1 in 7 Manitoba search warrants in study has serious flaws

[putz]

http://www.cbc.ca/news/canada/manitoba/search-warrants-manitoba-1.4284574

One in seven search warrants in a Manitoba study was so flawed that it should never have been issued, says an unpublished copy of the study that was obtained by CBC News.

Problems included overly broad requests and cash seizures with no proof the money was derived from criminal activity. In a number of cases, warrants were granted despite deficiencies in more than one area.

The study examined 125 search warrant applications submitted by the Winnipeg Police Service, RCMP and small urban police forces in September 2013.

It was done by a group of legal and justice officials:

Associate Chief Judge Anne Krahn.
RCMP Sgt. Bettina Schaible.
Federal prosecutor Stacy Cawley.
Defence lawyer Sarah Inness.
A search warrant gives police the right to enter a home or property and take certain items in pursuit of evidence in a case. The warrant is granted by a judge or judicial justice of the peace if officers convince a court they have reasonable grounds for a search.

The study results are troubling, Winnipeg defence lawyers said.

"The worst-case scenario is that an individual's rights will be trammelled unless warrants are properly done," lawyer Jay Prober said. "We don't live in a totalitarian state. We don't live in a dictatorship."

Countrywide issue

The concern doesn't seem to be limited to Manitoba, according to Toronto defence lawyer Kim Schofield.

"I think that it is a nationwide issue," said Schofield.

"I should be surprised, but I am not."

She has seen many cases involving police who were authorized to search people's homes without showing reasonable grounds for believing the items sought will be there.

"There seems to be this automatic issuance of search warrants for someone's residence," said Schofield. "On many occasions, there are lots of other people living in these residences.

"They are invading the privacy of a whole family or a number of roommates."

The most egregious case in Prober's career involved a warrant that was executed after it expired. The warrant did not state the connection between the suspected crime and the residence nor reasonable grounds for the search, and the officer forgot to swear that the information was correct.

"As the result of all of these errors in relation to two warrants, the Crown ended up dropping the charges," Prober said.

Training concerns

Last year, 2,890 search warrant applications were filed in Manitoba. Of those, 2,295 were granted, Manitoba Justice said.  In the past three years, about three-quarters of the warrants were authorized by justices of the peace, who are not required to be legally trained.

This is a problem, Schofield said.

"[Justices of the peace] are not trained as lawyers, and I think their legal training may not be sufficient to assess the sufficiency of warrants," Schofield said. Police cannot be relied upon to present a fair and balanced application, he said.

A spokesperson for Manitoba courts said they remain committed to opportunities for continuous improvement and education. Justices of the peace receive at least one week of training focused on the legal requirements for search warrants and newly appointed justices are paired with a mentor.

"In recent years, some [judicial justices of the peace] have also attended an intensive seven-day judicial authorization training offered by outside justice system stakeholders," the spokesperson said, and the intention is to have all justices of the peace attend similar training.

The Criminal Defence Lawyers Association of Manitoba said the study indicates improvements are needed.

"It shows us that it is a real and significant problem we do need to tackle because it does lead to adverse consequences for society. It is a waste of court time and a waste of tax dollars and a waste of police resources," spokesperson Scott Newman said. "It's disheartening to see that that is the number, that is as high as it is."

Bad searches are not just wasteful, they can be downright terrifying, Newman said.

"In the case of a drug search, they may bring a tactical squad, they may break down doors, they may have guns drawn — there can be all kinds of search situations that arise out of a warrant."

Some search warrants stay secret

The study revealed another problem — 40 per cent of the warrants were executed without the court being told what was found after the search was done. The Criminal Code of Canada requires officers to file a document called a "report to a justice," listing everything seized in a search, as soon as possible.

If that report is not filed, the warrant remains secret and not available to the public.

This documentation was filed even less often in a subset of drug and other warrants granted from 2014 to 2016 and analyzed by Manitoba Justice. In 2015, more than two-thirds of those search warrants did not include the report to a justice.

2014 – 41 per cent not filed.
2015 – 69 per cent not filed.
2016 – 47 per cent not filed.
Newman said it's common to find warrants where officers failed to file the report to a justice.

That document ensures officers do not take items they were not authorized to seize, he said.

"It's a check on the police power and it is a tool for the defence and Crown in the search for justice," Newman said.

Numerous unfiled reports

Winnipeg police Chief Danny Smyth said he was surprised by the spike in unfiled reports.

​"Do I think we can do better? Clearly," Smyth said. "There is room for improvement, but I think we are doing our best and we are taking steps to mitigate."

The unfiled reports triggered a memo to all officers in December, reminding them of their responsibilities when executing warrants, Smyth said.

 

[klacquement]

Newman said it's common to find warrants where officers failed to file the report to a justice.

This sounds like it's as much the court's fault as the police. Don't they follow up on the warrants they sign?

 

[JesseWZ]

This sounds like it's as much the court's fault as the police. Don't they follow up on the warrants they sign?

The short answer is... sort of. Persons who execute a warrant are required to file a Report To Justice stating if and when the warrant was executed and what they seized. These are often forgotten however. I've personally not seen a Report to Justice issue come up in a trial, but I'm only one man, so it could happen. I don't believe the RtJ's are reviewed very thoroughly, but the issue in question isn't what is occurring after the warrant is issued, it is to do with the warrant itself.

Now comes the long answer:

(Most) Warrant Applications must satisfy on reasonable grounds (more on this later) 3 things:

a. an offence was committed!
b. the items in question (to be searched for) will provide evidence to that offence!; and
c. the items are believed to be at the place you are requesting to look for them.

A JP is to review the warrant application (known as an Information to Obtain and it's attached Appendixes) which are often quite lengthy. Even simple Search Warrant applications can include over 10 pages of text. The JP is to evaluate your reasonable grounds and decide whether they exist in order to issue the warrant. Many warrants are returned unsigned requiring more information or because they contain errors of fact.

So, to sum up part 1, the first test of a warrant is the JP. Some are good, some are bad (just like in everything else). Some will sign near anything. Good JPs will fairly evaluate your grounds to ensure you aren't bit later in court.

Let's say a JP just signed a warrant which was faulty (which did not contain the requisite grounds)... there is a solution. Despite the defence attorneys whinging in the article, the Charter of Rights and Freedoms includes the caveat that charter breaches can result in the tossing of evidence (which likely will result in an acquittal) or even an acquittal itself. This exists as a check and balance against government (ie police) overreach when executing flawed warrants.
The warrant gets tested in court. It is laid before the judge, who will decide, based on the information contained within the warrant, whether your RPG existed, or whether you may have misled, omitted, or been just plain wrong.
The warrant affiant will be the one called to court to testify to the warrant, not the JP. (as far as I know, they get a free pass, but I could be wrong). Knowingly swearing to a flawed warrant leaves serious credibility questions both inside and outside the courtroom. A police officer being found not credible by a judge is a bad thing. If the warrant checks out, great! Evidence admitted, and everyone is happy, and hopefully the bad guy gets convicted! If the warrant is found to be fatally flawed, the evidence can get tossed, bad guy gets his legal stuff back (illegal things like child porn, illegal guns, drugs, will still be destroyed) and usually walks away a free man.

I hope this reply was helpful (if lengthy).