Hindsight is not the measuring stick by which courts should judge police decisions in how warrants are executed, so says Ontario’s top court.
By Mike Novakowski
In R. v. Rutledge, 2017 ONCA 635, the police obtained two warrants to search a remote farmhouse for firearms, ammunition, controlled substances and related paraphernalia. Some of the many people who were believed to occupy the house had histories of violence. It was also believed that drugs were trafficked at or from the farmhouse and weapons and firearms — including a semi-automatic rifle — were present.
The officer in charge of the investigation determined that an undetected approach to the farmhouse to execute the warrants was safest, including flushing out any occupants to avoid a shootout or armed standoff. Police broke a window on the ground floor of the farmhouse, tossed a tear gas canister onto the floor of a room adjacent to the broken window and rammed down the front door. The canister dispensed gas but it was not incendiary. Rutledge was the only occupant of the farmhouse and quickly left it as the tear gas spread. He coughed and was teary-eyed, but required no medical intervention or assistance, and was promptly arrested. The police found drugs, guns and ammunition. Rutledge was charged with several drug and weapons offences.
Rutledge pled guilty to drug offences but went to trial in the Ontario Superior Court of Justice on weapons and ammunition offences.
The judge, among other things, found the use of tear gas in the circumstances was not unjustified and the search was not executed in an unreasonable manner.
“On the facts here, it is not for the court to second-guess the police discretion respecting the operational approach taken,” said the judge.
Rutledge was convicted of firearms and ammunition offences, sentenced to 12 months in prison, placed on two years probation, given a 10-year firearm prohibition (and ordered to forfeit many of the guns), provide a DNA sample and pay a $600 victim surcharge.
Rutledge challenged his convictions to the Ontario Court of Appeal, contending that the use of tear gas was, on its own, a discrete “search” under the Charter. This, in his view, required prior judicial authorization, which the police did not receive, and the “search” was unreasonable and breached s. 8 of the Charter. Furthermore, he submitted that the use of tear gas rendered the manner of the search conducted under the warrants unreasonable, another s. 8 violation.
Tear gas as a “search”
The Court of Appeal rejected Rutledge’s tear gas “search” argument. First, he did not advance this argument at trial. Second, “the use of tear gas in these circumstances does not fall within the plain or any extended meaning of ‘search’ within s. 8 of the Charter,” the appeal court said. “In this case, the use of tear gas was not for the purpose of obtaining personal information about the [accused], which he sought to shelter from state discovery and use. […] Section 8 interests were not implicated by what occurred.”
The Court of Appeal also rejected Rutledge’s submission that the investigative decision or plan to use tear gas should have been disclosed in the ITO. “This submission comes perilously close to micromanagement of police choices…” said the Appeal Court. “We also note that the statutory form used for an ITO, Form 1, makes no reference to the manner of execution.”
The Court of Appeal stated:
We also recognize that police are entitled to some latitude on how they decide to enter premises under a warrant. Omniscience is not a prerequisite for a search to be conducted in a reasonable manner. In an assessment of the manner in which a search has been executed, a reviewing court balances the rights of suspects, on the one hand, with the requirements of safe and effective law enforcement, on the other. The trial judge did this. This is no place for the Monday morning quarterback. [para. 26]
Rutledge’s appeal was dismissed.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.