R v Cornell, 2010 SCC 31 (30 July 2010)
The Supreme Court of Canada has considered the level of inquiry and analysis required to be conducted by police when determining whether a forced entry into a premise is reasonable, consistent with the right to be secure from unreasonable search and seizure.
Police had been investigating a ‘dial-a-dope’ cocaine trafficking operation. ‘N’ and ‘T’ had histories of violence and association with an organised criminal group. Whilst Cornell did not have a criminal record and was not believed to be a member of the group, police surveillance had spotted N entering Cornell’s residence for short periods on four occasions. Further, police found a mobile phone registered to Cornell in N’s vehicle.
The police obtained a warrant to search Cornell’s residence. Prior to executing the warrant, N was detained in police custody. The police tactical team undertook a ‘dynamic’ entry, ramming down Cornell’s door without knocking or announcing their presence. Nine police officers, wearing balaclavas and body amour, entered the house with weapons drawn. The only person in the house was Cornell’s intellectually disabled brother, who was brought down by police and handcuffed. Cocaine was discovered in Cornell’s bedroom, which Cornell admitted was for the purpose of trafficking.
Cornell submitted that the cocaine was seized through a violation of s 8 of the Canadian Charter of Rights and Freedoms, which provides a right to be secure against unreasonable search or seizure. Cornell further submitted that the evidence should not have been admitted pursuant to s 24(2) of the Charter, as it would bring the administration of justice into disrepute.
As the search had been lawfully authorised, the issue for the Supreme Court was whether the search had been conducted in a reasonable manner.
In a decision that turned on the specific facts of the case, the Supreme Court, by a majority of 4-3, determined that the search had been conducted reasonably.
The majority and minority both considered the common law ‘knock and announce’, principle when considering whether the search was conducted reasonably. This principle requires that there be notice of presence, notice of authority and notice of purpose, being the lawful reasons for entry. The principle is not absolute, and in cases of departure from this principle, police carry the onus of establishing why it was necessary. The police must be judged by what was, or should reasonably have been, known to them at the time.
The majority held that the police had well founded fears in relation to their safety and the occupants of the house based on their reasonable belief that Cornell’s residence was being used in a drug trafficking enterprise and because a known trafficker who associated with violent people was welcome in the Cornell residence. The police were entitled to draw reasonable inferences from such facts, without making a separate assessment of the real threat of violence from the Cornell residence. The majority were of the view that ‘Section 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present’.
It was accepted that the police had reasonable grounds to believe that evidence would be destroyed. Cocaine, a substance easily destroyed, was suspected to be on the premises. The police did not know who was in the house or whether there was any person that would destroy the evidence upon becoming aware that police were at the door. That N was known to be in police custody did not affect the reasonableness of the search.
The minority noted that there was no reason to suspect that weapons were on the premises. The decision-making of the Police was criticised for failing to make reasonable inquiries to ascertain the nature of the premises, the identities or backgrounds of the occupants and the real risk of resistance.
The minority were concerned by the wearing of balaclavas by police, making the following observation:
Gratuitous intimidation of this sort – psychological violence entirely unrelated to the particular circumstances of the search – may in itself render a search unreasonable. Moreover, anonymity in the exercise of power, particularly state power, invites in some a sense of detachment and a feeling of impunity.
In relation to risk of evidence being destroyed, the minority noted that:
It is well established that generic information about the potential presence of drugs in a home is insufficient to warrant so drastic a violation of its occupants’ constitutional rights.
The minority’s view was that the s 8 violation was not minor or technical; rather it represented an ‘armed, sudden and violent assault by masked intruders on a private residence without reasonable justification’. As a result, the evidence obtained should have been excluded pursuant to s 24(2) of the Charter.
That the dynamic entry appeared to be driven more by general police practice rather than specific information about Cornell rendered the infringement more serious because it highlighted that it was systemic in nature, despite past judicial condemnation.
In characterising the impact of the s 8 violation, the minority noted that the right to be secure against unreasonable search and seizure is long recognised at common law. The expectation of privacy is at its highest in the home. An unreasonable search that intrudes into an area where individuals enjoy a high expectation of privacy renders the intrusion more serious.
The privacy interest protected by s 8 is most actively engaged in the context of a private residence, and society’s interest in the adjudication of this case on its merits does not outweigh the interests of society, in the longer term, in discouraging routine disregard by police of constitutional, statutory and common law safeguards designed to protect the sanctity of a person’s home.
Relevance to the Victorian Charter
Whilst the Victorian Charter does not expressly provide for a right to be secure against unreasonable search and seizure, the discussion of the expectation of privacy within the home may be useful in interpreting s 13 of the Victorian Charter, which protects the right of persons not to have their privacy, family, home or correspondence arbitrarily interfered with. It may also assist with the interpretation of s 20, which prevents a public authority from depriving Victorians of their property, other than in accordance with the law.
The decision is at www.canlii.org/en/ca/scc/doc/2010/2010scc31/2010scc31.html.
Adrianne Walters is a lawyer with Slater & Gordon