R. v. Jordan, 2011 ABQB 105

Court of Queen ’ s Bench of Alberta Citation: R. v. Jordan, 2011 ABQB 105 Date: 20110308 Docket: 071466015Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Alexander Dean Jordan and Tyson Price Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E.

Mahoney _______________________________________________________ I Introduction [ 1 ] This decision was delivered orally, so this Court reserves the right to make any editorial changes to the final form of the Judgment. [ 2 ] Both Accused stand charged of possession of cocaine, ecstasy, and marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (" CDSA "). They also stand charged of possessing proceeds of crime not exceeding $5,000 contrary to s. 5(1) of the CDSA and s. 354 of the Criminal Code , R.S.C. 1985, c. C-46.

[ 3 ] The drugs were discovered during a police search of the Accuseds' residence on November 20, 2007 at approximately 5:30 p.m. The search yielded fairly substantial quantities of cocaine, as well as ecstasy and marijuana, just over $2,000 in cash, scales, plastic bagging, bowls and strainers.

According to the Agreed Statement of Facts, the street value of these drugs totaled between $33,076 - $78,332 depending on whether they were sold by the ounce or the gram. [ 4 ] The Defence (being both Accused) has brought a motion alleging that their rights under s. 8 of the Canadian Charter of Rights and Freedoms were infringed during the search and that any evidence uncovered during the search should be excluded. Specifically, the Defence argues that the police were not justified in deviating from a knock and announce approach in gaining access to the residence.

They also argue that the manner of search, particularly police use of balaclavas, was unreasonable. The Defence further submits that the search warrant was not provided in a timely fashion. In addition, they submit that the warrants relied upon by police were incorrectly authorized as they were based upon unsworn information. The Defence argues that the search warrants must be quashed due to a failure to comply with the fundamental prerequisites underlying the issuance of warrants as per s. 11(1) of the CDSA .

II Evidence on the Voir Dire [ 5 ] The Calgary Police Service, or CPS, utilized its tactical team in gaining entry into the home. Entry was affected via a "hard" or "dynamic" entry; that is, an unannounced forced entry into the residence. Officers rammed open the front door of the residence using a metal battering ram. Members of the tactical unit were wearing their tactical team gear; a dark blue uniform indicating "POLICE" in writing, body armour, helmet, goggles and balaclava. Certain members were armed with a sidearm as well as with a C8 semiautomatic rifle.

I accept that upon entering the residence, the officers announced "police, search warrant." [ 6 ] During the voir dire , police Sergeant Grant indicated that as a then member of the tactical unit, he was involved in a meeting in a nearby police van just prior to entering the residence. He was not present during any meetings between the tactical unit and investigators. Sergeant Grant was one of the first members of the team to enter the residence as part of the team operating the battering ram.

He did not have a copy of the search warrant with him. [ 7 ] Sergeant Grant testified that balaclavas were worn to ensure police safety. Grant indicated that he was not personally carrying a flash grenade and was unsure if other members of the team were. He stated that sometimes officers who ram open a door may be cut by splinters of wood or glass depending on the door construction. Grant further stated that because they were entering the residence on a drug warrant, there were concerns about chemicals, although this factor was considered an "unknown" upon entry.

Upon gaining entry to the home Grant indicated that he was "police" and handcuffed one of the occupants of the home, who is not one of the Accused in this matter. Grant confirmed that prior to entry, he did not receive any information indicating that any individual in the residence had started to destroy the evidence, however, he did indicate that the nature of cocaine makes it easily disposable. [ 8 ] Constable Vanderbrink is also a member of the tactical team. He entered into one of the bedrooms and placed the Accused Price into custody.

Vanderbrink confirmed that he was wearing the tactical uniform with helmet, safety glasses, gloves, balaclava and body armour. He was carrying a C8 semi-automatic rifle as a weapon. Vanderbrink also gave evidence that the balaclava was worn to protect his skin against glass, wood chip fragmentation or fire hazard. He did not have a copy of the search warrant with him, nor was he asked to produce one.

According to Vanderbrink's notes, he had information that one of the occupants or an individual related to the residence may be in possession of a firearm, but it was unknown who or which type of firearm. [ 9 ] Detective Sweeney was the search supervisor for the search warrant. His duties involved meeting with the tactical team prior to the execution of the warrant. Sweeney confirmed that during this meeting he would have reviewed the risk assessment with the tactical team.

The risk assessment is a written document that involves the criminal history of the Accused, any involvement with weapons or violence and any possible fortification within the residence. Sweeney indicated that this meeting would have taken place shortly before the team entered the residence. [ 10 ] Constable Scott is a member of the tactical team and was acting sergeant on the day in question. As acting sergeant and tactical supervisor, Scott indicated that he would have ultimately decided the manner of entry to effect the search, stating that the search warrant authorized a no-knock, unannounced forced entry.

During cross examination Scott stated that upon review of the search warrant, it did not authorize the use of any particular tactic, and in particular the use of an unannounced forced entry. Scott did not review the Information to Obtain ("ITO") prior to executing the warrant.

[ 11 ] As acting sergeant, Scott would have spoken to investigators, following which he completed a threat assessment form. In terms of logistics, Scott indicated that he would have first filled out a nine page "incident planning form" (Exhibit 2) and that attached to this document is the threat assessment form (Exhibit 3). Scott testified that he received certain information from the investigative unit prior to the execution of the warrant. Of note, he was informed that the suspects there were thought to be trafficking in cocaine and that neither the first suspect, Mr.

Booth, nor the second suspect, the Accused Jordan, had a criminal record indicating violence, a history of drug trafficking, drug convictions or an assault against a police officer. However, Booth had a criminal charge involving violence in 2003 although he was not convicted. Additional information respecting the nature of the residence itself, the number of possible occupants, possibility of fortification and presence of dogs was also examined. In discussing the threat assessment Scott went on to state: I would then go through the suspect's criminal history with the investigators.

I would go through a weapons factor, whether or not there is intelligence believed to be firearms involved, automatic weapons, "H" weapons.

And I would do a general risk factor as to whether or not there is believed to be drug or alcohol abuse, possible gang association, previous military experience or use of stolen vehicles, and at the conclusion of all those, gathering information to those categories, an overall risk assessment would be completed providing me with a calculated number of whether or not it was low or unknown, medium or high risk. [ 12 ] Scott also stated that the risk assessment in this instance totaled 15 points, "which falls in the low risk." Scott concluded that given the possible history of violence of one of the subjects, coupled with the fact that the subjects were thought to be dealing in small enough volume of cocaine that could quickly be destroyed, the decision was made to proceed via an unannounced forced entry.

On the specific point regarding destruction of evidence, Scott stated: ...The information that we received from the investigators was that both subjects were dealing or trafficking cocaine in small volume. They weren't specifically dealing with kilo level cocaine. So I believed that in preservation of the evidence, the evidence could be destroyed if we conducted a door knock. [ 13 ] Scott testified that with other types of narcotics, such as those involving a grow operation (marijuana) CPS is mandated to conduct a knock and announce at the residence prior to forcing entry.

This indicates a distinction based on the type of drug involved and relative ease of disposal. [ 14 ] Scott further indicated that his previous experience on the tactical team taught him that traffickers in cocaine are frequently armed with firearms or other weapons. On cross examination, Scott indicated what while a score of 0-20 points would fall within the "low risk" range, it would be almost impossible for any residence to receive a ranking of zero.

A review of Exhibit 2 reveals that five points were given for the purposes of the assessment to account for "additional persons on site," another five points were given for "unknown" criminal history and a further five were given for an "unknown" weapons factor, for a total of 15 points. [ 15 ] Scott testified that during his nine and a half years on the tactical unit he has been involved in excess of 500 warrants for cocaine and in excess of 350 warrants that were considered high risk. Scott participated in the search in issue and had a copy of the warrant on his person.

He stated that he was at the tag end of the operation and would have entered the residence "within seconds" of the tactical team entering. Scott located the Accused Jordan in a bedroom sleeping and placed him under arrest. He stated that both Jordan and Booth were provided with a copy of warrant after the residence was confirmed secure, approximately four to five minutes after entry. [ 16 ] Like the other team members Scott was also wearing the tactical team uniform along with a balaclava which he indicated was for protection against glass or any pyrotechnic burning agent contained in a distraction device.

He testified that he was in fact armed with pyrotechnic devices during the execution of the warrant. [ 17 ] In discussing the decision to use a hard entry, Scott indicated: Our common practice for CDSA warrants, specifically subjects involved in cocaine trafficking, especially multiple suspects inside a residence that are often armed and frequently answer the door upon knocking, would cause us to go in with a forced entry, believing that we have multiple subjects inside the residence that are actively trafficking cocaine. One of the subjects has a previous history of violence.

With that information, I believed that the safest method to gain entry into the residence would be forced entry, unannounced until upon entering.

[ 18 ] Scott confirmed that during his tenure as a member of the tactical team, no member of the police has been shot at in executing a knock and announce entry. However, he did confirm that he has often experienced suspects attempt to destroy drugs, hide drugs, or ingest drugs on knock and announce entries. [ 19 ] Constable Terry is a member of the CPS and a member of the district response team focused on suspected drug houses and drug dealers. He acted as the primary investigator on the investigation that lead to the search as well as the affiant on the ITO for the search warrants.

Terry was engaged in ongoing surveillance on the residence. On November 20, 2007 at approximately 3:30 p.m. he attended with the ITO and a warrant at judge's chambers. According to Terry, he provided the judge with the warrant and an unsworn copy of the ITO and then he waited in the foyer while the judge retired to his chambers to review the documents. Approximately 15 minutes later the judge returned to the foyer with a signed copy of the warrant. The judge then had Terry swear the ITO following which, Terry left the premises.

Terry indicated that he does not recall having any conversation regarding the contents of the documents with the judge. [ 20 ] Terry then brought a copy of the warrant to a meeting with other members of the district response team as well as the tactical unit. He recalled constables Scott, Vanderbrink, and Grant attending the meeting. During the meeting Terry was shown a copy of the risk analysis form. He stated that at this time he would have provided any information he had with respect to safety issues. Terry entered the residence approximately 10 to 15 minutes after the tactical team gained entry.

He produced a copy of the warrant at this time and left it at the residence. Given the amount of evidence that required processing, he decided to apply for a time extension for the warrant. To this end he re-attended before a Justice of the Peace at 8:30 p.m. seeking an extension. [ 21 ] Terry gave evidence that the justice of the peace whom he met with that evening read the unsworn ITO together with the warrant. The ITO was sworn after the warrant had been executed.

On cross examination Terry indicated that he has been the affiant in a search warrant following this type of procedure approximately four to six times. III Issues [ 22 ] The issues raised during the voir dire are as follows: 1. Are the search warrants valid; 2. Was the manner of search reasonable; and 3. Should the evidence be excluded under s. 24(2) of the Charter . IV Are the Search Warrants Valid? [ 23 ] As noted above, Terry applied for an initial search warrant shortly before the search was executed.

When it became apparent that a time extension was required in order to properly process all of the evidence, he obtained a second warrant. The Defence argues that because both the judge (warrant number one) and the justice of the peace (warrant number two) relied upon an unsworn ITO in issuing the warrant, that the warrants must be quashed for failing to comply with the requirements of s. 11(1) of the CDSA .

The Defence also argues that because the warrants were authorized on the basis of unsworn information, they are null and void the search of the premises was warrantless and therefore in contravention of s. 8 of the Charter . It is further argued that all evidence obtained as a result of the illegal search must be excluded pursuant to a s. 24(2) Charter analysis. [ 24 ]

Section 11 of the CSDA reads [emphasis added]: 11.

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened,

(

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to acontravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it. [25] The thrust of the Defence argument can be summarized as follows: · given the ex parte nature of applications to obtain a warrant, the judicial officer is tasked with remaining neutral and independentin assessing the grounds in support of a warrant and ensuring the balance between the conflicting interests of the individual and the state; · the manner in which the warrants were issued raises at least the perception that the judicial officers were acting as adjuncts of thepolice; · the judicial officers acted without jurisdiction in executing warrants contrary to s. 11 of the CDSA and as such, the warrants arevoid ab initio; and · declining to exclude the evidence would be to condone judicial non-compliance with the law and is tantamount to a judicialrepeal of the statutory requirement under s. 11 of the CDSA. [26] The Crown argues that the Defence claim is grounded solely on the sequential order in which the justices processed thedocuments presented to them.

The Crown submits that the warrants were validly issued and that s. 8 of the Charter was not violated. TheCrown argues that: · the granting of the warrants and swearing of the ITO's were a part of a single continuum of events; · the ITO's were sworn in unaltered form minutes after they were reviewed by the justices; and · to find that the warrants were nullities based simply upon the order of execution would be to place form ahead of substance withan absurd consequence. 1. Defence Legal Authorities [27] The Defence point to R. v.

Tien Hgoc Ho and Lovely Mary Jimenez (13 January 2010), Calgary, 091167965P1-01-01-035(unreported) as an example of an instance where a warrant was executed on the strength of an unsworn ITO which was shortly thereafterexecuted in front of the same judge who issued the warrant. While the facts in Tien support the Defence submission that the procedurefollowed by Terry was not simply an isolated instance of the police and a judicial officer mistakenly following incorrect procedure, itmust be noted that in Tien the judge reviewed the ITO for 45 minutes and that the police officer then amended it.

The warrant was thensigned on the basis of the amended ITO, following which the ITO was sworn in front of the issuing judge. [28] This practice was criticized in R. v. Gray (1993), (MB CA), 85 Man R. (2d) 211, 81 C.C.C. (3d) 174 wherethe Manitoba Court of Appeal held that evidence obtained pursuant to an unreasonable search and seizure was inadmissible. The Crownhad conceded that the warrant authorizing the search was invalid. The evidence contained in the ITO did not disclose a sufficientindependent indicia of reliability of an informant.

Although the police officer in Gray could not recall the specifics of whether he had averbal conversation with the magistrate who issued the warrant there was evidence that:

A number of officers involved in the search and seizure testified about the procedure then used by members of the City of Winnipegpolice department when it was deemed necessary to ask for a warrant. Evidence disclosed that in many instances the information toobtain would, after its initial preparation by the appropriate police officer, be reviewed, while still unexecuted and in draft form, with themagistrate. If the unexecuted information to obtain was not acceptable to the magistrate, advice would then be sought and given on howto satisfactorily word the document to enable the warrant to be issued.

Sometimes the magistrate would dictate the wording so as toensure a document that was acceptable to her/him. One witness indicated that the magistrate would on occasion type the information toobtain for him.

Attestation of the document would only occur after all the suggested additions had been made to the satisfaction of theissuing magistrate. [p. 179] [29] The Court found that this practice amounted to a fundamental defect in procedure and that "...the process by which magistratesat times assisted in the preparation of the information to obtain constituted a serious violation of s. 8 of the Charter." (at p. 181). TheCourt went on to note that the importance of a judicially independent authorization of the grounds for a search and seizure wasparamount when the location of the search was a private dwelling.

The Court concluded that the magistrate operated "...as if she were anadjunct of the police investigation rather than as a neutral and detached assessor of the evidence advanced in favour of the granting of awarrant." [30] The Court concluded, at p. 182 that: In my opinion the impugned practice disclosed by the evidence resulted in the failure of the judicial officer to properly exercise herdetached independent function.

Where direction is given by a judicial officer respecting the contents of the information to obtain on amaterial point going to the merits of the application, he/she simply becomes an agent or arm of the police.

It is not proper for the policeto present a judicial officer with an unsigned or incomplete information to obtain and, after receiving inappropriate direction with respectnot only to the technical language but also the substance of the document, to then swear it in its altered form before the same judicialofficer. [31] The Court further found that the honest belief by the police that they were following the correct and time-honoured practice toobtain a warrant did not justify the admission of the evidence under s. 24(2) of the Charter. [32] The Defence further relies on Gray in arguing that the judicial officers ought to have recognized that they were executing awarrant on the basis of an unsworn ITO and should have taken steps to either ensure the immediate swearing of the ITO or should haveswore the police officer themselves and then directed a different judge to review the same to determine whether reasonable groundsexisted.

The Defence also argues that such a practice would negate any appearance that the judicial officer was acting as an adjunct ofthe police. [33] The Defence relies on R. v. Spackman (2008), (ON SC), 234 C.C.C. (3d) 24 (Ont. Ct. Jus.) in arguing aclear record should be kept of any conversation between the police officer and the issuing justice. In Spackman the Court confirmed thatauthorization for a warrant "...should not be granted on the basis of unsworn evidence or information." In Spackman the police officerhad already sworn the affidavit in support of the warrant authorization.

The issuing justice asked certain questions for clarification, one ofwhich went beyond the sworn contents of the affidavit. The officer was not under oath when he answered the clarifying questions, norwas any record of the discussion made by the Court. The parties agreed that where the issuing justice relied upon unsworn evidence, anyinformation obtained must be excised from the evidentiary basis for the authorization of the warrant. [34] The Defence also relies on R. v. Genest, (SCC), [1989] 1 S.C.R. 59 and R. v.

Blizzard, 2006 NBQB 155, 304N.B.R. (2d) 299, in arguing that a breach of s. 8 of the Charter, although seemingly procedural or technical in nature, may be seriousenough to exclude evidence. The Defence notes that in Blizzard the police violated the procedural requirements of s. 487.01(5.1) of theCriminal Code by failing to give notice of a covert entry authorized by a warrant.

In conducting its s. 24(2) Charter analysis, the Courtfound that although there was no evidence of fraud, bad faith, or improper motive, there was evidence of a pattern of negligence in failingto incorporate the mandatory notice of entry provisions. The seriousness of the violation was such that it was not mitigated by good faithon the part of the police.

The Court concluded that police ignorance of the requirements for granting a warrant under s. 487.01(5.1) wasso glaring that when considered as a part of the overall pattern of negligence, the admission of any evidence obtained pursuant to thewarrant would bring the administration of justice into disrepute. [35] In Genest, the Crown conceded that there was an illegal search of the Accused's home. The Court concluded that the evidenceobtained pursuant to the warrant was to be excluded under s. 24(2) of the Charter. The warrant in question suffered from a number of

deficits on its face. It failed to name a police officer who could execute it, it did not give a time for the search and did not indicate whatitems could be searched for, nor did it mention which authority (legislation) it was issued pursuant to. The trial judge determined that thewarrant was void ab initio.

The Supreme Court of Canada held that such defects could not be described as "simply technical." Rather, theCourt found, at para. 42, that "...the justice of the peace issued a fishing licence, not a search warrant." [36] The Court concluded, at para. 46 that: While it is not to be expected that police officers be versed in the minutiae of the law concerning search warrants, they should be awareof those requirements that the courts have held to be essential for the validity of a warrant. The naming requirement of s. 10(2) is onesuch requirement.

In addition, a police officer should be put on his guard by a warrant that contains as many blank spaces as the one inthis case. Common sense suggests that if a form is used, it should be properly filled out, especially when the form itself states that certaindetails are to be inserted in the blanks. [37] As noted above, the Defence argues that the warrants are void ab initio on the grounds that they were authorized on the basisof unsworn testimony contrary to s. 11 of the CDSA.

The Defence further argues that a warrant granted without jurisdiction in the sensethat the justice had no power to issue the warrant is a nullity: R. v. Curragh Inc., (SCC), [1997] 1 S.C.R. 537. 2. Crown's Authorities [38] The Crown relies on R. v. Baker, (SK KB), [1997] 7 W.W.R. 713 (S.K.Q.B.) in distinguishing Gray. InBaker the Accused argued that certain warrants were granted based on information not given under oath as copies of the ITO's wereprovided to the justices in unsworn form.

In dismissing this argument the Court held, at paras. 65-66: In Gray, the peace officer presented the justice with an unsigned or incomplete information to obtain a search warrant. The justice thensuggested amendments to both the technical language and the substance of the documents. The peace officer amended the Informationaccordingly and then swore it in its altered form before the same judicial officer.

At p. 122, the Court of Appeal stated that "I am unableto avoid the conclusion that the magistrate in this case operated as if she were an adjunct of the police investigation rather than as aneutral and detached assessor of the evidence advanced in favour of the granting of a warrant". This case is clearly distinguishable from the Gray decision. Although the Informations were put before the justice in an unsworn form,there were no subsequent changes suggested or made. The information was then sworn. Therefore, the ultimate order was made basedupon the sworn and unchanged Informations.

Therefore, I conclude that the justices acted judicially in issuing the search warrants. 3. Additional Authorities [39] In R. v. Hallman, 2001 BCSC 1355, 88 C.R.R. (2d) 111 a police officer attended before a justice of the peace with an unswornITO. The ITO was defective in that it contained certain misleading information. The justice of the peace added a sentence to the ITO tothe effect that the officer was familiar with the smell of growing marijuana, as well as adding the word "growing" before the wordmarijuana to the previous sentence.

It was apparent from the face of the ITO that it was re-sworn following the addition of theamendments. The Court held that a very high standard is expected respecting the issuance of search warrants for private residences. TheCourt held that although not every suggestion made by an issuing magistrate will result in a judicial officer becoming an agent of thepolice, the officer in this case did cross the line by actively suggesting changes to the ITO after it had been sworn and then writing in theamendments himself.

Section 8 of the Charter was found to have been violated as the manner of issuance of the warrant wasunreasonable. [40] In R. v. Pedersen, 2004 BCCA 64, 193 B.C.A.C. 206 the police officer phoned the justice of the peace for a warrant followinga motor vehicle accident at 2:30 a.m. An unknown question was asked of the officer by the justice of the peace during the telephoneconversation.

The appellant submitted that this gap in evidence called into question the fairness and impartiality of the entire procedure.The Court found that there was no evidence that justices of the peace commonly collaborated with police in the process of reviewingITO's, which the Court opined was an "important distinction" in comparison to Gray. The Court further found that the police officer didnot make any changes to his ITO as a result of the unknown question posed to him and that all of the evidence on which the warrant was

issued was set out in the ITO. The Court held that there was no evidence of any impropriety as between the officer and the justice of thepeace and that the appellant's Charter rights had not been violated. [41] In R. v. Howe (1994), (BC CA), 52 B.C.A.C. 271 (B.C.C.A.) the appellant Accused challenged the legalityof a search warrant and the admissibility of drugs found in the residence of a co-Accused as a result of the execution of the warrant. Thepolice officer swore a draft ITO and then attended with the justice of the peace.

A discussion ensued and at the direction of the justice ofthe peace another sentence was added stating that "vehicle traffic to the residence is consistent with drug trafficking." The trial judge didnot find an infringement of the Accused's s. 8 Charter rights by reason of the conversation with the justice of the peace. The majority ofthe Court of Appeal agreed with the trial judge's findings that the justice of the peace's participation was confined to a peripheral andnarrow point and that she could not have been said to have abandoned her independent function and become an agent of the police.

Themajority went on to hold, at para. 25 that: In any event, even if there were a breach of s. 8 of the Charter, the overall conduct of the deponent, Corporal Bruce, demonstrates hisgood faith, and the admission into evidence of pre-existing real evidence which is essential to the proof of serious offences, would notbring the administration of justice into disrepute. [42] In Bostock v. Canada (Attorney General) (1987), (SK KB), 59 Sask. R. 188 (S.K.Q.B.) a police officerattended with a justice of the peace to obtain a search warrant pursuant to the (then) Narcotic Control Act.

The officer attended with asworn information and received the warrant. Later on in the evening of the same day the officer re-attended with the justice of the peacein order to obtain a subsequent warrant for the same premises with an extended time period for searching. The latter warrant was swornabsent any additional sworn information provided by the officer. There was no cogent evidence that the justice of the peace had relied onthe earlier sworn ITO in executing the second warrant.

In quashing the second warrant the Court made the following commentsregarding the requirement for sworn information at para. 4 [emphasis added]: Put briefly, two search warrants were issued by the justice at two different times. While it is not clear when the constable reattendedupon the justice, it was within a period of twelve hours. The two warrants are identical in content except that they were to be executed ondifferent successive days. A new information was not provided to the justice nor was sworn viva voce evidence given when the secondwarrant was granted.

Counsel for the Accused submits that the second search warrant is invalid because it is not supported by sworn evidence. Not so, arguesCrown counsel, who says that the second warrant in the circumstances is founded on the original information and points in particular toQ. 68 of the transcript. The applications for both warrants herein were made pursuant to s. 10(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, whichprovides:

(2) A justice who is satisfied by information upon oath that there are reasonable grounds for believing that there is a narcotic, by meansof or in respect of which an offence under this Act has been committed, in any dwelling-house may issue a warrant under his handauthorizing a peace officer named therein at any time to enter the dwelling-house and search for narcotics. On the basis of this provision, there is no question but that a search warrant must be founded on sworn evidence, although such may beprovided viva voce or in the form of an information duly sworn.

However, a search warrant should not be issued on the basis of unswornstatements, and if it is, such a warrant is invalid. See R. v. Yachiw (1985), (SK KB), 38 S.R. 196 at 198. As well, when issuing a search warrant, a justice must act judicially. See Re Worrall, (ON CA), [1965] 2 C.C.C. 1; ReBorden & Elliot and The Queen (1977), (ON CA), 30 C.C.C. (2d) 337; Re Gillis and The Queen (1983), (QC CS), 1 C.C.C. (3d) 545. If a justice acts on information which is not on oath, he cannot be said to have acted judicially. [43] Note that in R. v. Hudson (1989), (SK KB), 73 Sask.

R. 193 (Q.B.) a similar result was reached where thepolice officer sought an amendment to change the date of the search of a premises noted in the search warrant without re-swearing theInformation.

[44] In R. v. Phoenix Property Development, [1994] O.J. No. 2606 (Ont. Ct. Jus (Gen. Div.)) the deponent of the Informationfailed to swear the document and the justice of the peace failed to complete the jurat. The Crown argued that the deponent had in factsworn the ITO before the justice of the peace and that the failure to sign the document was simply an inadvertent mistake.

The Courtfound that the ITO must be sworn to justify the issuance of a warrant and that the failure of the justice of the peace to have theinformation given under oath went to the heart of his jurisdiction and negated any jurisdiction given to him pursuant to the CriminalCode. [45] In R. v. Gordon (1999), (MB CA), 139 C.C.C. (3d) 239 (Man. C.A.) the police received an anonymoustip from Crime Stoppers regarding the possible location of a marijuana grow operation. The police looked for the property but could notfind it based upon the information provided.

The tipster called back a few days later with additional information which clarified thelocation of the grow op. The police located the address and believed that the activity taking place was consistent with drug cultivation.The officers attended before the magistrate with an unsigned ITO in support of a search warrant. The ITO did not mention the failedattempts to locate the Accused's property prior to receiving the second tip. It did, however, reference the Accused's prior criminal record. [46] The magistrate reviewed the ITO and expressed a general concern over the Crime Stoppers program.

The officer explainedthe nature of the program and explained the photographs of the premises attached to the ITO. No additions or deletions were made to theITO. The officers returned before the magistrate approximately four hours later at which time the ITO was sworn and the warrant wasissued.

The Accused argued that the search warrant was invalid under s. 8 of the Charter in that the ITO: failed to include informationregarding the inability to initially locate the property based upon the first tip; was drafted in bad faith in that it referenced the Accused'sprior record, and; was issued following discussions between the police and the magistrate. [47] The Court held that the information respecting the initial failed search attempt was immaterial and irrelevant and did notconstitute a flaw in the ITO.

The inability to initially locate the property was based upon police misinterpretation of the information fromthe tipster. The Court continued to find that while the inclusion of the Accused's prior record was a police error, it was not an erroramounting to a breach of s. 8. In addressing the meeting between the police and the magistrate, the Court held as follows, at paras. 48 -50[emphasis added]: The authorizing justice's expressed concern with Crime Stoppers tips did not in this case and should not generally compel the police toprovide any further information unless and until an authorization is refused.

The evidence in this case is that the information containedparticulars of the tips the police received, the relevant material on the steps the police took to verify those particulars, and their ultimateability to identify the subject property. There is no evidence whatever that anything that was said in the 15- to 20-minute meetingbetween the officers and the authorizing magistrate tainted her objectivity or the process. The police provided her with no newinformation in their meeting with her on September 19th. The contents of the affidavit were not changed.

However, the process the police followed in obtaining the warrant in this case can and should be improved so as to eliminate anyopportunity to challenge the function of an authorizing justice as an independent, impartial quasi-judicial officer. When making an application for a search warrant, police officers should present to the authorizing justice a completed package, with theaffidavit executed. The package should be left with the justice to review and to render a decision.

The contents of the package should notbe discussed, no further information should be given to the justice, and there should be no interaction between the affiant and theauthorizing justice. If the affidavit is properly drawn and all the information is placed before the authorizing justice, there is no need forany conversation or discussion between the police and the judicial officer. [48] The Court concluded that there was no breach of s. 8 of the Charter. [49] In R. v. Anderson, 2010 ABQB 263, this Court recently dealt with a similar issue.

In Anderson, the affiant left an unsworn ITOand a draft search warrant with Provincial Court reception. He returned later that afternoon when a judge became available. The affiantofficer attended with the judge for approximately two minutes during which time the officer swore the ITO following which the judgesigned the search warrant. The Accused argued that the judge relied on the unsworn ITO in issuing the warrant and that as such, shefailed to act judicially. The Court noted that the judge had the affiant swear the ITO prior to executing the search warrant.

In finding thatthe warrant was valid, the Court held, at paras. 20-21 [emphasis added]: In this case there is no evidence before me to establish that the Judge did not carefully read and review the ITO after it was left atreception, so on that point is it distinguishable from Larson. Nor is there any evidence of any failure of the Judge to properly exercise her

detached independent function, which distinguishes this case from Gray . In fact, it must be noted that the Judge in this case required the ITO to be sworn before she signed the warrant. In the absence of any specific evidence which would tend to establish that the Judge did not act judicially, the Judge in this case must be presumed to have acted judicially and read the ITO prior meeting with [the affiant officer].

The law seems clear that while warrants cannot be issued based upon unsworn information, a Judge may rely on information provided in draft form which is subsequently sworn as long as there is no evidence that he or she has not acted in a non-judicial manner in so doing.

Here there is no evidence of any conversation or collaboration between the police and the Judge in this case to indicate that the Judge may have lost her impartiality and ability to review the grounds for the warrant as a neutral and detached assessor . [ 50 ] Of note in Anderson is the Justice's finding that the judge who issued the warrant must be presumed to have acted judicially. The Defence argues that, based upon Terry's evidence that he has followed the procedure in issue in obtaining a search warrant approximately four to six times, any presumption of judiciousness cannot be applied in the case at bar.

V Analysis of Validity of Search Warrants [ 51 ] The Defence raises two primary arguments. The first is that, in retiring to evaluate an unsworn ITO, a perception exists that the judicial officers were acting as adjuncts of the police. They submit that in reviewing the unsworn documents the judicial officers failed to remain neutral and independent and were therefore no longer acting judicially when the warrants were executed. The second argument is that the warrants are invalid in that they were made absent statutory authority.

Judicial officers are given authority pursuant to the CDSA to issue a warrant based upon sworn information. The Defence submits that any warrant based upon an unsworn ITO is invalid. In my opinion, both of these arguments fail. 1. The Judicial Officers as Adjuncts of the Police [ 52 ] As a preliminary point, I wish to comment on the practice of attending before a judicial officer with an unsworn information. The Defence bar has indicated that this procedure raises a serious concern, and rightfully so.

The method used in obtaining a warrant in the case at bar does not appear to be an isolated incident where the correct procedure was inadvertently not followed. Rather, we have Terry's evidence that he has followed this approach as an affiant approximately four to six times in the past. The evidence in Tien further indicates that the issuing justice in Calgary executed a copy of the search warrant prior to commissioning the ITO. Such practices are indicative of a "pattern of negligence" to adopt the phrase used by the Court in Blizzard .

A similar concern was raised in Gray where the Court noted that the impugned practice had been adopted by a number of officers in the police department as well as magistrates. [ 53 ] Such a practice is unsatisfactory. At the very least it amounts to a procedural deficiency which opens up the entire process to claims such as those mounted by the Defence in this case. I cannot find any rationale for employing such a practice when it would be so easy to correct it.

To the extent that it is followed by other police officers or judicial officers it should stop immediately. [ 54 ] While I have expressed clear reservations regarding the practice of issuing a search warrant prior to the swearing of the ITO on which the grounds are based, I cannot find that this practice alone necessarily leads to a finding that the issuing justices were acting as adjuncts of the police or otherwise unable to act as neutral and objective assessors of the evidence contained in the ITO's. [ 55 ] I agree with the Crown that the facts of the case before me distinguish it from both Gray and Tien .

In Gray , the Court of Appeal found that in many instances advice was sought by the police officers requesting a warrant and the issuing magistrates would then suggest changes, commissioning the information only after suggested amendments had been made to the magistrate's satisfaction. The Court correctly found that where direction is given regarding the contents of an ITO on a material point, the issuing judicial officer loses his or her impartiality and becomes an adjunct of the state.

The requirement of having a meaningful independent review of the grounds for a search is not met in such instances. [ 56 ] Although given the nature of the application no such finding was made in Tien , in that case there was evidence that the ITO had been amended subsequent to its review and prior to its being sworn. Conversely, in the present case, Constable Terry's evidence was that the warrant and the ITO were executed after they had been reviewed by the issuing justices. There was no indication that the

evidence in either ITO had been amended or that suggestions in this regard were ever made. Nor, unlike in Gray , is there any evidence that Terry expressed any uncertainty over whether a conversation took place between himself and either the judge or the justice of the peace. [ 57 ] Absent any evidence of uncertainty, I am not willing to find that any discussion regarding the adequacy of the evidence contained in the ITO's in relation to the grounds for executing a search warrant took place.

Although there may have been a pattern of police officers attending before judicial officers with unsworn ITO's, there is no indication that advice was commonly sought or that amendments were commonly made based upon conversations which may have taken place, as was the case in Gray .

The Court in Pedersen said that the absence of evidence of common collaboration between the judicial officers and the police was an "important distinction" in comparison to Gray and I agree. [ 58 ] I further note that the jurisprudence suggests that the mere act of having a judicial officer suggest an amendment to an ITO prior to executing the search warrant will not necessitate a finding that the officer has lost his or her ability to review the grounds for the requested search with an neutral and detached eye.

The case law indicates that where a judicial officer suggests an amendment on a peripheral point, which does not impact the evidence on which the warrant is issued, the officer has not necessarily abandoned his or her impartiality. The facts in each case must be assessed: Hallman, Pedersen, Howe . [ 59 ] In any event, there is no evidence of any discussion between Terry and the issuing justices, nor is there any indication that the ITO's were amended based upon any informal consultation.

In fact, Terry did not recall receiving any questions from the issuing judge or having any other conversation with him regarding the contents of the ITO. As such, the ruling in Baker is particularly germane. In Baker the justices were provided with unsworn copies of the ITO's prior to their being sworn. The Court found that notwithstanding the fact that the ITO's were put to the justices in unsworn form, there were no amendments made or suggested and that this fact distinguished the case from Gray .

Anderson further supports this finding. [ 60 ] As in Baker , I find that the mere fact that the judicial officers were provided with unsworn ITO's prior to the execution of the warrants does not result in a finding that the judicial officers were not acting judicially. While such a practice leaves much to be desired, the simple fact that an affiant presents a judicial officer with an unsworn ITO for review is not evidence of collaboration between the police and the judiciary.

The mere act of reviewing an unsworn ITO does not mean that a judicial officer has lost his or her ability to review the proposed grounds for a search in a neutral or impartial manner. Nor does it mean he or she is acting as an adjunct of the police. This practice is, however, dangerous in that it lends itself to judicial officers making suggestions on how the evidence in an ITO might be strengthened.

Amendments made or conversations had in this fashion can lead to a violation of an individual’s s. 8 rights under the Charter . [ 61 ] In order to establish that a judicial officer has acted as an adjunct of the state as opposed to a neutral and detached assessor of the evidence contained in the ITO, there must be some evidence of a failure to act impartially or with a lack of neutrality. Such evidence is lacking in the case at bar. 2. Warrant is void ab initio [ 62 ] As noted above, the Defence argues that the warrants are invalid in that they were made absent statutory authority.

They argue that the judicial officers exceeded their jurisdiction by executing the warrants without being "satisfied by information on oath" that reasonable grounds for a search existed.

The Defence submits that given the sequence of events, there was a failure to comply with the statutory preconditions of s. 11 of the CDSA and that as such, the warrants are a nullity. [ 63 ] While I agree with the Defence that the practice of attending before a judicial officer with an unsworn ITO is troubling, and have already outlined my concerns respecting this practice, I do not find that the warrants were issued absent statutory authority.

Rather, I am persuaded by the Crown's argument that the swearing of the ITO's and the issuing of the search warrants were ultimately part of the same continuum of events. [ 64 ] This is not an instance were a search warrant was granted on the basis of an ITO which was never sworn. Clearly a judicial officer's jurisdiction would be exceeded where a warrant was based on unsworn evidence: see for example Bostock and Phoenix Property Development . Rather, this is an instance were the search warrants were granted on the basis of ITO's which were subsequently sworn.

Of note, I conclude from Terry's evidence that the ITO was sworn almost immediately after the issuing justice returned with the executed warrant. The process was, as the Crown suggests, a part of a single continuum of events, culminating in a virtually contemporaneous

execution of the ITO and the warrant. [65] The CDSA demands that an issuing justice be satisfied by evidence given on oath for a reason. Safeguards must exist toensure that a citizen's privacy and right to remain secure of an unreasonable search and seizure are not disturbed unless the appropriatestandards have been met.

These standards are high, particularly when the warrant will result in the intrusion of a private dwelling place.The mere fact that the warrants were executed shortly before the swearing of the ITO did not circumvent the requirement that the judicialofficer be satisfied of the grounds for a search based upon sworn evidence.

However, while judicial officers are not free to rewritelegislative requirements through the use of "short cuts", I agree with the Crown that to find the warrants void based simply upon thesequential order in which the documents were processed would be to place form ahead of substance with unreasonable consequences. Atworst, this amounts to a technical breach which I will address during my s. 24(2) Charter analysis. VI Manner of Search [66] As noted above, the search warrant was issued in accordance with the CDSA.

Section 12 of the CDSA provides [emphasisadded]: For the purpose of exercising any of the powers described in

section 11, a peace officer may (

a) enlist such assistance as the officer deems necessary; and (

b) use as much force as is necessary in the circumstances. [67] 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, (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v.Cornell, 2010 SCC 31, paras. 16 and 92. Above, I have already addressed the issue of whether the search was authorized by law. Thereis no issue regarding the reasonableness of the law itself. [68] The onus is on the Accused to prove that his Charter rights have been infringed: R. v.

Al-Fartossy, 2007 ABCA 427, 425 A.R.336 at para. 14. The onus is on the police to show why a departure from the standard knock and announce approach was necessary:Genest, para. 40; Cornell, para. 20. 1. Defence Argument [69] The Defence submits that given the low score received on the threat evaluation, it was unreasonable for CPS to deviate fromthe knock and announce rule.

Counsel submits that condoning the use of hard entry tactics when a suspect scores low on a threatassessment would be tantamount to judicial issuance of a carte blanche allowing police to use force to enter a residence in almost anysituation where there is an absence of particularized evidence. Counsel further submits that the police failed to demonstrate that a hardentry was "necessary" as per s. 12 of the CDSA. [70] The Defence also argues that it was not reasonable to enter the home carrying only a single copy of the search warrant. 2. Defence and Crown Authorities [71] The Defence relies largely on R. v.

Genest, supra, in arguing that the search conducted by CPS was unreasonable.

[ 72 ] The Accused in Genest had a rather lengthy criminal record, including a conviction for possession of narcotics for the purposes of trafficking. Of note is the fact that the Accused's residence was searched by police approximately four weeks prior to the search in issue, pursuant to a warrant to search for stolen property. The warrant was based upon information given to police by an informant that they would find certain stolen property at the residence.

This previous search was also executed via a hard entry into the premises, with a large number of police using a battering ram to break though the back door unannounced. Although the police did not find the property they were looking for, a stolen camera was recovered at this time. The search in issue took place approximately one month after this initial search, this time looking for drugs. Again the police they used a hard entry, smashing down the door to gain access to the premises without any advanced warning.

During this search the Accused noted that the search warrant provided to him by police did not use the correct address. This warrant was based on information given to police by the same informant. While the police did not locate any drugs, they did find two illegal weapons and one restricted weapon. There had been an assembly the night before the day the warrant was executed in which a number of motorcyclists had gathered at the residence. [ 73 ] The Court noted three additional facts which were relevant to its decision.

First, the Accused had two pitbulls and two rottweilers on the premises; second, the Accused had a connection to the Hell's Angels, and; third, the Accused had a lengthy criminal record including a conviction for assault and possession of a weapon for a dangerous purpose. Of note was the fact that at trial, the police gave no evidence as to any fears that the Accused would be dangerous or that the police would be endangered in conducting the searches. [ 74 ] As noted above, the warrant to search for drugs contained a number of deficiencies.

It failed to name an officer to execute the search, did not mention the hours of execution, nor the objects to be searched for, nor the district of the issuing justice of the peace nor whether it was issued pursuant to the Criminal Code or the [then] Narcotics Control Act . [ 75 ] The Crown admitted that the search amounted to an illegal search in violation of s. 8 of the Charter .

The issue, therefore, was limited to whether the evidence should be excluded under s. 24(2) . [ 76 ] The Accused in Genest argued that the manner in which the search was executed was relevant to the assessment of the seriousness of the Charter violation. He argued that the large number of police used to break into the premises, the failure to give any warning prior to entry and the amount of force used to break into the home all suggested that the search was unreasonable. The Accused also suggested that the earlier search, which also involved a hard entry, indicated a pattern of police abuse.

In discussing the rationale for police departure from a knock and announce entry, the Court held as follows, at pp. 89-91: In the passage from Therens quoted earlier, Le Dain J. made the point that the assessment of the seriousness of a constitutional violation must take into account the reasons for the conduct. He gave the example of a situation of urgency, where rapid action is necessary to prevent the loss or destruction of evidence.

To this I would add another factor that can be considered, whether the circumstances of the case show a real threat of violent behaviour, whether directed at the police or third parties. Obviously, the police will use a different approach when the suspect is known to be armed and dangerous than they will in arresting someone for outstanding traffic tickets. The consideration of the possibility of violence must, however, be carefully limited. It should not amount to a carte blanche for the police to ignore completely all restrictions on police behaviour.

The greater the departure from the standards of behaviour required by the common law and the Charter , the heavier the onus on the police to show why they thought it necessary to use force in the process of an arrest or a search. The evidence to justify such behaviour must be apparent in the record, and must have been available to the police at the time they chose their course of conduct. The Crown cannot rely on ex post facto justifications. As I have said, counsel for the respondent refers to the weapons found in the house as justification for the amount of force used in the search.

This factor would have been an important one if it had been known to the police in advance, for example if the search warrant had been issued to allow the police to seize the weapons. There is nothing in the record to suggest that the police knew of the weapons before they sought the search warrant; Officer Desjean made no mention of weapons as one of the factors that persuaded him to apply for the warrant.

I do not think that the respondent can rely on the weapons seized in the search to justify the amount of force used, unless it can also show that the police had reasonable and probable grounds to suspect those weapons would be found. ...On the issue of the amount of force used in the search, the police witnesses at no point gave any explanation for the reason they thought it necessary to use force, or why they broke into the house without giving the normal warnings the common law requires. No mention was made of why the TACTIC squadron of the Sûreté du Québec was called to assist in breaking open the door.

There is an onus on the police, in these circumstances, to explain why they have thought it necessary to depart from the common law restrictions on searches.

I agree with LeBel J.A. that fears for the safety of the searchers and the possibility of violence are reasons for the use of force in the execution of a search warrant, but no attempt was made by the police at trial to lay the factual foundation to support this approach. I would not wish to be taken to say that the Crown must prove a tendency to violence beyond a reasonable doubt, nor that the Crown cannot refer to past conduct as influencing their decision as to the amount of force thought necessary to carry out a search.

The assessment of the amount of force, like the motives for the search in the first place, need not be proven on the same standard of guilt as when proving the elements of an offence. The Crown must, however, lay the evidentiary framework to support the conclusion that there were grounds to be concerned about the possibility of violence. The important point is that the justification for the amount of force used must be made clear at the beginning, at trial.

The Crown cannot try to rehabilitate its case later on appeal. [ 77 ] The Court concluded that the infringement of s. 8 of the Charter in this case was serious enough to lead to the conclusion that the admission of the evidence would bring the administration of justice into disrepute. [ 78 ] Cornell also dealt with a hard entry dealing with cocaine in a personal residence. The Accused was charged with possession of cocaine for the purposes of trafficking.

The ITO indicated that the tactical team would be required to enter the residence in order to avoid the destruction of evidence and to ensure the safety of the officers and residents. The police utilized a hard entry in order to gain access to the home. Nine police officers wearing balaclavas and body armour rammed open the front door without announcing their presence. Their weapons were drawn.

While the members of the tactical team did not have a copy of the search warrant with them, the officer in charge of the search entered the premises with a copy of the warrant approximately four minutes after the tactical team entered and secured the residence. The only occupant of the home was the Accused's brother, who was mentally challenged. He was subdued by officers but his handcuffs were quickly removed when his emotional distress became apparent.

The officers discovered approximately 100 grams of cocaine in the residence. [ 79 ] The Court split on whether the lawfully authorized search was conducted reasonably. The majority found that the trial judge made no reviewable error in concluding that the search was conducted reasonably. The majority found that the decision by the police to conduct the search in the manner in which they did must be assessed in light of the information reasonably available to them at the time the decision was made.

The police were investigating a "dial-a-dope" operation run by two members of a known violent criminal gang (Nguyen and Tran); while the Accused was not a target of the investigation, police came to believe that his residence was being used as a "stash" house and that the Accused was associated with at least one gang member (Nguyen). Police had observed Nguyen entering the Accused's residence on occasion. Approximately two hours before police entered the residence, a car driven by Nguyen was stopped by police pursuant to a warrant.

Nguyen was wearing body armour and his passenger was in possession of cocaine and cash. At the time of the residence search, the whereabouts of Tran were unknown. [ 80 ] The majority decision reaffirmed the existing principles surrounding a knock and announce entry.

The majority affirmed that the decision regarding the mode of entry must be must be judged by what was or should reasonably have been known to the police at the time, and furthermore, that the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises: paras. 23-24. [ 81 ] In discussing the decision to depart from a knock and announce approach, the majority held, at para. 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. [ 82 ] While the Accused argued that the police had no reason to suspect either a violent encounter or that evidence would be disposed of, the majority disagreed, pointing to a number of factors which supported a deviation from the knock and announce approach, including: · police experience that those dealing in cocaine are frequently violent and that Nguyen, a known member of a violent gang, was welcome in the residence; · police suspicion that the residence was being used as a "stash" house and that it could therefore contain weapons;

· cocaine is easy to destroy; · 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; and · the fact that the Accused did not have a criminal record did not lessen the reasonableness of the police concern that evidence could have been destroyed. [ 83 ] Given the above, the majority found that it was reasonable for the police to be concerned about the safety of themselves and the public and it was reasonable for police to be concerned about the destruction of evidence.

In reviewing the police decision to wear balaclavas, the majority held that it was not every detail of the entry that must be found to have been appropriate, but rather, whether the overall search was reasonable, in light of those facts known to police: para. 31. [ 84 ] While a risk analysis was done in Cornell , it was not provided to nor relied upon by the members of the tactical team in assessing whether there were reasonable grounds for concern about officer safety or disposal of evidence.

VII Analysis of Manner of Search [ 85 ] The Defence has raised a number of issues respecting the manner of search performed by the CPS. First is the fact that the officers who initially made entry into the residence were not in possession of a copy of the search warrant. I do not find this argument to have merit. 1.

Copy of Search Warrant [ 86 ] Section 29(1) of the Criminal Code reads: "it is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so." A failure to have a search warrant available to show to occupants of a residence has been termed a serious violation of s. 8 of the Charter : R. v. Bohn , 2000 BCCA 239 ; 145 C.C.C. (3d) 120.

The evidence before me does not support a finding that any such violation occurred in this instance. [ 87 ] Sergeant Grant was operating the battering ram and was one of the first members of the tactical team through the door. He did not have a copy of the warrant with him. Constable Vanerbrink placed the Accused Price into custody. He did not have a copy of the warrant nor was he asked to produce one. Constable Scott was acting sergeant during the search. While he was not the first member of CPS to enter the home, he stated that he would have entered the residence "within seconds" of the tactical team going in.

Scott had a copy of the warrant. He placed the Accused Jordan under arrest. There is no indication that Jordan asked to see a copy of the warrant. Constable Terry was the primary investigator in this matter. He had a copy of the warrant. He entered the residence approximately 10 to15 minutes after the tactical team had gained entry and left a copy of the warrant at the premises. [ 88 ] I find that CPS had a copy of the warrant during the search. While Scott may not have been the first officer to enter the premises, I accept his evidence that he entered "within seconds" of the tactical team going in.

He was thus able to produce the warrant to any individual in the residence asking to see a copy of the same. The requirements of 29(1) of the Criminal Code were clearly met in this instance. See R. v. Patrick , 2007 ABCA 308 paras. 49-51 and Cornell , supra , paras. 38 - 43 . Cornell expressly provides that not all members of the police force entering a home are required to have a copy of the warrant on their person: para. 42. 2. Police Use of Balaclavas [ 89 ] I turn next to the use of balaclavas.

The practice of police executing a search warrant while wearing balaclavas has received a good deal of judicial attention in recent years; much of it negative. The majority judgment in Cornell dismissed this concern by stating there is no need “to micromanage the police’s choice of equipment”: para. 31. On the other hand the dissenting judgment in Cornell reviewed the numerous issues surrounding balaclava use, at paras. 56 and 114-119. These concerns are summarized at para. 118:

At best, hidden faces tend to disinhibit those charged with the forcible penetration and search of a home. Hidden faces also render anyculprits among the officers unidentifiable by witnesses, and therefore unaccountable to the victims and to society for any excesses orinappropriate behaviour.

Just as anonymity breeds impunity, so too does impunity breed misconduct - which, unsanctioned by legalconsequences, tends to bring into disrepute our enviable system of justice. [90] While I readily acknowledge the real and weighty concerns arising out of the psychological intimidation associated withwearing balaclavas, I find that the evidence here demonstrates a reasonable justification for their use. Officers Grant and Vanderbrinkeach gave evidence that in covering their faces they were protected against debris when forcing open the door.

Grant indicated thatbecause they were executing a drug warrant there were additional concerns about chemicals or other irritants. Constable Scott indicatedthat the use of balaclavas protected against glass and polytechnic burning agents. I note that he was in fact armed with a polytechnicdistraction device during the execution of the warrant. [91] I further note that Grant specifically denied other reasons for wearing a balaclava during cross examination. His evidence wasfirm that he wore the garment for safety only.

Moreover, the evidence of the officers, when taken as a whole, indicates that the policehad not adopted a blanket policy of wearing balaclavas. For example, Constable Scott testified that in executing certain marijuana growoperation warrants, CPS may not wear either balaclavas or ballistic vests. Canadians are legitimately concerned about heavily armedpolice officers wearing balaclavas and body armour ramming their way into private homes.

Those same Canadians would no doubt agreethat the police must be able to use methods to protect themselves from injury of chemical burns, flying glass or other irritants or debris.The use of balaclavas must be reasonable and appropriate in relation to the nature of the search. In this case, the wearing of balaclavaswas not unreasonable in circumstances where the risk is unknown. 3.

Hard Entry [92] I turn lastly to the decision to deviate from the knock and announce entry, which to me represents the crux of this application.Given the deviation from the standard approach, the Crown must show evidence as to why a hard entry was justified. [93] The principles establishing the sanctity of a private dwelling house were set out as far back as Semayne's Case (1604), 77 E.R.194, where the Court confirmed that a man's home is his castle, and that: In all cases when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do otherexecution of the King's process, if otherwise he cannot enter.

But before he breaks it, he ought to signify the cause of his coming, and tomake request to open doors... [94] As more recently noted by James Fontana and David Keeshan in The Law of Search and Seizure in Canada, 7th ed. (Ontario:LexisNexis, 2007) at 160: A private residence has attached to it the highest possible expectation of privacy against all intrusions except those authorized by law. Asearch, even with a lawful warrant, may be unreasonable and therefore illegal if carried out inappropriately. [95] The policy behind the knock and announce approach was concisely summarized in Eccles v.

Bourque, (SCC), [1975] 2 S.C.R. 739, where the claimant brought an action for trespass after the police entered his residence in order to arrest anindividual who was subsequently not found to be present in the apartment. In discussing the obligation of police to give notice beforeforcing entry into the apartment, the Court stated, at pp. 746-47: Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations forthis. An unexpected intrusion of a man's property can give rise to violent incidents.

It is in the interests of the personal safety of thehouseholder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest,that a police officer identify himself and request admittance. ... In the ordinary case police officers, before forcing entry, should give (i)notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and(iii) notice of purpose, by stating a lawful reason for entry.

Minimally they should request admission and have admission deniedalthough it is recognized there will be occasions on which, for example, to save someone within the premises from death or injury or toprevent destruction of evidence or if in hot pursuit notice may not be required. ...

[96] The law is clear that police officers must make an announcement before forcing entry into a dwelling house, unless exigentcircumstances exist. The Defence acknowledges that officer safety is one such circumstance. However, they argue that because therewas no known risk factor in entering the residence, the police were without justification in deviating from the standard approach.

Thus,one of the issues becomes whether a dynamic entry can be justified where there is a lack of particularized or specific evidence as to risk. [97] While the Defence stressed that the risk factor derived from the threat assessment totaled only 15 points, I must stress thatConstable Scott gave evidence that this was indicative of "low or unknown" risk (emphasis mine). This is not a case where police knewthe risk to be minimal. Nor is it a case where the suspects where known to be dangerous. Rather, it is a case where little backgroundinformation was available regarding the occupants of the residence.

I would not think that simply because an individual does not have acriminal record indicating a propensity for violence that any risk of violence must be subtracted from the calculation. This is especiallyso when dealing with cocaine trafficking investigations. [98] In R. v. Normore, 2005 ABQB 345, 379 A.R. 359, this Court addressed the use by police of an unannounced entry in the caseof a drug raid. The Accused was found to be in possession of marijuana for the purposes for trafficking. Of note, the Court distinguishedR. v.

Schedel (1993), 2003 BCCA 364 , 175 C.C.C. (3d) 193 (B.C.C.A.) on the grounds that Schedel dealt with a marijuanagrow operation and that as such, there was less of a risk that evidence could have been destroyed had police utilized a knock andannounce search. Of note, the Court found that officer safety is a concern even where the risk factors are unknown: paras. 16 - 2. [99] In R. v. Elkadri, 2008 ABQB 55, 441 A.R. 38, the Court followed Normore, holding at paras. 105 - 107 that: The law relating to the knock entry rule was reviewed in this jurisdiction by Justice Clarke in the case of R. v.

Normore (R.D.) (2005),2005 ABQB 345 , 379 AR, 359; 2005 ABQB 345. In that case, at 11:00 p.m., police entered a residence where it was believedmarijuana was being sold. The police entered without warning, and with guns drawn. Upon entry, the police shouted "R.C.M.P., SearchWarrant!". The sole occupant was instructed to get down, complied, and was handcuffed. Drugs and drug paraphernalia were located. At a pre-trial voir dire, the defence argued that entry into the residence without knocking and warning was a breach of s. 8 Charterrights, and an arbitrary detention.

Justice Clarke rejected these allegations, and distinguished the situation before him from a line ofreasoning that originated with the case of R. v. Schedel, 2003 BCCA 364, 184 B.C.A.C. 166, which is relied on by the defence. JusticeClarke noted that the Schedel case related to a marijuana grow operation, with regard to which there was not a significant chance of rapiddestruction of evidence, which distinguished that case from the circumstances before Justice Clarke in R. v. Normore, supra, and beforemyself in this case.

Further, the safety of police officers justified a search without notice where the police did not know whether theindividuals who were the subject of the search were or were not dangerous. Justice Clarke noted, however, that if police were aware thata suspect is peaceful or unarmed, an unannounced entry might be unreasonable. Justice Clarke's approach is consistent with that taken in other jurisdictions. In R. v. Mac, (ON SC), [2005] O.T.C.174, 194 C.C.C. (3d) 555 (Ont. Sup. Ct.

Just.), Justice Weekes of the Ontario Superior Court concluded that police should attempt toevaluate the threat present in a residence (at para. 41) and where police officers are not aware of what awaits them, they should have theoption to enter without warning (at para. 42): Where the investigation establishes that there is no real risk associated with compliance with the knock and announce rule they mustfollow that procedure.

However, if the investigation establishes that there is a real risk of danger or leaves the police in the dark as towhether there is such a risk the police ought to be permitted the latitude to breach the door if they think it would be safer to do so. [100] In the case at bar, I find that the CPS was faced with an unknown risk factor when planning the execution of the warrant.

Thethreat assessment form indicated that both the criminal history of the suspects as well as the presence of weapons were considered an"unknown" to police (although one of the individuals in the residence was known to have a history of violence).

While I acknowledgethat the threat assessment form is poorly drafted and somewhat problematic in structure (in that, for instance an "unknown" factor for asuspect's criminal history carries the same point allocation as a history of "assault with a weapon") ultimately, an "unknown" is notnecessarily the same as a "low" in terms of threat assessment. [101] Moreover, risk to police is not the only factor which may create an exigent circumstance necessitating a deviation from the

standard knock and announce approach. In both Genest and Cornell, the Court noted that a situation of urgency may be found to existwhere police have concerns about the rapid destruction of evidence. In Cornell the majority noted the ease of destruction of cocaine asone of the factors supporting a deviation from the knock and announce approach. [102] In the case at bar, acting Sergeant Scott specifically indicated that the investigators believed that the subjects were trafficking insmaller volumes of cocaine and that as such, it might be easily destroyed.

Scott gave evidence that he has often experienced suspectsattempting to destroy drugs, hide drugs, or ingest drugs on knock and announce entries. Sergeant Grant also stated that the cocaine iseasily to discard. [103] In R. v.

Al-Fartossy, 2006 ABPC 203, 406 A.R. 219, reversed on other grounds at 2007 ABCA 427, 425 A.R. 336, the trialjudge opined as follows, at paras. 16-17 [emphasis added]: The subsequent emergence of the illicit drug trade has provided the courts with cause to revisit the guidelines outlined in Wah kie, supra,particularly those dealing with the need for a knock or demand for entry prior to forcibly entering residential premises.

The ability forcertain drugs, such as cocaine, to be rapidly disposed of while police officers politely await a response to their knocking, has frequentlybeen construed as an "exigent circumstance" which would warrant dispensing with the "knock and announce" requirement of the law. The "no-knock" forcible entry by police of the accused's residence can be justified on the basis of exigent circumstances, i.e., areasonable concern that the cocaine expected to be found in the residence could readily be disposed of.

No reasonable explanation,however, has been given for other actions of the police officers who made the entry. One of those actions involved the police beingmasked. There is no suggestion that the safety of the Tac Team members might somehow be jeopardized were their identities revealed. Ihave grave concerns about the enhancement of danger created when a group of heavily armed men, masked to conceal their identities,batters down the door of a home. In Eccles v. Bourke (197

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