Her Majesty the Queen - v. -, 2017 SKPC 053

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 053 Date: June 19, 2017 Information: 27742508, 43723297 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tara-Lynne McKay Appearing: Trent Forsyth For the Crown Ian Goldberg For the Accused DECISION ON VOIR DIRE F.M. D AUNT , J [ 1 ] Tara-Lynne McKay stands charged that, on or about the 12th day of May, 2016, she did: 1. Unlawfully have in her possession a controlled substance included in

Schedule 1, to wit: cocaine, contrary to section 5(2) of the Controlled Drugs and Substances Act . 2. Have in her possession property or proceeds of property, to wit: Canadian currency, the property of unknown persons, of a value not exceeding five thousand dollars knowing that all or part of the property or proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to sections 354 and 355 of the Criminal Code .

[ 2 ] On a separate information, she is charged that she did, on or about the 12th day of May, 2016: 1. Unlawfully have in her possession a controlled substance, to wit: Fentanyl, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . [ 3 ] The trial commenced with a voir dire to determine the admissibility of evidence. Defence applies to exclude evidence obtained as a result of a breach of Ms. McKay’s right to be secure against unreasonable search or seizure, contrary to

section 8 of the Canadian Charter of Rights and Freedoms . For the reasons that follow, I have decided to grant the application and exclude the evidence obtained in the search of Ms. McKay’s residence on May 12, 2016. [ 4 ] On the date in question, Tara McKay lived in a house on 12th Street West in Prince Albert, Saskatchewan, with her five children aged 6 to 19. She had two young boys, aged 6 and 8. She had a 12-year-old daughter and a 15-year old son.

Her 19-year-old daughter also lived there with her 17-year-old boyfriend. [ 5 ] At 9:42 p.m., in darkness, seven armed police officers, weapons drawn, entered her home without warning to execute a search warrant, in a manner that traumatized her and her family. Defence alleges that the search warrant was issued on insufficient grounds. Defence further alleges that police raided the home wearing balaclavas and pointed handguns at the children. As a result, defence submits the manner of the search was unreasonable and violated her right to be secure against unreasonable search or seizure.

Defence submits admission of the evidence obtained as a result of this breach would bring the administration of justice into disrepute and asks that it be excluded. [ 6 ] Police witnesses all denied wearing balaclavas or masking their faces. All but one categorically denied pointing his gun at anyone, especially children. EVIDENCE [ 7 ] The Crown called seven witnesses, all police officers. As well, the evidence of Constable Anderson was admitted by consent by filing as Exhibit P-1 his sworn Information to Obtain a Search Warrant (ITO). Defence did not seek to cross-examine him on this document.

Defence called two witnesses, the accused, Tara-Lynne McKay and her daughter, Destiny Ermine-McKay. [ 8 ] This investigation was conducted by members of the Combined Forces Special Enforcement Unit (CFSEU), whose mandate is to “identify, disrupt, and dismantle organized crime.” They were assisted by the Integrated Street Enforcement Team (ISET), whose mandate is similar, but deals more with street level drug enforcement. Both units comprise members from the Prince Albert Police Service and the RCMP. [ 9 ] Constable Anderson has been a police officer since 2011 and a drug investigator since January of 2015.

On May 12, 2016, at an unspecified time, Constable Anderson spoke with Source A, who told him:

a) McKay is selling cocaine from her house;

b) McKay lives at 1127 12th Street West Prince Albert;

c) McKay has a black sports utility vehicle; c) [ sic ] McKay is in possession of cocaine right now. [ITO clause 3.1] [ 10 ] Constable Anderson knows the identity of Source A, and states in the ITO: I have known Source “A” for over a year and Source “A” is proven reliable. Source “A” has provided information that was used to obtain several CDSA search warrants, which led to the seizure of drugs, money, evidence of drug trafficking, and CDSA charges. Source “A” is motivated to provide information for financial compensation and the betterment of the community.

Source “A” has been paid for information in the past, however source has not received financial compensation for this information. Source “A” does not have any convictions for providing false or misleading information to the police. Source “A” claimed firsthand knowledge of the information provided in this document.

[ 11 ] On that same date, again at an unspecified time, Constable Anderson spoke to a person whose identity has been redacted from the ITO. That person says he spoke to Source “B” on October 19, 2015, some seven months earlier. Source “B” told this unknown person that Tara McKay organizes drug “throw overs” at the Prince Albert Correctional Centre, and that she “is assisting gangs by smuggling contraband into the Prince Albert Correctional Centre.” [ 12 ] Constable Anderson knows the identity of Source “B”, but his information comes through an unnamed third party, who is a correctional officer.

Constable Anderson says that: Source “B” has provided information that [ sic ] been corroborated through investigations. Source “B” is motivated to provide information for betterment of the community [ sic ]. Source “B” does have a criminal record, but does not have any convictions for providing false or misleading information to the police.

Source “B” claimed firsthand knowledge of the information provided in this document. [ 13 ] Constable Anderson knows that Source “A” and Source “B” are independent from one another. [ 14 ] At about 8:00 p.m. on May 12, 2016, Constable Anderson telephoned Sergeant Chester of the CFSEU and told him that he had information that Tara McKay was in possession of cocaine for the purpose of trafficking. (The testimony of the various officers revealed some inconsistencies in the timeline. Because Sgt.

Chester was the ranking officer involved in the investigation, I will use his times.) Sergeant Chester directed Constable Anderson to draft a

section 11 CDSA Information to Obtain a Search Warrant. Then Sergeant Chester “gathered bodies together to execute a search warrant, conduct surveillance on the residence, and seize any evidence.” Sergeant Chester knew Tara McKay personally and was aware she had children. He did not immediately share this information with the other members of the team. There was no evidence of any discussion surrounding the decision to request a warrant to be executed that very night. [ 15 ] Before the ITO was sworn, members of the CFSEU conducted surveillance on 1127 12th Street West.

They observed a 2012 Black Dodge Journey parked in the driveway. Constable Anderson searched the PAPS database and the SGI website and confirmed that Tara McKay resided at 1127 12th Street West and was the registered owner of a black Dodge Journey. [ 16 ] According to the General Occurrence Hardcopy generated by the Prince Albert Police Service, the warrant was issued at 2047 hours, or 8:47 p.m. on May 12, 2016, authorizing a search of 1127 12th Street West between the hours of 8:00 p.m. and 11:59 p.m. that same day.

From the time the warrant was issued to the time of execution of the warrant at 9:42 p.m., surveillance conducted by Corporal Gobeil, Constable Hamm and Constable Ackerman revealed nothing of note. [ 17 ] Seven officers participated in the search, with Sergeant Chester in charge. There was a brief meeting down the street from the target house, where Sergeant Chester directed “no knock” entry, with a battering ram to be used if the door was locked. There was no evidence of any discussion about the reason for the no-knock entry or that officers would have their weapons drawn.

Rather, it is the policy of CFSEU to conduct “no-knock” entries in CDSA searches, “for officer safety and to prevent the destruction of evidence.” [ 18 ] In any event, Sergeant Chester decided that Constable Wilde and Constable Schultz -- being in uniform and more identifiable as police officers -- would be the first to enter the residence and arrest the occupants. There is no evidence the team discussed on what grounds they would arrest people not named in the warrant. The rest of the officers were not in uniform.

All wore dark clothing, although they all wore badges or had the word “police” somewhere on their clothing. It was decided that the team would enter through the back door. They sneaked into the back yard and lined up behind the door. Constable Ackerman was at the front of the line with the battering ram. [ 19 ] Meanwhile, inside the residence, Ms. McKay, a 36 year old single mother, was sitting on a couch in the living room, watching TV and talking on her phone. Her two youngest children, aged 6 and 8, were tidying up their toys, getting ready for bed. Her two older children, 12 and 15, were in their bedrooms.

Her 19-year-old daughter Destiny was in the kitchen, making something to eat, accompanied by two nine-month-old pit bull cross puppies. The family also had a smaller dog, a Shih Tzu. Destiny’s boyfriend was in the basement, sleeping. The lighting was dim, as one might expect close to bedtime. [ 20 ] There was no light on at the back door, either inside or outside the residence. Constable Ackerman began to swing the battering ram, when Sergeant Chester advised the team there were children in the residence. (Some officers testified to being informed about the possible presence of children just prior to entry.

Others were unaware until already inside the residence.) [ 21 ] Constable Ackerman says he was reluctant to use the ram in case there was a child on the other side of the door. He put down

the ram and checked to see if the back door was open. Constable Schultz testified that the plan was always to try the door first. He, Constable Schultz, was the one to try the door. In any event, the door was not locked or fortified, so the officers flooded into the residence, guns drawn in either “low ready” or “high tuck” position, shouting as loud as they could, “Police! Search Warrant!” They were shouting this repeatedly, and all at once. [ 22 ] Both defence witnesses denied that the police announced who they were or that they said they had a search warrant, although they acknowledged there was much shouting.

Both Tara McKay and Destiny Ermine-McKay thought they were the victims of a home invasion and feared for their lives. They say some of the officers were wearing balaclavas or had their faces covered. They did not see any police uniforms or badges, or the word “police” on their clothing. They were not aware that these men were police officers until later in the course of events. [ 23 ] Shouting and screaming and general confusion ensued. One officer described it as “chaos.” As they will when a home is invaded by aggressive strangers, the dogs started barking and going toward the officers.

Destiny Ermine-McKay testified that the police had their guns “full on pointed at my face.” [ 24 ] Luckily, Destiny was able to control the dogs and put them in their kennels, although her legs were scratched in the process. At this point, as Destiny was crouched down in front of the kennel, Tara McKay says that an officer had a gun pointed at the back of Destiny’s head. [ 25 ] The police swarmed the house and rounded up all the residents. The 17-year-old in the basement was also arrested and placed in handcuffs.

The 15-year-old boy was either put on the ground or made to stand with his face against the wall in the upstairs hallway. The younger children were confined either to the living room or the kitchen. Ms. McKay says officers pointed their guns at her youngest children, and that one officer told her six-year-old to “shut the fuck up.” The children were screaming and crying. Destiny was crying, and her legs were bleeding from scrabbling with the dogs. [ 26 ] Constable Wilde testified that he located Tara McKay and advised her she was under arrest for possession for the purpose of trafficking in cocaine. Ms.

McKay denies that she was told she was under arrest or the reason for it. She did see that Constable Wilde was in uniform. Constable Wilde handcuffed Tara McKay and stayed with her until “the house was cleared,” when he escorted her to the police vehicle. [ 27 ] All of the officers denied wearing balaclavas. All but one denied pointing a gun at anyone. Constable Ackerman went to the basement, where he discovered Destiny’s 17-year-old boyfriend. The officer directed him to put his hands up and turn around.

Constable Ackerman believes his gun was in the “high tuck” position at this time, but testified: However, it was a pretty dynamic process that happened within half-a-second. I may have, going down the stairs brought my firearm up until I was sure the male put his hands up in the air. [ 28 ] He said the male was exceptionally cooperative. Constable Ackerman handcuffed him and brought him upstairs. [ 29 ] Sergeant Chester approached Tara McKay and explained to her that they were executing a search warrant for cocaine. He left a copy on the kitchen table.

After the situation calmed down, the police “cleared the house.” No one was allowed to stay in the house while the police conducted their search. The police allowed Destiny to gather the children’s belongings and take them and, presumably, the dogs away. I note from the photographs tendered as Exhibit P-3 that they left the cat behind. Constable Wilde then escorted Tara McKay to the Prince Albert Police Service station. [ 30 ] The police then searched the now-empty house, and cleared the residence at 11:57 p.m., two minutes before the search warrant expired.

CREDIBILITY AND RELIABILITY [ 31 ] Doubtless, the occupants of 1127 12th Street West were traumatized by the actions of police. The children remain in

counselling and display a continuing fear of police. Although some psychological damage may stem from events occurring after May 12, 2016, the experience was clearly terrifying, and will have long-lasting effects on the adults and children involved. [ 32 ] I found both Tara McKay and her daughter Destiny Ermine-McKay credible witnesses. They were telling the truth as they saw and remembered it. Not surprisingly, given the traumatizing event, there are some inconsistencies in their testimony.

When faced with a life-threatening event, a person’s senses tend to over-focus on the threat and under-focus on extraneous details. Given the intense shock of this forced entry, some confusion of details is to be expected. The trauma of the situation affects the reliability of their evidence, but they were not lying. [ 33 ] Based on the evidence as a whole, I find that the police opened the back door and entered the house at the same time as they began shouting “Police!

Search warrant!” The police were all shouting over each other, and it was impossible for the occupants of the home to understand what they were yelling. Because of the dim lighting conditions, it was not immediately apparent to the occupants that the people swarming into the home were police officers. I find that Constable Wilde and Constable Schultz were in police uniform. The rest of the officers wore badges or otherwise had the word “police” on their clothing.

However, I find that the occupants of the house did not see these uniforms or other indications of police presence until after things calmed down. [ 34 ] Tara McKay and Destiny Ermine-McKay both believe at least some police officers had their faces masked. Given the shock they were experiencing, and the poor lighting, I accept that they perceived this. One officer may have been wearing a hat. At least one officer was bearded. However, each officer adamantly denied masking his face, and I believe each one.

On the evidence as a whole, I find that the officers were not masked. [ 35 ] Defence alleges that officers pointed guns at children.

Corporal Gobeil described what it meant to enter a house with guns drawn, at page T46 of the transcript: Drawn is we – entering the residence because we’re in a line or in a stack, there’s somebody in front of me or there’s somebody behind me, it’s usually we – it’s carried at called – what’s called the low ready position, where basically your firearm is pointed down to the ground, and you enter the house, and unless there is a direct threat to you, that’s the only time any – your firearm would be ... pointed at anyone. [ 36 ] All officers, except Constable Ackerman, denied pointing a gun at anyone.

Constable Ackerman admitted he may have momentarily pointed his firearm at the teenage boy in the basement. The remaining officers denied it. However, if a gun is in “low ready” position, it is “ready” for something. It is ready to be pointed at a perceived threat. Most described “low ready” as a 45 degree angle to the ground. Destiny at one point was crouched over putting the dogs in the kennel. This was a very volatile situation. Aggressive dogs are a threat to officer safety. A gun at low ready may well have been pointed at the back of Destiny’s head.

Similarly, the two youngest children were sitting on the couch in the living room, in a low position relative to a police officer on his feet. A gun in “low ready” position might well have looked like it was pointing at the children. The situation was chaotic and dynamic. The children were screaming and crying. An officer likely did tell a child to be quiet while his firearm was drawn. [ 37 ] The police had their guns drawn in an unfamiliar setting. When encountering a new person, an officer is likely to point his gun at the target until that person is under control. The police perceived the teenagers as adults.

It is likely that an officer pointed his gun at the 15-year-old until he was either on the ground or facing the wall with his hands up. Furthermore, whether a gun is “pointed” depends very much on one’s point of view. On the business end of a handgun, one’s focus is on that muzzle. The one holding the gun may not mean to threaten someone directly, but in “chaos,” one can’t say with certainty that the gun wasn’t directly in another’s sightline. The situation was volatile. Emotions were running high.

I find it more likely than not that a gun was pointed at one or more of the occupants of the home, including the youngest children. [ 38 ] I find as a fact that, whether or not there are specific officer safety concerns, it is the policy of ISET and CFSEU to conduct no-knock, dynamic entries, with weapons drawn, when executing a CDSA warrant. Further, it is their policy to arrest everyone found in the residence, with or without grounds. I find this based on the following testimony: Constable Wilde: at page T5 in the Transcript: A ...we were going to check if the door was unlocked prior to entry.

If it was locked they were going to pry the door open for entry of the search warrant.

Q And did you have an understanding as to why that was to be the case? A Yeah, due to the nature of the warrant being a – a drug warrant, this was to ensure that no drugs would be destroyed ... or evidence. And at T13: A ... I believe I did have my sidearm drawn to the low ready, which is, I guess, typical practice for a search warrant. Constable Schultz, at T20: Q And so what was your purpose in – in going through the house at this point? A Right now it was just to control everybody inside the residence and put everybody under arrest so a search could be done safely again.

Constable Ackerman, at T30: Q And why would it have been that a ram would have been used in that circumstance? A To gain entry – speedy entry into the house, it being a street level drug search warrant. Corporal Gobeil at T46: Q And at any point during your time in the house did you have your firearm unholstered? A Yes. Upon entering the residence my firearm was unholstered. Q Okay. And why is that? A That’s common practice for every – I’ve been a drug investigator since 2007.

Entering a residence to conduct a search warrant, there have been times where the situation can turn extremely volatile, and that’s how we’ve trained is to – is to enter a residence with the firearms drawn. Constable McGean at T58: Q And would you have had that firearm out of the holster? A Yes, I – oh, sorry. Q Okay. And is that something that you do as a matter of course when you search a residence? A Yes. When involved in search warrants with ISET, with a – an entry, I take my firearm out of its holster. Q Okay. And the purpose of that is – is for what?

A It’s for protection of everyone’s safety, I guess, involved, given the nature, the amount of unknowns when we enter a residence during a search warrant and not knowing what’s going to meet us on the other side. Q And is there any way you carry that firearm when you enter a residence? A When I enter a residence, as part of my training and for, I guess, common sense safety with other members around and – and members of the public, I – what I call the – the low ready, I guess, is the training term.

Sergeant Chester, at T66: Q And did you discuss the type of entry that would take place? A That we would go in, try the – try the door, and if the door was open, then we would open it and announce, Police, search warrant, which was done, and then we’d enter the house and – Q Okay. A -- arrest the subjects inside. And at T74-75: A ...[T]he reason why we went in without knocking, to – and letting them answer the door to see that it’s the police is to prevent the destruction of evidence. ... THE COURT: All right. I’d just ask, is this – do you do this for every drug search then, no knock?

A For most drug searches, yes, we do ... just to prevent the destruction of evidence and for officer’s safety also. Q Is that kind of a policy thing or – A Yes. ISSUES 1. Did the information to obtain a search warrant reveal reasonable grounds upon which the justice could issue the warrant? 2. Did the issuing justice have the power to authorize a night search without grounds to justify a night search? 3. Were the police required to obtain prior judicial authorization to perform a “dynamic entry”? 4. Did the police breach Ms. McKay’s

section 8 rights by conducting the search in an unreasonable manner? ANALYSIS [ 39 ]

Section 8 of the Canadian Charter of Rights and Freedoms guarantees the right to be secure from unreasonable search or seizure. A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner of search is reasonable. R v Collins , [1987] SCR 265 [ Collins ]. [ 40 ] Here, the police acted under the authority of a search warrant. Defence argues the warrant is deficient in several respects and should be quashed. If the warrant is invalid, the search was not “authorized by law,” resulting in a breach of

section 8. If the warrant is valid, the onus is on the defence to show that the search was unreasonable. [ Collins , supra] However, in a “no-knock” entry, the onus shifts back to the Crown to lay an evidentiary foundation to justify the departure from the requirement that police knock and announce their presence and their authority to enter before using force. R v Cornell , 2010 SCC 31 [ Cornell ]. 1. Night Searches [ 41 ] Defence counsel submits that the warrant should be quashed because the ITO fails to establish grounds upon which the issuing justice could be satisfied a night search was necessary. The short answer to this question is contained in R v Saunders , 2003

NLCA 63 , affirmed at 2004 SCC 70 [ Saunders ].

Section 11 of the CDSA does not require any specific grounds to justify a search at night. Absent a challenge to the constitutionality of

section 11 CDSA , this failure does not affect the validity of the warrant. A search conducted at night without any particular reason may affect the reasonableness of the manner of the search, but it does not, in itself, invalidate the warrant so as to render the search unauthorized by law. [ 42 ] This is in contrast to a warrant issued under

section 487 or 487.1 of the Criminal Code , which, according to

section 488 of the Code , must be executed by day unless prior judicial authorization is granted on reasonable grounds. 2. “Dynamic Entry” [ 43 ] Similarly, no prior judicial authorization is required for police to conduct a “no knock” or dynamic entry. The courts have left this decision to the discretion of the police conducting the search. [ R v Cornell , 2010 SCC 31 ; R v Al-Amiri , 2015 NLCA 37 .] However, the use of this discretion may affect reasonableness if the manner of search is challenged as being contrary to

section 8 of the Charter . 3. Sufficiency of Search Warrant a. Standard of review [ 44 ] The test is not whether the reviewing judge would have issued the warrant. The standard of review is whether the issuing justice could have issued the warrant based on “reliable evidence that might reasonably be believed.” [ R v Araujo , 2000 SCC 65 ]. In other words, if there is credible and reliable evidence to support the issuing justice’s decision to grant the warrant, it remains valid. [ R v Morelli , 2010 SCC 8 ] [ 45 ] The warrant was issued under the authority of

section 11 of the CDSA , the relevant parts of which state:

(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 a contravention 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 controlled substance, precursor, property or thing and to seize it.

(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.

(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant, (

a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened; (

b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph (a); (

c) any thing that the peace officer believes on reasonable grounds is offence-related property; or

(

d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act.

(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, inaddition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds hasbeen obtained by or used in the commission of an offence or that will afford evidence in respect of an offence. [46] The Crown concedes that the ITO stands or falls on the credibility and reliability of Source A. Source B’s information comesto the affiant via an unnamed third person, making it double hearsay.

Source B’s information cannot be tested for reliability. Source B’sinformation is dated by seven months. It is not specific: it alludes to “drugs” and “gangs” without naming either. Source B’s tip makesno connection between “drugs” and 1127 12th Street West. Furthermore, rather than corroborating Source A’s information, Source Balleges something quite different.

The question then becomes: Is Source A’s information sufficiently compelling on its own to justifyissuing the warrant? [47] Where, as in this case, the grounds for the search are provided by a confidential informer, the reviewing court must addressthree concerns: 1. Is the information compelling? 2. Is the informer a credible source? 3. Did the police sufficiently corroborate the information? [48] The court must consider the “totality of the circumstances” and not treat these issues as separate tests.

Weakness in one areacan be compensated for by strengths in another. (R v Debot, (SCC), [1989] 2 SCR 1140; R v Garofoli, (SCC), [1990] 2 SCR 1421 [Garofoli]). As per Sopinka J. in Garofoli: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tipfrom an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to ‘the totality of the circumstances.’ There is no formulaic test as to whatthis entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the ‘tip’ (

b) the informer’s source of knowledge; (

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. (iii) The results of a search cannot, ex post facto, provide evidence of the reliability of the information. [49] In the case at bar, Source A’s information was current. The source alleged that the accused “is in possession of cocaine rightnow.” The source was familiar enough with the accused to know her address, but not familiar enough to know the make and model ofher vehicle, although the general description matched. There is little detail in the tip.

There is no information about a time frame, orhow long the “is selling” has been going on. There is no information about amounts of cocaine or prices. The source claims first-handknowledge, but does not specify whether this was from observation, from being involved in a purchase, from an admission made by theaccused, or some other form of “first-hand” knowledge. In short, the degree of detail is low. The source of the informer’s knowledge isvague. [50] As to indicia of reliability, Constable Anderson says he has known Source A for over a year. That is not a long time.

SourceA “has provided information that was used to obtain several CDSA search warrants, which led to the seizure of drugs, money, evidenceof drug trafficking, and CDSA charges.” The affiant does not say how many times Source A has provided information. Was it oneconversation that led to several CDSA warrants? Was it several conversations in the course of several different investigations? Furthermore, “several” is not specific. In could mean more than two, less than four, or 27, depending on the context. Here, there is no

context. No information is provided about how accurate Source A’s information turned out to be. Further, the informant’s previous tip or tips apparently have not led to any convictions for CDSA offences. Source A has been motivated by financial compensation and may or may not have a criminal record. [ 51 ] The police did corroborate some of Source A’s information by ensuring that he or she had given the correct address, and by discovering that Ms. McKay is the registered owner of a black SUV.

However, this means only that Source A did not fabricate the existence of Tara McKay, and that the police had the correct address. [ 52 ] The brief surveillance of her residence revealed nothing of note. No evidence was gathered that might corroborate the allegation of drug trafficking. No one entered or exited the residence. It was not likely any pattern could be determined in the short time the residence was under observation.

The investigation was superficial; police did not go so far as to check their target for previous drug convictions, or indeed, any criminal record. [ 53 ] In contrast, the warrant under review in Saunders (supra ) was based on information from three separate informants, one of whom had 10 years of proven reliability. Although the other two sources did not have the same history as the first, all three sources materially corroborated each other inter se .

The indicia of reliability of Source A were strong, and the degree of detail and the corroboration contained in the other sources made the information compelling, in the totality of the circumstances. [ 54 ] In this case, however, Source A’s tip, on its own, is not sufficiently compelling to ground a search warrant for the residence in question. I find that the ITO as a whole does not support a reasonably grounded belief that the items mentioned would be present in the residence to be searched.

Applying the correct test, the issuing justice could not have come to the conclusion that the information was compelling, the informer credible, or the information sufficiently corroborated to justify issuing the warrant. Further investigation was required before this warrant could be properly issued. There are no strengths in any one area to compensate for weaknesses in others. [ 55 ] The warrant being invalid, the search was conducted without warrant, and therefore not authorized by law. Thus the police acted in violation of

section 8 of the Charter . [ 56 ] If that decision is in error and the warrant is valid, the police still violated Ms. McKay’s

section 8 rights, because the manner of search was unreasonable, as shall be seen below. 4. Manner of Search [ 57 ] The Crown concedes that if the police wore balaclavas and pointed guns at children, the manner of the search was unreasonable, and the evidence should be excluded. [ 58 ]

Section 12 of the Controlled Drugs and Substances Act states: 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 necessary in the circumstances. [ 59 ] Similarly, section 25(1) of the Criminal Code states:

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

b) as a peace officer or public officer,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessaryfor that purpose. [60] Generally, the law requires the police to knock and announce their presence and by what authority they demand entry. Onlywhen entry is refused may the police resort to the use of force. [Eccles v Bourque, (SCC), [1975] 2 SCR 739 [Eccles vBourque].] In that case, Dickson J. (as he then was) said: 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. [61] In R v Genest, (SCC), [1989] 1 SCR 59, the Supreme Court of Canada acknowledged that the police may bejustified in using special procedures in executing the warrant, where there is a risk of loss or destruction of evidence so that rapid actionis required or where there is a real threat of violent behaviour.

However, the Court goes on to say that the consideration of the possibilityof violence must be carefully limited and should not amount to a carte blanche for the police to ignore completely all restrictions onpolice behaviour.

The greater the departure of the standards of behaviour required by the common law and the Charter, the heavier theonus on the police to show why they thought it necessary to use force in the execution of the warrant. [62] More recently, in Cornell (supra), the Supreme Court of Canada confirmed that the default rule is that, other than in exigentcircumstances, police are to announce their presence before forcing entry into a dwelling house.

The law requires the police to give (1)notice of presence by knocking or ringing a door bell; (2) notice of authority; and (3) notice of purpose, by stating a lawful reason forentry. The onus to show why departure from this rule was necessary rests on the police. The Crown must show that the police hadreasonable grounds to be concerned about harm to themselves or occupants or about the destruction of evidence.

In Cornell, the policehad a reasonable belief that the accused’s residence was being used in a cocaine trafficking enterprise run by members of a violentcriminal organization and that the accused was associated with at least one of these violent gang members. Police believed this gang hadbeen involved in a “violent war” with another gang at the relevant time. The police took reasonable steps in formulating the decision touse a dynamic entry on the residence. They took time and effort to determine who and what was in the residence prior to the search,including 10 hours of surveillance.

The suggestion that the decision to make a dynamic entry was simply an application of a blanketpolicy in drug investigations was not supported by the record. [63] In Ms. McKay’s case, however, Sergeant Chester acknowledged a blanket policy to execute a “no-knock” or dynamic entry inexecuting most CDSA warrants, and the other investigating officers suggested the same in their testimony. Corporal Gobeil testified thatthey have been trained in executing search warrants to enter the residence with firearms drawn.

In R v Lau, 2003 BCCA 337 and R vSchedel, 2003 BCCA 364, the British Columbia Court of Appeal found the manner of search unreasonable where the police relied on ablanket policy always to use a hard entry for the search of suspected marijuana grow operations, irrespective of specific concerns ofviolence or destruction of evidence in each investigation. These cases were distinguished but not overturned in Cornell. The CFSEU andISET do have a blanket policy to conduct a “no-knock” entry with guns drawn for CDSA search warrants, even when children are likelyto be present.

In the case at bar, the presence of children did not affect the decision to conduct a night search, complete with dynamicentry and the use of handguns. [64] In Cornell, the lone occupant of the residence at the time of search was a mentally challenged adult male, who was alsotraumatized by the manner of search. However, the trial judge in that case specifically found that considerable time and effort wereexpended by the investigators in order to determine who and what was in the residence before the search. Despite their best efforts, theyhad no way to know what awaited them on the other side of the door.

As the trial judge found, “The police did not just show up at apreviously uninvestigated residence and barge in.” In Ms. McKay’s case, however, the police did precisely that. [65] A small amount of cocaine is easy to flush, but the officers in this case had no idea of the quantity of cocaine they might find,whether grams or kilograms. There were no “exigent circumstances” in this case. Officers had no reason to believe weapons werepresent. They did no more than a perfunctory investigation of the residence itself. They had no grounds to believe there was any threatto officer safety.

Cornell does not stand for the proposition that the mere possibility of the destruction of evidence, alone, could justifysuch a violent entry, because that would be an endorsement of a blanket policy for violent entry any time cocaine is alleged to bepresent. As Mr. Justice Fish said in his dissent in Cornell, at paragraph 105: ...[T]he Crown contends that the tactical team’s sudden and violent entry was justified in order to prevent the destruction of evidence. Itis true that illicit drugs are easily concealed or discarded.

But as O’Brien J.A. noted in the court below, that alone is insufficient tojustify 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 of the kindthat occurred here, the occupants will have time – and will 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. [ 66 ] The majority does not state that the mere fact that cocaine is easily disposed of, alone, justifies such a violent intrusion. The facts in Cornell support the manner of entry because of the association with a violent gang and the real possibility of serious violence and destruction of evidence. [ 67 ] The present state of the law is that, when seeking a warrant under

section 11 of the CDSA , the police need not justify a night search. Neither do they need prior judicial authorization to violate the “knock and announce” rule in Eccles v Bourque or to perform a “dynamic entry,” meaning breaking down the door of a private citizen and barging into her home, with firearms drawn and ready for use. The courts have given the police much discretion in this area. With that power comes the responsibility not to wield it lightly. It can only be used when necessary .

Nothing in this case necessitated this kind of invasion into a family home. [ 68 ] Here, the manner of entry, and nothing else, created a volatile and dangerous situation. Moreover, a search warrant is not an arrest warrant, yet they arrested Ms. McKay and others before they found evidence of a crime. [ 69 ] The manner in which the police executed this search warrant fell far below the constitutional standard required when agents of the state enter a private dwelling. The manner of search was unreasonable and violated Tara McKay’s right to be secure against unreasonable search or seizure. 5. Grant Analysis [ 70 ]

Section 24 of the Canadian Charter of Rights and Freedoms states:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 71 ] The Supreme Court of Canada in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ], set out the framework for analyzing whether the admission of evidence would bring the administration of justice into disrepute.

Grant directs this court to consider the long- term effect on the integrity of and public confidence in the justice system. A section 24(2) analysis starts from the proposition that the breach has caused damage. Admitting evidence obtained as a result of the breach may further damage the repute of the justice system. The court must consider three branches: 1. The seriousness of the Charter -infringing state conduct. (Admission may send the message that the justice system condones serious state misconduct.) 2.

The impact of the breach on the Charter -protected interests of the accused. (Admission may send the message that individual rights count for little.) 3. Society’s interest in the adjudication of the case on its merits. [ 72 ] On the first branch of the analysis, this breach was serious. People have the right to feel safe and secure in their own homes. The execution of an almost blanket policy without considering whether circumstances justify it is unacceptable. Police acted hastily, without taking the time to investigate thoroughly the allegation contained in the confidential informant’s tip.

Police did little to ensure they did not abuse their powers under the CDSA . They did not turn their minds to the constitutional standards required of them. The breach concerned a private home, which has the highest level of protection under the law. Police did little to ensure the safety and security of themselves, the target of their investigation, or the public at large.

Admitting this evidence would send a message condoning this sort of state behaviour. [ 73 ] According to Grant , extenuating circumstances such as the need to prevent the disappearance of evidence may attenuate the seriousness of police conduct. In this case, however, the police have not shown that their actions were necessary to prevent the destruction of evidence. They have only cited the general observation that small quantities of cocaine are easily disposed of. In this

case, there was nothing specific to cause concern about the destruction of evidence. Here, the mere possibility that evidence may have been destroyed does not attenuate the seriousness of the breach. [ 74 ] Grant goes on to state that ignorance of Charter standards, or negligence, or wilful blindness is not the same as good faith. Deliberate police conduct in violation of established Charter standards cannot equate with good faith. The “knock and announce” rule is long established in Canadian jurisprudence, in the absence of exigent circumstances.

The mere fact that a warrant is issued under the CDSA does not result in an automatic exemption from this rule. It seems that in Prince Albert, when executing a CDSA warrant, police routinely violate the “knock and announce” rule as a matter of course. Admitting this evidence would send a message condoning the serious and routine departure from Charter norms. [ 75 ] The second branch of the Grant analysis is the impact of the breach on the Charter -protected interest of the accused. Here, the police actions traumatized not only the accused, but her young family.

The children are in therapy, collateral damage in this war on drugs. The repercussions of this police action may last generations. This violation was profoundly intrusive. The police policy to arrest everyone inside the house, in the absence of any grounds for arrest, sends a message to the whole family that their Charter rights count for little. The police have no power to arrest someone without a warrant unless they believe on reasonable grounds that person has committed an indictable offence. CFSEU and ISET practice, however, is to arrest first and ask questions later.

I find the impact on the Charter -protected interest of the accused to be substantial. This factor favours exclusion. [ 76 ] With respect to the third branch of the analysis, the truth-seeking function of the court would be better served by the admission of the evidence. Drug trafficking, especially Fentanyl, causes serious harm to our society; the public has a strong interest in seeing these offences prosecuted. The accused is still presumed innocent, and would be afforded the right to make full answer and defence.

This factor favours admission of the evidence. [ 77 ] The offences alleged are serious, but society also has an interest in ensuring that the justice system is above reproach. ( R v Cote , 2011 SCC 46 , [2011] 3 SCR 215). In the case of unreasonable searches, criminal courts never see the situation where a warrant is issued and executed and nothing is found, because those cases are not prosecuted. We must necessarily decide these issues in the face of real, cogent evidence of guilt. [ 78 ] Although the evidence is crucial to the Crown’s case, it was obtained through serious violations of

section 8 . Weighing and balancing all three Grant factors, it is established that admission of this evidence would bring the administration of justice into disrepute. The evidence obtained as a result of the search excluded. Dated this 19 th day of June, A.D. 2017, at the City of Prince Albert, in the Province of Saskatchewan. ______________________ F.M. Daunt, J