R. v. Cornell: Accused Challenges Reasonableness of Search Warrant Execution

Members of the Calgary police force were left unscathed by the SCC’s decision in R. v. Cornell, 2010 SCC 31, despite facts indicating that excessive force and unjustified measures may have been used in their execution of a warrant to search Jason Michael Cornell’s residence. This decision is an example of where the judiciary’s construction and perception of the facts play a determining factor in whether a search was reasonably carried out.

The police received information that two gang members were running a dial-a-dope operation out of the Cornell residence. Cornell was not one of the gang members. After conducting an investigation and surveillance on the Cornell residence, they obtained search warrants to search the home. Based on the involvement of gang members with a history of violence, police believed that it would be necessary for the tactical team to enter the Cornell residence in a swift manner in order to avoid the destruction of evidence. Without knocking and announcing their entry, the masked tactical team entered the Cornell residence to execute the warrant.  They were masked because it was department policy at the time, and not because the circumstances warranted that their faces be concealed. In the aftermath of the search, the Cornell residence was visibly damaged.

While the 4-3 majority painted a picture of police officers whose actions were justified based on the possibility that they were walking into a minefield, the minority decision by Fish J. provides a detailed summary of how the police, clad in balaclavas, rammed open Cornell’s front door without knocking or announcing their presence. Although the suspects under investigation by the police were already in police custody at the time of the search, the police tore through the house searching for evidence of drug trafficking. They handcuffed the sole occupant of the house at the time, which was Cornell’s mentally challenged brother. Although they could have interviewed members of Cornell’s family who had left the residence shortly before the execution of the search warrant in order to determine whether there were other individuals in the residence, police stuck with their original plan. According to police, the home was swiftly searched, albeit in a destructive manner, so to preclude the opportunity for any evidence to be destroyed. Four minutes after the police entered the Cornell residence, the detective in possession of the warrant finally entered the house.

Out of these facts arose two issues: (i) did the police carry out their search in a reasonable manner; and (ii) did the police comply with the requirements in s. 29 of the Criminal Code, R.S.C. 1985, c. C-46? Writing for the majority, Cromwell J. answered both issues in the affirmative. The minority disagreed and held that the evidence obtained from the search should be excluded pursuant to s. 24(2) of the Charter.

The Search was Carried out in a “Reasonable” Manner

In R. v. Collins, [1987] 1 S.C.R. 265, the SCC held that a search will be reasonable under the Charter where the search is authorized by law, the authorizing law is reasonable, and the search is conducted in a reasonable manner. At issue in this decision was the last requirement. Before concluding that the search was reasonable, Cromwell J. stated that three points should be borne in mind whenever the lower courts assessment of this issue is reviewed:  

First, the decision by the police 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...Second, 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...Third, the trial judge’s assessment of the evidence and findings of fact must be accorded with substantial deference on appellant review.

Viewed in a vacuum, there is nothing objectionable about these points since they reflect the reality that the police are not all-knowing and omnipresent. When applied to the facts of this particular case, the first point becomes susceptible to criticism. If the police are to be judged by what “should reasonably have been known to them at the time”, then it is difficult to see how Cromwell J. held that the police had enough information to justify deviating from the standard “knock and announce principle” and that no additional investigation was required to learn about occupants in the residence. Since the violent gang members involved in the drug operation had already been arrested prior to the execution of the search warrant, the police's justification for using a "hard entry" no longer existed at the time of the search. To say that the police were justified in using a hard entry because they had no idea what they would come up against invites abuse. Further, the police’s reasonable grounds to be concerned that evidence may be destroyed were not based on “a fact-based assessment”, as Fish J. stated, but their past experience with drug trafficking.

The Proper Interpretation of s. 29 of the Criminal Code

The majority rejected Cornell’s argument that the search was unreasonable because the police officers that initially entered his home did not possess the search warrant. As mentioned above, the search warrant was brought into the residence four minutes after entry. The police explained that the primary investigator, who was in possession of a copy of the warrant, was not present upon entry because he was covering a potential exit for any fleeing suspects. Given the truancy of the warrant, the issue in question was the meaning of the requirement in s. 29(1) of the Criminal Code that “every one” have the warrant “with him, where it is feasible to do so.” The full provision 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.” The SCC unanimously upheld the trial judge’s holding that it is not required for each member of the police team executing the warrant to have a copy. As long as “at least one of the team of officers” executing the warrant has a copy, then the purpose of s. 29(1) to inform the occupant of the premises of the justification of the search, and the authority upon which it is being conducted, is fulfilled.

“Masked Assailants Break into Home”

The above title is similar to a newspaper headline that alerts the public of a criminal act, yet ironically, also describes the nature of the police’s execution of the search warrant against the Cornell residence. Notwithstanding the majority’s conclusion that the police did not violate s. 8 of the Charter, the impugned police conduct provokes questions concerning the relationship between the manner in which a search is executed and the accountability of the police. Fish J. aptly stated:

[The] anonymity in the exercise of power, particularly state power, invites some sense of detachment and a feeling of impunity. The wearing of masks by intruding police offers creates an unjustified risk in this regard, where, as here, it is based on nothing more than an ill-considered police “policy that has been judicially condemned on more than one occasion....Just as anonymity breeds impunity, so does impunity breed misconduct – which, unsanctioned by legal consequences, tends to bring into disrepute over enviable system of justice.

This comment regarding the questionable use of balaclavas as per department practice, instead as warranted by the circumstances at hand, poignantly illustrates the potential consequences of failing to hold the police and other agents of the state, accountable for their actions.  Accountability should not be sacrificed merely because the police have latitude in determining the appropriate procedures to execute the warrant. Otherwise, the above headline becomes more than just ironic.