September 2010

Should the police knock before entering?

By Annie Charron

The issue at hand does not involve politeness but rather a power under the Criminal Code.

On July 30, 2010, the Supreme Court of Canada rendered a new decision in the Cornell case.

Though no one was hurt in the Cornell matter, oddly enough, the facts are very much like those of the highly-publicized Parasiris case, in which a Laval police officer, Daniel Tessier, was killed. Article 29 of the Criminal Code stipulates that "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...It is [also] the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so."

In the Cornell case, the Supreme Court had to review the facts to verify whether the statutory search had been carried out in an abusive manner seeing as the officers had entered unannounced and without a warrant.

In the end, it was concluded that the police had legitimate reasons to believe that warning the occupants of the home would have posed a security risk to either parties or a loss of evidence. Though they should have had a copy of the warrant, the officers who first arrived on the scene did not have the document because the senior investigator in the matter had a copy in his possession and could produce it on short notice.

The Supreme Court summed up its position as such:

"Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. Ordinarily, they should give: (1) notice of presence by knocking or ringing a door bell; (2) notice of authority, by identifying themselves as law enforcement officers; and (3) notice of purpose, by stating a lawful reason for entry. While the "knock and announce" principle is not absolute, where the police depart from it, there is an onus on them to explain why they thought it necessary to do so."

"The police must be allowed a certain amount of latitude in the manner in which they decide to enter premises and, in assessing that decision, the police must be judged by what was, or should reasonably have been, known to them at the time."

In the end, Jason Michael Cornell was convicted of possessing cocaine for the purpose of trafficking.

R. v. Cornell, [2010] CSC 31