Analyzing the Law of Police Dynamic Entry in Canada.

• Author: Roziere, Brendan

Public police use of dynamic or "no-knock" entry is a little examined social and legal phenomenon. Conveying precedent to what was already happening in practice across Canada, R v Cornell established that police "latitude" was reasonable when deciding whether police could use dynamic or no-knock entry. This paper examines the law of police use of dynamic entry in Canada. First, the authors assess relevant research on police tactics to provide background and context. Second, analyzing case law pre-and post-Cornell, the authors review cases demonstrative of how police latitude operates and assess what this means for expansion of police powers. Third, the authors examine cases that reveal what these dynamic entry practices mean for police use of special weapons, equipment, and tactics, focusing on Charter breaches. In the discussion, drawing from the overlooked Cornell dissent as it concerns checks on police powers, the authors offer legal and policy remedies. The authors conclude with comments on what their findings mean for the exercise of dynamic entry in Canada.

Introduction I. Context and Literature II. Methodology III. The Law of Police Dynamic Entry in Canada IV. Research Findings: Legal Parameters of Using Dynamic Entry A. Clothing and/or Balaclavas B. Officer Safety C. Police Anonymity D. Flash Bangs and Distraction Devices E. Tear Gas F. State of the Home Following Dynamic Entry V. Charter Compliance of Dynamic Entry by the Numbers A. Increased Latitude for Police and Deference for Trial Judges B. Exclusion of Evidence VI. Police Dynamic Entry in Canada: Recommendations Conclusion Introduction

On November 30, 2005, nine members of the Calgary Police Service Tactical Unit, wearing balaclavas, entered a private home in a residential area of Calgary. (1) The officers set upon Robert, a twenty-nine-year-old male with a mental disability who was home alone. (2) Robert was pushed to the ground before his hands were secured behind his back. (3) Exterior and interior doors of the home were destroyed, and locks were pried off a garage door. (4) Robert's mother came home to find her house in shambles. (5) After the Tactical Unit secured the house, a search team entered, uncovering 99.4 grams of cocaine. (6) Jason Cornell, Robert's brother, admitted to possessing the cocaine for purposes of trafficking. (7) Mr. Cornell attempted to have the evidence excluded pursuant to section 8 of the Canadian Charter of Rights and Freedoms, arguing that the search was conducted unreasonably. (8) The case reached the Supreme Court of Canada on appeal, dividing the court. A narrow majority of four justices found no Charter violation and upheld Mr. Cornell's conviction, while three justices in dissent would have not only found a Charter violation but would have excluded the evidence and entered an acquittal due to the police use of a dynamic entry. (9)

In R v Cornell, the Supreme Court of Canada established that police are to be granted "latitude" by the courts when deciding whether to use dynamic or "noknock" entry. (10) This is significant because while literature in the United States has examined increased use of dynamic entries, particularly by special weapons and tactics (SWAT) teams, and the implications therefore, little research has examined the same phenomenon with police practice across Canada. Dynamic entries, also known as no-knock or "hard entries", involve police utilizing force to gain rapid entry into a property. Police may employ specialized equipment, such as battering rams, flash bangs, or other distraction devices to quickly enter the premises and subdue occupants. Dynamic entry gives police the element of surprise, which may be important to avoid the destruction of evidence or prevent suspects from taking up arms, bolstering a defensive position, or taking and/or harming hostages. However, it is also a departure from the common law "knock and announce" principle, which grounds itself in the safety of occupants of a residence, the safety of police, and a respect for privacy.

Much Canadian scholarship to date has been devoted to examining the relationship between the Charter and police powers. (11) This work is necessary and important, but the focus has tended to be on defining what powers police have, and less on the manner in which they are exercised. To some extent this is unsurprising as outlining every way the exercise of a police power may be found unconstitutional will inherently be messier than simply defining what those powers are to begin with, though this should not deter such inquiries. Greater focus should be given to examining ground-level interpretations and effects of law and how these translate into police practice. Many police services have adopted forms of internal regulation of dynamic entry practices and equipment use, including specialized training, policies, and codes. Yet, there is little to no clear external regulation of police use of dynamic entry when executing a search warrant. For police this means limited guidance on what is expected of them by the courts, while for citizens it means greater risk that police will inadvertently go too far and violate their rights. As the use of dynamic entry increases, there is thus greater need to define its limits under the law. In this paper, we aim to remedy this shortcoming by examining both pre- and post-Cornell case law on dynamic entries in Canada and exploring the extent to which SWAT tactics and equipment use has been found to violate or abide by Canadian legal precedent and the Charter. From this case law review we offer guidance on the expectations of Canada's courts surrounding dynamic entries. After a review of the literature on SWAT team use, we provide an overview of the law of dynamic entry by police in Canada. Then we provide our research findings. We conclude with a discussion on the limits of dynamic entry use and best practices which police should follow to ensure the power is exercised in a Chrter-compliant manner. Additionally, we offer suggestions on the evidence which should be made available to assist the trial judge in their assessment of whether departing from knock and announce was justified in the circumstances of a case.

1. Context and Literature

   Dynamic entry is a police tactic designed to gain rapid entry into a location, usually a private home. In recent years the practice has become strongly associated with SWAT teams, and sometimes controversially so. (12) In the US, no-knock warrants executed by dynamic entry have grown rapidly, numbering in the thousands each year. (13) Canadian police rely on dynamic entry as well, but thus far have avoided many of the controversies and criticisms occurring south of the border. It is important to recognize that the Canadian and US contexts are different as it regards SWAT teams and dynamic entry use, however. First, in the US, there are seemingly perpetual wars carried out domestically. (14) The so-called wars on crime, on drugs, and on terror really do create a militarized environment for policing. Stoughton refers to this as policing's "warrior" problem. (15) Second, US police have access to actual military vehicles and weapons through the Department of Defense 1033 Program. The program transfers excess or decommissioned military equipment to police, of which SWAT teams and similar units are frequently the recipient. Salter argues police in general, but SWAT teams in particular, are now preoccupied with an armament culture and weapons fetish, meaning that police spend more and more on high-tech gear and weapons to use as part of their deployments. (16) Police are now also known by their paramilitary aesthetic, meaning their uniforms often more resemble military attire than the traditional blue police outfits. Relatedly, Rahall has written about the influence of private military contractors on public police in the US. (17) Third, SWAT teams are more likely to use dynamic entries or no-knock entries. Police enter premises using military entry tactics, and the results can be deadly. Persons inside buildings are treated as combatants. (18) Kraska and Kappeler track these changes and show the staggering rise of SWAT from its origins as small emergency response teams to major units in police forces across the US that strongly shape police culture and public culture. (19) These changes have become institutionalized in policing across the US. (20) The rise of SWAT has changed the institution of policing. Public policing today cannot be understood without examining the rise to prominence of SWAT teams.

   It is important to examine the extension of SWAT because of the possibility of increased police violence and shootings as a result. For instance, Delehanty et al analyze receipts of equipment through the Department of Defense's 1033 program in the US as an indicator of militarization, and the influence of that militarization on levels of police violence. (21) They find that shootings of people and dogs are more likely when police are using equipment from the military. Police use of military equipment is a factor in increasing numbers of police killings. Lawson Jr likewise finds an association between police militarization and police killings in the US. (22) Although Canadian police do not receive equipment through federal military departments, the rise of SWAT means the equipment and tactics of police are changing. These findings provide grounds to investigate the dynamics of SWAT equipment and tactics use in Canada and the possible effects.

   In Canada, police militarization has not received the same attention. Roziere and Walby have examined SWAT team deployments, finding that SWAT team deployments are on the rise, especially in medium-sized Canadian cities, and that SWAT is being used for much more than emergency situations. (23) SWAT team members are deployed for community policing, traffic policing, domestic violence calls, and suicide and mental health calls. What...