Background
D.D. was the subject of three Toronto Police Service search warrants that resulted in the seizure of electronic devices. Before any charges were laid, D.D. brought an application for certiorari seeking to quash the warrants as facially invalid — arguing, among other things, that the informations to obtain the warrants failed to establish reasonable and probable grounds. The application judge declined to exercise the discretionary remedy of certiorari and dismissed the application.
D.D. appealed that dismissal and, pending the full appeal, brought a motion before the Court of Appeal seeking an order preventing police from continuing their forensic examination of the seized devices. The motion required the court to consider whether it had jurisdiction to grant such relief under s. 683(3) of the Criminal Code in combination with s. 134(2) of the Courts of Justice Act, and, if so, whether the standard three-part test for a stay pending appeal was met.
The Court’s Holding
The Court of Appeal, per Copeland, Gomery, and Osborne JJ.A., dismissed the motion. Assuming without deciding that jurisdiction existed to grant the order, the court held that the stay test was not satisfied. On the merits, the court found no serious issue: certiorari is a discretionary remedy, the application judge committed no obvious error in declining to grant it, and the jurisprudence firmly establishes that certiorari to challenge the constitutional validity of search warrants is exceptional where an investigation is ongoing and no charges have yet been laid. The court also found D.D.’s underlying grounds — that the informations lacked reasonable and probable grounds — to be weak, noting that police are not required to exclude every alternate inference to meet that threshold.
On irreparable harm, while the court accepted that continued police examination of the devices affected D.D.’s privacy interests, it concluded the impact fell well short of rendering the appeal moot. Should D.D. succeed on appeal, the court retains the power to grant a remedy in relation to the warrants and their fruits; and if charges are laid, D.D. may still bring a Charter challenge to admissibility at trial. Weighing weak appeal merits, limited irreparable harm, and the public interest in allowing a presumptively valid investigation to continue, the balance of convenience did not favour a stay. The matter was referred for case management to expedite the appeal.
Key Takeaways
- Certiorari to challenge the validity of search warrants is an exceptional remedy in the context of an ongoing police investigation before charges are laid, and courts retain broad discretion to refuse it even where facial invalidity is argued.
- Police seeking a search warrant are not required to exclude every alternate inference — they need only satisfy the reasonable and probable grounds threshold, which is a relatively low bar.
- Continued police examination of lawfully seized electronic devices pending appeal does not constitute irreparable harm where the appellate court retains the ability to remedy any unlawful search, and where the accused can still challenge admissibility at trial under the Charter.
- The public interest in permitting an investigation to proceed on the basis of presumptively valid warrants is a significant factor weighing against a stay pending appeal.
Why It Matters
This decision reinforces the high threshold an accused must meet to interrupt an active criminal investigation by staying the execution of search warrants through interlocutory proceedings. It signals that Ontario appellate courts will be reluctant to grant stays that effectively pause police investigations pre-charge, particularly where certiorari was discretionarily refused and where the accused retains meaningful avenues for relief — both on appeal and through Charter admissibility challenges at trial.
For practitioners, the case is a useful illustration of how courts calibrate the stay-pending-appeal framework in the pre-charge, warrant-challenge context: weak merits on a discretionary remedy, a privacy impact that does not moot the appeal, and a countervailing public interest in investigation all combine to defeat the motion. The court’s willingness to assume jurisdiction while declining relief on the merits also leaves the precise jurisdictional question — whether ss. 683(3) and 134(2) together empower such an order — open for future resolution.