R. v. Cornell (J.M.)

• Court: Court of Appeal (Alberta)
• Judge: Ritter, O'Brien and Slatter, JJ.A.
• Citation: 2009 ABCA 147,(2009), 454 A.R. 362 (CA)
• Date: 28 April 2009

R. v. Cornell (J.M.) (2009), 454 A.R. 362 (CA);

      455 W.A.C. 362

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AP.115

Her Majesty The Queen (respondent) v. Jason Michael Cornell (appellant)

(0801-0165-A; 2009 ABCA 147)

Indexed As: R. v. Cornell (J.M.)

Alberta Court of Appeal

Ritter, O'Brien and Slatter, JJ.A.

April 28, 2009.

Summary:

The 21 year old accused lived in his mother's rented house with two siblings. Police obtained a search warrant based on reasonable and probable grounds that the accused was involved in a "dial-a-dope" cocaine trafficking operation. A police tactical unit, concerned with the destruction of evidence and the possible presence of weapons, executed an unannounced "hard" entry using battering rams. They wore balaclavas and had their guns drawn. The accused, charged with possession of cocaine for the purpose of trafficking, alleged an unreasonable search and seizure contrary to s. 8 of the Charter and sought exclusion of the evidence under s. 24(2).

The Alberta Court of Queen's Bench held that the warrant was valid and the execution of the search, including the "hard entry" by a tactical team with guns drawn and wearing balaclavas, did not violate s. 8 of the Charter. In any event, the evidence would not have been excluded under s. 24(2) of the Charter. The accused was convicted of possession of cocaine for the purpose of trafficking. He appealed, submitting that (1) the police lacked reasonable and probable grounds to obtain the search warrant, (2) the manner in which the search was conducted rendered it an unreasonable search and seizure and (3) the evidence should have been excluded.

The Alberta Court of Appeal, O'Brien, J.A., dissenting, dismissed the appeal. There existed reasonable and probable grounds to obtain a search warrant. Although this was a borderline case, the trial judge's finding that using a tactical team to execute a "hard entry" while wearing balaclavas with guns drawn did not constitute an unreasonable search and seizure was supported by the evidence. Further, the alternative finding that the evidence would not be excluded under s. 24(2) was reasonable. O'Brien, J.A., agreed that the search warrant was valid, but opined that "the violent entry into a private dwelling, unannounced and without request, by several masked police with weapons drawn, and without the search warrant, was not justified" and would have excluded the evidence under s. 24(2).

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The 21 year old accused lived in his mother's rented house in a residential neighbourhood - It was not a suspected drug house - Police obtained a search warrant based on reasonable and probable grounds that the accused was part of a "dial-a-dope" cocaine trafficking operation - None of the occupants had a criminal record or were suspected of possessing weapons - The police decided to use a tactical team to make an unannounced "hard entry" with a battering ram, while masked with balaclavas and with guns drawn - Doors were damaged and the accused's disabled brother, who was taken down and cuffed, was terrified - The justification for the "hard entry" was the generic concern respecting the destruction of evidence if a "knock and announce" entry was used and concern for officer safety because of possible weapons - The Alberta Court of Appeal held that the trial judge did not err in finding that the "hard entry" was not unreasonable and did not violate s. 8 - The disposal of evidence was a realistic concern, even if there was no specific evidence that the occupants in this case might dispose of the drugs - That alone was sufficient to justify the "hard entry" - The secondary risk that weapons might be present was not essential for justification, but the police were entitled to reasonably believe that weapons might be present (i.e., background risk of weapons) - Using a tactical team with drawn weapons was not unreasonable - Further, the alternative finding that the evidence would not be excluded under s. 24(2) was reasonable - See paragraphs 20 to 33; 45 to 54.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The 21 year old accused lived in his mother's rented house in a residential neighbourhood - It was not a suspected drug house - Police obtained a search warrant based on reasonable and probable grounds that the accused was part of a "dial-a-dope" cocaine trafficking operation - None of the occupants had a criminal record or were suspected of possessing weapons - The police decided to use a tactical team to make an unannounced "hard entry" with a battering ram, while masked with balaclavas and with guns drawn - At issue was whether the wearing of balaclavas rendered the search unreasonable - The Alberta Court of Appeal, per Slatter, J.A., stated that "the notice of Charter challenge did not mention uniforms or balaclavas as being contributory to the unreasonableness of the search. ... A definitive ruling on the wearing of masks during a search should await a case with a proper procedural and evidentiary foundation. In any event ... the presence or absence of a mask will rarely be determinative by itself." - Ritter, J.A., expressing concern over the indiscriminate use of balaclavas as a matter of police policy, stated that "since this is the second opinion of this court raising concerns about the indiscriminate habit of balaclava-clad police conducting searches in private homes, I would expect that police will discontinue this practice. Failure to do so may suggest an attitudinal problem that could, in future, tip the balance in favour of a finding that a search was unreasonable. Of course, if acceptable reasons are given, in any particular case, as to why balaclavas were called for, their use would not be a factor on the unreasonableness side of the scale" - O'Brien, J.A., dissenting in the result (manner of search unreasonable), opined that no consideration appeared to have been given to whether balaclavas were necessary - None of the standard reasons for being masked (fire danger, protect identity of officers, etc.) were established in these circumstances - See paragraphs 28, 29, 46 to 53, 111, 112.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 1646 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - Section 29(1) of the Criminal Code provided that "it is the duty of every one who executes a ... warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so" - A police tactical unit executed an unannounced "hard entry" into the accused's residence - None of them were in possession of the search warrant - The police officer in charge of the search, who was off-site but in radio contact, arrived minutes after the residence was secure - The Alberta Court of Appeal affirmed that s. 29 was not violated - The court stated that "the warrant was executed by a team of police officers. Section 29, on its face, does not require that each of them have a copy of the warrant, or that the first person through the door be carrying the warrant, or that any member of the entry team have the warrant, or even that the warrant be taken into the house. They must just have it 'with them'. What is required is that one member of the team who is on site and participating in the search have a copy of the warrant, and that it be produced on request." - The trial judge's finding that the warrant was in the possession of members of the police team who were outside waiting for the premises to be secured before commencing the search was reasonably supported and there was no noncompliance with s. 29 - Alternatively, any breach of s. 29 was merely technical - O'Brien, J.A., dissenting, opined that "the purpose of [s. 29] is not achieved by late arrival with the warrant after entry has been made and control taken. In my view, neither the letter nor spirit of section 29 are observed by the officer carrying the warrant merely being in the vicinity of the dwelling at the time of entry." - See paragraphs 34 to 42, 134, 135.

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - [See first Civil Rights - Topic 1646 ].

Narcotic Control - Topic 2035

Search and seizure - Search warrants - "Securing" premises until search warrant arrives - [See Criminal Law - Topic 3054 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - [See first Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Ngo (D.T.), [2003] 11 W.W.R. 496; 327 A.R. 320; 296 W.A.C. 32; 2003 ABCA 121, refd to. [para. 2].

R. v. Chubak (M.J.) (2009), 446 A.R. 283; 442 W.A.C. 283; 2009 ABCA 8, refd to. [para. 2].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 3].

R. v. Duguay, Murphy and Sevigny, [1989] 1 S.C.R. 93; 91 N.R. 201; 31 O.A.C. 177, refd to. [para. 3].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 3].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 3].

R. v. N.O. (2009), 448 A.R. 253; 2009 ABCA 75, refd to. [para. 3].

R. v. Matwiy (S.B.) and Langston (J.D.) (1996), 178 A.R. 356; 110 W.A.C. 356; 105 C.C.C.(3d) 251 (C.A.), refd to. [para. 5].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163; 45 C.C.C.(3d) 385, refd to. [para. 10].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 10].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 77 C.C.C.(3d) 385 (C.A.), leave to appeal refused [1993] 2 S.C.R. vii; 151 N.R. 400; 141 A.R. 317; 46 W.A.C. 317, refd to. [para. 17].

R. v. Al-Fartossy (S.) (2007), 425 A.R. 336; 418 W.A.C. 336; 83 Alta. L.R.(4th) 215; 2007 ABCA 427, refd to. [para. 17].

R. v. Newell (J.), [2007] O.T.C. Uned. C91 (Sup. Ct.), refd to. [para. 22].

Crampton v. Walton et al. (2005), 363 A.R. 216; 343 W.A.C. 216; 40 Alta. L.R.(4th) 28; 2005 ABCA 81, refd to. [para. 24].

R. v. Patrick (R.S.) (2007), 417 A.R. 276; 410 W.A.C. 276; 81 Alta. L.R.(4th) 212; 2007 ABCA 308, refd to. [para. 29].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 36].

R. v. Parasiris, 2008 QCCS 2460, refd to. [para. 51].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161, refd to. [para. 73].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 77].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 77].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 78].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 85].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161; 38 C.R.(4th) 330, refd to. [para. 98].

R. v. Gimson, [1991] 3 S.C.R. 692; 152 N.R. 161; 62 O.A.C. 282, refd to. [para. 104].

R. v. Gimson (1990), 37 O.A.C. 243; 54 C.C.C.(3d) 232 (C.A.), refd to. [para. 104].

R. v. Schedel (B.C.) (2003), 184 B.C.A.C. 166; 302 W.A.C. 166; 175 C.C.C.(3d) 193; 2003 BCCA 364, refd to. [para. 105].

R. v. Lau (C.F.) (2003), 186 B.C.A.C. 3; 306 W.A.C. 3; 2003 BCCA 337, refd to. [para. 114].

R. v. DeWolfe (C.L.) (2007), 256 N.S.R.(2d) 221; 818 A.P.R. 221; 2007 NSCA 79, refd to. [para. 117].

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263; 222 W.A.C. 263; 145 C.C.C.(3d) 320; 2000 BCCA 239, refd to. [para. 136].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 29(1) [para. 35].

Authors and Works Noticed:

Côté, Pierre André, Interpretation of Legislation in Canada (3rd Ed. 2000), p. 72 [para. 35].

Fontana, James A., and Keeshan, M. David, The Law of Search and Seizure in Canada (7th Ed. 2007), p. 163 [para. 21].

Counsel:

C. McMenemy, for the respondent;

M.G. Bates and D.G. Chow, for the appellant.

This appeal was heard on January 14, 2009, before Ritter, O'Brien and Slatter, JJ.A., of the Alberta Court of Appeal.

On April 28, 2009, the judgment of the Court of Appeal was delivered and the following judgments were filed:

Slatter, J.A. - see paragraphs 1 to 44;

Ritter, J.A. - see paragraphs 45 to 54;

O'Brien, J.A., dissenting - see paragraphs 55 to 148.