‘Consistent errors’ in handling of search warrants, study says

Hey there, time traveller!
This article was published 21/09/2017 (2949 days ago), so information in it may no longer be current.

A rare academic endeavour that brought together a provincial court judge, an RCMP officer, a defence lawyer and a federal prosecutor has pointed out a few “consistent errors” and spotlighted training gaps in how search warrants are handled in Manitoba.

The committee of justice officials completed a review of search warrants applied for across Manitoba in September 2013, finding in about 14 per cent of cases, search warrant requests were granted court approval when they never should have because of problems with the police paperwork.

Sometimes, they found, the police had not shown they had reasonable grounds to believe they’d find the evidence they needed in the search. Some of the applications lacked a clear description of the offence, or a clear link between the offence and the search location. Some had more than one deficiency, according to a copy of the soon-to-be-published academic paper obtained by the Free Press.

The review concluded it was likely 20 per cent of the search warrants would not have held up under potential legal challenges alleging violations of charter rights.

A similar study done in Ontario 17 years ago found 69 per cent of authorized search warrants should not have been granted, and 61 per cent of them would likely not withstand a constitutional challenge.

Provincial court Associate Chief Judge Anne Krahn, federal Crown lawyer Stacy Cawley, defence lawyer Sarah Inness and RCMP Sgt. Bettina Schaible looked at 125 search warrant packages investigators filed in court for 100 different cases in September 2013. Over the course of three years, they compiled their findings for the Manitoba Law Journal, a publication of the University of Manitoba’s Robson Hall faculty of law.

Most of the deficient search warrant requests were filed by smaller, rural police forces — pointing to a need for more training and resources for police outside of Winnipeg, Cawley said.

“A strong recommendation would be that the rural areas are supported with training. More often than not, the applications that were submitted by the smaller, rural agencies were the ones that had issues,” rather than the Winnipeg Police Service (WPS) or the RCMP, she said. Both of those police forces, the two largest in Manitoba, have provided search warrant training to smaller municipal departments.

A spokesman for the WPS said in a statement Thursday it offers training to outside agencies on a “very regular basis” and doesn’t currently have plans to change search warrant training programs.

Cawley said the justice officials who participated in the review wanted to tackle a perception judges and justices of the peace were simply rubber-stamping search warrant requests that could have violated people’s privacy.

Overall, that turned out not to be true, she said, pointing to some cases where police applied for a warrant even though they didn’t legally need one to search.

The committee also decided two of the rejected search warrant applications should have been granted.

It’s “unacceptable,” Cawley said, that police only reported back to the court after the search warrant was executed in 60 per cent of cases. They’re legally required to file a report in every case to explain what they found and what was seized.

“It’s part of the check and balance,” she said. “It’s part of the respect of people’s privacy rights. They’re not just allowed to go into the house and take whatever they want and then there’s no further obligation — there is further obligation. They have to complete this report.”

The WPS has pledged more training for officers on these “return to justice” reports. Since the beginning of this year, spokesman Const. Rob Carver said in an email, 300 officers have taken the online course.

The review didn’t look at sealed search warrants, which accounted for 23 per cent of the total search warrant requests filed that month. The study didn’t consider whether it’s becoming more common for police to apply for a warrant to be sealed from public view, but Inness said she’s seen an anecdotal increase.

“I’ve noticed in the context of my practice that there’s an increasing number of applications for warrants that seem to be sealed,” the defence lawyer said.

“So we were a little bit limited in that sense, that we couldn’t look at all of them, but I would suspect the findings would be the same.”

A total of 23 per cent of the authorized search warrant applications shouldn’t have been granted, the committee found, but it settled on 14 per cent as a more accurate number because 15 of those 25 warrants had been filled out by the same investigator, working in a small urban centre outside Winnipeg, who made mistakes trying to get the court’s permission to search several different cellphones as part of a lengthy investigation.

“While one certainly could conclude that improvements have been made, I think we can’t lose sight of the fact that any time a warrant was issued that shouldn’t have been issued, someone’s privacy interests have been impacted in a way that we can’t underestimate,” Inness said.

katie.may@freepress.mb.caTwitter: @thatkatiemay