R. v. Cornell

R. v. Cornell
Collection
Supreme Court Judgments
Date
2010-07-30
Neutral citation
2010 SCC 31
Report
[2010] 2 SCR 142
Case number
33186
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Fish, Morris J.; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Alberta
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 33186
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142
Date: 20100730
Docket: 33186
Between:
Jason Michael Cornell
Appellant
and
Her Majesty The Queen
Respondent
‑ and ‑
Attorney General of Ontario, Attorney General of Alberta,
British Columbia Civil Liberties Association and
Canadian Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 45)
Dissenting Reasons:
(paras. 46 to 153)
Cromwell J. (McLachlin C.J. and Charron and Rothstein JJ. concurring)
Fish J. (Binnie and LeBel JJ. concurring)
______________________________
R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142
Jason Michael Cornell Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Attorney General of Alberta,
British Columbia Civil Liberties Association and
Canadian Civil Liberties Association Interveners
Indexed as: R. v. Cornell
2010 SCC 31
File No.: 33186.
2009: November 20; 2010: July 30.
Present: McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Search and seizure — Private home — Use of force — Police informed that two individuals believed to be members of violent criminal gang were running “dial‑a‑dope” cocaine trafficking operation — Police obtaining search warrants following investigation — Tactical team conducting unannounced, forced entry into accused’s residence believed by police to be used in drug operation — Tactical team using hard entry to avoid destruction of evidence and to protect safety of police and public — Police finding cocaine in accused’s room — Accused convicted of possession of cocaine for purpose of trafficking — Whether lawfully authorized search was conducted reasonably — Whether search unreasonable because tactical team members did not have copy of search warrant with it when entering residence — Canadian Charter of Rights and Freedoms, s. 8 .
Criminal law — Search and seizure — Search warrants — Police tactical team conducting unannounced, forced entry into accused’s residence — Tactical team members not having copy of search warrant with them when entering residence — Investigator who was physically present and close to accused’s residence had copy of warrant — Whether police complied with requirements of s. 29 of Criminal Code, R.S.C. 1985, c. C‑46 .
The police received information that N and T — two individuals the police believed to be members of an organized criminal group — were running a “dial‑a‑dope” cocaine trafficking operation. Following an investigation, which included surveillance, the police also believed that the accused’s residence was being used in the operation and they applied for warrants to search T’s residence, a motor vehicle used by N, and the accused’s residence. The Information to obtain the warrants indicated, inter alia, that the activity at the residences of T and the accused was consistent with their being used as stash locations, that N had been observed making four brief visits to the accused’s residence over a period of approximately two weeks, and that two months before the search was executed at the accused’s residence, a mobile phone registered to the accused had been found in N’s car. The Information also indicated that the tactical team would be required to enter the residences in order to avoid the destruction of evidence by potential occupants and for the safety of both the public and the police because of N and T’s history of violence and their association with a violent criminal gang. Warrants were issued pursuant to s. 11 of the Controlled Drugs and Substances Act . Shortly before executing the warrant to search the accused’s residence, the police observed the accused’s mother and sister leave the house and drive away. The other search warrants relating to this operation had already been executed and N was in police custody. The tactical team rammed open the front door of the accused’s residence without knocking or announcing their presence and nine police officers wearing balaclavas and body armour entered the house with weapons drawn to secure it. The only person in the house was the accused’s brother, who was mentally challenged. He was taken down and handcuffed. His emotional distress became apparent and the handcuffs were removed within minutes. The brother was comforted by one of the officers and received the help of a paramedic. The tactical team members did not have with them a copy of the search warrant when they entered. The warrant was in the hands of the lead investigator who was posted down the block. During the search, which caused damage, the police discovered cocaine in the accused’s bedroom. He later admitted possessing cocaine for the purpose of trafficking, but argued that the cocaine was obtained by the police as a result of an unreasonable search and therefore should not be admitted into evidence. The accused was convicted and the Court of Appeal, in a majority decision, upheld the conviction. The trial judge and the majority of the Court of Appeal held that the accused’s rights under s. 8 of the Canadian Charter of Rights and Freedoms had not been infringed because the search had been lawfully authorized and reasonably conducted.
Held (Binnie, LeBel and Fish JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Charron, Rothstein and Cromwell JJ.: The only issue is whether the lawfully authorized search was conducted reasonably. Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. Ordinarily, they should give: (1) notice of presence by knocking or ringing a door bell; (2) notice of authority, by identifying themselves as law enforcement officers; and (3) notice of purpose, by stating a lawful reason for entry. While the “knock and announce” principle is not absolute, where the police depart from it, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants or about the destruction of evidence. The police must be allowed a certain amount of latitude in the manner in which they decide to enter premises and, in assessing that decision, the police must be judged by what was, or should reasonably have been, known to them at the time. On appellate review, the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference.
In this case, the trial judge made no reviewable error in concluding that the search was conducted reasonably. The police had well‑grounded concerns that the use of less intrusive methods would pose safety risks to the officers and occupants of the house. The police reasonably believed that the accused’s residence was being used in a drug dealing enterprise carried on by members of a violent criminal gang and that the accused had some association with at least one gang member. The police were entitled to draw reasonable inferences from these facts and attempts to consider the accused in isolation from them are highly artificial. The suggestions that the police had no basis for their concerns about the risk of violence are contrary to the trial judge’s findings and to the evidence in the record.
The police also had reasonable grounds to be concerned that the evidence to be found would be destroyed having regard to the fact that there were reasonable grounds to believe that cocaine would be found in the premises and that it is a substance that may be easily destroyed. Notwithstanding that, by the time of the search, N was in custody and the police had observed the accused’s mother and sister leave the house, the trial judge found, as a fact, that the police had no means of knowing who, if anybody, was in the residence or whether there was any person in the residence who would destroy the cocaine, if there was any, upon learning of the presence of the police at the door. The fact that the occupants of the house had no prior criminal record did not affect the reasonableness of the police concern that evidence could be destroyed. Even the accused conceded in the Court of Appeal that the destruction of evidence was a realistic concern.
The trial judge also found that the police had done what could reasonably be expected in formulating their decision to use a forced entry. These conclusions, which mainly concern matters of fact, are well supported by the record. The police did not just show up at a previously uninvestigated residence and barge in. Considerable time and effort were expended by the investigators in order to determine who and what was in the residence before the search, including ten hours of surveillance of the accused’s residence. The suggestion that the decision to make an unannounced hard entry into the accused’s home was simply a rote application of a general police practice is not supported by the evidence. There is no evidence of such a practice let alone of its application here.
The fact that the tactical team did not have a copy of the warrant with it when it made the entry did not make the search unreasonable. The purpose of s. 29(1) of the Criminal Code is to allow the occupant of the premises to be searched to know why the search is being carried out, to allow assessment of his or her legal position and to know as well that there is a colour of authority for the search, making forcible resistance improper. These purposes are fully achieved by insisting that the warrant be in the possession of at least one member of the team of officers executing the warrant. While it is a better practice for someone among the first group of officers in the door to have a copy on his or her person, the officers had the warrant with them because a copy was in the possession of the primary investigator who was in charge of the search and immediately at hand. In this case, there is no evidence that anyone ever asked to see the warrant.
Per Binnie, LeBel and Fish JJ. (dissenting): The search of the accused’s residence was not carried out in a reasonable manner. The police had no reason to believe that a “dynamic” entry was necessary to protect the safety of the officers. Neither the accused nor any other occupant of the house had a history of violence or a criminal record, there was no suspicion that the accused was a member of any gang, and the police had no reason to believe that there were firearms or any other weapons on the premises. The violent nature of the intervention caused extensive damage to the house, leaving it in a shambles. In the absence of exigent circumstances or other particularized grounds, the police were obliged by law to make reasonable inquiries, before conducting that search, to ascertain the nature of the premises they intended to enter, the identities and background of its occupants, and the real risk, in executing the warrant, of resistance by force. In this case, the police made no attempt to obtain any information regarding the accused’s home or its occupants. Nor did the Crown provide any evidence or any reasonable explanation for the failure of the police to make the requisite inquiry. While the police had reasonable grounds to believe that N and T were gang‑affiliated drug traffickers, the record indicates that they had no reasonable belief that either N or T would be at the accused’s residence at the time of the search. T had never been seen to enter that residence and N was already in police custody. Finally, there was no possible link between the evidence gathered by police and the violent method of entry into the accused’s home. The risk analysis, which was designed to identify potential risks for execution of the search warrants and to inform the tactical team about the investigation and its targets, did not mention the accused or any other occupant of the residence, and was never shown to the tactical team. The unannounced and violent entry appears to have been driven more by general practice than by information regarding the accused’s home and its occupants.
Nor did the police have any basis for a particularized and reasonable belief that, in the absence of a swift and violent entry, evidence would be concealed or destroyed by anyone present or likely to be present at the time. It is true that illicit drugs are easily concealed or discarded, but that alone is insufficient to justify a violent entry by masked officers brandishing loaded firearms. The police must make some attempt to ascertain whether there is a real likelihood that, without a sudden and violent entry, the occupants would have time and would proceed to conceal or destroy the evidence that is the object of the search. It is well established that generic information about the potential presence of drugs in a home is insufficient to warrant so drastic a violation of its occupants’ constitutional rights.
Other aspects of the search contribute to its overall unreasonableness. There are reasonable justifications for a police tactical team to wear balaclavas, but the Crown’s own evidence is that the police wore the balaclavas because that is what they always did, not because of the particular circumstances of the case. In this case, they were worn to intimidate and psychologically overpower those inside. Gratuitous intimidation of this sort — psychological violence entirely unrelated to the particular circumstances of the search — may in itself render a search unreasonable. Moreover, anonymity in the exercise of power, particularly state power, invites in some a sense of detachment and a feeling of impunity. The wearing of masks by intruding police officers creates an unjustified risk in this regard where, as here, it is based on nothing more than an ill‑considered police “policy” that has been judicially condemned on more than one occasion.
Finally, the police did not comply with the requirements of s. 29 of the Criminal Code . The warrant was in the hands of the lead investigator who entered the residence between four and nine minutes after the tactical team. The members of that team were bound by s. 29 to have with them, where feasible, the search warrant under which they were acting and to produce it on demand. The Crown led no evidence that it was not feasible in this case. This is not a technical or insignificant breach of the law. It is a violation of a venerable principle of historic and constitutional importance.
The police violated the accused’s rights under s. 8 of the Charter to be secure against unreasonable search and seizure and, in this case, the evidence should have been excluded pursuant to s. 24(2) of the Charter . The infringing state conduct involves an armed, sudden and violent assault by masked intruders on a private residence without reasonable justification. This constituted not only a violation of s. 8 , but also an unnecessary and egregious departure from the common law “knock and announce” rule. The Charter ‑infringing conduct is serious because it also constitutes a violation of s. 12 of the Controlled Drugs and Substances Act which provides that the police, when executing a search warrant, must use only “as much force as is necessary in the circumstances”. In addition, the officers did not comply with the requirements of s. 29 of the Code. The privacy interest protected by s. 8 is most actively engaged in the context of a private residence, and society’s interest in the adjudication of this case on its merits does not outweigh the interests of society, in the longer term, in discouraging routine disregard by the police of constitutional, statutory and common law safeguards designed to protect the sanctity of a person’s home.
Cases Cited
By Cromwell J.
Referred to: R. v. Collins, [1987] 1 S.C.R. 265; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Gimson, [1991] 3 S.C.R. 692; R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221; Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28; R. v. Asante‑Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3; R. v. Lau, 2003 BCCA 337, 175 C.C.C. (3d) 273; R. v. Schedel, 2003 BCCA 364, 175 C.C.C. (3d) 193; R. v. Patrick, 2007 ABCA 308, 81 Alta. L.R. (4th) 212, aff’d on other grounds, 2009 SCC 17, [2009] 1 S.C.R. 579.
By Fish J. (dissenting)
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Schedel, 2003 BCCA 364, 175 C.C.C. (3d) 193; R. v. Lau, 2003 BCCA 337, 175 C.C.C. (3d) 273; R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221; R. v. Collins, [1987] 1 S.C.R. 265; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Stillman, [1997] 1 S.C.R. 607; Semayne’s Case (1604), 5 Co. Rep. 91, 77 E.R. 194; R. v. Silveira, [1995] 2 S.C.R. 297.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 11 , 12 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 29 .
Authors Cited
British Columbia. Policing in British Columbia Commission of Inquiry. Closing The Gap: Policing and the Community — The Report, vol. 2. Victoria: The Commission, 1994.
Hutchison, Scott C., James C. Morton and Michael P. Bury. Search and Seizure Law in Canada, vol. 1. Toronto: Carswell, 2005 (loose‑leaf updated 2010, release 4).
APPEAL from a judgment of the Alberta Court of Appeal (Ritter, O’Brien and Slatter JJ.A.), 2009 ABCA 147, 454 A.R. 362, 6 Alta. L.R. (5th) 203, 65 C.R. (6th) 130, 243 C.C.C. (3d) 510, [2009] 7 W.W.R. 579, [2009] A.J. No. 448 (QL), 2009 CarswellAlta 580, upholding the accused’s conviction. Appeal dismissed, Binnie, LeBel and Fish JJ. dissenting.
David G. Chow and Michael Bates, for the appellant.
Ronald C. Reimer and Robert A. Sigurdson, for the respondent.
Susan Magotiaux, for the intervener the Attorney General of Ontario.
Jolaine Antonio, for the intervener the Attorney General of Alberta.
Ryan D. W. Dalziel and Daniel A. Webster, Q.C., for the intervener the British Columbia Civil Liberties Association.
Christopher A. Wayland and Sarah R. Shody, for the intervener the Canadian Civil Liberties Association.
The judgment of McLachlin C.J. and Charron, Rothstein and Cromwell JJ. was delivered by
Cromwell J. —
I. Introduction
[1] The appellant was convicted of possession of cocaine for the purpose of trafficking. He admits he committed this offence. He says, however, that the cocaine, which was found in a search of his room when he was not at home, was obtained as a result of an unreasonable search and therefore should not have been admitted into evidence. The police, who had a valid search warrant, used a “hard entry” — they rammed open the front door without knocking or announcing their presence — and nine masked officers of the tactical team secured the house. The trial judge and majority of the Court of Appeal held that the appellant’s under s. 8 of the Canadian Charter of Rights and Freedoms rights had not been infringed because the search had been lawfully authorized and reasonably conducted. However, O’Brien J.A., dissenting in the Court of Appeal, would have held that the search, while lawfully authorized, had been conducted unreasonably and that the evidence concerning the cocaine should have been excluded because its admission would bring the administration of justice into disrepute: 2009 ABCA 147, 454 A.R. 362, at paras. 138-47. The appellant’s further appeal to this Court, which comes to us as of right, raises two issues:
1. Did the trial judge err in finding that the search was conducted reasonably?
2. If the search was conducted unreasonably, should the cocaine found in the appellant’s room be excluded by virtue of s. 24(2) of the Charter because its admission would bring the administration of justice into disrepute?
[2] In my respectful view, the trial judge made no reviewable error in concluding that the search was conducted reasonably. The police had well-grounded concerns that the use of less intrusive methods would pose safety risks to the officers and occupants of the house and risk the destruction of evidence. The suggestions that the police had no basis for their concerns about the risk of violence or destruction of evidence are, with respect, contrary to the findings of the trial judge and to the evidence in the record. Both the police and the reviewing judge are entitled to draw reasonable inferences from the established facts. Only a failure to do so could lead one to the conclusion that there was no basis for reasonable concern about the risk of violence and the destruction of evidence in this case. Even the appellant conceded in the Court of Appeal that the destruction of evidence was a realistic concern. Similarly, the suggestion that, before the search, the police could easily have discovered (by unspecified means) what they learned during it, is contrary to an express finding of fact by the trial judge. Finally, the suggestion that the decision to make an unannounced hard entry into the Cornell residence was simply a rote application of a general police practice is not supported by the evidence. There is no evidence of such a practice let alone of its application here.
[3] There being no breach of the appellant’s rights, it is not necessary to address the second question relating to the exclusion of evidence. I would dismiss the appeal.
II. Overview of the Facts
[4] It is important to look at the facts about the search in issue here in the broader context of the investigation of which it formed a part. It is also important to remember that the decisions made by the police as to how to conduct the entry to the residence must be assessed in light of the information reasonably available to them at the time the decision was made. There is no question here that, had police known what they would in fact encounter in the residence, the approach would have been different. However, as the trial judge wisely observed, “the [appellant] cannot attack the police decision on the basis of circumstances that were not reasonably known to the police”: A.R., vol. I, at p. 16.
[5] The police obtained three search warrants on the morning of November 30, 2005. Two of the warrants related to dwelling houses and the third to a motor vehicle. The appellant was not and never had been a target of the investigation. Rather, the police were investigating what they believed to be “dial-a-dope” operation run by two members of a violent criminal gang. Based on surveillance and other evidence, the police thought that the appellant’s residence was being used in that operation. This investigation was not about someone like the appellant who was previously unknown to police and who was keeping a little cocaine in his bedroom. The police nonetheless were entitled to draw reasonable inferences about the risks the search of the Cornell residence posed to them and in relation to the destruction of evidence from the activities and people involved. As I shall outline in a moment, the police had good reasons to believe based, among other things, on their surveillance of the premises, that the Cornell residence, which the appellant had given as his address, was being used in a drug dealing enterprise carried on by members of a violent criminal gang. They also had good reason to believe that the appellant himself was associated with at least one of these gang members who, through police surveillance of the Cornell residence, appeared to be welcome there. Attempts to consider the appellant in isolation from these facts are, in my respectful view, highly artificial.
[6] In 2005, the Calgary police received information from a confidential informant that Henry Nguyen and Tuan Tran were running a “dial‑a‑dope” cocaine trafficking operation. They were believed by police to be members of an organized criminal group known as the “Fresh Off the Boat” gang. Police also believed that this gang, in the time leading up to the events in issue in this appeal, had been engaged in a violent war with another criminal gang that had resulted in a number of shootings and deaths. As one of the investigators said in his evidence at trial:
. . . it was a real concern for police officers having to attend any residence that may be frequented by persons from these groups, in that they could pose a real threat to the police. We would not want them to react to our presence, take hostages, to fight the police to try to gain their escape, to try to fend off the police while the evidence was destroyed. So it became a very, very real security risk for the police officers that would be attending these residences. [A.R., vol. II, at p. 103]
The trial judge accepted this evidence.
[7] As mentioned, the police applied for, and obtained, search warrants for two residences which they believed were being used in the operation — the Tran residence and the Cornell residence — and, in addition, for a motor vehicle frequently used by Nguyen. Detective Barrow of the Calgary Police Service swore an Information to Obtain A Search Warrant (“ITO”) relating to the Cornell residence that, among other things, included the following details:
· An informant had told police that Nguyen and Tran ran a cocaine dial-a-dope operation (para. 11).
· This information was substantiated by investigation which included surveillance of Tran and Nguyen, checks in various police and other databases and by the opinion of a police officer with long experience and expertise in the investigation of drug trafficking.
· The activity at the two residences was consistent with them being used as stash locations where Nguyen would reload his cocaine supply for the dial-a-dope business. In particular, the ITO stated that Nguyen had made brief visits to the appellant’s residence on four occasions over a period of approximately two weeks. On the last visit, an unknown male accompanied Nguyen back to the vehicle for a short time and then returned to the residence.
· The Cornell residence was owned by Phuong Kim Thi Le and was occupied by Lorraine Cornell.
· Nguyen had been taken into custody two months before the search and released. A mobile phone registered to the appellant as subscriber was found in the car Nguyen was driving at that time. The subscriber information for the telephone showed the appellant’s address as the Cornell residence. The appellant had also given the address of the Cornell residence when he had been involved in a car accident about five months earlier.
· The tactical team would be required to enter the residence in order to avoid the destruction of evidence by potential occupants and for the safety of both the public and the police because of Nguyen and Tran’s history of violence and association with the organized crime group “Fresh Off the Boat”.
[8] A judge of the Alberta Provincial Court authorized warrants to search the Cornell residence as well as the other residence believed to be Tran’s and a motor vehicle operated by Nguyen. The Cornell residence was placed under surveillance from the morning of November 30, 2005, until the search warrant was executed shortly before 6:00 that evening.
[9] The situation was complicated by the fact that the police felt that it was important to execute the three warrants as closely in time as possible. As Constable Smolinski explained in his trial testimony, the police were concerned that if a person inside one residence was able to make a phone call, it might lead to loss of valuable evidence at the other. A tactical team was to be used at both residences and in the stop of the vehicle. Its job was to secure the site and then turn it over to the investigators who would conduct the search.
[10] At the Cornell residence, the tactical team conducted an unannounced hard entry, sometimes referred to as a “dynamic entry”, by nine police officers with weapons drawn and wearing balaclavas and body armour. Entry involved battering the front door and entering the house while yelling “Police, search warrant”. The only person in the house at the time was the appellant’s brother, who was 29 years old and mentally challenged. He was taken down and handcuffed with his hands behind his back. His emotional distress became quickly apparent and the officer dealing with him removed the handcuffs, took off his balaclava, called the accompanying paramedic to assist and facilitated a call by the man to his mother Lorraine. According to the evidence, from the time of entry to the time that this individual was out of the handcuffs and seated on a couch being comforted by one of the officers was about four minutes: C.A., at para. 40, per Slatter J.A. As noted by Slatter J.A. in the Court of Appeal, there was some damage to the premises during the entry, but Ms. Cornell testified that she was able to repair it with material she had around the house without incurring any expense: C.A., at para. 31.
[11] The tactical team did not have the warrant with them when they entered the house. Detective Bent, who was in charge of the investigation and of the search that started as soon as the house was secured by the tactical team, had a copy of the warrant. He entered the residence approximately four minutes after the tactical team went in. The lone occupant present in the house at the time of entry did not ask to see the warrant and neither did Lorraine Cornell, although she was shown a copy when she came back to the house not long after Detective Bent’s arrival.
[12] The investigating officers discovered 99.4 grams of cocaine in the corner of the basement bedroom of Jason Cornell, in a box marked “Jason’s stuff”. Mr. Cornell was later arrested at his place of employment. He formally admitted that he possessed this cocaine for the purposes of trafficking.
III. Analysis
A. Introduction
[13] The appellant submits that the critical issue on appeal is whether the manner of entry by the members of the police tactical team was reasonable in the circumstances. The focus is on the decision to use a forced, unannounced entry with masked officers who did not have a copy of the search warrant with them. In the appellant’s submission, the most aggravating component of the search flows from choices made by the police with respect to the manner of entry.
[14] While the conduct of the search as a whole must be assessed in light of all of the circumstances, it will nonetheless be helpful to look separately at the individual matters on which the appellant relies: the police decision making leading to the choice of a forced entry while masked, and the failure of any member of the tactical team to have the warrant at the time of entry.
[15] To address the appellant’s submissions, it will be helpful first to briefly summarize the relevant legal principles about reasonable searches, resort to unannounced, forced entries and judicial review of the reasonableness of a search. I will then turn to the police decision to use a hard entry and the failure of the tactical team to have a copy of the warrant.
B. Legal Principles
(1) Reasonable Search and Seizure
[16] To be reasonable under s. 8 of the Charter , a search must be authorized by law, the authorizing law must itself be reasonable, and the search must be conducted in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. There is now no dispute that the first two of these conditions are met; the only issue is whether the lawfully authorized search was conducted reasonably.
[17] The onus is on the appellant, as the party alleging a breach of his Charter rights, to prove that the search contravened s. 8 of the Charter .
(2) Knock and Announce
[18] Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give: “(i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry”: Eccles v. Bourque, [1975] 2 S.C.R. 739, at p. 747.
[19] Neither the wisdom nor the vitality of the knock and announce principle is in issue on this appeal. Experience has shown that it not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public: Commission of Inquiry into Policing in British Columbia, Closing The Gap: Policing and the Community — The Report (1994), vol. 2, at pp. H-50 to H-53. However, the principle, while salutary and well established, is not absolute: Eccles v. Bourque, at pp. 743‑47.
[20] Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications: see R. v. Genest, [1989] 1 S.C.R. 59, at pp. 89-91; R. v. Gimson, [1991] 3 S.C.R. 692, at p. 693. I would underline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”: p. 90. I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present”: para. 24.
[21] Although Genest sets out the correct legal test, it is important to note that the facts in Genest are not similar to those in this case. Whereas in this case, the search was conducted pursuant to a valid search warrant, in Genest, the evidence did not support the issuance of a search warrant. Accordingly, the search in Genest, regardless of how it was conducted, was unreasonable because it was not authorized by law. Furthermore, there was no factual foundation presented to account for the means used by the police during the search. In the case before us, there was a valid warrant and an extensive evidentiary basis for the manner of search.
(3) Judicial Review
[22] The main question is whether the police had reasonable grounds for concern to justify use of an unannounced, forced entry while masked in this case. The trial judge is required to assess the decision of the police to act as they did and the appellate court is required to review the trial judge’s conclusions. Three things must be kept in mind throughout these reviews.
[23] First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.
[24] Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.
[25] Third, the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellate review.
C. The Police Decision to Depart From Knock and Announce in This Case
[26] The appellant’s position is that the police had inadequate information to support the decision to use a hard entry, that they ought to have taken further investigative steps and that their internal decision-making processes were either inadequate or not followed. I will examine these points in turn.
(1) Sufficiency of Information
[27] The appellant submits that the police had no reason to suspect violence in the residence and had no evidence to support the conclusion that any occupant had made provisions for destruction of evidence. Therefore, says the appellant, there was no information to support any grounds or necessity to deviate from the standard knock and announce principle. Respectfully, the trial judge’s reasons for decision provide a complete answer to this submission. He correctly set out the applicable legal principles. In finding the police conduct of the search met the required standard, the judge made the following findings of fact which support his conclusion:
· It was reasonable for the police to be concerned about their safety and the safety of other occupants given their experience that those who traffic in cocaine frequently are violent and the fact that a cocaine trafficker who associated with violent people was welcome in the residence. The ITO also disclosed that in a dial-a-dope operation, the dealer usually has a place from which to operate which could contain drugs, money, weapons and score sheets. As detailed in the ITO, the whole point of having a location such as the Cornell residence at which to “reload” is to reduce the risk of losing large amounts of drugs or money in the event of a police stop while making deliveries. The Cornell residence was suspected of being such a place.
· The police had reasonable grounds to be concerned that the evidence to be found would be destroyed having regard to the fact that there were reasonable grounds to believe that cocaine would be found in the premises and that it is a substance that may be easily destroyed.
· No circumstances arose before the search warrant was executed which might remove the exigency of the situation.
· Notwithstanding that, by the time of the search, Nguyen was in custody and the police had observed Lorraine Cornell and her daughter leave the house, the police had no means of knowing who, if anybody, was in the residence or whether there was any person in the residence who would destroy the cocaine evidence upon learning of the presence of the police at the door. As the trial judge noted, the evidence showed that the police had reasonable grounds to believe that “a cocaine trafficker who associated with violent people . . . was welcome in the residence” : A.R., vol. I, at p. 18.
· The fact that Lorraine Cornell and Jason Cornell, who were thought by