MOST SEARCH WARRANTS FLAWED, REPORT SAYS

More Than Half Looked At In Ontario Study Would Have Flunked Charter
Challenges, Authors Say

More than half the applications used by police to obtain search warrants
were so flawed that a warrant should never have been issued, according to
the results of a recent Ontario study.

A team of search warrant experts concluded that 61 of 100 warrants they
scrutinized would have been ruled invalid had they been challenged under
the Charter or Rights and Freedoms.

The study -- which is to be published in the January edition of the
Criminal Law Reports -- says 69 of the warrants contained a legally
significant defect. Forty-three of them contained multiple defects.

One of the authors, Ontario Superior Court Judge Casey Hill, commented in
the report that there is "a disturbingly pronounced gulf between law and
practice" when it comes to search warrants.

Judge Hill said that the police applicants were either sloppy, incapable,
unaware or deliberately chose to violate the law, while the judicial
officers issuing the warrants appeared to be careless or inadequately trained.

"The numbers suggest a systemic failure or breakdown arising from a cause
or causes quite out of the ordinary," Judge Hill said.

In order to conduct a legal search and seizure, police must persuade a
judge or justice of the peace they have reasonable grounds for believing
they would find evidence relevant to a specific offence in a particular
location.

Judge Hill and the other authors -- Crown counsel Scott Hutchison and
defence counsel Leslie Pringle -- examined warrants submitted earlier this
year by police to Provincial Court judges or justices of the peace in
Toronto. All three experts added personal conclusions at the end of the
report.

In the vast majority of the warrants studied, the target location for a
search was a suspect's home.

In 7 per cent of the cases, the request for a warrant was turned down. The
rest were granted, indicating that judicial officers are as bad at
detecting mistakes as police officers are at making them.

"In this study, we observed warrants that had been issued on what were, in
our opinion, manifestly inadequate records -- as well as warrant
applications that had been declined for no discernible reason," Mr.
Hutchison remarked in the report.

In one instance, the report described a warrant in which a police officer
sought -- and apparently obtained -- authorization to search for and seize
a human being. The officer actually wanted information on his job title and
description, r‚sum‚, qualifications, and health-and-safety training.

Mr. Hutchison noted that when mistakes are as plentiful as they were in the
sampling, "eventually the systemic weaknesses themselves imperil the good
repute of the administration of justice. . . ."

One of the most common mistakes the team found involved police being vague
about the descriptions of evidence or the range of documents or records
they were seeking.

Another involved their use of what the authors termed "broad and
unrestrained basket clauses." These included requests from the police to
search for "any other pertinent items" or "any property that may have been
left behind by the culprits."

The study also noted that:

35 of the warrant applications involved errors in the description of
objects the police intended to search for and seize;

In some cases, police tried to use a warrant in order to seize an
intangible, such as a telephone number or access code for a pager number;

The history of particular investigations was often given in the warrant
applications as an unverifiable narrative lacking any investigative sources;

In 10 of the warrants, there was a total failure to provide acceptable
grounds to believe an offence had taken place;

In 20 of them, there was a failure to link the objects being looked for to
the location police wanted to search.

Referring to the high level of deficiencies as "alarming," Ms. Pringle said
in the report that police obviously need more training. "Sadly, this
appears to be true for some judicial officers, including provincial court
judges," she added.