R. v. Forrestall, 2023 NSPC 8

Provincial Court of Nova Scotia Citation: R. v. Forrestall, 2023 NSPC 8 Date: 20230210 Docket : 8510939, 8510943, 8510947, 8510953, 8510957, 8510961 8510964, 8510965, 8510966, 8510967, 8510968, 8510969. 8510883, 8510886, 8510889 8510892, 8510895, 8510898, 8510916, 8510917,8510918 8510919, 8510920, 8510921, 8510922, 8510923 8510924 8510925, 8510926, 8510927, 8510928, 8510929 Registry: Halifax Between: Shaun Forrestall Applicant v. His Majesty the King Respondent Decision #2 –APPLICATION PURSUANT TO Ss. 8 & 24(2) of the CHARTER – CDSA Search Warrant re: Forrestall Judge: The Honourable Judge Elizabeth A.

Buckle Heard: November 14, 15, 2022 Decision: February 10, 2023 Charges: 9(1), 10(2), 12(1)(a), 12(1)(b), 12(4)(a), 12(4)(b), 12(6)(a), 13(1), of the Cannabis Act 5(1). 5(2), 7.1(1)(

b) of the Controlled Drugs and Substances Act 88(1), 86(2), 91(1), 95(1), 354(1)(c), 462.31(1), 465(1)(c), 467.11(1), 467.12(1) of the Criminal Code Counsel: Ian Hutchison for the Applicant Len MacKay, Colin Strapps for the Respondent By the Court: Introduction [ 1 ] Shaun Forrestall is charged with various drug, weapons and proceeds of crime offences and conspiracy to commit drug offences. [ 2 ] The investigation that resulted in these charges included more than 30 judicial authorizations, including tracking warrants, search warrants, production orders and a wiretap authorization with renewals. [ 3 ] This decision concerns only a search warrant issued pursuant to s. 11 of the Controlled Drugs and Substances Act authorizing a search of Mr.

Forrestall’s property, residence, outbuildings and vehicles between December 9 and 12 th , 2020 (JPC #20-2012). [ 4 ] He has applied under s. 24(2) of the Charter for exclusion of evidence, including a handgun, ammunition, approximately 3 kg of cocaine, and currency. He does not dispute that the search was lawfully authorized. Rather, he argues that the manner of the search was unreasonable and a violation of s. 8 of the Charter.

He argues that the search was unreasonable under two broad headings: manner of entry; and manner of search. [ 5 ] The manner of entry was a ‘hard entry’ or ‘dynamic entry’, meaning that officers departed from the normal ‘knock and announce’ requirement. Officers wearing helmets and masks and carrying firearms, including rifles, used a battering ram and an

explosive distraction device known as a ‘flash bang’ when entering one part of the dwelling, deployed CS gas into a garage and detainedeveryone, including the 16-year-old daughter of the Applicant. [6] The manner of search caused the home to be left in significant disarray. [7] The Crown conceded that Mr. Forrestall had standing to make the s. 8 argument and that the entry departed from the ‘knockand announce’ requirement, so accepted it had the onus to justify the departure. The broad issue is whether the search was conductedreasonably.

The specific issues are: 1) Did the circumstances known to the officers justify the departure from the ‘knock and announce’ requirement? 2) Was any destruction and/or disarray caused by the searchers unreasonable in the circumstances? 3) If the entry/search was conducted in a manner that violated s. 8 of the Charter, should the resulting evidence be excluded under s.24(2) of the Charter.

Procedural Background [8] Shaun Forrestall and others are charged upon two Informations with various drug, weapons, criminal organization andproceeds of crime offences and conspiracy to commit drug offences (Information alleging offences related to cocaine and other drugsagainst Gary Boudreau, Cameron Mombourquette and Shaun Forrestall and Information alleging offences related to cannabis againstGary Boudreau, Shaun Forrestall, Stephen Fleming, and Bradley Schofield). [9] The charges arise out of the same investigation and relate to the same time frame.

The two Informations will be triedseparately before different judges. [10] The Crown will ultimately seek to rely on intercepted private communications and the results of some of the other judicialauthorizations in both prosecutions. Counsel on behalf of all accused, except Mr. Mombourquette, gave notice that they would challengevarious warrants and the wiretap authorization(

s) and seek exclusion of evidence pursuant to ss. 8 and 24(2) of the Charter. This wouldnecessitate one or more Garofoli hearings in each trial.

Counsel agreed that the legal issues in the respective Garofoli hearings would besimilar and that it would be in the interests of justice to hold a joint hearing to determine whether the various judicial authorizations werevalid and, if not, to determine whether the evidence should be excluded. [11] I will be the trial judge at one of the trials and, with the agreement of counsel, was assigned under s. 551.7 of the CriminalCode to adjudicate these issues that were of joint concern in the two proceedings, including: the validity of the wiretap (which requiresconsideration of the validity of other authorizations that collected information included in the Affidavit in support of the wiretap(s)); and,the reasonableness of the manner of execution of the CDSA warrant on Mr.

Forrestall’s property. [12] The other accused did not take

part in this specific application and, under s. 650(2)(b), they and their counsel were permitted tobe out of court during the hearing. Law [13] The law is not in dispute. [14] A search will be reasonable if it is authorized by law, if the law is reasonable and the search is carried out in a reasonablemanner (R. v. Collins, (SCC), [1987], 1 S.C.R. 265, at para. 23). [15] It is only the last of these requirements that is at issue in this case. [16] Except in exigent circumstances, police who wish to enter a residence must make an announcement (R. v. Cornell, 2010 SCC31, para. 18).

Normally that will require them to give notice of their presence, their authority, and their purpose (Cornell, para. 18; and,Eccles v. Bourque, [1975] 1 S.C.R. 739, para. 9). [17] This is commonly referred to as the ‘knock and announce’ requirement. [18] The leading case addressing departures from this requirement is the Supreme Court of Canada decision in Cornell.

Cromwell,J., writing for the majority, identified the general principles that apply when assessing the reasonableness of a search where the policehave departed from the ‘knock and announce’ requirement (para. 20): - The onus is on the Crown to explain why it was necessary to do so; - The evidence must establish that the police “had reasonable grounds to be concerned about the possibility of harm to themselvesor occupants, or about the destruction of evidence”; - The evidence to justify the conduct must have been available to the police at the time they acted.

The Crown cannot rely on expost facto justifications: see R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at pp. 89-91; R. v. Gimson, (SCC), [1991] 3 S.C.R. 692, at p. 693; and, - The greater the departure from the ‘knock and announce’ requirement, the heavier the onus on the police to justify their approach. [19] The Crown concedes that the police here did not comply with the ‘knock and announce’ requirement so accepts it has the onusto justify that departure. [20] Applying the principles outlined in Cornell requires a case specific and contextual analysis grounded in what the officers knew

at the time, what they did and why they did it. Evidence Information Available to Police Prior to Executing the Search Warrant. [ 21 ] The investigation started at the beginning of 2020 and by ‘take down’ day on December 9, 2020, investigators had the results of numerous judicial authorizations including intercepted communications. They believed the main target, Gary Boudreau, was trafficking large quantities of drugs, including cocaine. They also believed that Mr. Forrestall’s residence was a cocaine stash for Mr. Boudreau. [ 22 ] Police planned to search 14 separate properties on the same day.

They were waiting for a target to complete a drug deal and planned to stop that person’s vehicle and then initiate the searches at the various properties. During planning, the investigation team conducted a risk assessment. They concluded there was elevated risk associated with the search at Mr. Forrestall’s property, so they consulted the Emergency Response Team (ERT) and briefed a representative of that team. The procedure was that ERT would then determine whether the risk was sufficient to require their involvement and, if so, to then conduct their own risk assessment and plan the approach.

Because of the number of search sites, police resources were brought in from other divisions. The ERT responsible for planning and for the initial entry at Mr. Forrestall’s property was from Ontario. [ 23 ] No witness was called who participated in the ERT risk assessment or ERT planning meeting. I understand that the ERT co- ordinator who was briefed by the investigative team and participated in the ERT risk assessment and planning passed away before the trial.

Therefore, to determine what information contributed to the ERT’s decision to use a ‘hard’ or ‘dynamic’ entry and the specific equipment and tactics used, I have testimony from Sgt. Johnathan Brown, the lead investigator, about what information he passed on to the ERT team and I have testimony from two individual members of the ERT who were briefed before the search (Cst. Justin Baxter and Cst. Allister Owens). Neither were part of the ERT risk assessment or planning. However, both spoke about how certain factors impact risk assessment and how certain equipment and tactics respond to that risk. [ 24 ] Sgt.

Brown passed on the following information that was relevant to the decision to use a dynamic entry and the specific tactics: - Police were investigating a group, headed up by Gary Boudreau, who were trafficking cocaine at the kilo level and there were reasonable grounds to believe that Mr. Forrestall’s residence was used as a stash house; - The 14 searches had to be co-ordinated to begin at the same time but only after the other suspect had completed a drug deal and been stopped by police; - There were reasonable grounds to believe that Mr.

Forestall was at a relatively high level of involvement and would have multiple kilos of cocaine on his property; - Mr. Forrestall lived at the residence with his wife, teen-age daughter and Brian MacPhee; - Police believed there was a firearm in the residence and suspected or thought it possible that Mr. Forrestall might have access to a firearm based on the following: o Mr. Forrestall was closely associated with Cameron Mombourquette who did have a firearm and had a compartment in his vehicle where he could hide the gun which he showed to Mr. Forrestall who expressed interested in it. o Mr.

MacPhee, who lived in the residence, had a valid firearm licence and a firearm registered to him. Mr. MacPhee was also a friend of Mr. Forrestall and was sufficiently known to Mr. Boudreau that when he couldn’t reach Mr. Forrestall, he called Mr. MacPhee to get him; and, o stash houses, particularly those with a large amount of drugs, have a high risk for presence of a weapon (testimony of Sgt. Brown from his experience, six years with the Federal Serious and Organized Crime

section and seven years in general duty and drug sections); - The residence was set back in the woods and had multiple outbuildings, making surveillance difficult; - Mr. Forrestall was paranoid or suspicious about the drugs and police believed his wife was aware there was cocaine on the property; - Given the number of subjects and search sites, there was a concern that evidence could be destroyed at other sites if subjects had time to tip them off; - Mr. Forrestall’s property included a residence and a separate garage.

It was believed that the drugs were stored in the garage; - The residence had two doors – one on the upper level and one on the lower. Police believed Mr. MacPhee resided in the lower level; and, - There was some concern about destruction of evidence at the specific search site. [ 25 ] There was also information which Sgt. Brown knew that would weaken the impact of these factors. It is not clear whether it was passed on to the ERT team. However, in my view it is reasonable to infer that he did or that they would have obtained it themselves since it would be highly relevant to the risk assessment: - Mr.

Forrestall had no criminal record, no evidence had been gathered to suggest he used violence and he was never seen in possession of a firearm;

- Mr. MacPhee had no criminal record; and, - There was no information to suggest the property had a steel or reinforced door. [ 26 ] Other information that weakens the impact of these factors was acknowledged by Sgt. Brown, Cst. Baxter and/or Cst Owens. For example: - it would be unlikely that multi-kilos of cocaine, which was what was expected at the residence, could be quickly disposed of; - police did not have concrete evidence or reasonable grounds to believe that Mr. Forrestall was in actual possession of a firearm. The evidence connecting him to Mr.

Mombourquette’s firearm came from communications intercepted in a vehicle where Mr. Mombourquette was speaking with someone believed to be Mr. Forrestall. Mr. Mombourquette said he had a gun and a compartment in his vehicle where he could hide it. The person believed to be Mr. Forrestall responded, “I wonder if that’s possible in mine” (testimony of Sgt. Brown; and, Ex. 1, p. 97); - Police believed the cocaine stash was in the garage, not the residence; and, - There is limited evidence of efforts taken by police to better inform themselves of what they would be facing. Sgt.

Brown testified that police had done some surveillance of the property by hiding in the woods and they had high altitude aerial photographs. He was not aware of what information had been obtained from that. He was also asked if he had considered having a uniform officer attend the premises to see if Mr. MacPhee’s firearm was properly stored so as to be inaccessible to Mr. Forrestall. He said that would not have been a good idea because of potential risk to the investigation and for officer safety reasons since the officer would be walking into a cocaine stash house where Mr.

Forrestall would have a lot to lose. [ 27 ] Additional information was unknown at the time and could only have been discovered after the search was executed so cannot be considered either to support or detract from the justification for the manner of search. For example: - the door between the upper and lower level of the residence did not have a lock so Mr. MacPhee’s part of the residence was accessible to Mr. Forrestall. However, Mr.

MacPhee’s firearms were stored under his bed in cases with trigger locks; - None of the exterior doors were barricaded or re-enforced; - An illegal handgun, ammunition, approximately 3 kg of cocaine, some marihuana and cash were seized from the property; - Mr. Forrestall’s daughter had issues with anxiety; and, - Ms. Mooring had various health issues that impacted her breathing. Evidence – Manner of Entry [ 28 ] The witnesses do not recall things in exactly the same way, but some things are either not disputed or are uncontradicted. [ 29 ] The initial entry was conducted by about 12 ERT members.

None of the police officers who testified said what time the ERT members arrived or started to execute the search warrant. Ms. Mooring and her daughter both testified that it was around 3:00 p.m. They arrived in black unmarked trucks or SUVs with red and blue lights. There was one armoured vehicle present. They were wearing green camouflage uniforms and tactical gear including, body armour, helmets, and balaclavas or masks. Their uniforms had ‘police’ across the chest and badges on the back and shoulder saying “RCMP police”.

They had firearms drawn (including pistols, rifles and a breaching shotgun). [ 30 ] The ERT members divided into three teams – one for the lower level of the residence, one for the upper level and one for the garage. [ 31 ] They used a battering ram to enter through the lower door. Once the door was breached, they threw in a distraction device – commonly referred to as a ‘flash bang’ – which makes a loud noise and emits a bright light. Mr. MacPhee was in the room near the door when it was breached. He jumped out of the way and was not injured. The door or frame was damaged but not destroyed. Mr.

MacPhee was detained, face down on the floor with his hands cuffed behind him. [ 32 ] ERT was prepared to use a battering ram to enter through the upper door, but Ms. Mooring opened it before that was necessary. She was hand-cuffed and she and her daughter were detained outside for some time. The temperature that day was about -4 degrees Celsius and neither Ms. Mooring nor her daughter were dressed to be outside. The teen-ager was not handcuffed. She and her mother were face down on the deck off the upper floor while immediately beneath them, the hard entry into the basement was taking place. [ 33 ] Mr.

Forrestall was in the garage when police arrived. A gas launcher was used to discharge a CS gas round/cannister into the garage through a window. Mr. Forestall experienced some effects of the gas and powder emitted by the canister but was not struck by the canister. He left the garage when told to by police. He was handcuffed and detained facedown for some period of time. [ 34 ] Once ERT had secured the residence, members of the investigative team arrived. Cst. Brent Nichols was assigned to arrest Mr. Forrestall and transport him to the police station.

He did not say what time he arrived at the residence, but said he had Mr. Forrestall in his police car at 3:45 p.m. Cpl. Ron Hines was in charge of the search at this site. He testified he arrived at 3:40 p.m. He did a walkthrough with the ERT leader and assigned members to be with each occupant. He testified that Mr. MacPhee was on the lower level, Ms. Mooring and her daughter were upstairs in the residence, and Mr. Forrestall was in the garage. He spoke to Ms. Mooring and passed on a message from Mr. Forrestall that he was ok. [ 35 ] Cpl.

Hines agreed that during the changeover, there were approximately 20 RCMP present on the property.

[ 36 ] Mr. Forrestall, Ms. Mooring, their daughter and Mr. MacPhee all testified about how they experienced the entry. [ 37 ] I have no difficulty accepting that this experience was terrifying for all of them. They each testified that they did not initially understand that the ERT members were police. The ERT vehicles had police lights but were otherwise unmarked. Their uniforms had ‘police’ across the chest and an RCMP badge on the back and shoulder.

However, things unfolded quickly, and their green camouflage uniforms were not typical police uniforms or even the type of tactical uniforms historically worn by ERT in Nova Scotia. As such, their testimony that they did not initially understand or process that the ERT members were police is credible. [ 38 ] Each described hearing what they thought were shots being fired, people yelling and dogs barking. None were provided with information about what was going on in other parts of the residence so, for a time, each feared that other occupants had been hurt or killed.

In the circumstances, their concerns were understandable. [ 39 ] All were detained by officers with helmets and/or masks and holding rifles. All were required to lie prone for at least some period of time and all but the teenage daughter was handcuffed. [ 40 ] In addition, their home was, at the very least, left in a state of disarray. [ 41 ] I will address some of the testimony about their treatment in more detail. [ 42 ] Mr. MacPhee’s evidence was not challenged in cross-examination except to clarify one aspect and was corroborated in many respects by Cst. Baxter. I have no reason to doubt Mr.

MacPhee’s credibility or the reliability of his recollections. He was frightened during the incident, but not so frightened that it impacted his ability to perceive or recall. He did not appear to exaggerate or embellish the actions of police or the impact on him and his home. He also gave credit when appropriate. For example, testifying that an officer agreed to watch out for his cats when he expressed concern that they might get out. [ 43 ] Mr. MacPhee wasn’t sure how many officers entered the lower level but believed there were five or six. It is not clear how accurate this estimate was.

Only two ERT members testified. Cst. Baxter acknowledged that there were 12 on scene but did not say how they were dispersed on the property. [ 44 ] Cst. Baxter testified that he tried the door, finding it to be locked, and then used the battering ram to breach the door and another officer threw in a distraction device. He testified that these devices are used for officer-safety purposes - to create a distraction and allow police a few seconds to get inside because entering is extremely dangerous. He testified that he has experienced ‘flash bangs’ many times.

They are a loud bang and very bright flash that draws attention toward it. He said it will briefly disorient and can cause burning to property but has no long term effects on sight or hearing. However, he also testified that members of the ERT team wear protective equipment, including balaclavas, in part to protect themselves from this type of device. [ 45 ] Mr. MacPhee testified that, twice, while he was prone on the floor and handcuffed, he turned his head and an officer put his foot on his head and said something like “don’t look” or “don’t turn your head”.

He thought it was the same officer but couldn’t be sure. He wasn’t sure if the officer did not want him to look in that direction or at him, specifically. He said the officer did not stomp on his head just put his foot there and pushed his head to the floor. Cst. Baxter was guarding Mr. MacPhee for a time, but then went upstairs to help there. He was not asked and did not say whether he did this or saw any other officer do this. Mr. MacPhee’s testimony about this is not contradicted and I accept that one or two separate ERT members did this to Mr. MacPhee. [ 46 ] Mr.

MacPhee testified that while he was detained on the floor, an officer had his rifle pointed down on an angle and toward him. In cross-examination, he acknowledged that the officer may have been simply holding it ‘at ready’ rather than specifically aimed at him. However, he repeated that it was pointed at him. Again, his testimony is not contradicted, and I accept that the rifle barrel was pointed in his direction, however, that may not have been intentional. [ 47 ] He testified that he was not sure how long he was in in cuffs on the floor but said it seemed like an hour.

He testified his handcuffs were removed when they stood him and told him they were going to release him. I accept that it probably felt like he was on the floor for an hour. I have no direct evidence from any police officer as to how long he was detained in general or, specifically, in that position. However, based on other testimony, I believe Mr. MacPhee was on the floor for less than an hour. I accept the uncontradicted testimony of Ms. Mooring and her daughter that ERT arrived around 3:00 p.m. and Cpl. Hines’ testimony that he arrived at 3:40 p.m. which was after ERT had secured the premise. Mr.

MacPhee was not still on his stomach when the search began. As such, I find that Mr. MacPhee was cuffed in the prone position for not more than 40 minutes. [ 48 ] There is no evidence that Mr. MacPhee was ever told what was going on, that he was under arrest, why he was detained or any mention of right to counsel. He testified that he couldn’t recall that happening. Cst. Baxter testified that Mr. MacPhee was detained for investigative purposes but he had no verbal or physical contact with him and did not hear anyone tell him the reasons for his detention or advise him of his right to counsel.

I have no evidence that any officer did provide this information to him. [ 49 ] Mr. Forrestall’s daughter’s testimony was not challenged in cross-examination, except to clarify a word she’d used. None of the officers who specifically dealt with her were called to testify. I have no reason to doubt her credibility. She was calm when she testified and did not appear to be exaggerating or embellishing her evidence. She acknowledged that she was terrified during the incident.

This may have impacted her recollection of some things, such as her estimate of time. [ 50 ] She had been sleeping in her bedroom when she was woken by her mother screaming. She looked out the window and saw her mother on the deck, surrounded by armed police. [ 51 ] She ran to the living room and a number of officers pointed their guns, which looked like military rifles, at her. At the time, she was 5’3”, weighed about 100 lbs. She was wearing sweatpants, a long sleave shirt and no shoes or socks. They asked her over and over, in an angry voice, to state her name.

She gave them her name and told them she was 16. [ 52 ] She was escorted out to the deck and told to lay down next to her mother who was already laying on the deck. She was not told

why or given any information. I accept her uncontradicted testimony that, while lying prone on the deck, when she moved her head to look at an officer, one of the officers told her to keep her head down in an angry voice. [ 53 ] She testified that it was freezing out and she was very cold. [ 54 ] While she was on the deck, she heard, from below, what sounded like a door being kicked in and could hear the door hitting the wall and saw a bright flash through the cracks in the deck. [ 55 ] She could not say how long they were on the deck but testified that it felt like a long time.

Then an officer helped her up and she helped her mother up and they were taken inside. Again, there is no direct evidence from police about how long she remained on the deck. Ms. Mooring testified that she thought she was on the deck for 30 – 45 minutes in total but that she had been there for 15 - 20 minutes before her daughter was brought out. [ 56 ] She testified that, once they were inside, she asked an officer to get her mother’s puffer, told him where it was and he got it. [ 57 ] She was searched in a private room by a female police officer.

After that, she was returned to the living room and sat with her mother until another officer came and gave her mother the search warrant. She thought that the whole process – from when she was woken until her mother got the search warrant – took about an hour or an hour and a half. I believe this estimate is incorrect. On the same basis as stated previously, I find that the ERT team arrived at 3:00 p.m. and the property was handed over for searching at 3:40 p.m. and Ms. Mooring and her daughter were removed prior to the house being searched.

As such, the whole thing took not more than 40 minutes and she was inside when an ERT member got her mother’s puffer, when she and her mother were searched and then returned to the couch and shown the warrant. I estimate that she was probably detained outside for about 15 – 20 minutes. [ 58 ] She testified that the family was permitted to return to the house after a few days, but she did not return for a month. She was scared and even now feels terrified to be there. [ 59 ] Ms. Mooring testified. No police who specifically dealt with her testified. She was demonstrative and emotional during her testimony.

In my view, she was prone to embellishment and exaggeration which may be simply her personality and/or the effects of experiencing this traumatic event. This would impact the reliability of some of her testimony in terms of how she perceived and recalled events and how she described things to the Court. [ 60 ] Further, the Crown argues that aspects of her testimony were not credible. Specifically, she testified that she had no idea why police were there. The Crown argues that it is apparent from text messages between her and Mr.

Forrestall, that she knew there was something valuable and illegal in the garage (Ex. 1). In that communication, Mr. Forrestall is upset with her. He believes she has gone out to the garage, cut ties from containers or bins, and taken some of what is there. It is clearly valuable to him. He describes being “short” “10.4” and both refer to weight. He further asks her why if she was looking for “table scraps”, she didn’t just take some from the table rather than cut a tie and open a container.

There is no specific reference to drugs in the communication, but the language is highly suggestive that they are talking about drugs. Further, valuable drugs were found. I certainly can’t use that to conduct an ex post facto analysis of grounds or to justify the manner of the search, but it is relevant to understanding what they are talking about in this communication and to assess her credibility. As such, I agree with the Crown that she was not entirely candid when she said she had no idea why police would be at her residence.

Given what was in the garage and her apparent knowledge, she would have at least been suspicious that the police attendance might have something to do with that. [ 61 ] She testified that she has health problems including, severe depression and anxiety, asthma, emphysema and COPD. [ 62 ] She testified that when she heard a noise, she looked out the window, she saw armed men wearing military uniforms coming from everywhere. She estimated that at one point there were 50 officers on the property. When she opened the door, ERT members grabbed her hands, threw her down to the deck and cuffed her behind her back.

She said she struck her cheek/jaw when she landed on the deck. They did not tell her who they were or why they were there. [ 63 ] She testified that the officers were pointing rifles at her. She was petrified and didn’t know what was going on. She kept screaming at them to tell her what was going on, but no one answered. They were screaming at her, asking where Shaun was. She told them “he’s here”. She couldn’t breath and kept telling them she couldn’t breath. [ 64 ] They asked who was in the house and she told them her daughter was in there.

Then four or five officers went in with their guns and she thought they were going in for her daughter. [ 65 ] She heard a bang from the downstairs door and what she thought were gunshots, so thought they’d killed Mr. MacPhee. [ 66 ] They brought her daughter out at gun point and laid her down beside her. There were multiple officers with multiple guns. [ 67 ] She testified that she believed she had been on the deck for 15 – 20 minutes at that point and for 30 – 45 minutes in total, at the very least. While I accept that it may have felt like that to Ms.

Mooring, given the description of events provided by her daughter, it does not make sense that she was on the deck for 15 – 20 minutes before her daughter was brought out. Given the entire sequence, I also don’t accept that she was detained on the deck for 30 – 45 minutes.

I believe she was probably there for a few minutes before her daughter was brought out, making the total period she was on the deck as not more than 20 – 25 minutes. [ 68 ] I accept that no one ever told her why she was detained, that she was not arrested and not advised of any right to contact a lawyer. [ 69 ] She testified that the cold and laying on her stomach exacerbated her breathing difficulties. She told them about her breathing problems and she and her daughter asked for her puffer, and they eventually got it. [ 70 ] She heard what she thought were gun shots and thought her husband might be dead.

[ 71 ] Eventually she was taken inside, placed on the couch and her cuffs were removed. She estimated she was handcuffed for about 45 minutes. It was not clear whether the cuffs were removed immediately when she was taken inside or later.

In any event, she was cuffed for between approximately 15 minutes and 40 minutes. [ 72 ] After police searched her she asked for orange juice and police got her some and allowed her to make a telephone call. [ 73 ] She testified that she was not given a copy of the search warrant while in the house. [ 74 ] Some of her testimony was corroborated by her daughter who heard her mother screaming and upset, saw her outside and face down on the deck wearing only a tank top and pajama bottoms with armed officers around her, that she had breathing difficulties and made repeated requests for her puffer before an officer got it for her. [ 75 ] However, some of her evidence is contradicted by other reliable evidence.

Specifically, her testimony that she did not see the warrant was contradicted by her daughter and I accept the testimony of her daughter. Further, her estimate that there were 50 officers is an exaggeration. I find that there were 12 ERT officers and a total of 20 officers present when both ERT and the investigators were there. I don’t believe she was purposefully lying about these things. Mistakes and some exaggerations are understandable in the circumstances. [ 76 ] Mr. Forrestall testified that he was in the garage when police arrived. He heard a noise and looked out of the window.

He saw a man leaning on the hood of a vehicle with what he perceived as a gun pointed at him, he turned his head and the man shot through the window. The window of the garage had been open, but the projectile made a hole in the screen. It did not hit him but exploded close to him. It was disorienting. Police started screaming for him to open the door. He opened the door and they fired more projectiles past him. He did not know what the projectiles were but when he cleaned up later, the substance burned, so he came to believe they were “pepper balls”. [ 77 ] Mr.

Forrestall took photos of areas of the garage after the search (Ex. 3). They show where the projectile made a hole in the screen and plastic covering of the window. He testified that one photo also shows residue and dents caused by the ‘pepper rounds’ that were fired into the garage (Ex. 3, p. 4)). [ 78 ] Police told him to step outside and he complied. An officer took him to the ground. He testified he was cuffed on the ground for 30 – 45 minutes. A police dog was nearby barking aggressively. They were still firing into the garage, so he warned them that there were fuel tanks in the garage.

He gave them his name. They allowed him to sit up and got a stool for him because he couldn’t squat against the wall. He testified that he was held at gunpoint from the time he left the garage until he was taken to the police car. While he was seated, an officer had a gun pointed right at his face and the officer guarding him told him to “shut the fuck up” and not to look at them. [ 79 ] Cst. Owens’ testimony corroborates that a CS gas round/cannister was fired into the garage through the window while Mr. Forrestal was inside. However, Cst.

Owens testified that nothing else was fired into the garage, no police dog was used at the garage and Mr. Forrestall was only laying prone for about a minute. [ 80 ] Cst. Owens was part of the garage team. His role was to deliver a CS gas round through the window and then move to the door which would be breached. He had a CS gas launcher. He testified that the round is delivered with some velocity, so it is important not to hit anyone. He testified that his field of vision was restricted by his gas mask and because the window was covered by dark plastic and a screen.

However, the window was open, so the plastic waved a bit in the wind. He said he was able to look carefully. He had a few seconds to determine that no one was there, he did not see anyone inside so that’s when he delivered the round. He testified that the goal is to deliver the gas from low to high, so it impacts the ceiling and disperses a powder. He was asked whether it was possible that the plastic moved because someone lifted it, rather than being moved by the wind. He testified that he thought he would have seen the person’s torso. He believed no one was there and said he’d be surprised if Mr.

Forrestall was within a few feet of the window. [ 81 ] He was aware that a teen lived at the property but was advised during the briefing that the garage was the suspected stash house and that only Mr. Forrestall accessed it, so was confident that the teen would not be in the garage. He acknowledged that he did not know for certain whether anyone was in the garage when he deployed the gas. [ 82 ] After he fired, he heard a man yell “Hey”. He went back to the side of the garage where the door was and heard another officer, Cpl. Shari (Sp.?), speaking with Mr. Forrestall through the door. Mr.

Forrestall opened the door and left the garage. [ 83 ] He observed Cpl. Shari (Sp?) giving instructions to Mr. Forrestall to lie prone on the cement pad. Once Mr. Forrestall was prone, Cst. Owens advised him that he was under arrest and handcuffed him. Mr. Forrestall told him he had a sore shoulder and he was a large man, so Cst. Owens used two sets of cuffs. He recalled that Mr. Forrestall was prone for about a minute and was then brought to a seated position. In cross-examination, he testified that he probably left Mr. Forrestall alone with Cpl. Shari for a few seconds while he removed his gas mask.

He also acknowledged it was possible that Mr. Forrestall was prone for more than a minute. [ 84 ] Cst. Owens was not asked and did not say whether he or any other ERT member in his presence told Mr. Forrestall not to look at them. [ 85 ] The photos taken of the garage show the hole in the screen and black plastic. This confirms that Cst. Owen fired through the plastic, but I accept his evidence that he had a look into the garage before he fired and believed there was no one in the immediate path of the cannister. To support his testimony that something else was fired into the garage, Mr.

Forrestall points to Ex. 3, photo 4, which he says shows pepper residue and dents from what he believed were pepper balls. The photos do not show clear dents and any residue they show are equally consistent with Cst. Owen’s testimony. He said that the CS gas produces a residue. Further, while the canister was found and is shown in photo 1, there is no evidence that any pieces of other ‘delivery’ devices were found that would indicate something else was fired. [ 86 ] As such I accept Cst. Owen’s testimony that nothing other than the CS gas canister was fired into the garage.

[ 87 ] The testimony of Ms. Mooring and her daughter are of some help in determining how long Mr. Forrestall was detained. Ms. Mooring testified that she heard the bang from downstairs and another bang after she was detained on the deck. This suggests that the gas round was fired into the garage after Ms. Mooring was detained. Allowing for some time for it to be fired and for Mr. Forrestall to exit, it seems unlikely that he was prone and in handcuffs before 3:10 p.m. He testified that he was brought to a seated position for a while before the uniform police officer arrived to transport him. Cst.

Brent Nichols transported Mr. Forrestall to the police station and had a note that he had Mr. Forrestall in the car for transport at 3:45 p.m. Given that, I believe Mr. Forrestall was detained for about 35 minutes in total and much of that was probably while he was seated on a stool. I say that because if he was only seated momentarily, it would not have been necessary to get him a stool. [ 88 ] Cst. Nichols transported Mr. Forrestall directly to the Halifax Police Station. There was some delay processing because prisoners had to be processed one at a time, so they waited in the vehicle.

While in the vehicle, he allowed Mr. Forrestall to speak with duty counsel. [ 89 ] He did not observe any injuries and Mr. Forrestall did not complain of any injury or discomfort. He testified that, like most people who experience an ERT takedown, he appeared stunned, upset, and confused but was very good to deal with. [ 90 ] He recalled that when he was giving Mr. Forrestall information about Covid protocols, Mr.

Forrestall mentioned that his wife was immune compromised and said something about her breathing but could not recall if he communicated that to others. [ 91 ] I am not persuaded that anything other than the CS gas cannister was fired into the garage. Further, while I accept that Mr. Forrestall may have been detained face down on the cement for more than a minute, I do not accept that it was for 30 – 40 minutes and find that the estimate provided by Cst. Owens is closer to accurate. Further, I accept that Mr.

Forrestall heard police service dogs and may have seen them, I do not accept that any were close enough to him to be at risk of injuring him. Manner of Searching [ 92 ] As I said, Cpl. Hines testified that he took over the scene at about 3:40 p.m. and I infer that the searching commenced shortly after that time. The Search Warrant in this case was specifically authorized from December 9 th at 6:00 a.m. and December 12 th at 9:00 p.m. [ 93 ] Cpl.

Hines testified that the searchers left the residence around 8 p.m. on the 9 th and returned the next day to complete the search and for a team to come to dismantle the “production lab” that had been found in the garage. The residence was released on December 12 th , after the search was completed, equipment dismantled and removed, including having the propane tanks, cylinders and liquids removed by a special company. [ 94 ] None of the actual searchers testified. [ 95 ] Cpl.

Hines testified that he assigned people to search various areas of the residence but did not give searchers specific instructions on how to search or to put things back to how they were found. He was in and out of the residence during the search. [ 96 ] Both he and Cst. Evan Wile, the exhibit officer, testified about what would be normal search practice. [ 97 ] Cpl Hines said searchers would have to be thorough and would have to feel confident that nothing had been overlooked.

That would require looking in toilet tanks, checking for false walls, searching crevices in furniture, removing seat cushions, cupboards, drawers etc. He testified that searchers would try not to damage anything and where there is damage, it is noted. [ 98 ] Cst.

Wile testified that, typically, searchers would start in one area and clear an area like a table and then place other items on it to examine. [ 99 ] He took photos of the residence during the search, some of which were put into evidence (Ex. 4 – pre-search photos; and Ex. 2 – post-search photos). [ 100 ] The residence consisted of: the main floor with combined living/dining room, hallway, son’s former bedroom, daughter’s bedroom, parents’ bedroom and bathroom; and, the lower floor with a combined bedroom/living room area and a separate storage/laundry room area.

The pre-search photos were taken after ERT secured the scene but before the searchers began looking for evidence. Those put into evidence do not include the kitchen, the son’s former bedroom, the dining room, part of the living/dining room or the storage/laundry area in the basement. [ 101 ] Cpl. Hines, Cst. Wile, Mr. Forrestall, Ms. Mooring, their daughter and Mr. MacPhee all testified about the state of the residence before and after it was searched.

Based on their testimony and what I observed in the pre-search and post-search photos, I would say that, in general, before the search, the home was typical of a family home - the living/dining room, kitchen, hallway, bathroom and living area of the basement were relatively neat and organized. The bedrooms and the storage area of the basement were more cluttered and disorganized. [ 102 ] Cst. Wile acknowledged that the laundry/storage area of the basement looked different after the search.

He said that all the items that were shown in the middle of the room in the post-search photos had previously been in the back of the room near the washer and dryer in a disorganized pile. Mr. MacPhee testified that the storage area had not been particularly organized. However, things were moved around and messed up. The post-search pictures corroborate that the area is cluttered and disorganized and based on the evidence of Cst. Wile and Mr. MacPhee, I find that it wasn’t as bad before. [ 103 ] The pre and post photos of the living area in the basement are generally consistent with the testimony of Mr.

MacPhee and Cst. Wile (Ex. 4, 1 – 2 & Ex. 2, 2 – 6). The pre-search photos show that the floor is relatively clear. There is furniture, a climbing toy for cats, a cardboard box (also for the cats) and a laundry basket. The furniture, including a bed, couch and recliner, are also clear except for

bedding, a blanket on the couch and a pillow and coat on the chair. The post-search pictures show that a lot of the floor is covered with boxes and other items that have apparently been moved from elsewhere and the bed, couch and chair are piled with stuff. [ 104 ] Mr. Forrestall’s daughter did not return to the property until some time after the search and I presume things were tidied up by then. However, she was also shown the photographs taken after the search (Ex. 2). She testified that her bedroom, the hallway, living room and kitchen were all messed up and not like that before.

She said her parents’ bedroom had not previously been that messy but did look like that. [ 105 ] Cst. Wile testified that the room identified by Ms. Mooring as her son’s former bedroom appeared to be used for some storage and it seemed that work was being done in there. It did not look very different after the search. He testified that the kitchen also did not look significantly different. He said that some boxes were on top of the stove before the search but that documents piled on top of the boxes had not been there previously.

He testified that in the dining area, the main differences were that some black containers on the table had not been there before the search and a lamp that is overturned was previously on a small table. [ 106 ] Ms. Mooring viewed the post search pictures. She testified that the house was “destroyed” and did not normally look like that. She said that after the search, pictures were off the walls and some were broken. She said it was worse than depicted in photos.

She said that the stuff on the stove and floor of the kitchen was not there before, that the contents of the linen closet and daughter’s room were left on the floor in the hallway, stuff in her son’s old room had been in bins but was out and a mess, the back of toilet left off and a bag of garbage was left in the middle of the floor. She testified that drawers in her bedroom were emptied out leaving intimate clothing and items exposed. [ 107 ] The pre and post search photos of the main level show the following (Ex. 4, 4 – 7 and Ex. 2, 7 – 14): - In the pre-search photo, the living room/dining area is very tidy.

The main differences in the post-search photos are that a picture is off the wall and on the couch, the cushions from the couch are piled on the couch, a lamp is on its side and a throw pillow and some small items are on the floor. Two small stains can be seen on the hardwood floor in the dining area. There is no pre-search photo that shows that area and no witness described what it is; - There is no before photo of the kitchen, but the ‘after’ photo shows items on the floor and a box with documents piled on top, on the stove; - In the pre-search photo of the hallway, the floor is bare, except for a rug.

The post-search photos show what appears to be bedding and other linens strewn all over the floor and a picture leaning against the wall; - There is no pre-search photo of the son’s former bedroom and the post-search photo shows bins and items on the floor; - There is no pre-search photo of the bathroom. The post-search photo shows the back of the toilet tank on top of the vanity and a full plastic garbage bag in the middle of the floor; - There is no pre-search photo of the daughter’s bedroom. The post-search photo shows a blanket on the floor; and, - The pre-search photo of the bedroom identified as Mr.

Forrestall’s and Ms. Mooring shows an unmade bed, an open drawer and some items piled on the floor under a window. The post-search photo shows a large number of items, including clothing, plastic bags, some small boxes and a drawer piled on top of the bed and items strewn around the floor. [ 108 ] The most concerning aspect of Ms. Mooring’s testimony is her evidence that police walked in dog feces and walked all over her bed and pillows.

She said there were boot prints of dog feces on pillows and bedclothes. [ 109 ] She was not cross-examined on this testimony, however, the Crown submits that I should reject it as incredible. There is an aspect of unfairness to that. If counsel intend to argue that a witness is lying or that their testimony is not credible, the witness should be given an opportunity to explain themselves. [ 110 ] The Crown also did not seek to disprove this, despite it being alleged in the Applicant’s Brief which was filed about two months before the hearing, by calling any of the police officers who took

part in the search. I appreciate that 20 police officers were possibly in the residence that day. However, to respond to her specific allegation, only the ERT members and searchers who entered her bedroom would have been required. [ 111 ] Mr. Forrestall and Ms. Mooring had a dog and Cst. Nichols testified that when he arrived to take Mr. Forrestall into custody, he saw a lot of dog feces around the yard so was told to watch where he stepped. It is certainly plausible that a police officer stepped in dog feces and then walked into the residence. [ 112 ] However, no photographs or other witness supports Ms.

Mooring’s testimony that there was feces on bedding or pillows or anywhere else in the residence. Mr. Forrestall did take photographs of the evidence he saw in the garage, but no photographs were presented of what Ms. Mooring saw. Neither Mr. Forrestall, their daughter nor Mr. MacPhee testified that they saw feces in the house. I appreciate that their daughter did not return for a month and Mr. Forrestall was taken into custody, so it is quite possible that things were cleaned up before they got home. However, my understanding is that Mr. MacPhee returned to the home when he was permitted to.

Given her level of upset while testifying, it seems unlikely that Ms. Mooring would have observed feces on her bed and not shown Mr. MacPhee. [ 113 ] What she described is also not visible in any of the photos of the bed that I do have and there are no footprints in the post-search photos of the floor in the bedroom, the hallway leading to the bedroom or the hardwood floors in the living/dining area. The floors are a light-coloured hardwood and the rug in the hallway leading to the bedroom is also light coloured.

In the circumstances, it seems unlikely that a police officer could have walked from the door to the bedroom with dog feces on his boot without leaving footprints in those areas.

[ 114 ] The photographs do show bedding on the floor in the hallway and possibly in Ms. Mooring’s bedroom. It is entirely possible that an officer stepped in feces outside and then walked on the bedding that was on the floor. As I said, Ms. Mooring was emotional and prone to exaggeration, however, she was not cross-examined on this aspect of her testimony and her evidence that she saw feces on bedding was not contradicted. As such, I accept that she saw feces on some of the bedding, perhaps bedding that was in the hallway or on the floor of her bedding.

I am not persuaded that that an officer intentionally walked on her bed or wiped his boots on her bed. Analysis Issue 1 – Do the Circumstances Justify the Departure from the ‘knock and announce’ requirement? [ 115 ] To apply the general principles in Cornell to these facts, it is helpful to look at the circumstances in the cases, including the facts in Cornell . [ 116 ] In Cornell , Justice Fish, in dissent, described the police action as follows (para. 46): Loaded weapons in hand, nine masked members of a police tactical unit smashed their way into the appellant's home in a residential Calgary neighbourhood.

They forced the appellant's brother, who has a mental disability, face-down to the floor and cuffed his hands behind his back. They dented the front door with their battering ram and broke the door frame, destroyed some of the interior doors, pried locks off a garage door and rendered the garage door itself inoperable. [ 117 ] The majority concluded that the ‘hard entry’ was justified, and therefore not an unreasonable manner of executing a search warrant.

Specifically finding that the police had well-grounded concerns that the use of less intrusive methods would pose safety risks to the officers and occupants of the house and risk the destruction of evidence.

In reaching that conclusion, the majority said that police are entitled to make reasonable inferences about risks to them and to the destruction of evidence. [ 118 ] The trial judge’s findings, which the majority said were not tainted by error, included that i t was reasonable for the police to be concerned about their safety and the safety of other occupants given their experience that those who traffic in cocaine frequently are violent, the fact that a cocaine trafficker who associated with violent people was welcome in the residence, and the ITO disclosed that in a dial-a-dope operation, the dealer usually has a place from which to operate which could contain drugs, money, weapons and score sheets.

The Cornell residence was suspected to be that kind of place. [ 119 ] Counsel for the Applicant submits that the belief that Mr. Forrestall was involved in cocaine trafficking and had an associate and a tenant who possessed firearms does not justify a concern that Mr. Forrestall might have access to a weapon since there was no evidence from surveillance or otherwise that he did. [ 120 ] In Cornell , the Court cautioned against considering risk from a specific individual in isolation from other known facts (para. 5).

In that case, the police had no direct information that the appellant had a weapon, neither the appellant nor any member of his family had a history of violence or a criminal record and no one else lived in the home .

However, the majority noted that they did have information that the address was being used in a drug dealing enterprise carried on by members of a violent criminal gang and that the appellant was associated with at least one of these gang members who had attended his residence (para 5). [ 121 ] In Cornell , the majority found, at para. 20, that “possibility of violence" was sufficient to justify a departure from the ‘knock and announce’ requirement: I would underline the words Chief Justice Dickson used in Genest : what must be present is evidence to support the conclusion that "there were grounds to be concerned about the possibility of violence": p. 90.

I respectfully agree with Slatter J.A. when he said in the present case that "[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present": para. 24 - "[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present" [ 122 ] The evidence supporting a concern about violence in Cornell is not dissimilar to what is before me. Despite the absence of evidence that Mr.

Forrestall was violent or specific evidence that he possessed a firearm, I am satisfied that police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants. I say that because of Mr. Forrestall’s association with Mr. Mombourquette who was known to have a firearm, the fact that an occupant in the residence had a firearm registered to him, the reasonable belief that Mr. Forrestall had a large quantity of cocaine on his property, and Sgt.

Brown’s experience that stash houses, particularly those with a large amount of drugs, have a high risk for presence of a weapon. [ 123 ] I am also satisfied that police had reasonable grounds to be concerned about the destruction of evidence, especially at other search sites. This is supported by the evidence of Sgt. Brown and Cst. Baxter and by common sense. If police had complied with the ‘knock and announce’ requirement, the occupants would have had time to contact people at other sites. [ 124 ] In this case the extent of the departure from the ‘knock and announce’ requirement was greater than in Cornell .

Specifically, the use of a distraction device and CS gas. Those two measures, the treatment of Mr. Forrestall’s 16-year-old daughter, the evidence that an ERT member put his foot on Mr. MacPhee’s head and evidence that ERT directed people not to look at them deserve a closer review.

As I noted above, in Cornell , Justice Cromwell said, “The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach” (para. 20). [ 125 ] In reviewing these measures, I have to keep in mind Justice Cromwell’s comments about my role: - the reviewing court’s role in assessing the specific manner in which a search has been conducted is “to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback” (para. 24); - “police must be allowed a certain amount of latitude in the manner in which they decide to enter premises.

They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah , 2003 SCC

38 , [2003] 2 S.C.R. 3 , at para. 73 ; Crampton , at para. 45” (para. 24); and, - “… the question for the reviewing judge is not whether every detail of the search, viewed in isolation, was appropriate. The question for the judge, and the question the judge in this case answered, is whether the search overall, in light of the facts reasonably known to the police, was reasonable.

Having determined that a hard entry was justified, I do not think that the court should attempt to micromanage the police's choice of equipment (para. 31). [ 126 ] First, I’ll review other decisions that have considered hard entries where police have used either or both of distraction devices and CS gas. [ 127 ] In R. v. Rutledge, 2017 ONCA 635 , police used tear gas to flush out occupants of a rural dwelling. The Court of Appeal upheld the trial judge’s conclusions that the use of gas in the circumstances was justified and the manner of execution of the search warrant was not unreasonable.

In that case, unlike in the case before me, the police were specifically searching for illegal weapons so knew that they could be faced with an array of weapons and that multiple persons might be encountered inside the residence. [ 128 ] In R. v. Bahlawan , 2020 ONSC 952 , the tactical unit, wearing masks and carrying long-guns, used a battering ram to break down the front door, used a flash/bang device to distract and disorient its occupants, and handcuffed and detained all occupants in the prone position except the mother of the accused.

The police officers did not identify themselves until after they were inside. Justice Gomery found the entry was unjustified, and therefore unreasonable, because there was no evidence that the police engaged in any decision-making process or ever gave any consideration to an alternative to the dynamic entry. He did say that had the police considered an approach other than a dynamic entry, they might well have been justified in deciding, after considering the information at hand, that the risks of announcing their presence before entry were just too high.

However, in the absence of evidence of such consideration, he could not “uphold a decision-making process that simply did not occur” (para. 43). [ 129 ] In R. v. Thompson, 2010 ONSC 2862 , a decision that pre-dated Cornell , police executed a search warrant at night using a dynamic entry. Armed officers used a battering ram to break open the door and deployed a distraction device. Once inside, they detained the occupants at gunpoint, handcuffed them and had them lie prone until they were removed from the residence. [ 130 ] Justice Code found that the dynamic entry was justified, so not unreasonable.

However, he did conclude that the destruction and disarray caused by the search was unreasonable and I will address that portion of his judgment later. [ 131 ] Justice Code commented specifically on the use of the distraction device. He said that “ use of a "distraction device", when executing a search warrant, is an extraordinary new development”, that “should only be used in exceptional cases, by trained personnel, and where strong justification exists” (para. 62).

However, he found that the circumstances relied on by the police, which included information concerning a prior manslaughter conviction, the presence of a pit bill, drug trafficking activity in the house and the nature of the neighbourhood, were sufficient to justify the manner of entry. [ 132 ] The situation before me is not like that in Bahlawan . I don’t have testimony from the primary decision-maker, but I do have evidence that there was a decision-making process. First by the investigative team in deciding to refer it to ERT and then by ERT in deciding whether to get involved. Sgt. Brown, Cst.

Baxter and Cst. Owens all testified about how the factors impacted the decision to use a dynamic entry and the specific measures that were used. Cst. Baxter and Cst. Owens also explained why specific equipment and actions were necessary. [ 133 ] Sgt. Brown and the ERT members knew there would be a child in the residence. There is no evidence that any of them suspected she was involved in the illegal activity at the residence.

She was detained by armed officers outside the residence in the cold for about 15 to 20 minutes. [ 134 ] I accept that she had to be detained, for her own safety, for the safety of the officers and to ensure she did not interfere with evidence. I also accept that if the circumstances of the entry justified the carrying of rifles, it was not unreasonable that officers had them when dealing with her.

I note that in Cornell , the Court was not critical of the fact that a mentally challenged man was detained by armed officers. [ 135 ] However, it is not clear to me why she and her mother had to be removed from the residence when Mr. MacPhee was not. Further, Sgt. Brown testified that the police knew before they went in that she would be detained during the initial search. However, there is no evidence that they gave any specific consideration to what would be done with her during that period. [ 136 ] Sgt.

Brown believed that ERT would take into consideration the fact that a child was present in developing their plan and I have evidence from Cst. Baxter that they did insofar as they decided not to use CS gas or distraction devices in that part of the residence. Sgt. Brown also testified that the investigation would have a representative on site to take over after ERT had completed the initial entry and that person would determine how to deal with the people, including the child.

He testified that no consideration was given to involving children’ services because he didn’t believe she would be detained beyond the initial search. [ 137 ] However, even assuming there was a valid reason for removing her and her mother from the residence, perhaps to protect her safety during the initial sweep of the residence by ERT, there does not appear to have been any plan for what to do with her during that period.

It could not have been a surprise that it would be cold outside given that it was December or that she and her mother would not be wearing proper outdoor clothing when the warrant was executed. One option would have been to simply have a police officer designated to take her to a warm vehicle until she could have been returned to the residence. [ 138 ] Also of concern is the fact that Mr. Forrestall and Mr. MacPhee both report that they were told by ERT officers not to look at them, Mr. Forrestall’s daughter was told to keep her head down and in Mr. MacPhee’s case, the officer twice put his foot on Mr.

MacPhee’s head to prevent him from looking in the officer’s direction. That evidence from the three of them is uncontroverted. The fact that the three were guarded by different ERT members suggests that this is a practice. I have no evidence of any legitimate reason that a detained person should not look up or look at the officer who is guarding him/her and there is no explanation for the use of force against Mr. MacPhee. It is hard to articulate, but there is something distasteful, disconcerting and authoritarian about a masked and armed

officer telling a citizen not to look at them. There may be a valid reason for this but none was provided during this hearing. [ 139 ] In conclusion, I am satisfied that it was reasonable for police to believe it was possible that Mr.

Forrestall had access to a firearm and that, given their reasonable belief that he possessed a large amount of cocaine, he might be motivated to use it. [ 140 ] I am also satisfied that there was a risk of destruction of evidence, mainly at other search sites, if the occupants of this site were given time to make calls or send messages. [ 141 ] Based on all the evidence, and reasonable inferences from it, I am satisfied that the circumstances known to police justified a departure from the ‘knock and announce’ requirement for officer safety reasons and to ensure that evidence was not destroyed. [ 142 ] I accept that most of the conduct, including the armed entry using the battering ram, distraction device, CS gas, tactical gear, and detention of the occupants, was justified because police had reasonable concerns that the use of less intrusive methods would pose a safety risk to the officers and risk the destruction of evidence. [ 143 ] I reach that conclusion with some hesitancy.

Like Justice Code in Thompson , I believe that this kind of entry should be the exception not the norm. However, as Justice Cromwell said in Cornell , police must be given some latitude to determine what specific measures are necessary to keep them safe and my role is “to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback”. [ 144 ] However, even with the instructions from the Supreme Court that I should not ask “whether every detail of the search, viewed in isolation, was appropriate”, I cannot say that detaining Ms.

Mooring and her daughter outside in the cold, telling Mr. Forrestall and Mr. MacPhee not to look toward an officer, telling Mr. Forrestall’s daughter not to lift her head and putting a foot on Mr. MacPhee’s head were justified. There is simply no explanation for why those were necessary, how they helped protect officer safety or the evidence and no evidence from which I could draw reasonable inferences that they were.

Issue 2 – Was any Destruction and/or Disarray Caused by the Search Unreasonable? [ 145 ] I also have to examine whether the manner of search was reasonable given the disarray that the home was left in. There are not many decisions that specifically address whether damage and disarray caused by police during a search will constitute an unreasonable search under s. 8. I will refer to two: R. v. Chungkuong, 2012 ONSC 3488 ; and Thomson . In Thomson, the Applicant argued that the unreasonableness of the entry was exacerbated by the manner in which the searching officers carried out their duties.

The Court found that: 8 … The "distraction device" had caused some damage to property, leaving burn marks on a wall and causing the bottom of a couch to smolder. In addition to this initial damage to property, the searching officers cut into the fabric at the back of the couch. They also broke a door off a living room cabinet. Every drawer, shelf and closet in the house was emptied onto the floor in the course of the search. None of these lawfully possessed items were put back where the police found them.

Photographs taken shortly after the search depict the damage caused to the property and the extraordinary mess left by the police officers. Most of the household possessions are scattered about or piled on the floor. [ 146 ] Justice Code agreed that the manner of search was unreasonable as it caused unnecessary damage to property and the property was deliberately left in unnecessary disorder and disarray. He summarized the evidence as follows: 24 The evidence concerning the manner of search is not the subject of any significant disputes.

The photographs taken shortly after the search depict the way in which the police searched and the state in which they left the premises. The officers do not dispute the accuracy of the photographs. Indeed, the officers agree that their manner of searching was, essentially, to deposit all of the contents of shelves, drawers and closets on the floor and then leave it all there. As noted, they also left the over-turned couch in the back yard. 25 Various explanations were advanced for this manner of search.

First, it was said to be necessary to empty drawers in order to search underneath them and behind them, where drugs are sometimes hidden. This struck me as a good explanation for removing a drawer, and checking behind it and under it, but it hardly explains dumping its contents on the floor. 26 Second, it was said to be necessary to examine each book on a shelf, as drugs can be hidden in a cut-out cavity inside the book.

Again, this struck me as a good reason for examining each book but it hardly explains the need to then drop it on the floor rather than put it back on the shelf. 27 Third, it was said to be too time consuming to put lawfully possessed items back where they were found. This explanation was also not persuasive as it presupposes that the officer has dumped everything on the ground, in the first place, and then has to take time to put it back.

None of the officers testified that they could not search effectively by examining items in a drawer or in a closet or on a shelf, without dumping them on the floor in the first place. There may be some drawers that contain dangerous items, where emptying the entire drawer may be necessary for officer safety.

This more discriminating explanation was not advanced as the procedure here was to dump everything on the floor, whether it was dangerous or not. 28 Fourth and last, it was said that all items that have been searched are placed on the floor so that the searching officer knows what he/she has already looked at. As one officer put it, he would leave those things that he had searched on the floor, "Because then I would know what areas I have searched ... Because it ... shows that that area has been searched".

Any searching officer of reasonable intelligence can systematically and methodically work his/her way through a room, with knowledge as to which cupboards, shelves and dressers he/she has already searched. The suggestion that the contents must all be dumped on the floor, as a kind of inventory, is not worthy of belief. It presupposes a police officer who has no short term memory. 29 What is particularly troubling about this evidence is not just that the explanations are unpersuasive. In addition, the officers displayed a certain attitude that is best illustrated by two responses.

When it was suggested to one officer that there was no real justification for failing to put lawfully possessed property back where it was found, the officer replied, "I'm sorry sir. We are police officers. We are not

Molly Maid". Another officer, in response to a similar suggestion, replied, "There is no need to put it back. We are not trying to bepolite". This officer eventually agreed that there was no reason not to put lawfully possessed property back where it was found but it wassimply not their practice to do this in drug searches.

He had never seen a search in a homicide case and could not say whether homicideofficers search in this manner. 30 As to the damage to certain property depicted in the photographs, one of the searching officers agreed that he must have taken thedoor off one of the living room cabinets and left it on the floor. He could not say why this was necessary. Another officer agreed that hesometimes cuts into furniture with a knife, to search for drugs, but denied cutting into the back of the couch in this case.

The photographof the back of the couch shows three very straight horizontal cuts through the fabric at different places. These cuts were obviously madedeliberately and I infer that one of the searching officers made them.

What is particularly troubling is that another photograph of thebottom of the same couch shows that a searching officer could look and reach inside the back of the couch without the necessity ofcutting the exterior fabric. [147] Justice Code commented that “[v]ery few cases seem to have addressed the question of whether the police are entitledto search in a way that causes unnecessary damage, unnecessary disorder and unnecessary disarray to lawfully possessed property in thehome.” (para 69). He summarized those that had (paras. 70 – 71): - R. v.

Gogol (1994), (ON CJ), 27 C.R. (4th) 357 (O.C.J.), the court found a s. 8 violation, due to deliberate andunnecessary damage to property caused by the search, including smashing the glass door of a microwave oven, ripping and breaking thecones of speakers, and breaking the mirror of a dresser. The court said used strong language to condemn the officers’ attitudes andconduct, concluding that “A wilful failure to appreciate the limits of their powers and the obligation to treat members of the public withcourtesy and fairness cannot be condoned by the court.

None of the reprehensible police conduct here occurred in circumstances ofurgency or necessity. It can only be described, in my view, as a wilful and flagrant violation of Ms. Gogol's rights.” - R. v. Rosales, [2010] O.J.

No. 1358 (S.C.J.) – there was also significant unnecessary damage caused by the search, resulting in a s.8 violation: her household was torn apart, a coffee table broken, drawers broken, a cupboard door removed, furniture overturned, bedstorn apart, plants overturned and computer equipment left dangling, furniture and plants overturned and everything upended [148] In Thompson, Justice Code found some deliberate damage (cuts to the fabric of the couch and removal of a door to a cabinet).This was less damage than had been done in Gogol and Rosales, however, Justice Code went on to say, 73 The more prominent issue in the present case is simply the method of searching.

As described earlier in this Judgment, thephotographs and the testimony of the officers reveal a method of searching that essentially involves dumping all of the householdproperty on the floor and leaving it there. In R. v. Edwardson (2005), 2005 BCSC 463 , 65 W.C.B. (2d) 745 (B.C.S.C.), JusticeHalfyard concluded that this manner of search was "unnecessary" and in violation of s. 8. [149] In the case before me, I have no evidence of intentional destruction of property other than what was necessarily incidental to thehard entry.

I also don’t have evidence that the searchers had the kind of cavalier and entitled attitude that Justice Code described inThompson. Neither Cpl. Hines nor Cst. Wile, the only searchers to testify, demonstrated disdain, entitlement or intentional disrespect forthe occupants or their property. However, it is apparent from the evidence and photographs that bedding was thrown over the hallwayfloor, a drawer and other items were dumped onto Mr. Forrestall and Ms. Mooring’s bed, things were scattered around the floor in thatbedroom, a lamp was knocked over, papers were dumped on the stove, Mr.

MacPhee’s living area was messed up and police tracked dogfeces onto bedding that was on the floor. The limited explanations provided by Cpl. Hines and Cst. Wile do not explain why a propersearch required things to be dumped and strewn about or why, if it was necessary, things couldn’t have been put back where theybelonged. What I observed in the photographs does, indirectly, demonstrate a lack of respect for the lawfully possessed property of theoccupants. [150] In Thompson, officers provided explanations which Justice Code did not find to be persuasive. I have no evidence here of any time pressures.

In fact, as I noted previously, the warrant specifically authorized from December 9th at 6:00 a.m. and December 12th at 9:00 p.m. The residence was not released until December 12th. Cpl. Hines testified that searchers returned on the 10th, but myunderstanding is that the delay in releasing the property was due to having to dismantle and remove items from the garage.

Thatinvolved a special team and I have no evidence to suggest that searchers required that time to complete their activity or could not haveused the time to put the house back in some order. [151] I agree with the comments of Justice Fairgrieve in Gogol and adopted by Justice Code in Thompson, very experienced criminaljudges, “the power to search is not ‘a license to ignore the property rights of the occupant of the premises’ (Thompson, para. 74). LikeJustice Code, I am not persuaded that it is necessary to dump things on the floor or beds to search effectively for drugs.

In fact, as anaside, that method risks contaminating individual pieces of evidence and potential loss of subtle information about placement of evidencethat can have important evidentiary value in some kinds of cases. I am also not persuaded that there is any excuse for failing to putthings back where they were found.

As Justice Code said, “Once an item has been searched, and it is determined to be lawfully possessedand not subject to seizure, it should be returned to where it was found.” (para. 74). [152] I remind myself that the question I must ask is “whether the search overall, in light of the facts reasonably known to the police,was reasonable” (Cornell, para. 31). [153] In conclusion, I am satisfied that, in general, the hard entry was justified so was not unreasonable. However, the detention ofMs. Mooring and her daughter outside when temperatures were - 4 degrees Celsius was not justified.

Further, there is no evidence toexplain or justify telling Mr. MacPhee and Mr. Forrestall not to look toward ERT members or putting a foot on Mr. MacPhee’s head toprevent him from looking toward an ERT member. I note that this conduct essentially involves the rights of third parties who are notcharged. However, Mr. Forrestall had standing to attack the manner of execution of the search warrant and this conduct is part of theoverall context and sequence of events.

That conduct together with the deliberate and unnecessary disorder and disarray in which theproperty was left, rendered the manner of search unreasonable and in violation of s. 8 of the Charter.

Issue 3. Should the Evidence be Excluded under s. 24(2) of the Charter? [ 154 ] As I said, other than the mess caused in the house, the other problematic conduct was primarily directed at and impacted third parties. However, Mr. Forrestall

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