R. v. Al-Amiri, 2015 NLCA 37

Date: 20150814 Docket: 13/72 Citation: R. v. Al-Amiri, 2015 NLCA 37 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN APPELLANT AND: HASSAN AL-AMIRI RESPONDENT Coram: Welsh, Barry and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201001G5353 2013 NLTD 69 and 2013 NLTD 123 Appeal Heard: June 15, 2015 Judgment Rendered: August 14, 2015 Reasons for Judgment by Barry J.A. Concurred in by Welsh and Hoegg JJ.A. Counsel for the Appellant: Mark J. Covan

Counsel for the Respondent: Averill Baker Barry J.A.: [ 1 ] As a result of preliminary rulings excluding certain evidence, the Crown elected to call no further evidence and charges of trafficking in ecstasy and possession of cocaine for the purpose of trafficking were dismissed. The excluded evidence included two individually wrapped one-gram packages of cocaine from Mr. Al-Amiri’s bedroom, a small quantity of marijuana, a small quantity of ecstasy powder, vacuum-seal bags, cell phones, a sheet of names and numbers, money, scales, computer equipment and a box addressed to Mr.

Al-Amiri’s residence which was previously opened by a Post Office official and originally contained 15,300 ecstasy pills. Three pills had been left in it by the police for delivery. [ 2 ] The Crown appeals, submitting the trial judge erred in concluding a general warrant obtained by the police pursuant to s. 487.01 of the Criminal Code , RSC 1985, c. C-46, should be set aside.

Specifically, the Crown argues the trial judge improperly excised certain details from the Information filed to Obtain a General Warrant (“ITO”) and improperly determined that additional facts should have been disclosed. [ 3 ] The Crown submits the trial judge also erred in concluding that, even if the general warrant was properly issued, it had been executed in an unreasonable manner by the police. BACKGROUND [ 4 ] Because of information received from an informant, police suspected Mr. Al-Amiri of receiving illegal drugs through the mail.

Postal officials intercepted a package at the post office addressed to his residence but with a fictitious name and, after opening it in the presence of police, found it contained 15,300 ecstasy pills. Police removed all the pills except three and obtained a

section 487.01 general warrant and a tracking warrant to effect a controlled delivery of the package to Mr. Al-Amiri’s address and to secure the premises, arrest Mr. Al-Amiri and allow the drug squad to search the residence. After execution of the general warrant, the police obtained a

section 11 Controlled Drugs and Substances Act , SC 1996, c. 19 (CDSA) warrant to search the premises for illegal drugs. [ 5 ] In the information to obtain the general warrant, police stated they had received information from a source, Source “A”, that:

a) Al Mahmood (Moody) resided at 52 Neptune Road, sells large amounts of ecstasy and is supplied by Hassan;

b) Hassan is supplying large amounts of weed to Seamus Dooley;

c) The Arabs, Hassan and Moody, reside at 52 Neptune Road, they are always packing guns and knives and are the main suppliers of “E” (ecstasy) in St. John’s;

d) Hassan is trafficking mass amounts of ecstasy by the 1000s, as well as pounds of marihuana;

e) Hassan travels to British Columbia and Toronto for drugs;

f) Hassan’s last name is Almiri;

g) Moody is at Konfusions every night with his pockets full of “E” and coke, he packages the “E” and coke in corner baggies;

h) Hassan carries a 9 mm and a .22;

i) Al-Amiri has moved to St. Clare Avenue with some other Muslims and they are dealing dope from this address now;

j) Al-Amiri is still residing at 52 St. Clare Avenue (as of August 12, 2009) and is dealing coke and ecstasy. [ 6 ] Source “A” is a known drug user, has a criminal record (but not for offences involving perjury or public mischief) and previously received monetary rewards for providing information to the police. Information supplied by “A” was based upon personal observation and has been found to be congruent with information obtained from other sources and from other means of investigation. The source “A” information in the past has resulted in charges and convictions for drug offences.

Police believed “A” to be reliable. [ 7 ] Police also obtained the following corroborating information before obtaining the general warrant:

a) Hassan Al-Amiri resided at 52 Neptune Road (information from Canada Post and Canada Customs);

b) Mahmood Alsaihati also resided at 52 Neptune Road (information from Canada Post and Canada Border Service Agency);

c) There were two National Criminal Data Bank System reports from the Royal Newfoundland Constabulary which indicated that Hassan Al-Amiri had been seen on two separate occasions with a .22 caliber handgun and each time he was in possession of large quantities of drugs including ecstasy, cocaine and methamphetamine;

d) A CPIC check produced the following notation for Hassan Al-Amiri: “Caution violent”;

e) Hassan Al-Amiri had moved to 52 St. Clare Avenue (from a Motor Registration Division check);

f) Mahmood Alsaihati and Husni Abdurazzaq (a known associate of Hassan Al-Amiri) also received mail at 52 St. Clare Avenue (from Canada Post). [ 8 ] A garbage search at the previous residence of Mr. Al-Amiri at 52 Neptune Road provided the following:

a) A bank statement in the name of Mahmood A. Alsaihati;

b) Plastic bags containing a noticeable purple residue (which tested positive for ecstasy);

c) Clear plastic bags which contained other clear plastic bag remainders without the corners;

d) Corners of clear plastic bags (one of which contained a small chunk of purple powder which tested positive for ecstasy);

e) A receipt in the name of Al-Amiri. [ 9 ] A risk assessment by police led them to conclude it would be a high risk entry situation due to the following factors:

a) The CPIC report concerning Mr. Al-Amiri which warned “caution violent”;

b) Information indicating that Mr. Al-Amiri had been known to carry two handguns, one with a red bandana on the handle and the other a .22 caliber, that he had threatened to shoot anyone who went to the police, that he had a teardrop tattoo on his face which typically in criminal culture indicates having killed somebody, and that he was known to keep extra ammunition in his ball hat. [ 10 ] Based upon their risk assessment, police decided to use the Emergency Response Team (“ERT”) to enter and clear the residence prior to drug

section members entering. Police prepared an operational plan which saw them carry out a controlled delivery of the intercepted post office package to 52 St. Clare Avenue. The package was accepted at the residence by Mahmood Alsaihati, a co-accused (whose case has since been severed from Mr. Al-Amiri’s). [ 11 ] Once an alarm sounded indicating the package had been opened, police entered the residence pursuant to the general warrant, with the assistance of the ERT. The initial entry was what police refer to as a “hard entry”, involving a degree of force. Police described the procedure as follows:

a) The team was dressed in the ERT uniform which consisted of a black uniform with RCMP shoulder flashes, a black Kevlar ballistic vest with “POLICE” in white lettering on the front and back, helmet, balaclavas, sidearm and some other firearm, depending on the member;

b) Once the alarm sounded on the package they approached the front of the house;

c) Cpl. Griffiths called “police, search warrant” and Sgt. Pitcher called “police” [but they did not knock];

d) Cpl. Griffiths made two hits with the battering ram to open the front door;

e) Cst. McGinis came from the rear and threw a diversionary device down a corridor, which landed by the stairs and went off with two bangs in quick succession;

f) Cpl. Thoms entered first and was followed by Sgt. Pitcher;

g) Cpl. Thoms took control of one of two persons in the living room by having him lie on the floor with his feet crossed and raised toward his butt and his hands on his head. Cpl. Thoms had his weapon, an M-16 assault rifle, drawn and pointed at the suspect;

h) Cpl. McGinis took similar control of the second person in the living room. Cpl. McGinis was carrying an MP-5 semi-automatic sub-machine gun;

i) Both suspects were handcuffed;

j) Cpl. Greene and Cpl. Griffiths continued upstairs where they took control of a third suspect in a similar manner. Cpl. Griffiths was only using his standard police-issued sidearm;

k) Once the residence was secured all three suspects were turned over to the Drug

Section members and the ERT left the residence within 10 minutes of making the entry. [ 12 ] Police testified that the stun grenade diversionary device used in the operation emits about one million candle watts of light and 120 decibels of sound in two bangs. The flash and the sound is designed to disorient anybody in proximity to the device so that they cannot react. By sensory overload, the train of thought of anyone contemplating hostile action against the police is disrupted. The effects last only seconds. [ 13 ] The ERT arrested Mr. Al-Amiri, Mr. Alsaihati and one other person and secured the residence. A search pursuant to a

section 11 CDSA search warrant located the two individually wrapped grams of cocaine in Mr. Al-Amiri’s bedroom as well as money, score sheets and scales. THE CHARTER VOIR DIRE AND TRIAL JUDGE’S DECISION [ 14 ] The trial judge quashed the general warrant after accepting Mr. Al-Amiri’s submission that the general warrant should not have been authorized on the basis of the information set out in the ITO and that Mr. Al-Amiri’s rights under

section 8 the Canadian Charter of Rights and Freedoms ( Charter ) had been violated by the search without a valid warrant.

Section 8 reads: Everyone has the right to be secure against unreasonable search or seizure. [ 15 ] The trial judge also found a breach of Mr. Al-Amiri’s

section 7 Charter rights because of the manner of execution of the warrant.

Section 7 reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 16 ] The rulings by the trial judge after the voir dire were correctly summarized as follows by the Crown:

a) First, he discounted the information provided by Source A on the basis that most of it was dated and that “there was no evidence of corroboration of any of this information either from another confidential source or from police surveillance or other investigative techniques.” The trial judge held that “most of the information from Source A respecting drug trafficking is of a vague, general nature” and that “these types of general conclusory statements without detail are of little or no value, particularly where there is no corroboration.” The trial judge then went on to say that “all the dated, uncorroborated general and vague information from the single Source A respecting drug trafficking by Mr.

Al-Amiri up to and including 15 October 2008 should be excised from the ITO as it cannot reasonably be said to be relevant to what was happening some eight months later at a different address”

b) Second, the trial judge took exception to the source qualification information contained in the ITO on the basis that it “contains much boilerplate language with almost no detail which could assist in assessing Source A’s reliability”. The trial judge then excised certain paragraphs from the ITO.

c) Third, the trial judge discounted other investigative techniques used by the police including the garbage seizure “as they cannot be traced in any way to Hassan Al-Amiri.”

d) Fourth, the trial judge gave no consideration to the information contained in the ITO that related to the seizure of the package from Canada Post containing 4.5 kilograms of ecstasy which was destined for 52 St. Clare Avenue, the address of Hassan Al-Amiri and Mahmood Alsaihati. [ 17 ] In addition, the trial judge ruled that the ITO should have contained the fact that there was no record that Mr. Al-Amiri had ever been convicted of a crime and it was misleading to the authorizing judge to omit this.

Also, the trial judge concluded the police had not made full and frank disclosure of all relevant evidence when they failed to inform the authorizing judge that they had been unable to confirm the “dated uncorroborated information” about Mr.

Al-Amiri or anyone else carrying a weapon or whether there was a weapon in the home and failed to inform the authorizing judge they intended to make a hard entry. [ 18 ] The trial judge ruled that the manner of execution of the general warrant was unreasonable in that the police use of a forcible, hard entry, with riot gear and equipment with automatic military style rifles, by means of the use of a battering ram and a stun grenade, were extreme tactics. The trial judge also ruled that the use of a stun gun interfered with the bodily integrity of persons inside 52 St.

Clare Avenue and that this is not permissible under

section 487.01(2) of the Criminal Code .

Section 487.01 reads: 487.01

(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if (

a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; (

b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and (

c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

(2) Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person. (Emphasis added.) [ 19 ] The trial judge ruled that the tactics used by the police in executing the general warrant and their failure to have obtained an arrest warrant for Mr. Al-Amiri violated his

section 7 Charter rights. He found the proper remedy was to exclude the evidence seized from 52 St. Clare Avenue. The Crown then elected to call no further evidence and an acquittal was ultimately entered. ISSUES [ 20 ] Three issues arise: (

i) Whether the trial judge erred in law in his

interpretation and application of

section 8 of the Charter in quashing the general warrant; (ii) Whether the trial judge erred in law in his

interpretation and application of

section 7 of the Charter in finding that the manner of execution of the general warrant was unreasonable and that the police should have obtained an arrest warrant for Mr. Al-Amiri; (iii) Whether the trial judge erred by excluding evidence seized from the residence of Mr. Al-Amiri pursuant to section 24(2) of the Charter . THE LAW AND ANALYSIS (

a) Standard of Review [ 21 ] This appeal is taken pursuant to section 676(1) (

a) and

section 696 of the Criminal Code and is limited to questions of law only.

The application of legal tests to facts, such as the application of the Garofoli test for review of a judicially authorized search, is a questionof law. The standard of review is correctness: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 50; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421.

The issue of whether reasonable and probable grounds exist also raises a question of law: R. v.Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. [22] The admission or exclusion of evidence under section 24(2) of the Charter is open to appellate review but the inquiry must beundertaken with deference to the rulings at trial, provided the proper factors were considered and there were no unreasonable findings: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. (

b) The Law Regarding

Section 8 – Search and Seizure (

i) Presumption of Validity [23] The accused has the burden of displacing the presumption of validity which applies to a search warrant: R. v. Campbell, 2011SCC 32, [2011] 2 S.C.R. 549, at para. 14; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 131. The accused must show therewas no basis upon which the issuing judge could have granted the particular authorization. (ii) Standard for Issuing a General Warrant [24] A justice may issue a general warrant under

section 487.01 of the Criminal Code when a peace officer swears an informationwhich establishes “credibly-based probability” that an offence has been committed. As noted in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at 167: The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point wherecredibly – based probability replaces suspicion. (Emphasis added.) (iii) Standard of Review of Warrant [25] The reviewing justice must show a high degree of deference to the issuing judge: R. v. Pires; R. v.

Lising, 2005 SCC 66, [2005]3 S.C.R. 343. This means a reviewing judge must not simply substitute his or her opinion or view for that of the issuing judge. Instead,a reviewing judge must determine whether there was reliable evidence, that might reasonably be believed, on the basis of which theauthorization could be issued: Araujo.

The court reviewing the validity of a search or general warrant should not ask whether it wouldhave reached the same decision as the issuing judge but rather “whether there was sufficient credible and reliable evidence to permit ajustice of the peace to find reasonable and probable grounds to believe that an offence has been committed and that evidence of thatoffence would be found at the specified time and place”: Fish J., in Morelli, at para. 40. (iv) Sufficiency of Grounds - “Totality of Circumstances” [26] Wilson J. in R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140, at 1168, stressed, in the context of discussing a warrantless search, that one must consider “the totality of the circumstances” in assessing the reasonableness of grounds to search in the contextof confidential informant tips: In my view, there are at least three concerns to be addressed in weighing whether or not the evidence relied on by the police justified awarrantless search. First, was the information predicting the commission of a criminal offence compelling?

Secondly, where thatinformation was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the informationcorroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors formsa separate test. Rather, I concur with Martin J.A.’s view that the "totality of the circumstances" must meet the standard ofreasonableness.

Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [Emphasis added.] [27] The same three concerns arise when reviewing the sufficiency of the information set out in an ITO to obtain a search warrant. The totality of the circumstances must be considered in assessing the reasonableness of the grounds set out in the ITO. [28] The Debot test does not require corroboration or confirmation of the offence itself or of all the information in the ITO.

ThisCourt has accepted that detailed and compelling information from a reliable and confidential source can provide reasonable and probablegrounds to arrest even with very little, if any, corroboration of the criminal elements. See R. v. Warford, 2001 NFCA 64, 207 Nfld. &P.E.I.R. 263, at para. 30, and R. v. McCabe, 2008 NLCA 62, 280 Nfld. & P.E.I.R. 250. See also R. v. Beauregard (1999), (QC CA), 136 C.C.C. (3d) 80, [1999] J.Q. No. 1109 (QL) (QCCA). [29] The Supreme Court of Canada in R. v.

Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, upheld the totality of circumstances testadopted by the majority decision of the Alberta Court of Appeal which agreed with Debot and held there is no requirement to confirm inall cases some criminal aspect of a tip. Depending upon the circumstances, sufficient assurance of reliability may come fromconfirmation of neutral data. Corroboration of some criminal particular of the offence may not be needed. This was also the approach inR. v. Hillgardener, 2010 ABCA 80, 477 A.R. 200, at para. 25 and R. v. Burke, 2011 NBCA 51, 374 N.B.R. (2d) 255, at para. 18. Seealso R. v.

Poirier, 2009 NLTD 35, 285 Nfld. & P.E.I.R. 252, at para. 27, and R. v. Whalen, 2015 NLCA 7, at paras. 24-26, for theelements to be considered in determining the existence of “credibly-based probability”. (

v) Assess the Whole Information

[ 30 ] When reviewing the adequacy of an ITO and supporting affidavit, the reviewing judge must consider them as a whole rather than parsing or microscopically examining the words, phrases or paragraphs in isolation or deconstructing every paragraph: R. v. Saunders , 2003 NLCA 63 , 232 Nfld. & P.E.I.R. 22, at paras. 9-11 . (

c) Application of Search and Seizure Law to the Facts of this Case (

i) Error on Standard of Review [ 31 ] The trial judge erred by doing a review de novo instead of asking the right question: whether there were some reasonable grounds upon which the general warrant “could” have been granted. See, Caissey and Whalen .

With respect, the reviewing judge erred in failing to show proper deference to the issuing judge and substituting his own view. [ 32 ] The reviewing judge compounded this error by employing a flawed analysis that failed to consider and assess the totality of the circumstances (particularly the significance of the discovery of the 15,300 ecstasy pills), that improperly assessed and discounted the information from Source “A”, and that improperly excised grounds from the ITO. [ 33 ] The failure to consider the ITO and the circumstances as a whole is evidenced in paragraphs 46 to 63 of his reasons for quashing the general warrant, where he fails to consider how the information in various parts of the ITO interrelates.

For example, he excised the information regarding the garbage seizure at 52 Neptune Road, saying the baggies and ecstasy residue could not be traced directly to Mr. Al-Amiri, in the face of evidence showing that a receipt in the garbage had Mr. Al-Amiri’s name on it and he had lived at that address.

Also, the garbage seizure corroborated the information provided by Source “A” about drugs, including ecstasy, being packaged in baggies and “baggie corners”. [ 34 ] The ITO, when viewed in its entirety, supports the view that the issuing judge had reliable evidence that might reasonably be believed, on the basis of which the general warrant could be issued. Specifically, as detailed by Crown counsel:

a) There was information regarding the drug trafficking activities of Hassan Al-Amiri and Mahmood Alsaihati from a confidential source who has been proven to be very reliable. The source indicated that Hassan Al-Amiri and Mahmood Alsaihati, who lived together at both 52 Neptune Road and 52 St. Clare Avenue, were selling ecstasy, weed and cocaine. Although some of the source information dated back to July, 2008, some 21 months previously, the information was provided up to October, 2008, and then again in June and August of 2009, the final information being just one day before the general warrant was issued.

Contrary to the findings of the trial judge, much of this information was very specific in terms of how the ecstasy was being packaged, the details regarding Hassan Al- Amiri making numerous trips, the types of weapons which they possessed, type of motorcycle driven, physical descriptions and where they were residing.

b) The police searched various databases and confirmed many of these details, including Hassan Al-Amiri’s travel, the motorcycle driven by him, his physical description and that both Hassan Al-Amiri and Mahmood Alsaihati lived first at 52 Neptune Road and then at 52 St. Clare Avenue.

c) The police also conducted surveillance which confirmed that Hassan Al-Amiri was living at 52 St. Clare Avenue and drove the motorcycle described by the source.

d) In addition the police had done a garbage seizure from 52 Neptune Road which was found to contain documents in the names of Mahmood Alsaihati and Hasssan Al-Amiri, baggies with corners missing or the corner themselves and other baggies with residue which tested positive for ecstasy (confirming the source information given about Mahmood Alsaihati and how he packaged his ecstasy and coke).

e) Lastly, and more importantly, there was the seizure of the package from Canada Post containing 4.5 kilograms of ecstasy which was addressed to 52 St. Clare Avenue. The trial judge, in his review of the grounds in paragraphs 48 to 66 of his decision, makes absolutely no reference to this important piece of information which was contained in the ITO. [ 35 ] With respect, the trial judge erred in concluding the general warrant had not been validly issued because police had failed to inform the issuing judge that the information about Mr. Al-Amiri carrying a weapon was “dated” and uncorroborated.

The possibility of weapons being present did not change the fact that the issuing judge had reliable evidence that might reasonably be believed, on the basis of which the general warrant could be issued. The possible presence of weapons related only to whether a hard or forcible entry was an unreasonable manner of executing the warrant and whether police should have sought authorization for such entry. For reasons discussed below, I reject these submissions regarding the manner of execution of the warrant.

Also, the trial judge erred in concluding the general warrant was invalid because the police did not disclose that Mr. Al-Amiri did not have a criminal record. That fact was irrelevant as to whether sufficient credible and reliable evidence existed to supply grounds for the warrant. (ii) The Information was Compelling [ 36 ] Source “A” provided information which was detailed, specific and compelling. Details included the accuseds’ address, their travel plans, how the cocaine and ecstasy were packaged for sale, how much the ecstasy sold for, and the kind of guns Mr.

Al-Amiri carried. (iii) The Informant was Credible

[ 37 ] Source ”A”, in the past, had provided information which was supported by information received by other means and had led to charges and convictions. (iv) The Information was Corroborated [ 38 ] Although case law indicates there is no requirement for corroboration of criminal aspects in all cases (see, Caissey and Whalen ), in the present case there was such corroboration by discovery of the 15,300 ecstasy pills addressed to Mr. Al-Amiri’s residence and by the garbage search at his previous residence where ecstasy residue had been found with a receipt in Mr. Al-Amiri’s name.

In addition, the Crown properly pointed to confirmation of neutral data: The information provided by Source A in this case was corroborated by the police and, in fact, nothing provided by Source A was proven to be incorrect. Source A identified the residence of Hassan Al-Amiri, first as 52 Neptune Road and later as 52 St. Clare Avenue and Source A further indicated that Mahmood (Moody) also lived with him there. Source A described Hassan Al-Amiri as being an immigrant (Arab) and as having a teardrop tattoo under his eye.

Source A described the type of bike (burgundy Yamaha) that Hassan Al-Amiri had recently bought. Source A described the packaging being used by Moody for “E” and coke as corner baggies. The RCMP confirmed that Hassan Al-Amiri and Mahmood Alsaihati lived at both addresses provided by Source A through enquiries with Canada Post and Canada Customs.

The garbage seizure from 52 Neptune Road confirmed the presence of ecstasy and baggies with corners cut out. [Police testified corners of baggies are used by drug dealers for packaging individual pills.] RCMP checks with CPIC confirmed that Hassan Al-Amiri was born in Iraq, has several tattoos including a teardrop under his left eye and resides at 52 Neptune Road. The RCMP checked with Motor Registration Division and confirmed that Hassan Al-Amiri lived at 52 St. Clare Avenue and had recently registered a 2007 Yamaha motorcycle. Police surveillance confirmed the red Yamaha motorcycle at 52 St.

Clare Avenue and a male matching Hassan Al-Amiri’s description left that residence on the motorcycle.

Summary on Validity of Search [ 39 ] In

summary, application of the Debot test points to compelling, credible and corroborated evidence from Source “A”, which was sufficient as a matter of law to provide reasonable grounds to believe that issuing a general warrant to authorize a controlled delivery of the post office package would uncover evidence of drug offences by Mr. Al-Amiri and his former co-acccused, Mahmood Alsaihati, at their residence. The trial judge erred in law when he substituted his own views for the decision of the issuing judge. (

d) The Law Regarding Manner of Execution of Warrants (

i) Meaning of Interfering with Bodily Integrity [ 40 ]

Section 487.01(2) of the Criminal Code provides that nothing in subsection (1) shall be construed so as to permit “interference with the bodily integrity of any person”. Mr. Al-Almiri submits that the hard entry by police involved such interference. [ 41 ] The general warrant did not purport to authorize interference with the bodily integrity of any person. It merely dealt with the delivery of the post office package and the securing of the residence until such time as a search warrant could be obtained pursuant to

section 11 of the CDSA . [ 42 ] Mr. Al-Amiri submits that the police had an obligation to inform the issuing judge of their intent to effect a hard entry and that, in any event, the entry violated his rights because it could not be authorized by the general warrant. [ 43 ] In R. v. Campbell , [1996] O.J. No. 5447 (QL) (Ont. Ct. J.) , Trafford J. discussed the historical context of

section 487.01(2) and considered whether various techniques could be authorized under the subsection. He stated, at paragraph 19: In my opinion an intrusion into, or otherwise impacting upon, the body that affects it as a functioning organism beyond the de minimus range is prohibited by subsection (2). The operative terms of the subsection are “... interference …” and “… bodily integrity …”. The meaning of those terms does not necessarily prohibit all searches relating to the body. Nor does it expressly prohibit an entry into the body. Nor does it expressly prohibit the removal of any bodily substance.

Nor does it expressly prohibit the removal of any other substance from the body. If the term “… bodily integrity …” embraces information relating to the body then the relatively unobtrusive searches such as the administration of washings to detect the presence of gunshot residues on the body and other non-entry searches would be outside of the jurisdiction conferred by subsection (1). This term should, therefore, be restricted to its physical connotation. This would leave scope for legitimate investigative techniques that have a minor, if any, impact on the dignity of the person affected by them.

In order to achieve this objective without undermining the high value we place on the dignity of the person the proposed search should be considered in terms of its effect on the body as a functioning organism. Does this present any risk to the life/health of the person? What is the degree of the proposed intrusion? Does it involve an entry into the body? Is the normal sense of privacy of the person likely to be adversely affected by the proposed search? Is it proposed to remove bodily substances or other substances/items from the body?

All of the circumstances of the case would have to be considered including the potential value of alternative investigative techniques. Regard should also be given to the need for conditions to the execution of the warrant necessary to ensure bodily integrity.

This approach gives balanced recognition to the dignity of the human person, the need to preserve the body as all but inviolable, the related sense of privacy and the need for diminished or non-existent risk to the life and health of the person, on the one hand, and, on the other hand, the legitimate need of the public for fair but effective investigation of serious crime. Reliable scientific evidence may ensure the reliability of the fact finding processes in a criminal trial. Miscarriages of justice must be avoided. This

interpretation is compatible with the historical context of the

section and, most importantly, the notions of security of the person and the principles of fundamental justice embraced by s. 7 and s. 8 of the Charter . [ 44 ] In that case Trafford J. concluded a general warrant was properly issued authorizing removal of hair from the head, including the root sheath, the obtaining of buccal swabs or the taking of blood by pricking the finger with a penlet since the interventions were all of a de minimus nature. [ 45 ] See also, R. v.

Nguyen , 1995 CarswellOnt 3182 , where Donnelly J. of the Ontario Court of Justice (General Division) held that the taking of oral impressions did not compromise bodily integrity to the extent of constituting “interference” within the meaning of

section 481.01(2). (ii) The “Knock and Announce” Rule [46] On the manner of execution of the general warrant, the law in Canada requires that, except in exigent circumstances, policeofficers must make an announcement and a formal demand to enter before entering a dwelling to execute a search warrant. For theorigin of the rule and its underlying rationale see Eccles v. Bourque, (SCC), [1975] 2 S.C.R. 739, at 746: Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations forthis.

An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of thehouseholder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest,that a police officer identify himself and request admittance. No precise form of words is necessary. In Semayne’s Case it was said heshould “signify the cause of his coming, and to make request to open doors”.

In Re Curtis, nine of the judges were of opinion that it wassufficient that the householder have notice that the officer came not as a mere trespasser but claiming to act under a proper authority, theother two judges being of opinion that the officers ought to have declared in an explicit manner what sort of warrant they had. In Burdenv. Abbott, Bayley J. was content that the right to break the outer door should be preceded simply by a request for admission and a denial.The traditional demand was “Open in the name of the King”.

In the ordinary case police officers, before forcing entry, should give (i)notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers,and (iii) notice of purpose, by stating a lawful reason for entry.

Minimally they should request admission and have admission deniedalthough it is recognized there will be occasions on which, for example, to save someone within the premises from death or injury or toprevent destruction of evidence or if in hot pursuit notice may not be required. [47] The exigent circumstances recognized regarding this “knock and announce” rule include situations in which it is necessary toenter unannounced to prevent the loss or destruction of evidence, or for the safety of officers or the general public: R. v. Genest, (SCC), [1989] 1 S.C.R. 59; R. v. Gimson, (SCC), [1991] 3 S.C.R. 692 and R. v.

Landry, (SCC), [1986] 1 S.C.R. 145. [48] In Genest, Dickson C.J.C. states, at 89: … the greater the departure from the standards of behavior required by the common law and the Charter, the heavier the onus on thepolice to show why they thought it necessary to use force in the process of an arrest or a search. The evidence to justify such behaviormust be apparent in the record, and must have been available to the police at the time they chose their course of conduct. The Crowncannot rely on ex post facto justifications. (iii) Authorization for Hard Entry [49] Cromwell J. for the majority in R. v.

Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, found no infringement of Charter rightswhere police, having obtained a valid search warrant, used a hard entry to enter a residence. The police tactical team rammed open thefront door without knocking or announcing their presence and nine masked members of the team entered with weapons drawn to securethe house. Cromwell J. stated: [2] In my respectful view, the trial judge made no reviewable error in concluding that the search was conducted reasonably.

Thepolice had well-grounded concerns that the use of less intrusive methods would pose safety risks to the officers and occupants of thehouse and risk the destruction of evidence. The suggestions that the police had no basis for their concerns about the risk of violence ordestruction of evidence are, with respect, contrary to the findings of the trial judge and to the evidence in the record. Both the police andthe reviewing judge are entitled to draw reasonable inferences from the established facts.

Only a failure to do so could lead one to theconclusion that there was no basis for reasonable concern about the risk of violence and the destruction of evidence in this case. Even theappellant conceded in the Court of Appeal that the destruction of evidence was a realistic concern. Similarly, the suggestion that, beforethe search, the police could easily have discovered (by unspecified means) what they learned during it, is contrary to an express findingof fact by the trial judge.

Finally, the suggestion that the decision to make an unannounced hard entry into the Cornell residence wassimply a rote application of a general police practice is not supported by the evidence. There is no evidence of such a practice let alone ofits application here. … [4] It is important to look at the facts about the search in issue here in the broader context of the investigation of which it formed apart.

It is also important to remember that the decisions made by the police as to how to conduct the entry to the residence must beassessed in light of the information reasonably available to them at the time the decision was made. … [20] Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so. Ifchallenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to beconcerned about the possibility of harm to themselves or occupants, or about the destruction of evidence.

The greater the departure fromthe principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviourmust be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications.… [23] First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not inlight of how things turned out to be. … [24] Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises.

Theycannot be expected to measure in advance with nuanced precision the amount of force the situation will require. … The role of thereviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with therequirements of safe and effective law enforcement, not to become a Monday morning quarterback.

… [31] The appellant objects to the use of masks by the police. My view, however, is that the question for the reviewing judge is notwhether every detail of the search, viewed in isolation, was appropriate. The question for the judge, and the question the judge in thiscase answered, is whether the search overall, in light of the facts reasonably known to the police, was reasonable. Having determinedthat a hard entry was justified, I do not think that the court should attempt to micromanage the police’s choice of equipment. … [50] In R. v.

Perry, 2009 NBCA 12, 341 N.B.R. (2d) 325, the New Brunswick Court of Appeal rejected the conclusion of the trialjudge that, except in exigent circumstances, an otherwise valid search warrant must be endorsed by the issuing judge before police mayexecute a “no knock” entry. The Court also held that police need not obtain prior authorization for a hard entry even though they havethe intent before obtaining a warrant to enter a residence in a forcible manner. (

e) Application of Law on Hard Entry (

i) The Onus on the Accused Regarding Interference with Bodily Integrity [51] The alleged violation of Mr. Al-Amiri’s Charter rights by the hard entry may be disposed of simply on the grounds that he haspresented no evidence to establish that in the present case he in fact suffered any discomfort at all because of the manner in which thepolice entered the residence. We have only the general evidence of a police witness that the diversionary device used, a stun grenade or“flash-bang”, was a two-bang device which emitted a bright light and made two very loud noises.

The witness testified that generally theeffect of the device was to disorient anyone in range of the device by creating a sensory overload and that the noise and light only lastsfor seconds. Mr. Al-Amiri tendered no evidence which would demonstrate that he specifically suffered any actual interference with hisbodily integrity. The general nature of the evidence regarding the effect of the diversionary device is not sufficient to prove a violationof his Charter rights.

In any event, if we accept he was briefly disoriented, there is no evidence of any lasting impact or interferencewith bodily function or health beyond the de minimus range. Therefore, the facts in this case do not support a finding that the searchunder the general warrant was carried out in an unreasonable manner and should be invalidated because of noncompliance withsubsection 487.01(2). [52] That is not to say that a hard entry can never amount to execution of a general warrant in an unreasonable manner.

It willdepend upon the facts of each case. (ii) The “Knock and Announce” Rule [53] With respect, the trial judge erred in discounting or dismissing the evidence regarding the possible presence of weapons and theindications Mr. Al-Amiri had an inclination toward violence. The reliable evidence which the police had concerning the possiblepossession of knives and guns by Mr.

Al-Amiri and Mahmood Alsaihati and the CPIC “Caution Violence” provided sufficient evidenceof exigent circumstances, because of concern for officer safety, to justify departure from the knock and announce rule and use of thebattering ram. [54] I agree with the New Brunswick Court of Appeal in Perry that the law does not require police to obtain prior authorization for aforcible entry even though they have the intent to execute in this fashion before obtaining a general warrant.

With respect, the trial judgeerred in holding the failure to disclose this intent was a basis for finding the general warrant was not lawfully issued. The comments ofCromwell J. in Cornell about considering safety risks to officers and about judges not micromanaging the police’s choice of equipmentsupport this conclusion. (iii) The Necessity of a Feeney Warrant [55] The trial judge concluded Mr. Al-Amiri’s Charter rights had been violated because the police did not obtain a Feeney warrant. This was an error in law. Feeney warrants under

section 529 of the Criminal Code are only required where the police do not have otherlawful authority to enter premises where an arrest is carried out. In this case, the general warrant gave police the authority to enter anyresidence or other location where the package might be delivered. A Feeney warrant would be redundant in these circumstances sincethe issuing of the general warrant had already resolved the question of possible interference with privacy rights in favour of enablingpolice to preserve evidence of indictable offences. See, R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; R. v. Lucas, [2009]O.J.

No. 5333 (QL) (Ont. Sup. Ct. J.); and R. v. Martin, 2011 NLTD 40, 306 Nfld. & P.E.I.R. 180. (f) Section 24(2) Charter Admission of Evidence [56] For the following reasons, even if Mr. Al-Amiri’s Charter rights were breached, the circumstances of this case mandate that theevidence should still be admitted as exclusion of the evidence would tend to bring the administration of justice into disrepute. (

i) The Standard of Appellate Review of Section 24(2) Decisions [57] The review of decisions under section 24(2) of the Charter must be undertaken with deference to the rulings at trial, providedthe proper factors were considered and there were no unreasonable findings. See Côté, at para. 44. [58] The person seeking a Charter remedy under section 24(2) bears the burden of demonstrating on a balance of probabilities thatthe admission of evidence would bring the administration of justice into disrepute. The analysis involves a consideration of all thecircumstances: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

The court must consider the seriousness of the Charter-infringing stateconduct, the impact on the Charter-protected interests of the accused and the significance of excluding evidence for society’s interest inadjudicating the case on its merits: Grant, at para. 71. (ii) Application to the Present Case [59] The circumstances of this case do not support the trial judge’s conclusion that the police “demonstrated a cavalier attitude

toward the accused’s constitutional rights and a willful or careless disregard for the accused’s Charter rights”. The police were acting on what they quite reasonably believed to be judicial authorization to search the residence. As previously noted, the police had compelling and reliable information that Mr. Al-Amiri and Mahmood Alsaihati were engaging in trafficking ecstasy, cocaine and marihuana and were known to carry guns. The source of this information had been proven reliable in the past. A garbage search had revealed evidence of ecstasy and the type of packaging which the source said was being used.

The police made reasonable efforts to corroborate the information with surveillance and database enquiries. A Canada Post search had revealed 4.5 kilograms of ecstasy (15,300 pills) in a package addressed to the residence of the accused. A general warrant had been obtained to allow a controlled delivery of the postal package and the securing of whatever residence the package ultimately entered until a search warrant could be obtained. The available evidence of possible weapons and a CPIC violence caution supported the high risk assessment and made a hard entry reasonable in the circumstances.

In these circumstances, any breach of Mr. Al-Amiri’s rights did not involve serious Charter -infringing conduct on the part of the police and was therefore on the least serious end of the spectrum.

With respect, I must conclude that the trial judge did not consider the proper factors and made unreasonable findings in holding that the police were overzealous in their investigative efforts and failed to disclose all relevant information to the authorizing judge. [ 60 ] In terms of the impact on the Charter -protected interests of the accused, the Crown accepts that any illegality regarding the search would be serious as it would infringe an individual’s high expectation of privacy in a residence. [ 61 ] Society has a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law.

The reliable, real evidence seized in this case was essential to the proof of the serious charge against Mr. Al-Amiri. The truth- seeking function of the criminal trial process would be seriously impaired by the exclusion of the evidence in this case. Balancing the interests of truth and the integrity of the justice system weighs in favour of admission. The exclusion of relevant and reliable evidence would undermine that truth-seeking foundation of the justice system. This would bring the administration of justice into disrepute in the present circumstances.

Trafficking in drugs is a serious problem requiring sentences of imprisonment to adequately address denunciation and deterrence.

SUMMARY AND DISPOSITION [ 62 ] In

summary: (

i) The general warrant was valid; (ii) The manner of execution of the general warrant was reasonable; (iii) Mr. Al-Amiri has not shown that the execution of the general warrant infringed his Charter rights; (iv) Even if any of his Charter rights were infringed, in the circumstances the drugs and other items seized should be admitted. [ 63 ] I would allow the appeal. The seized evidence should be admitted into evidence, and the matter is remitted to the Trial Division for a new trial. _________________________________ L. D. Barry J.A. I Concur: _____________________________ B. G. Welsh J.A. I Concur: _____________________________ L. R. Hoegg J.A.