Unjust invasions happening across Canada as police mislead courts, bungle warrants and violate suspects’ rights

It seemed like an open-and-shut case.
The three Pham brothers — twins Jonathan and David, along with older brother John — were facing serious drug charges in Toronto court.
On the witness stand, Jonathan admitted that he and his twin brother were making fentanyl out of a downtown condo unit. When the police tailed their car to a grocery store on March 27, 2019, he also admitted, they had gone there to clear the shelves of a legal health food supplement that they used as a cutting agent to mix with the potent synthetic opioid.
But the three brothers walked free last September, in large part because police botched the search warrant that helped arrest them.
The judge ruled the application for a warrant drafted by Ontario Provincial Police Det. Mark Seto should never have been granted. The application included deliberate misrepresentations and omissions to get the warrant approved by a justice of the peace, who reviews the police evidence and then decides whether to allow what would otherwise be an unjust invasion of a person’s privacy.
Seto and the Pham brothers declined a request for comment.
A Torstar investigation has found dozens of cases over the last decade where police have misled courts to obtain search warrants that were later found to have violated the Charter rights of people facing charges.
The judicial findings about these bungled or deceitful search warrant applications are among the more than 600 court rulings over the past decade where judges concluded that officers committed serious Charter violations. Since 2017, the rulings have occurred at a rate of two per week, a Torstar investigation found, and experts say it’s just the tip of the iceberg.
On more than 40 occasions, the investigation found, judges were required to take serious action to correct the police conduct involving search warrants, either by dismissing charges, excluding evidence, finding defendants not guilty, or entering stays of proceedings.
In one case, a judge tossed out drug and firearm evidence against a suspected dealer because a Toronto police officer deliberately misled a justice of peace in his search warrant application, known as an Information to Obtain (ITO).
The officer’s warrant application described how surveillance showed the suspect get into a car with an older woman, suggesting they were taking off on a possible “drug sortie,” the judge’s decision said.
The woman was the suspect’s grandmother. They were returning to her seniors’ building after she had dropped off some laundry she had done for him.
“It undermines our confidence in the justice system when the police are securing search warrants that allow them to bring down your front door and essentially trash your house, relying on false or misleading information in the first place,” said Daniel Brown, a Toronto defence lawyer and vice president of Canada’s Criminal Lawyers’ Association.
“It’s such a significant intrusion on somebody’s privacy and it needs to be taken much more seriously.”
The Torstar investigation could find only two cases out of 42 decisions across Canada where an officer was formally disciplined or criminally convicted for misconduct related to search warrants. Those two cases did not involve the officers featured earlier in this article.
A Toronto Police Service spokesperson said a negative ruling that an officer violated an accused’s Charter rights “does not automatically mean misconduct occurred.”
“A warrant may be challenged during the course of the court proceeding,” Connie Osborne said. “Crown Attorneys often argue that a Charter breach did not occur. A ruling in favour of the defence does not in and of itself equate to misconduct.”
If there is evidence of officer misconduct — particularly deceit — Osborne said the expectation is that the prosecutor will notify Toronto police so its professional standards unit can investigate.
One lawyer who represents officers said discipline cases involving Charter violations are often handled informally — an internal process reserved for matters that are considered not of a serious nature. Informal discipline cases are not made public.
OPP spokesperson Bill Dickson said when a case in which a judge found an “egregious breach of an individual’s Charter rights” is brought to the force’s attention, “an investigation would be launched in order to determine if it meets the threshold for misconduct.”
The Criminal Lawyers’ Association’s Brown, speaking generally and not about any specific case, said, “I think it’s easy for the police to rationalize that they wouldn’t otherwise have any chance at arresting a certain segment of the population if they didn’t get these warrants.
“And so if they have to fudge the warrants a bit in order to get them, it’s the cost of doing business.”
Search warrants are one of the most powerful investigative tools available to police, giving them tremendous powers to invade people’s privacy and seize evidence.
To obtain a search warrant or a production order, which is used to obtain information from third parties such as banks or telecommunications companies, a police officer must prepare an application sworn under oath and presented to a judge or justice of the peace for approval.
The application sets out the circumstances of the investigation, what’s been learned from sources, and what’s expected to be found. A justice of the peace will review the application and then approve or reject the warrant, or seek additional information from the police.
This process of prior authorization by a judge or justice of the peace is intended to help protect our right to privacy, said Benjamin Berger, a professor at Osgoode Hall Law School.
“Privacy, once lost, can never be regained,” said Berger. “We don’t have privacy if all we can do is complain about breaches after they happen.”
Search warrants and production orders can be used by police to enter homes and vehicles, search premises and personal possessions such as computers, cameras and cellphones, and obtain bank records, phone logs, text messages and internet data.
Search warrants are only supposed to be issued in cases where there are reasonable and probable grounds to believe a crime has been committed. Yet a 2015 Star story showed that half of the search warrants executed by Toronto police in 2013 didn’t lead to any charges.
Because search warrants are obtained ex parte, meaning without the knowledge of the other side, there is an obligation for police to provide full, frank and fair disclosure when applying for the warrant.
That means police must provide information that could counterbalance the points in favour of the application so that a judge or justice of the peace can make a reasonable decision whether to approve the warrant.
Police officers who draft search warrant applications may have some training in the area but “trained does not mean capable,” said Andrew Bell, a former Crown attorney in Hamilton.
“Some officers are suited to the work and some aren’t,” said Bell. “The best ones are highly literate, meticulous, scrupulously honest, confident in her or his knowledge of the relevant law, with excellent communication skills, a strong work ethic, a sense of professionalism and a firmness of mind.”
“Warrant application drafting would be done to a higher standard if police management recognized that training alone is insufficient,” Bell added.
One case uncovered by Torstar’s investigation involved a young offender in Kindersley, Sask., accused of impaired driving in a crash that killed the driver of the other vehicle in November 2015.
RCMP officer Suzanne Doucette was the lead investigator and prepared a production order application to obtain the young driver’s blood samples and hospital records.
The judge tossed all of the evidence obtained from the orders, finding that Doucette had deliberately misstated there was nothing obstructing the view on the road despite the RCMP’s own collision reconstruction specialist finding that roadside oil platforms may have prevented the drivers from seeing one another leading up to the collision.
Doucette also failed to disclose 12 other pieces of information from the investigation, including that three other officers “all had difficulty detecting any odour of alcohol emanating from the accused,” the judge found.
“Doucette drafted the ITOs with a callous disregard for accuracy and fairness, focusing solely on obtaining the warrant and production orders, creating a scenario skewed to this purpose,” the judge found.
Doucette declined an opportunity to comment about the judge’s decision.
In a 2014 court decision, a suspected dealer was acquitted of several drug and weapons charges after a judge found a Toronto police officer “deliberately fabricated” evidence used in a search warrant application.
Worse for the officer, he had boasted on the witness stand about how he never had a search warrant overturned in his 20 years on the job. The defence lawyer showed up on the following day of the trial ready to cross-examine him about a case just two years earlier where a different judge had overturned one of the officer’s search warrants.
Toronto police brought a disciplinary charge against the officer, alleging he made “significant errors” in his testimony and his misconduct could hurt the force’s reputation. He was found not guilty.
In Ontario, police reliance on search warrants and production orders has increased in recent years.
There was a 22-per-cent rise in applications for search warrants and production orders from 2017 to 2020, the most recent year for which full data is available.
The number of warrant applications filed by phone, fax or electronically jumped even more significantly. There was a 46-per-cent increase from 2017 to 2020.
Telewarrants are typically filed during nonbusiness hours, such as evenings and weekends.
Telewarrants are intended to deal with urgent police investigations. The information is sent to an on-call justice of the peace who then makes a decision.
But some defence lawyers fear police turn to telewarrants in the hope they’ll attract less scrutiny from a justice of the peace because of the implied urgency.
“Justices want to do the right thing,” said Toronto defence lawyer Reid Rusonik. “They know that if they turn down a telewarrant, they’re risking something going unfound … because otherwise the police wouldn’t be making a telewarrant application.”
A spokesperson for Ontario’s Ministry of the Attorney General said it would be inappropriate for the ministry to comment on police use of telewarrants.
Spokesperson Brian Gray said one possible reason for an increase in telewarrants since March 2020 was the suspension of regular court operations during the pandemic. The data, however, shows in-person search warrant and production order applications also proceeded at a higher rate in 2020 compared to 2019.
There have also been concerns raised about the ability of justices of the peace to deal with the complex constitutional issues that can arise with search warrant applications.
Justices of the peace in Ontario aren’t required to have a formal legal education or experience before they’re appointed.
“The whole justice of the peace system, with legally untrained justices of the peace, is an outrageous flaw in our criminal justice system,” said Nathan Gorham, a Toronto lawyer who specializes in Charter rights issues.
“Being a lawyer doesn’t qualify you to build houses,” Gorham said, “so why should a building contractor be allowed to sit over a search warrant application?”
Gray said Ontario justices of the peace take part in intensive workshops covering “all aspects of search warrants which may be issued by a justice of the peace.”
He also said the province doesn’t track any statistics about the number of search warrants issued by justices of the peace that are later found to have led to Charter rights violations.
Lisa Silver, a University of Calgary law professor, says the search warrant process is built backwards. The greatest amount of scrutiny of a search warrant — and police conduct — happens after the warrant has been executed, charges have been laid, and the case ends up in court.
It’s only then that the defence can raise objections, find out more about any confidential informants, and even question the officers responsible for the application under oath.
“Wouldn’t it be nice to have that cross-examination right away?” said Silver, who specializes in the rules of evidence. “When you think about it, that’s when it really matters — before anything happens.”
While it wouldn’t be practical to alert a suspect to a pending search warrant application, she suggested duty counsel or an amicus (“friend of the court”) could be appointed to test the information in the warrant or even cross-examine the officer making the application.
Even in cases where a judge rules a faulty search warrant violated someone’s Charter rights, it doesn’t mean the case is dead. The judge must balance whether the police conduct outweighs the severity of the alleged crime.
Sometimes when search warrants go wrong, the damage can extend far beyond a violation of Charter rights.
In May 2010, a team of Hamilton police officers burst through an apartment door to execute a search warrant in connection with a suspected cocaine dealer.
Once inside, they grabbed a man, subdued him, then punched and stomped him while he was on the ground.
The slightly-built man, five-foot-seven and 130 pounds, was a refugee from Myanmar in his late 50s who barely spoke English. He was treated in hospital for serious injuries, including a broken rib, a gashed forehead and broken nose, and he was coughing up blood for days after. Hamilton Police Service declined to comment on the incident — which prompted a civil lawsuit that was settled out of court — for this article.
Hamilton officers had the wrong apartment number listed on the search warrant, which they obtained after-hours through a telewarrant.
The drug dealer lived in the unit next door.
Steve Buist is a Hamilton-based investigative reporter at the Spectator. Reach him via email: [email protected]
Rachel Mendleson is a Toronto-based investigative reporter for the Star. Follow her on Twitter: @rachelmendleson