It's well known that drug investigations involve the use of a lot of search warrants. There usually are no "victims" to report the alleged crimes, and activities take place behind closed doors.
Sometimes police can get away without having a warrant in a vehicle or pedestrian stop situation, though searches of vehicles and people incident to arrest on other grounds or based on the supposed informed consent of the targets run considerable risks of later being held to be invalid. But for buildings - particularly dwelling places - court issued warrants will almost always be required to enter and look for evidence except in very rare exigent circumstances cases.
Investigators have three prime duties when seeking and executing search warrants:
1. the pre-search duty of full and frank disclosure of all relevant information to a judge or justice sufficient to support the application for a warrant;
2. the during-search duty to execute the warrant in a respectful and non-abusive manner in accordance with its terms;
3. the post-search duty to properly care for the seized goods, and to report back to the issuing court on what was seized so that a determination can be made of whether the detention of each thing seized is justified.
Breach of any one of those duties can lead to an illegal search and seizure. Breach of the first duty can lead to an illegal warrant. Breach of the second duty can lead to an illegal search. Breach of the third duty may lead to an illegal detention. In any of those cases, the remedy could be return of the seized goods, exclusion of all seized evidence from trial proceedings, and even a judicial stay being imposed on the charges.
Usually, going after the legality of the warrant itself is the softest target, 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 that one 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 in their support from the files of the provincial courthouse in downtown Toronto where I would often practice as a Federal Crown Prosecutor. Their study revealed that while reviewing justices of the peace had refused 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 high expectation of privacy was in fact only an illusion of a privacy protection, rather than a real concrete protection.
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 a quality check 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.
Nova Scotia, where I also used to serve as a drug prosecutor, sought to deal with this Canada-wide faulty warrant problem over a decade ago be 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: http://novascotia.ca/news/release/?id=20011115001
I don't have stats to offer you from other provinces outside of Ontario on defective warrant rates, but my 20 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.
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