Anton Piller Orders in an Age of Scepticism: Charter Application and Other Safeguards for Judicially Ordered Civil Searches

PAUL GODIN

ABSTRACT

Anton Piller orders, dubbed the "nuclear weapons of the law," are sweeping civil search warrants granted without notice to the defendant to prevent unscrupulous defendants from destroying or withholding key evidence before trial. An admirable goal, it has led to significant abuse. In response, courts have constructed safeguards on three levels legal thresholds for granting orders, procedural protections in framing orders, and practical safeguards to be observed when carrying out the order. In practice, theoretical safeguards are the "wet paper shields of the law." The article looks critically at current safeguards, recommended new ones, and remedies that are or should be available for defendants who have been wronged, including a possible common law exclusionary rule.

Recent Supreme Court of Canada decisions have revolutionized the application of the Charter to "private" parties. These developments will be explored in the Anton Piller context, with particular reference to protection from unreasonable search and seizure. Theoretically, Anton Piller orders might withstand Charter scrutiny (although the balance of interests may require standards higher than for criminal search warrants), but it is hoped that Charter protection will ensure that courts enforce current and proposed safeguards strictly. If safeguards fail and evidence is improperly obtained, the application of the Charter will provide an effective remedy for defendants, an exclusionary rule. Any evidence that would not have been found but for the improper search will probably be excluded in the future.

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Citation: (1996) 54(1) U.T. Fac. L. Rev. 107.
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