Police may force entry as long as they wait a reasonable time after giving proper notice.
In R. v. Pan & Ban, 2012 ONCA 581, police obtained a search warrant for a suspected marijuana grow operation. They went to the house, knocked repeatedly and announced they were police and had a warrant. No one answered and, after waiting 30 to 40 seconds, officers opened the door with a bettering ram and entered.
Inside they found 1,370 marijuana plants and arrested two people, including Ban. Both accused were charged with production, possession for the purpose of trafficking and theft of electricity.
An Ontario Court of Justice judge stayed the charges against Ban, in part, on the ground that police had breached the knock-and-announce rule and Ban's injuries were a "foreseeable" consequence of this breach. He also found the search wasn't conducted reasonably under s. 8 of the Charter. In his view, police conducted a "dynamic entry" without any grounds to do so.
"The failure of someone to answer the door within 60 seconds when one expects fans to be running is not an exigency that justifies a dynamic entry," he said. "The knock-and-announce rule is not a 'knock-and-break-in-the-door-if-no-answer' rule. It means that non-violent execution of the warrant must be attempted."
The Crown challenged the ruling before the Ontario Court of Appeal, arguing the judge erred in holding that police did not comply with the knock-and-announce rule. Justice Laskin, authoring the judgment, agreed:
Unless exigent circumstances exist, the police must knock and announce their presence before entering a home. The knock-and-announce rule has been part of our law for over 400 years...
The rationales for the rule are well known: the protection of the dignity and privacy interests of the occupants of the house and the enhancement of the safety of the police and the public (paras. 35-36).
Police complied with the knock-and-announce rule. They gave notice of presence (knocked several times), notice of authority (announced who they were) and notice of purpose (stated their reason for being there – to execute a search warrant). Justice Laskin concluded that the knock-and-announce rule is a "knock-and-break-in-the-door-if-no-answer rule."
"If the police receive no answer, they are entitled to force entry into a home," he said. Since officers complied with the three components of the knock-and-announce rule, the judge erred in holding that the Crown was required to justify why police did not comply with the rule.
However, the knock-and-announce rule also requires police to give home occupants a reasonable amount of time to answer before forcing entry. In this case, the court would let a judge at a new trial decide whether the 30 to 40 seconds the police waited was a reasonable amount of time before entering.
Laskin also opined that "even if (police) did depart from the knock-and-announce rule – by, for example, not waiting long enough before forcing entry into the home – that departure would hardly be so egregious that it would turn this case into one of those exceptional cases requiring a stay."
Since the trial judge erred in principle and exercised his discretion unreasonably in staying the charges, Ban's stay was set aside and a new trial ordered.
Except in exigent circumstances, police must knock-and-announce their presence before entering a dwelling house. In doing so, they must give:
NOTICE OF PRESENCE by knocking or ringing the door bell; NOTICE OF AUTHORITY by identifying themselves as law enforcement officers; and NOTICE OF PURPOSE by stating a lawful reason for entry.
(see R. v. Cornell, 2010 SCC 31).