obtaining legal advice (which are privileged and immune from search) be placed in a sealed envelope and delivered to your counsel pending a ruling by a judge. If the officer refuses, object to the documents being taken on the grounds of solicitor-client privilege, record your objection and, as mentioned above, make a copy of the documents being seized to give to your lawyer.

13. You and other company employees don’t have to answer any substantive questions the officer might ask. You are entitled to assert your constitutionally protected rights to counsel before making any statements and to remain silent during the search. You are not required to write or sign a ‘witness statement’. If you or other employees decide to answer questions or make a statement, however, make detailed notes of the information given to the officer and by whom.

14. Immediately after the end of the search, have each company employee that was present prepare and sign a memorandum describing what transpired during the search.

15. Meet with your lawyer as soon as possible after the search to describe what happened. Provide your lawyer with a copy of the warrant, your notes recording the search and any statements made or information given to the officers by you or other employees. There may be follow-up action that needs to be taken very quickly. For example, the lawyer may need to go to court to obtain a ruling on privileged documents, to quash or set aside the warrant or to obtain access to, or a return of, the items seized during the search.

Following these steps won’t stop the search from happening, but it will ensure that the officer doesn’t exceed the scope of the search warrant. It will also help your lawyers protect the company’s interests as best as possible. *

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.)