Are the Majority of Search Warrants Issued in Canada Actually Illegal?

Parliament created search warrants as important police investigative tools for locations where a reasonable expectation of privacy exists. Their use is especially popular in cases where no live witnesses are ready or able to provide direct evidence of crime. Drugs cases (where warrants seek out the drugs or money), fraud cases (where warrants seek out incriminating documents), and serious crimes of violence (where warrants often seek out weapons and DNA) commonly use them as key parts of the investigations. 

The Warrant Problem: Drafting is the Weak Link

Obtaining a valid warrant generally requires investigators to link a thing to a place to an offence to a person, including providing full and frank disclosure of all relevant information to a judge or justice sufficient to support the issuance of the warrant. Officers must also execute warrants in a respectful and non-abusive manner in accordance with court-imposed terms, and properly care for and report back to the court on anything seized. But it's usually the drafting of the warrant itself that is the weak search link. 

Are 61% of Search Warrants Really Invalid?

For defence counsel, going after the legality of a search warrant is often the softest target in an investigation due to the fact that the majority of warrants out there were likely improperly issued and are in fact illegal. That's right, you heard me correctly, the majority.

Don't take my word for it, take the word of three highly accomplished criminal lawyers (two of whom are now Ontario judges): Mr. Justice Casey Hill, Judge Leslie Pringle and Scott Hutchinson. A few years back they published an excellent study and article in the Criminal Reports with the pithy title: "Search Warrant: Protection or Illusion?" (2000) 28 C.R. (4th) 89.

They randomly pulled 100 search warrants and the informations to obtain sworn by police in support of the warrants from the files of the provincial courthouse in downtown Toronto where I started my practice as a Federal Crown Prosecutor. Their study revealed that while reviewing justices of the peace had refused police requested warrants in only 7% of cases, a full 61% of warrants would have been struck down if challenged at trial because of serious drafting defects and lack of evidentiary support!

Their conclusion: that the strict requirement in the Criminal Code (and under s. 8 of the Canadian Charter of Rights and Freedoms) for judicial prior authorization of the police to engage in search and seizure in situations involving a reasonable expectation of privacy was in fact only an illusion of a privacy protection, rather than a real concrete protection. Although the study is now a bit dated, I have no reason to believe the situation has dramatically changed in Ontario.

The Root Causes of the Warrant Problem

Speaking as someone who has spent years training the police on how to draft warrants, and who has published three books on the topic, I can say with confidence that there's a lack of resources available to properly train police and regulatory investigators on search warrant drafting, a lack of experienced officers available to draft the warrants, a lack of supervisory systems in place to do quality checks on draft warrants prior to submitting them to the courts, and a lack of lawyers available to advise the police on warrant drafting.

These bad warrants aren't the product of some kind of police conspiracy to pervert the course of justice. They're simply the result of systemic failures, including training failures for the justices of the peace who are supposed to be the guardians reviewing warrant quality prior to their issuance.

Nova Scotia, where I also served as a drug prosecutor, sought to deal with this Canada-wide faulty warrant problem by setting up a centralized justice of the peace call centre of sorts, staffed entirely by lawyers as JPs rather than lay JPs, to review and approve search warrants:

Why You Need Legal Advice on Search Warrant Validity

I don't have stats to offer you from other provinces outside of Ontario on defective warrant rates, but my 22 years in the business tells me this remains a Canada-wide problem - probably better in some places and worse in other places. Anyone charged with an offence based on evidence obtained through the execution of a search warrant, or anyone who has had their property seized as the result of a search with a warrant, should definitely obtain legal advice about the validity of the warrant; you might be surprised by the results.