A Look at the Tactics of the Tactical Response Team in R. v. Cornell: They’re No Joke
R. v. Cornell 2010 SCC 31 is a Supreme Court case released on July 31st 2010 concerning the appropriateness and reasonableness of police conduct during a search of a private dwelling. This post is a new take on the judgment which was first reviewed here.
The regulation of police powers is, unfortunately, a concern for all Canadians, not just those suspected or accused of criminal offences. The defendant Mr.Cornell’s door was rammed down without warning in November 2006 as nine balaclava-clad police stormed into his home. The police were acting under a warrant to search his residence for drugs. The violent (or, as it is euphemistically called, “dynamic”) entry was unfortunately met by the appellant’s innocent and mentally disabled brother, who was not shown a warrant and who was forced to the ground and handcuffed at gunpoint before the confusion settled.
Heavily armed tactical response units like the one involved in this case have made mistakes in the past, sometimes with deadly consequences for innocent civilians (and their equally innocent dogs – see the article on Bernard Bastien’s accidental death in Saturday Night Magazine, April 1998: http://firstname.lastname@example.org/msg04322.html).
Setting the Stage:
In 2006 police in Calgary, Alberta began investigating two members of the notoriously violent “Fresh Off the Boat” gang. Suspects “N” and “T” were believed to be conducting a cocaine trafficking operation, using cell phones and cars to receive and deliver orders.
During a two-week surveillance of N, he was witnessed visiting the accused’s residence four times for short visits. The police came to believe that Mr. Cornell’s residence was being used in the “dial-a-dope” operation as a stash house for the illegal drugs.
Two months before the search of Cornell’s residence, a mobile phone registered to his home address was discovered in N’s car; evidence, the police contended, of the accused’s affiliations with the violent criminal gang.
Based on the information they received through this surveillance, [the Information] warrants to search the residences of T and the accused, as well as N’s vehicle were issued pursuant to s. 11 of the Controlled Drugs and Substances Act.
The Information that lead to the warrant also indicated that a heavily armed tactical team would be required to enter the residences to protect against the perceived possibility of both evidence destruction and violent resistance.
On the afternoon of November 30th 2006, after conducting surveillance on the accused’s home for two days, the police observed the accused’s mother and sister leave the house and drive away. The other search warrants had already been executed, and N was safely in police custody.
Nine officers, their faces masked in balaclavas, bodies encased in full body amour and weapons drawn, rammed down the front door of the premises in order to secure it. They did so without knocking or announcing their presence in any way. As it turned out, the only person resident at the time was the accused’s brother, Robert, who is mentally challenged. At the time of the raid, the house did not require securing.
Robert was forcibly taken down, pushed on to his stomach and handcuffed with his arms behind his back. After approximately four minutes, his mental state and anguish were discerned and the handcuffs were removed. An officer tried unsuccessfully to comfort Robert, who eventually was helped by a paramedic to call his mother.
The tactical response team did not have a copy of the search warrant with them at the time they entered the premises. It was located a few blocks away with the lead investigator, and was only produced upon the arrival of Robert’s distraught mother, Mrs. Cornell. She had been summoned by her son, who was confused and in a state of panic.
During the search the police discovered 99.4 grams of cocaine in the accused’s bedroom. Mr. Cornell later admitted to possessing the cocaine for purposes of trafficking, but argued that the police obtained the evidence through an unreasonable search that included significant damage to his property, and that the evidence obtained via the search should therefore not be admitted.
He was convicted at trial. The Alberta Court of Appeal upheld the conviction, holding that the accused’s rights under s. 8 of the Charter of Rights and Freedoms had not been infringed because the search had been lawfully authorized and conducted reasonably, all things considered. The Supreme Court followed the reasons of the Alberta Court and dismissed the appeal.
First, I will examine the judicial analysis of the legitimacy of the officers’ waiving the customary practice of making an announcement before forcing entry into a private dwelling. Except in exigent circumstances, which police are required to prove if challenged, they must give notice of:
(i) Presence, by knocking on the door or ringing the bell;
(ii) Authority, by identifying themselves as law enforcement agents and
(iii) Purpose, by stating the lawful reason for entry, Eccles v. Bourque,  2 S.C.R. 739, at p. 747.
Neither side contested the validity of this authority, but there was disagreement about the proof of the “exigent circumstances” put forward by the police. In the judgment delivered on behalf of McLachlin, CJ and Charron, Rothstein and Cromwell JJ, Cromwell J accepted the evidence put forward by Detective Barrow in his “Information to Obtain a Search Warrant” (ITO):
“The tactical team would be required to enter the residence in order to avoid the destruction of evidence by potential occupants and for the safety of both the public and the police because of N and T’s history of violence and association with the organized crime group Fresh Off the Boat.” [para. 7].
Justice Fish in his dissent, which was joined by Binnie and LeBel JJ, found that the assertion that the “dynamic” entry was necessary for the safety of the officers was entirely unsupported by the record [para 101]. N was already in police custody, T had never been seen in the residence of the accused, and there was no suspicion that Mr. Cornell himself was a member of the gang.
Furthermore, although the destruction of evidence is often a real and serious concern and possibility, this fact alone does not suffice as grounds for the aggressive measures utilized by the police in their entry into the home.
In R. v. Genest  I S.C.R. 59 the Court stated that the Crown must lay the evidentiary framework to support the conclusion that there were grounds to be concerned about the possibility of violence. The majority concluded that the method of entry was justifiably reasonable because there was no way of knowing who was in the house at the time, whether or not they were armed, or if they would destroy any evidence. Cromwell J placed heavy emphasis on the fact that the police had reasonable grounds to believe that a cocaine trafficker who associated with violent people seemed to be freely welcome in the residence [para. 27]. While the possibility of a violent reception may have seemed quite real to the police when the warrant was issued, on the day the search was conducted there was no activity in the house save from Mrs. Cornell and her daughter peaceably leaving by car.
It is important to judge the police conduct by what they knew, or reasonably should have known, before the door was rammed down – and not with the benefit of hindsight. “But,” writes Fish J, “where the police would not have resorted to an unannounced and violent entry if they had known what they made no effort to learn – and could have easily discovered – this alone tends to indicate that the execution of the search was unreasonable in the circumstances.” [para. 113].
It seems that the police’s focus on N and T may have led them astray in deciding to enter the appellant’s residence unannounced, brandishing loaded weapons [para. 128]. After all, the initial focus of the investigation was of two violent and almost certainly dangerous gangsters, This may well explain, but not justify, why they chose to disregard the specific course of action prescribed by law in their execution of the warrant at the accused’s residence.
Now I turn to the issue of the warrant – is having it on hand more than a mere technicality?
S. 29(1) of the Criminal Code R.S.C. 1985, c.C-46 states:
“It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.”
Cromwell J, for the majority, noted that not every member of the police squad is expected to carry a copy of the warrant; and that in this instance the copy arrived with the lead investigator somewhere between 4-9 minutes after the forced entry [para. 40].
Much emphasis was also placed on the fact that no one had actually asked to see the warrant until it had arrived, shortly before Mrs. Cornell did. The only person in the house was Robert – and he was not in any state to request the warrant. By the time the warrant had arrived, the police had already pushed the unthreatening and mentally disabled Robert to the floor, laid him prone and handcuffed him [para. 73].
The purpose of a warrant is to show home-dwellers that the police have a legitimate authority in entering and searching your house, and are not bandits in the bushes to be feared, as Bernard Bastein’s wife thought the night her husband was shot and killed in a horrible accident brought on by miscommunication.
Back at Cornell’s house, it is not difficult to imagine that the innocent brother Robert would have been comforted by the assertion of state authority of an immediately presentable warrant. Moreover, when the police find that a “dynamic” entry has mistakenly been used on a secure or non-threatening domicile, the presentation of a warrant to peaceful residents could act as a way to diffuse the aggression of their entry.
While not every police officer should be expected to carry a copy of the warrant, it is hard to imagine it is overly onerous to expect those going in first to have one on hand. The officers entering the premises first might find the warrant can be used as a tool for facilitating cooperation and understanding.
There is no doubt that the police must be able to employ methods designed to protect themselves during raids in which there is a reasonable apprehension of resistance. But, was the information gathered about Mr. Cornell and his residence sufficient to make such a claim?
The majority rests their claim on two fundamental legal principles, that of reasonable search and seizure, and of deference in judicial review, to determine that the information gathered by the police was sufficient to justify their methods as “reasonable”.
For a search to be taken in its whole as reasonable, it must be authorized by law, the authorizing force must be reasonable, and the search must be conducted in a reasonable manner: R v. Collins,  I S.C.R. 265, at p. 278.
The majority noted that the onus was on the appellant, as the one asserting a breach of his Charter rights, to prove that the search contravened s. 8 [para. 16]. They concluded that the appellant did not put forward compelling enough evidence to override the trial judge’s decision 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 and the fact that a cocaine trafficker who associated with violent people was welcome in the residence.” [para. 27].
Furthermore, the majority contends, the trial judge’s assessment of the evidence and the findings of fact must be accorded substantial deference on appellate review. Evidence of reasonableness must not be looked at “through the lens of hindsight” Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at 45.
This is a problem for police in any security situation. If a violent situation erupts and gets out of hand, they are charged with being under-prepared – while, if there is no violence, they are accused of excessiveness.
Given that the police knew nothing about the residence apart from it’s registered occupier (Mrs. Cornell) and that the address was linked to the accused’s phone, Cromwell J perhaps goes too far when he barks, “[the police] cannot be expected to measure in advance with nuanced precision the amount of force the situation will require” [para. 24 – emphasis my own].
The dissent notes that far from engaging in a nuanced measurement of risk, the police actually made no inquiry as to the background of the inhabitants of the house – nor did they volunteer reasons why this would have been difficult [para. 52].
There was no reason for the police to believe that there would be anyone armed or dangerous in the premises at the point of entry. No reference to weapons was made in the Information to Obtain a Search Warrant [ITO], and the Crown alleged no grounds that they would find any therein.
No one in the house had a history of violence, and neither N nor T, the gang members that were being investigated, had ever been seen in the presence of the accused or his family [para. 77]. The risk analysis actually did not even mention the accused or his family, only the known dangerous offenders that were the target of the ongoing investigation.
The overall assessment of risk that formed the justification for this search seems to be based largely on the accused’s potential association with N, and some generalities about the nature of drug dealers. As noted in the appellant’s factum, the Crown insisted that this was a case about “gangs and guns.” While the ongoing investigation of N and T was certainly and crucially about targeting those specific problems, the Cornell residence had no substantial association with either.
Obviously, Cornell did not process, manufacture and distribute those drugs all on his own – at best, the police’s evidence suggested he was peripherally involved. Moreover, that very connection to the “Fresh Off the Boat” gang, N, was already in police custody. Mr. Cornell also had no criminal record or history of violent behaviour.
I contend that a properly nuanced investigation would have at least brought to light the existence of a mentally disabled brother who shared residency with the accused. This is not charging the police with a lack of foresight in hindsight, but rather advocating the necessity of a more thorough investigation of any premises police wish to search, and particularly those residences that will be taken by force.
The Police, Who?
Lastly, we turn to the issue of the balaclavas worn during the raid, which so intimidated and upset the already mentally unstable occupant of the house, Robert.
The majority largely dismissed the concern that the police were unreasonably using masks as a psychological weapon when they had no just cause to do so. In finding that the search, in light of all the facts, was reasonable, Cromwell J stated, “there is no need to micromanage the police’s choice of equipment” [para. 31].
Sergeant Marston gave evidence that the wearing of balaclavas was “typical” for the type of entry used at Mr. Cornell’s home [para. 86].
This practice, as was noted by Justice O’Brien in the court below, had by then been judicially condemned – in fact, declared unconstitutional – by two separate panels of the Court of Appeal of British Columbia: R. v. Schedel, 2003 BCCA 364, 175 C.C.C. (3d) 193, and R. v. Lau, 2003 BCCA 337, 175 C.C.C. (3d) 273.
Balaclavas are legitimately used in police raids to protect the identity of officers who are still undercover, to protect their faces from chemical fires when raiding drug labs, or when the deployment of pepper spray, or other irritants, is reasonably foreseeable. None of these justifications applied to this case, argued the dissent, because there was no reasonable apprehension of violence at the home on the day it was searched. A possible reason for their usual use could be to intimidate and psychologically overpower whoever happened to be inside [para 115].
When dealing with serious, violent, organized crime police might reserve the right to protect their own identities. Per Slatter JA, “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line”[para. 24 of R. v. Cornell, 2009 ABCA 147. Police are charged with what is arguably the most dangerous job in the country. Surely, their lives and safety are often on the line. This does not mean the courts should shy away from attempts to regulate police practices.
Moreover, anonymity in the exercise of power invites a sense of detachment from feelings of impunity. The masks render the officers unidentifiable to witnesses, and therefore make them unaccountable to victims and to society for any inappropriate behaviour. In the words of Justice Fish, “Just as anonymity breeds impunity, so too does impunity breed misconduct – which, unsanctioned by legal consequences, tends to bring into disrepute our enviable system of justice” [para. 118].
Ritter, J.A. who concurred with the majority in upholding the conviction before the Court of Appeal of Alberta, stated with respect to the wearing of balaclavas:
“ 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 habit” [para. 53].
This is not, as Justice Fish notes, a matter of punishing the police, but rather helping to regulate their conduct in the interests of all Canadians. It is not the court’s job to “micromanage” police practices, but to provide them with Constitutional guidance about the appropriateness of their behaviour.
We rely on the police. We need them to preserve law and order, and frankly we need them to arrest people like Mr. Cornell in order to confiscate his bag of drugs before it hits the streets.
But when our police perform masked and heavily armed forced entries into private dwellings without first properly surveying the home they intend to raid, it makes Canadians feel justifiably a bit uneasy, no matter the explanation. It has the effect of making us uncomfortable, and suspicious of what’s coming next – kind of like a knock-knock joke without a punch line.
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