New Brunswick's highest Court was quick to critize a lower court's judgment in micromanaging the police decison to wear balaclavas during a hard entry.
In R. v. Sexton, 2011 NBCA 97, the police swore an Information to Obtain (ITO) a warrant under the Controlled Drugs and Substances Act to search the accused’s apartment. In the month leading up to the execution of the warrant, police officers had received information from various sources that Sexton was trafficking in cocaine and other drugs. The ITO included information from a source that he had been at the apartment within the last 24 hours and had seen Sexton in possession of what was believed to be cocaine.
As part of their plan to obtain and execute the search warrant, the police were going to utilize a “hard” (“no-knock” or “dynamic”) entry. They chose a hard entry because they were concerned about:
officer safety (the accused’s criminal past included convictions for weapons and drug related offences and an outstanding charge of assaulting a police officer. CPIC also contained two cautions about the accused, (i) violence and (ii) armed and dangerous); the safety of those in neighbouring apartments (if violence arose in the course of entering the apartment or conducting the search); and the preservation of evidence: (cocaine dissolves easily and is therefore easily disposed of. Without the element of surprise, persons inside the apartment could pour cocaine down the sink or a toilet bowl.)
The police confirmed Sexton was present in the apartment when two uniformed police officers knocked on the door under the ruse that they were looking to speak to his brother on a different matter. After the uniformed officers left the apartment, a team of four police officers, each armed with tactical rifles, wearing helmets and goggles over balaclavas and dressed in emergency response uniforms with the word "POLICE" inscribed on the front and back of their vests, entered the apartment without notice by using a battering ram.
Sexton was arrested, the search warrant executed, and several charges were laid under the Criminal Code and the Controlled Drugs and Substances Act, which included possession of cocaine, ecstasy, hashish, LSD, a sawed-off shotgun, an operational replica AK-47 assault rifle, three 9 mm handguns and one .22 calibre handgun.
At trial in New Brunswick Provincial Court the judge concluded that the hard entry was unreasonable in the circumstances for three reasons: (1) the reliance by the police on the CPIC cautions was “absolutely comical”, (2) the police should have known Sexton was not a threat because he was perfectly reasonable in his interactions with the two uniformed police officers enquiring about his brother and (3) the police officers wore balaclavas.
Regarding the wearing of balaclavas, the judge found “there was no justification whatsoever” for their use, citing “an innate distaste and dislike for anonymity.” The means employed to execute the warrant violated Sexton's s. 8 Charter right and the evidence was excluded. Sexton was acquitted on all charges.
The Crown appealed the judge’s findings that the search was conducted in an unreasonable fashion before the New Brunswick Court of Appeal. The Court first summarized the common law “knock and announce” rule”
In the ordinary course of events, police officers are required to make an announcement before forcing entry into a dwelling house. This is accomplished by giving “(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 the lawful reason for entry.” [reference omitted, at para 23]
However, the police may depart from “the knock and announce rule in circumstances where they have reasonable grounds to be concerned about their safety, the safety of others, or the destruction of evidence.”
When challenged, however, the police must explain why they thought it was necessary to do so. In determining whether the police had reasonable grounds for concern to justify use of an unannounced, forced entry, their decision must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. After the fact assessments are unfair and inappropriate where officers must exercise discretion and judgment in difficult and fluid situations. As well, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require.
In this case, Justice Bell found the search to be reasonable in the circumstances, noting a number of factors:
- There are two practical reasons why police must take very seriously the search of someone else's residence. First, it is highly likely that suspects will know the layout of the place being searched much better than the authorities. They will know potential means of escape and potential sources of weapons. Second, the person whose residence is being searched will, in most cases, have a better knowledge of who is present in the premises. The two unknowns of layout and occupancy provide a practical advantage to the person whose residence is being searched in the event that person wishes to destroy evidence or obstruct, evade or cause injury to police.
- Police knew Sexton had a criminal record for weapons and drug offences and was awaiting trial on a charge of assaulting a peace officer. Information appearing in CPIC constitutes a source of information which is used by virtually every police officer in Canada and whose information is communicated to, and relied upon, by courts throughout the country on a daily basis. Not only should police rely upon CPIC, they would no doubt be negligent and subject to disciplinary action if they choose to disregard it. The fact the CPIC cautions did not constitute a criminal record did not render them unreliable. • The uneventful visit at Sexton's door changed nothing about his criminal record, outstanding charges, or the CPIC cautions, nor did it change anything about the police knowledge or lack thereof about the layout of the premises or the occupants of the apartment. Sexton's response to a search of his premises for cocaine and other drugs might not be the same as when responding to police questions concerning an unrelated matter. The courts are not to be "Monday morning quarterbacks" on these sorts of questions. The visit at the door was, at best, a neutral event and the police continued to reasonably hold the view that a hard entry was required. Courts should not attempt to micromanage the police choice of equipment. Here, the police said they wore the masks to protect them from the possibility of shattering glass or flames. Further, the police were not operating anonymously. Their vests contained the inscription “POLICE” on the front and back and officers removed their balaclavas and helmets within a few minutes after the apartment was secured.
The Crown’s appeal was allowed, Sexton's acquittals set aside and a new trial was ordered.