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1 in 7 Manitoba search warrants in study has serious flaws

One in seven search warrants in a Manitoba study was so flawed that it should never have been issued, says an unpublished copy of the study that was obtained by CBC News.

'There is room for improvement,' Winnipeg police Chief Danny Smyth says

Winnipeg police execute a search warrant on July 23, 2012, on Polson Avenue between Salter Street and Powers Street. (CBC)

One in seven search warrants in a Manitoba study was so flawed that it should never have been issued, says an unpublished copy of the study that was obtained by CBC News.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

Lawyer Jay Prober explains why everyone should be concerned about how search warrants are issued and executed in Manitoba. 3:06

"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."

Kim Schofield, a defence lawyer in Toronto who has practised for more than 20 years, is regarded as an expert on challenging search warrants. (CBC)

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.

Scott Newman of the Criminal Defence Lawyers Association of Manitoba says the study shows there is a significant problem with search warrants in the province. (CBC)

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.
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. 3:09

"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.

Police Chief Danny Smyth says the Winnipeg Police Service is working to improve search warrant applications. (CBC)

Winnipeg police officers are working to improve the service's record on search warrants, Smyth said. He pointed to a recently formed dedicated search warrant unit and said 300 officers have taken voluntary training.

"I am still encouraged by the fact that we have not been subject to any real breaches of the Charter [of Rights and Freedoms]," Smyth said in reference to the unfiled reports to a justice.

The authors of the study said evidence from flawed search warrants are usually allowed to stand in court.

"It was a general consensus among the group that many of the warrants that contained deficiencies likely would have withstood a charter challenge," said Sarah Inness, a Winnipeg defence lawyer who co-wrote the study.

Very few warrants are quashed in Manitoba and it is hard to find cases where evidence was excluded because of problematic warrants, she said.

The dearth of successful charter challenges does not minimize the importance of proper search warrants, Prober said. 

"It can become very systematic and it can become problematic when the law is not being followed and reports are not being made back to the justices of the peace or the provincial court judge who issued the warrant. It's dangerous," Prober said.