COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and Hoy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Burke
Appellant
Howard L. Krongold, for the appellant
Allison Dellandrea, for the respondent
Heard: May 9, 2013
On appeal from the conviction entered on December 16, 2011 by Justice Bonnie Warkentin of the Superior Court of Justice, sitting without a jury.
A. overview
1The appellant, a computer programmer working for a high-tech firm in Ottawa, was convicted of possession of child pornography contrary to s. 163.1(4) of the Criminal Code. The issues on appeal relate to the issuance of the search warrant and the manner of its execution.
2A police computer program that searches internet file-sharing systems identified the appellant as potentially possessing child pornography. After police verified that the files in question were child pornography, a search warrant was issued. A number of police, some of whom wore masks, battered down the appellant’s door, entered with guns drawn and yelled at him to get down on the floor. Within minutes he was arrested and taken outside. A search of the appellant’s computer revealed child pornography.
3It is well-established that in order for a search to be reasonable within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms, the search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278.
4The appellant submits that the search of his home was not reasonable because the Information to Obtain (“ITO”) did not contain sufficient reliable information to permit a search warrant to issue and, in any event, the information as to possession was stale in the sense that the police had no reason to believe he was still in possession of child pornography. Alternatively, if the search warrant was properly issued and the search was authorized by law, the appellant submits that the manner in which the search was carried out was not reasonable.
5For the reasons that follow, I would not give effect to the appellant’s arguments. In relation to the issuance of the search warrant, the trial judge correctly stated and applied the approach to be followed by a reviewing judge. The appellant’s principle submission – that the data sorting tool used by the police to assist in detecting persons who possess child pornography had to be independently shown to be reliable – does not accord with the current state of the law. The lead investigator’s belief that the appellant continued to possess child pornography was reasonable.
6In relation to the manner in which the search warrant was carried out, the police decision to use a “no-knock”, unannounced entry was reasonable because the evidence in issue – digital files of child pornography on the appellant’s computer – could easily be disposed of or hidden. When the rights of the appellant are balanced against the need for effective law enforcement, I would hold that the overall manner in which the search was carried out was reasonable.
7Accordingly, I would dismiss the appeal.
B. whether the Information To Obtain the search warrant contained sufficient reliable information to permit a warrant to issue
(1) The facts relating to the ITO
8On March 2, 2009, Det. Maureen Bryden of the Ottawa Police Service (“OPS”) was assigned as lead investigator for Project Salvo, a national investigation into child pornography being shared over the “Gnutella” peer-to-peer network. She drafted the ITO in relation to the appellant. The ITO was based on a software program known as the Wyoming Toolkit, the use of which provided the information that led her to suspect the appellant of wrongdoing.
9Gnutella is a computer software program that allows users to share files with one another over the internet. Using this software, when a user types in a search term, the system sends the search through the computers of numerous other users. Any computer that has a file with a corresponding search term in its title will respond to the request and transmit back the file name and its Internet Protocol (“IP”)1 address to the originating machine. The user may then connect directly to any one of the responding computers and download their choice of files. Some files being shared by these users contain child pornography.
10One way that investigators confirm the presence of suspected child pornography files in a Gnutella user’s computer is through hash verification using the Wyoming Toolkit.
11Each file that is being shared over the Gnutella network relies on a SHA-1 hash value, a series of 32 letters and numbers that serves to identify, sort and authenticate the file. A given file will always have the same hash value; it is the digital DNA of the file and cannot be altered. The police are able to compare the SHA-1 hash values of files shared on the Gnutella network to values of known child pornography and, by identifying the IP address that has a file with this value, thereby identify suspects in possession of child pornography.
12The ITO prepared by Det. Bryden detailed her investigation that led to her belief that the appellant possessed child pornography. It listed her personal experience and qualifications, the length of time she had been a police officer, and the courses she had taken, including specialized courses on Canadian Internet Child Exploitation, Digital Technologies for Investigators, Peer-to-Peer Investigations, and Offences Against Children.
13She gave a brief non-technical explanation of the origin and functioning of the Gnutella network, what an IP address is, the author of the Wyoming Toolkit program, and its purpose. She explained that she used the Wyoming Toolkit to generate an IP History report for the appellant’s IP address. The report revealed that the appellant’s IP address had been identified as a download candidate, that is, a user from whom child pornography may be downloaded, during an eight month period: June 29, 2008 to February, 22, 2009. The report provided the SHA-1 hash values associated with the hits logged during this period by the Wyoming Toolkit.
14Det. Bryden compared the list of SHA-1 hash values from the IP History report to her own library of hash values and associated child pornography images. Through this comparison she viewed two child pornography video files and confirmed they were being offered for download by the IP address associated with the appellant.
15She obtained his municipal address from the internet service provider. A police officer attended the municipal address and, through a ruse, confirmed that the appellant appeared to reside there alone in a unit on the ground floor of the complex.
16When drafting the ITO, in support of her belief that evidence of possession of child pornography would still be found at this address, she relied on her investigation demonstrating that child pornography files had been there for a period of eight months and her training and experience which led her to believe that the child pornography images possessed by the appellant remained in his continued possession and could be forensically retrieved from his computer. The ITO also states that Det. Bryden was aware that the data is highly disposable as it can be quickly hidden, disguised on a hard drive, password protected, or encrypted.
(2) The trial judge’s decision on the ITO
17After reviewing the contents of the ITO as amplified by Det. Bryden’s testimony, and the applicable legal principles, the trial judge stated:
Detective Bryden testified in this application that she sought to give Coles notes versions of the concepts at play, being the Gnutella Network and the Wyoming Toolkit. This is all that was required of her. The affidavit was not required to be a treatise on the methodology used. Detective Bryden provided an explanation in her affidavit that the investigation utilized a computer software program; she explained what the program does and why it is important in a case like this. A general explanation is all that is needed.
18The trial judge was satisfied that the authorizing justice would have understood what Det. Bryden described in the ITO regarding the use of computers. She concluded that there was sufficient reliable information that the Justice of the Peace could rely on for the warrant to issue.
(3) Discussion and analysis of the sufficiency of the ITO
19The appellant submits that the ITO: 1) did not provide any information about the reliability of the software so as to permit an independent assessment of its trustworthiness; 2) gave no indication about the qualifications of the police officer who wrote the program; 3) lacked detail about the IP history of the appellant; 4) omitted relevant information, namely, the fact Det. Bryden tried and failed to connect with the appellant’s computer over the Gnutella network; and 5) lacked sufficient information as to why there were grounds to believe that a search would still provide evidence of an offence.
20The appellant’s submissions must be considered in the context of the role of the trial judge when reviewing the search warrant authorization and the ITO filed in support of it. That role is not to substitute his or her view for that of the authorizing judge. Based on the record before the authorizing judge, as amplified on review, the reviewing judge is to decide whether the authorizing judge could have granted the authorization, and, if so, not to interfere: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51.
21Overall, the appellant’s submissions do not reflect the limited role of the reviewing judge. After the amplification hearing, during which the affiant is cross-examined, the reviewing judge decides whether any part of the information in the ITO is incorrect, misleading or unreliable. If so, that information must be excised: Araujo, at para. 57. Otherwise, it remains. Then, the redacted ITO is considered afresh to see if it meets the test for issuance of a search warrant.
22In this case, the amplification hearing supported the information in the ITO; as that information was not false or materially misleading, there was no need to redact it.
23The reviewing judge is not to independently verify the affiant’s opinion and interpretations of the information in the ITO, so long as the affiant is properly qualified in the initial portions of the ITO: R. v. Lao, 2013 ONCA 285. In Lao, the issue was the validity of the ITO in relation to a marijuana grow operation. The trial judge discounted the Smart Meter evidence of power consumption because he could not independently verify the affiant’s interpretation of whether the Smart Meter evidence was accurate. At para. 58, Gillese J.A. on behalf of the court stated:
As the reviewing judge, that was not the function he was to perform. His role was to decide whether the respondents had discharged their burden of showing that DC Wallace’s interpretation was incorrect or misleading. While there were some legitimate questions raised about the precise pattern of power consumption (i.e. the length of the cycle), there is no question that the data showed the type of pattern deposed to by DC Wallace, namely, that over a period of time, power was consumed at 39 Patricia Ave. in a mechanically precise way, with a timed high-intensity period of usage followed by a drop, which corresponded to the needs of a marijuana grow operation.
24In this case, the appellant questioned the reliability of the Wyoming Toolkit software program. The evidence at the amplification hearing indicated that the Wyoming Toolkit is the international standard for this investigative method and that it is highly reliable. The evidence supported the information in the ITO. There was no evidence to suggest that the affiant’s description was inaccurate or misleading.
25The appellant submits that in this case, the ITO did not provide enough background information about the author of the Wyoming Toolkit because it only gave his title and employer. The appellant relies on this court’s decision in R. v. Agensys International Inc. (2004), 2004 CanLII 17920 (ON CA), 187 C.C.C. (3d) 481, at para. 44,wherein Gillese J.A. held that it is important to source information relied upon and to provide information as to the education, training or qualifications of outside consultants. Despite this omission, the ITO in Agensys was upheld for three reasons that apply equally here. Furthermore, Agensys is distinguishable from this case. I will elaborate.
26Agensys Internationalwas the subject of a Revenue Canada investigation into alleged offences under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp),and the Criminal Code involving fraud. One of the issues was the value of some computer software. The theory of Revenue Canada was that the software was worthless. The ITO relied significantly on an opinion produced by a consulting group. Gillese J.A. upheld the reviewing court’s refusal to quash the warrant for three reasons: (i) there was no evidence to suggest the consultants were not qualified; (ii) it was open to the issuing justice to assume that Revenue Canada would hire competent consultants; and (iii) the investigator demonstrated confidence in the consultants.
27In this case, there is no evidence to suggest that the creator of the Wyoming Toolkit is unqualified; it was open to the reviewing judge to infer the reliability of the program based on Det. Bryden’s evidence at the amplification hearing that the program is used internationally and to her knowledge has not made errors; and Det. Bryden was trained in its use by recognized police college instructors.
28Furthermore, unlike in Agensys, the Wyoming Toolkit does not involve the type of subjective opinion of value or judgment that is involved when a consultant provides an opinion concerning value of an item. Its sole function is mechanical – to monitor, record and sort numerical data that is being broadcast on the Gnutella network about the availability of files in users’ folders based on their IP addresses and hash values. The Gnutella Network reads or gets information from a user’s computer. The Wyoming Toolkit gets information from the Gnutella Network and has the same information as the Gnutella Network but that information is filtered into different regions. It outputs a subset of records for an investigator to check.
29Just as in Lau it was unnecessary to verify independently the Smart Meter’s data respecting power consumption, so too here, it was unnecessary to provide information as to the Wyoming Toolkit’s programmers’ qualifications, the quality control procedures, and the accuracy testing of the Wyoming Toolkit. In both cases, the data is obtained as a result of a mechanical function and it is used as a tool by the police.
30It is only when the data is combined with other information that the police officer’s reasonable belief that a crime has been committed crystallizes. In this case, it was Det. Bryden’s comparison of the hash values of the files in the police library with those at the appellant’s IP address and her viewing of the files they represented. The focus is rightly on the officer’s belief that a crime has been committed and that a search would yield evidence of that crime.
31The balance of the appellant’s submissions in relation to the ITO can be disposed of summarily. The appellant’s submission that the ITO lacked sufficient detail about the appellant’s IP history because it did not specify the dates on which he was believed to be sharing child pornography is not supported by the record. The fact that Det. Bryden tried and failed to connect with the appellant’s computer over the Gnutella network was not an important relevant fact. The ITO does not assert that the appellant was a habitual user. The fact that the appellant was detected sharing child pornography on the network over a period of eight months suggests that he was a long-term user and does not make it unreasonable to believe that illegal images were associated on multiple occasions with his IP address.
32This is not a case like R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, where the appellant accessed as opposed to possessed child pornography. Here, there were two key pieces of information as to why there were grounds to believe that a search would still provide evidence of an offence: 1) the affiant’s comments about the practices of people who download child pornography, namely, that these individuals keep images for long periods of time; and 2) strong evidence that the appellant had already possessed child pornography for an extended period. The nature of the item sought and believed to be retained is a factor which may inform that the reasonableness of a belief that possession continues: R. v. Ward, 2012 ONCA 660, at paras. 115-16. The police observed that videos of child pornography had been offered from the appellant’s computer over a period of eight months and the warrant was executed one month after the latest observation. I see no basis to interfere with the conclusions of the Justice of the Peace and the trial judge that the affiant held a reasonable belief that child pornography remained on the appellant’s computer.
(4) Conclusion on the sufficiency of the ITO
33The trial judge correctly concluded that the ITO contained sufficient reliable information for the Justice of the Peace to issue the search warrant. The appellant’s principle submission – that the data sorting tool used by the police to assist in detecting persons who possessed child pornography had to be independently shown to be reliable – does not accord with the current state of the law. Furthermore, the trial judge did not err in concluding that there was no merit in the appellant’s other submissions respecting the ITO.
C. Whether the Search was REasonable
(1) The facts relating to the execution of the search warrant
34The warrant was sworn on March 20, 2009 and executed on March 24. At around 6 p.m., the appellant was at home alone watching television. His door was unlocked. Without warning, uniformed officers kicked in the door and stormed into his apartment. The appellant deposed in his affidavit that they pointed guns at him and some of them were masked. The appellant further deposed that from their manner of entry and their uniforms, it was apparent to him that they were police. They shouted at the appellant to get to the ground. He was terrified and believed if he made a wrong move he could be killed. He was handcuffed, told he was under arrest, and escorted outside. He was told police were executing a search warrant. The police left a copy of the warrant in his apartment.
35Det. Bryden testified that based on her specialized training and experience gained when she was a member of the Hi-tech unit, she was aware of the ease with which digital files can be destroyed or encrypted. It is a simple thing for a suspect to encrypt or to destroy the files on his computer before answering the door, making access to the information sought in the search warrant impossible to obtain by police. Because she was aware of the risk of destruction of digital files when a search warrant is executed, when she began working with the OPS High Tech Crime-Internet Child Exploitation Unit in 2008, she initiated a policy of notifying the Duty Inspector of the Tactical Unit when a search warrant for files containing child pornography was about to be executed. She would brief the tactical officers and they would take over and make a decision of how they were going to do the entry based on the information they had.
36Here, the search warrant did not specifically authorize a no-knock entry. However, because of the ease with which the evidence could be disposed of, the internal police policy was to use a “dynamic” or mechanical entry, in contrast with the ordinary police policy of knocking on the door and announcing police were there to execute a search warrant. Det. Bryden testified that the police now add “no-knock” to the ITO when seeking to obtain search warrants in these types of cases.
37The Tactical Unit executes the warrant in the manner in which they have been trained to do unannounced entries. According to Det. Bryden, they operate as a team. One covers the back of the residence, one covers the front. The rest of the team enter together kitted up in their uniforms; they wear body armour; some have semi-automatic weapons and it is possible that some wear balaclavas. They clear the place as soon as possible.
38Det. Bryden waited outside until the apartment had been cleared. She had the search warrant with her and it had been initialed by all the officers who participated in the search. It appears there were at least eight officers involved.
(2) The trial judge’s reasons on the execution of the search warrant
39The trial judge accepted the reason given by Det. Bryden for the no-knock entry. Having regard to the nature of the materials sought in such a search, she observed that the element of surprise by the police was essential and concluded that “[t]he risk that the computer that contained the pornographic images might be permanently compromised warranted a no-knock entry.” She did not engage in any further analysis of the manner in which the search was carried out. The trial judge concluded that the appellant had failed to discharge the onus of showing a breach of his rights pursuant to s. 8 of the Charter.
(3) Discussion and analysis of the execution of the search warrant
40The onus is on the appellant to prove on a balance of probabilities that the search was carried out in an unreasonable manner and that, as a result, his rights under s. 8 of the Charter were breached.
41The general rule for the execution of a search warrant on a person’s home is that the police must knock, announce their authority, and announce the reason for entry: Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at p. 747. The police are permitted to depart from the “knock and announce” principle only in exigent circumstances, including if there is a need to prevent the destruction of evidence, or to ensure the safety of the police or the occupants, or if in hot pursuit: Eccles, at p. 747; and R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 20. The onus is on the police to justify a departure from the knock and announce principle: Cornell, at para. 20.
42Cornell is a case where the critical issue on appeal was the reasonableness of the manner in which the police entered the appellant’s home to execute a search warrant. Based on the evidence obtained from the execution of the search, the appellant was convicted of possession of cocaine for the purpose of trafficking.
43Shortly before executing the warrant in Cornell, the police observed the appellant’s mother and sister leave the house, get into a car and drive away. Nine police officers from the tactical team battered down the front door and made a forced, unannounced entry with guns drawn, wearing balaclavas and body armour. At the time of entry, the only person in the house was the appellant’s 29-year-old brother who was mentally challenged. He was handcuffed with his hands behind his back. His emotional distress quickly became apparent, so the handcuffs were removed and paramedics were called to give him medical attention. Although the police officers who entered the residence did not have the warrant with them, the warrant was in the possession of members of the police team who were waiting outside for the premises to be secured before commencing the search.
44Cromwell J. upheld the reasonableness of the search on the basis that the police had well-grounded concerns that the use of an announced entry would pose safety risks to the officers and occupants of the house and would also pose a risk of destruction of evidence. In assessing whether the search had been carried out in a reasonable manner, Cromwell J. held, at para. 14, that the search as a whole must be assessed in light of all the circumstances. The Crown bears the burden of providing evidence to prove that the police had reasonable grounds to be concerned about issues of officer or occupant safety or destruction of evidence. He stated, at para. 20, that “[t]he greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach.” Further, the Crown must employ evidence that existed at the time of the entry; it is prohibited from relying on ex post facto justifications.
45Cromwell J. cautioned trial and appellate courts to consider three things when assessing whether a search was conducted in a reasonable manner. First, the police entry decision 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” (para. 23). Second, there is some scope available to the police in deciding the manner in which they enter the premises. As Cromwell J. put it, at para. 24: “They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require.” The role of the reviewing court is to balance the rights of suspects with the need for safe and effective law enforcement; it is not to be a “Monday morning quarterback” (para. 24). Third, the appellate court must accord substantial deference to the trial judge’s assessment of the evidence and findings of fact.
46Cromwell J. explained that the reviewing judge must answer the following question, at para. 31:
[T]he question for the reviewing judge is not whether every detail of the search, viewed in isolation was appropriate. The question for the judge….is whether the search overall, in light of the facts reasonably known to the police, was reasonable. Having determined that a hard entry was justified, I do not think that the court should attempt to micromanage the police’s choice of equipment.
47In the present case, the appellant submits that the Crown failed to adduce any evidence capable of justifying the police officers’ departure from the knock and announce principle for entering his private dwelling. For the search to be reasonable, the appellant submits that the police must possess information specific to the residence or its inhabitants to justify a no-knock entry.
48The appellant candidly acknowledges the similarity between his argument and the dissent of Fish J. on behalf of himself, Binnie and Lebel J., in Cornell. On behalf of the majority, Cromwell J. rejected the assertion that the police made no specific assessment of whether the execution of the warrant gave rise to a threat of violence. He held that the police were entitled to draw reasonable inferences from the fact that they reasonably believed the appellant’s residence was being used as a safe house in a criminal drug dealing enterprise and that the appellant had some association with at least one member of a violent criminal gang (at paras. 30 and 35). In addition, he observed that there was no evidence of a blanket policy of no-knock entry (para. 31).
49In this case, Det. Bryden conceded that her request for the assistance of the tactical unit was not based on an individualized assessment. The appellant therefore submits that the departure from the knock and announce entry and the manner in which the search was carried out was unreasonable. In executing the warrant, there was no urgency. The police had been in possession of the information on which they acted for some time. There was no articulated concern in the ITO about violence or the presence of weapons. As well, the police had used a ruse to attend at the appellant’s premises and they knew he appeared to live alone in a one bedroom apartment on the ground floor. The appellant had no prior criminal record. The search of a person’s home and computer are of two most intimate places.
50I would reject the appellant’s position that there was no evidence to support the use of a no-knock entry in this case. The appellant’s reliance on R. v. Lau, 2003 BCCA 337,175 C.C.C. (3d) 273, and R. v. Schedel, 2003 BCCA 364, 175 C.C.C. (3d) 193, as authority that police cannot rely on a blanket policy ignores the circumstances of those cases as contrasted with the present situation.
51In Lau and Schedel, the police used a hard or no-knock entry irrespective of the absence of a risk of destruction of evidence. In contrast, in the present case, the trial judge accepted Det. Bryden’s uncontradicted evidence that digital files may be quickly rendered inaccessible and are easily destroyed. Deference is owed to this finding of fact. I see no basis upon which to interfere with the trial judge’s conclusion that the element of surprise accompanying a no-knock entry was warranted given the need to prevent destruction of evidence.
52The appellant goes on to assert that, even if the no-knock entry was justified, the police tactics in executing the warrant crossed the line of reasonableness. He contends there was no need for a swarm of heavily-armed police, some wearing masks, to subdue him with their guns drawn.
53Again, I do not agree that these individual tactics of the police made the overall search unreasonable. The police concern for destruction of evidence would not have ended with the no-knock entry. The police did not know whether the appellant would be using his computer at the time of entry, or if he would be near his computer. They also did not know if he would necessarily be alone in the apartment.
54The police had a much better chance of preventing destruction of the digital files by having enough officers present that they could simultaneously take control of the different rooms in the apartment and the suspect, as well as any possible visitors. It was also reasonable to have additional officers stationed outside the back and front of the apartment to ensure that no one entered or attempted to leave the apartment while the search warrant was being executed. The warrant did not restrict the number of persons permitted to access the location of the search.
55In addition, I am not prepared to say that the use of drawn weapons and masks rendered the overall search unreasonable. The appellant acknowledged that it was apparent that the persons in his apartment were the police. While he was understandably extremely frightened by the officers, there is no evidence that the police used any gratuitous or spiteful violence towards him. He was arrested and safely removed from his residence within minutes of police entry. He knew why the search was being carried out and knew that the police were authorized to carry out the search. The police left behind a copy of the warrant in the appellant’s apartment.
56Aside from some minor damage to the front door of the apartment, there was no evidence that the police caused any deliberate or unnecessary damage to the appellant’s property. The police did not seize any materials beyond those identified in the ITO.
57The fact that the appellant had no prior criminal record would not have affected the reasonableness of the police concern that he could readily destroy the evidence sought in the warrant. As the trial judge in Cornellobserved: “A person without a criminal record could destroy evidence as easily as a person with a criminal record” (para 27). In addition, the appellant’s lack of a prior criminal record would not provide assurance to police that he would react peacefully when confronted by police officers performing a no-knock entry. As Dickson J. commented in Eccles, at p. 746: “An unexpected intrusion of a man’s property can give rise to violent incidents.”
58It may be that it is standard practice for the tactical unit of the police force to conduct a forced entry with guns drawn and with some officers wearing masks. In the absence of a concern for police safety, the element of intimidation accompanying the use of masks and drawn weapons may be unnecessary and is a cause for judicial concern. However, I am sensitive to Cromwell J.’s caution in Cornell, that, “[h]aving determined that a hard entry was justified, I do not think that the court should attempt to micromanage the police’s choice of equipment” (at p. 31). And as Cromwell J. made it clear, the role of the reviewing court is limited to assessing whether the search overall was reasonable.
(4) Conclusion on the execution of the search warrant
59I reject the appellant’s argument that the no-knock entry violated his rights under s. 8 of the Charter. The trial judge’s finding that an unannounced entry was justified by the risk of destruction of evidence in the form of digital files was reasonable.
60I also reject the appellant’s argument that the police tactics upon entering his apartment rendered the manner of the search unreasonable. Given the legitimate concerns for destruction of evidence, the requirement for the elements of surprise and speed did not cease with entry. The use of a team to enter the premises enabled the police to sweep all the rooms almost simultaneously and to quickly restrain the suspect. Having regard to the overall manner in which the search was conducted, including the absence of any violence or unnecessary destruction of property, I would not interfere with the trial judge’s conclusion that the overall manner in which the search was carried out was reasonable.
61In view of my conclusion that the search was not carried out in an unreasonable manner, it is unnecessary for me to consider whether the evidence should have been excluded under s. 24(2) of the Charter.
D. Disposition
62For the reasons given, I would dismiss the appeal.
Released: Jun 21, 2013 “Karen M. Weiler J.A.”
“I agree E.E. Gillese J.A.”
“I agree Alexandra Hoy J.A.”
