FLAWED RULING MEANS POLICE DON'T HAVE TO KNOCK FIRST

The Supreme Court knocks down a centuries-old principle and shows
that the majority doesn't always get it right

Picture this: You're in your home and suddenly a team of armed men
smash their way through your front door. Would you not do everything
in your power to protect yourself and your family, including using a
weapon if you had one at your disposal?

In 2007, Laval businessman Basil Parasiris did so. Parasiris grabbed
his revolver and shot at the men he believed were home invaders,
killing one and injuring another. As it turned out, the men were
police officers, and Parasiris was charged with first-degree murder
and attempted murder. But he was acquitted on the ground that he was
acting in self-defence, and he is now suing the police.

The " knock and announce" rule, which requires police officers to
knock on the door and announce their presence before making forced
entry into a house, was designed to avoid precisely what happened in
the Parasiris case.

It is a fundamental rule, and a very old one, first encoded in the
Statute of Westminster in 1275. The rule became part of the English
common law in Semayne's Case in 1604, and has since been endorsed by
courts across Canada.

The courts have noted that the rule exists primarily to protect the
safety of both homeowners and the police. And indeed, " hard" or
"dynamic" entries - entries where police fail to knock and announce -
have resulted in the deaths of both homeowners and the police, though
police studies suggest that they are most dangerous to police officers.

This is not to say that the rule is absolute. If exigent circumstances
exist - if, for example, the police have reasonable grounds to believe
that they or others will be harmed, or evidence destroyed, if they
knock and announce - they can dispense with the rule. But given the
rule's role in enhancing safety, courts have typically required the
police to provide careful "particularized" information to justify
using a dynamic entry.

It is unfortunate, then, that a recent decision of the Supreme Court
of Canada broadened considerably the circumstances under which police
may ignore the rule. The decision has received little attention since
it was released the same day as the Pickton judgment, but it's worth
considering, given its importance to police and public safety.

In November, 2005, nine armed, masked members of the of the Calgary
Police Services Tactical Unit broke down the door to Lorraine
Cornell's home pursuant to a search warrant. The only person at home
at the time was Cornell's mentally disabled son Robert, who was deeply
traumatized and required medical aid after he was handcuffed face down
on the floor.

After entering the home, the tactical unit members did identify
themselves, saying they had a search warrant. But they didn't have a
copy of the warrant, which was held by a detective who arrived between
four and nine minutes later. That may not sound like a long time, but
it took Basil Parasiris only 30 seconds to shoot two police officers,
one fatally.

Police had obtained the search warrant after providing evidence that
Cornell's other son, Jason, had been storing cocaine for a
gang-affiliated drug dealer. Police had previously witnessed the
dealer, who had been arrested shortly before the Cornell raid, making
brief stops at the Cornell home on several occasions.

The police therefore had provided some evidence that Jason Cornell was
aiding a drug dealer, which is why they were successful in obtaining
the warrant. But none of this goes to the matter of police ignoring
the knock and announce rule.

After Jason Cornell argued that he was subject to an unreasonable
search and seizure, the Crown provided limited evidence to support the
police's actions. And that limited evidence was sufficient for four
judges of the Supreme Court, though three other judges considered it
woefully inadequate. This reveals that there is considerable
dissension in the court over the issue, and it is unfortunate that two
judges did not hear the appeal.

In any case, the majority found the dynamic entry justified both to
protect the officers' and home occupants' safety and to prevent the
destruction of evidence. As to the safety issue, Justice Thomas
Cromwell cited with approval the trial judge's comments that police
knew "a cocaine trafficker who associated with violent people was
welcome in the [ Cornell] residence," and " those who traffic in
cocaine frequently are violent." While the trial judge's statements
are true, the upshot of the decision is that police will be justified
in departing from the knock and announce rule any time they are
dealing with people suspected of aiding a cocaine trafficker.

The decision goes even further than this. Concerning the destruction
of evidence, Cromwell also cited with approval the trial judge's
observation that " there were reasonable grounds to believe that
cocaine would be found on the premises and that it is a substance that
is easily destroyed."

Yet since cocaine can always be easily destroyed, the police will now
be justified in dispensing with the knock and announce rule any time
they suspect cocaine is on the premises. This represents a grand
departure from the 800-year history of the knock and announce rule, as
the stinging dissent made clear.

Writing for the minority, Justice Morris Fish noted that the police
had no information about whether the Cornell home or its occupants
might be dangerous, because they never made any effort to find out: "
They had conducted no particularized inquiry to determine whether a
violent assault on appellant's home appeared justified in the
circumstances - apart from their surveillance of the premises, which
in fact indicated the contrary."

Indeed, while a risk analysis had been completed, it didn't concern
the Cornell home and was never communicated to the tactical team that
conducted the raid.

Further, while a drug dealer had been seen at the residence
previously, he was already in police custody at the time of the raid.
And none of the occupants of the home, including Jason Cornell, had a
criminal record or any history of violence.

As to the destruction of evidence, Fish noted that the law requires
police to first ascertain whether there is a " real likelihood" that
the drugs would be destroyed: " It is well established that generic
information about the potential presence of drugs in a home is
insufficient to warrant" a dynamic entry.

Yet it seems that generic information is precisely what the majority
relied on - generic information about drugs and generic information
about drug traffickers. This has never been an appropriate way of
dealing with departures from the knock and announce rule, but it is
now, unfortunately.

Finally, the majority did not seem particularly troubled by the fact
that the tactical team lacked a copy of the search warrant, though
Cromwell did say it would have been " better practice" if they had had
one.

The minority, on the other hand, was deeply troubled, with Fish noting
that the failure to carry the warrant " is not a technical or
insignificant breach of the law. It is a violation of a venerable
principle of historic and constitutional importance. And it is of
practical importance as well in avoiding violent resistance by those
present in the home." The Calgary police must also have been troubled,
since shortly after the Cornell raid, they began requiring the
tactical team to carry a copy of the search warrant.

Despite Fish's harsh words for the police, his harshest comment
appears directed at the majority, which means, fortunately, that this
might not be the last we hear from the Supreme Court about this
matter. In concluding his decision, Fish stated that courts must
fulfil their "duty to ensure that police respect the legal and
constitutional restraints by which they are bound."