Court File and Parties
COURT FILE NO.: 20-G5866 DATE: 2024/02/12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – MITCHELL HARPER
Counsel: Jessica Corbeil and Jay Pelletier, for the Crown Leo Russomanno, for Mr. Harper
HEARD: June 26, 27, 28, 29, 30, July 5, 6, and November 14, 2023
Reasons for Judgment
RYAN BELL J.
Overview
[1] Mitchell Harper is charged with possession of cocaine, crystal methamphetamine, and hydromorphone, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He is also charged with possession of the proceeds of crime over $5,000, contrary to s. 355(a) of the Criminal Code. At the outset of trial, the Crown advised that it was proceeding on only one count in relation to hydromorphone and that it was therefore withdrawing count 4 on the indictment.
[2] On May 29, 2020, members of the Ottawa Police Service entered Mr. Harper’s residence located at 1123 Secord Avenue, Ottawa by means of a mechanical breach and dynamic entry. The police seized drugs and other items from Mr. Harper’s bedroom including, 340.5 grams of cocaine, 270.1 grams of crystal methamphetamine, 74 pills of hydromorphone, and 11,127.8 grams of phenacetin. The police also seized $23,880 in Canadian currency.
[3] Mr. Harper does not challenge the s. 11 CDSA search warrant pursuant to which the search was conducted. Mr. Harper does allege, however, that the search was not conducted in a reasonable manner. Specifically, he submits that the dynamic entry was not justified and breached his s. 8 Charter right to be secure against unreasonable search or seizure. He submits that the evidence obtained as a result of the search should be excluded from evidence under s. 24(2) of the Charter.
[4] The trial of the charges against Mr. Harper proceeded as a blended hearing with his Charter application.
The Evidence
[5] The evidence adduced at trial by the Crown came from the lead investigator, officers who were involved in the surveillance of Mr. Harper, the members of the tactical team, including the sergeant in charge, and the duty inspector. The Crown also called as a witness, David Dubois (coincidentally a constable with the OPS), who was with Mr. Harper’s father in the driveway of the residence on May 29, 2020 when the search was executed. Mitchell Harper and his father, Blake Harper, filed affidavits on the Charter application and were cross-examined.
[6] Detective Payment was the lead investigator. In March 2020, Detective Payment received information from a confidential informant that Mr. Harper was selling cocaine and crack cocaine in Ottawa “for a kilo level dealer”, and that he resided at 1123 Secord Avenue, drove a white Honda Civic, and had been seen with a firearm in the past. This information was included in the drug unit briefing sheet and in the daily briefings to the surveillance team.
[7] In May 2020, the drug unit of the OPS conducted surveillance on Mr. Harper and at 1123 Secord Avenue. Regarding other individuals associated with the residence, the following observations were made.
[8] On May 19, a male, believed to be Mr. Harper’s father, left his pickup truck in the driveway of 1123 Secord Avenue and proceeded into the house.
[9] On May 27, Mitchell Harper was seen walking with a young girl, believed to be his daughter, toward Mooney’s Bay Park. A little over an hour later, Sergeant Curtis saw them walking out of the park. Just before 5:00 p.m., Mr. Harper and his daughter were seen walking into the east side entrance of 1123 Secord Avenue. Shortly thereafter, Mr. Harper left the residence, without his daughter, and drove to Ridgewood Avenue.
[10] On May 28, Detective Renwick prepared and obtained s. 11 CDSA search warrants for 1123 Secord Avenue and Mr. Harper’s vehicle. The warrants were valid from May 28 at 1:00 p.m. until 11:59 p.m. on May 29. Detective Payment testified that the plan on May 28 was to conduct surveillance on Mr. Harper and execute the search warrants.
[11] As events unfolded, the warrants were not executed on May 28. Mr. Harper and his daughter were seen leaving 1123 Secord Avenue in the early afternoon of May 28. Mr. Harper’s daughter had a knapsack and a pillow with her. They drove to a residential address in Bourget. At 10 p.m., Detective Payment decided they would not execute the search warrants that day. He explained his rationale: “It was starting to get late. Mr. Harper was with – who at that point, I believed maybe was his young daughter. It didn’t appear that he was returning home anytime soon, that we would end the day and then reassess the next day.”
[12] Sergeant Dehartog was the sergeant in charge of the tactical team on May 29. He presented the tactical plan – which called for a mechanical breach and dynamic entry into the residence – to the duty inspector for approval. The tactical plan was approved. Then-Duty Inspector Burnett testified that he would have been concerned about who was around, whether there were any children in the neighbourhood, and whether the accused was in the residence. He described these as “questions I would have naturally asked.”
[13] Duty Inspector Burnett was informed that the child had travelled to Bourget with her father on May 28; however, the duty inspector was not made aware that the same vehicle she had been seen travelling in was seen at the residence on May 29. Nor was the duty inspector provided any information about Mr. Harper being seen with his daughter on May 27 or her being associated with the residence that day. Duty Inspector Burnett testified that if he had been told it was possible an eight-year old girl was in the residence, he would have wanted “more solid information” around whether the child was there or not before approving the tactical plan.
[14] Detective Renwick briefed the tactical team at 12:00 on May 29. The SMEAC (Situation Mission Execution Administration and Control) document and search warrants were reviewed. While Detective Renwick testified that he “would have” mentioned the possible presence of a firearm at the tactical briefing, other officers in attendance did not recall this factor being mentioned. The SMEAC document itself did not contain any information about a specific threat of weapons or violence.
[15] Detective Renwick also testified that, at the briefing, he “would have” discussed the potential presence of a child with the tactical team. The potential presence of a child was not referred to in his notes, his investigative action, or in the SMEAC document. Detective Tasoulis agreed with the suggestion that the possible presence of a child is “always a hazard”; he testified that he had no recollection of anyone identifying a child as a hazard at the May 29 briefing. Detective Lehman testified that there was no mention of the possible presence of a child at the briefing. None of Sergeant Curtis, Detective Bujold, or Constable Savory recalled any discussions at the May 29 briefing about the possible presence of a child at the residence.
[16] The search warrant was executed on 1123 Secord Avenue at 2:20 p.m. by means of a no-knock dynamic entry. Constable Babin, the point man for the tactical unit, testified that “as soon as they started working the door,” he yelled out “police, don’t move.” The police breached the front door using a battering ram and proceeded to “flow through” in order to secure the house. The first thing Constable Babin saw as he stepped inside was Mr. Harper coming from the right with his hands up. Mr. Harper complied with the request to get on the ground, and he was put in a position of disadvantage by Constable Babin. Mr. Harper was taken into custody without incident.
[17] Constable Savory – who was just inside the entry way to the dining room “right next to the little girl” – was tasked with comforting and reassuring Mr. Harper’s daughter who was screaming and crying.
[18] Sergeant Dehartog, who was the last in the line-up, testified that he saw a man and a child in the dining room window as they approached the front door of the residence. Sergeant Dehartog did not recall if Mr. Harper said anything from inside the house. Sergeant Dehartog testified that he did not recall if he thought he had been seen by Mr. Harper.
[19] Mr. Harper provided his own account. His evidence was that while he was in the dining room with his nine-year old daughter eating pizza, he saw police officers in tactical gear with firearms approaching his house. He had his daughter sit on the ground, away from the window. Then, with his hands up, facing the window, he called out to the officers, “Guys my daughter is in here. I am going to open the door for you.” He moved toward the front door, continuing to yell out that his daughter was there and that he would open the door. When he got close to the front door, the police yelled “Get back, get on the ground” and then they used a battering ram to break down the door.
Did the OPS breach Mr. Harper’s s. 8 Charter right?
(i) Legal principles
[20] Section 8 of the Charter states: “Everyone has the right to be secure against unreasonable search or seizure.”
[21] To be reasonable under s. 8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable, and the search must be conducted in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265 at 278.
[22] A search that is based on a valid authorization may be deemed invalid if the search itself is executed in an unreasonable manner: R. v. T.G.H., 2014 ONCA 460, at para. 45.
[23] Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers, and (iii) notice of purpose, by stating a lawful reason for entry: Eccles v. Bourque, [1975] 2 S.C.R. 739 at 747. The knock and announce rule has been part of our law for over 400 years: R. v. Pan, 2012 ONCA 581, at para. 35. As Dickson J., as he then was, explained in Eccles,
An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance.
[24] Where the police depart from the knock and announce rule, there is an onus on them to explain the necessity for such an approach: R. v. Cornell, 2010 SCC 31, at para. 20. As the Supreme Court explained in Cornell, at para. 20:
If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications.
[25] At the same time, s. 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”: Cornell, at para. 20. Public safety (including the safety of police officers) and the prevention of destruction of evidence may relieve the police of the knock and announce standard: R. v. Pileggi (2021), 2021 ONCA 4, 153 O.R. (3d) 561 (C.A.), at para. 23.
[26] In determining whether the police had reasonable grounds for concern to justify a departure from the knock and announce approach, the court must assess the decision of the police to act as they did, bearing in mind (i) that the decision of 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, and (ii) the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises: Cornell, at paras. 22-24. “[The police] cannot be expected to measure in advance with nuanced precision the amount of force the situation will require”: Cornell, at para. 24, citing R. v. Asante-Mensah, 2003 SCC 38, at para. 73.
(ii) The principles applied to the evidence in this case
[27] The manner of execution of the search warrant for 1123 Secord Avenue was a significant departure from the principles of announced entry. The police therefore bear a heavy onus to justify their approach.
[28] The Crown advanced both the destruction of evidence and officer and occupant safety as justifications to depart from the knock and announce approach. The officers testified as to the disposability of cocaine and crack cocaine and the close connection between drug trafficking, guns, and violence.
[29] While I accept that the police are able to rely on their collective experience when assessing potential risks that may endanger their lives, and that a dynamic entry may be warranted to preserve evidence or for reasons of safety, there was no evidence that these potential risks were considered and assessed in the circumstances of this case. The evidence uniformly pointed to a dynamic entry being the plan; the evidence does not show that any other possibilities were considered.
[30] It is clear from the testimony of Duty Inspector Burnett that the possibility that a child might be present at the residence impacts on the plan and any departure from the knock and announce approach. Duty Inspector Burnett assumed that alternatives had already been considered by the time he was presented with the proposed tactical plan. He also testified that if he had been told it was possible a young girl was in the residence, he would have wanted more solid information – in other words, there would have been further discussion about the execution of the search warrant in these particular circumstances. That did not happen.
[31] The SMEAC document did not contain any information about a specific threat of weapons or violence. The totality of the evidence does not support a finding that Detective Renwick mentioned the possible presence of a firearm at the tactical briefing. The same is true regarding the possible presence of a young child at the residence: although identified by a number of the officers as a hazard, this was not a matter discussed or even raised at the tactical briefing.
[32] Sergeant Dehartog’s evidence is of little assistance. He did not have an independent recollection of the questions he was asked by Duty Inspector Burnett about the proposed tactical plan. Sergeant Dehartog had no independent recollection of specific alternatives he considered and, while he agreed with the need to justify departures from the knock and announce standard, he did not document any justifications in this case. He testified that, based on his experience, there is always a risk of firearms in the search of premises alleged to be associated with drug trafficking, and “if I’m assuming there’s a firearm I’m not knocking.” The inescapable conclusion is that this officer – the officer whose job it was to develop the tactical plan and recommend it to the duty inspector for approval – operated from an assumption that a dynamic entry is justified any time when drug trafficking is alleged. That is not the law.
[33] I would add that the possibility that Mr. Harper could have disposed of evidence cannot, on its own and without consideration of the specifics of the case, justify the use of dynamic entry because “to support such a position would permit dynamic entry any time drugs are alleged to be present”: R. v. Ruiz, 2018 ONSC 5452, at para. 51.
[34] It is important to reiterate the words of the Court of Appeal in Pileggi, at para. 36:
The fact that the police act in the same way in the vast majority of cases presenting similar circumstances does not equate with the existence of a blanket policy. There is no impropriety in the police drawing on their collective experience when performing the same investigative task so long as they remain open to performing their duties differently should circumstances permit.
[35] In Pileggi, the Court of Appeal upheld the trial judge’s analysis that the police had reasonable grounds to conclude that an unannounced and forced entry was required to prevent the destruction of evidence, noting that given the size and layout of the house and the nature of the drugs in question, there was a “real likelihood that the appellant would be able to destroy the evidence quickly and with ease.” (at para. 32)
[36] The Court of Appeal in Pileggi also agreed with the trial judge that safety concerns also justified the officers’ forced entry. The Crown relies in particular on para. 34 of Pileggi, where the Court observed that, although there was no information available to the officers suggesting there were firearms located at the appellant’s residence, the allegations involved serious drug charges and “[t]he all too typical toxic combination of drugs and guns is well known to the police and the courts.”
[37] It is important to note, however, that in Pileggi, there was evidence that the officers made an individualized assessment about the appropriate manner of search. (at paras. 37-38) That is not the case in the matter before me.
[38] The Crown also relies on R. v. Afghan-Yaqubi, an unreported decision of the Ontario Court of Justice, dated November 29, 2022, where the court found that the decision by the police to use a dynamic entry did not run afoul of s. 8 of the Charter. In that case, too, there was evidence that alternatives were considered. At para. 39, the court noted that police assembled detailed plans for the warrant executions and “considered multiple factors and were prepared to consider other alternatives.” In this case, there is no evidence that the police were prepared to consider other alternatives.
[39] Finally, the Crown suggests that when Sergeant Dehartog realized Mr. Harper had seen the tactical unit approaching, Sergeant Dehartog was forced to make a “split second” decision that a dynamic entry was not only the most appropriate means of executing the warrant but was necessary to protect everyone’s safety and to prevent the destruction of evidence. I reject this argument for the simple reason that it does not accord with the evidence. When asked whether he believed Mr. Harper had seen him, Sergeant Dehartog candidly stated, “I don’t recall to be honest.”
[40] In these circumstances, I find the Crown has not met its evidentiary burden of justifying the decision by the OPS to employ a dynamic entry. The search of Mr. Harper’s residence at 1123 Secord Avenue on May 29, 2020 was executed unreasonably and violated Mr. Harper’s right under s. 8 of the Charter.
Should the evidence be excluded?
(i) General Principles
[41] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. Such evidence is excluded, not to punish police or compensate for a rights infringement, but because it is necessary to do so to maintain the “integrity of, and public confidence in, the justice system”: R. v. Grant, 2009 SCC 32, at paras. 68-70.
[42] In R. v. Beaver, 2022 SCC 54, Jamal J. summarized the test to be applied at paras. 116-117, observing that the substance of the analysis is the assessment of the impact that admission of the impugned evidence would have on the long-term reputation of the administration of justice. In Grant, at para. 71, the Supreme Court identified three lines of inquiry guiding the consideration of whether the admission of evidence tainted by a Charter breach would bring the administration of justice into disrepute: (i) the seriousness of the Charter-infringing conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and (iii) society’s interest in the adjudication of the case on its merits. See also R. v. Le, 2019 SCC 34, at paras. 139-142.
[43] As the Supreme Court explained in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36, the balancing exercise mandated by s. 24(2) is:
… a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
(ii) The seriousness of the Charter-infringing state conduct
[44] Under the first line of inquiry, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, so as to preserve public confidence in and ensure state adherence to the rule of law: Grant, at para. 72.
[45] A range of conduct may give rise to violations of Charter rights:
At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. (Grant, at para. 74)
[46] Deliberate police misconduct that results in Charter breaches will always fall on the more serious end of the spectrum. But, while “good faith” on the part of the police will reduce the need for the court to dissociate itself from the police conduct, ignorance of Charter standards must not be encouraged, and “negligence or wilful blindness cannot be equated with good faith”: Grant, at para. 75.
[47] I find that the use of a dynamic entry in this case amounts to serious misconduct and a wilful disregard of a Charter right. The knock and announce principle has been a part of Canadian law for hundreds of years. The officers who testified were aware that they were required to justify a departure from the knock and announce standard. In this case, however, alternatives were not considered and there was no individualized assessment about the appropriate manner of search. Sergeant Dehartog proceeded based on an assumption that a dynamic entry is justified any time when drug trafficking is alleged. As I have already stated, this is not the law.
[48] In R. v. Bahlawan, 2020 ONSC 952, Gomery J., as she then was, found that the OPS operated “on the basis of a practice that assumes that a non-dynamic entry is a rare exception as opposed to the rule. This turns the test in Eccles v. Bourque on its head.” (at para. 44) In Bahlawan, there was no evidence the police had considered, in light of the information at hand, that the risks of announcing their presence before entry were too high. Gomery J. wrote that “[t]he court must be concerned about disassociating itself from this practice”: Bahlawan, at para. 52.
[49] The court’s decision in Bahlawan – a case decided in this jurisdiction just three months before the search was conducted on Mr. Harper’s residence – renders similar conduct even less justifiable.
[50] The first line of inquiry weighs heavily in favour of excluding the evidence.
(iii) The impact of the breach on the Charter-protected interests of the accused
[51] Under the second line of inquiry, the court is required to evaluate the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
[52] Section 8 of the Charter rests on the fundamental belief that privacy is an “essential precondition” to individual liberty and security of the person: R. v. McGuffie, 2016 ONCA 365, at para. 49.
[53] An unreasonable search that intrudes on an area in which an individual reasonably enjoys a high expectation of privacy, or one that demeans their dignity, is more serious than one that does not: Grant, at para. 78. The high expectation of privacy that a person has in their home and the impact of a search of that home was well-described by Paciocco J., as he then was, in R. v. Floyd, 2012 ONCJ 417:
Second, as conceded by the Crown, the impact on Mr. Floyd’s Charter protected privacy rights was significant. He had a high expectation of privacy in his home. The search of [one’s] home not only involves the compelled loss of control over one’s place of refuge and exposes occupants to the stigma of a police operation, the entry of a home exposes extensive information about one’s lifestyle. When the home is a family home the stress of the event is compounded by the impact such an event has on other family members.
[54] In this case, I find that the impact on Mr. Harper’s Charter-protected privacy interest was significant. He had a high expectation of privacy in his home and the stress of the violent entry effected by the police would have been compounded by the impact of the event on his daughter as evidenced by her screaming and crying.
[55] The defence concedes that the impact on Mr. Harper’s Charter-protected interest is diminished somewhat by the fact the evidence was otherwise discoverable.
[56] I conclude that on balance, the second line of inquiry weighs in favour of excluding the evidence.
(iv) Society’s interest in the adjudication of the case on its merits
[57] Under the third line of inquiry, a court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage.
[58] While the third line of inquiry is concerned with the societal interest in an adjudication on the merits, as the Supreme Court observed in Le, the focus must be on the impact of state misconduct upon the reputation of the administration of justice:
While disrepute may result from the exclusion of relevant and reliable evidence (Grant, at para. 81), so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to “judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies” (Collins, at p. 281). An “adjudication on the merits”, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms. (at para. 158)
[59] The charges against Mr. Harper are very serious. The evidence seized from 1123 Secord Avenue is highly reliable and crucial to the prosecution’s case. At the same time, the court must be concerned about dissociating itself from a serious violation of Mr. Harper’s s. 8 Charter right as reflected in the jurisprudence.
[60] I conclude that, on balance, the third line of inquiry weighs in favour of admitting the evidence.
(v) Weighing the three lines of inquiry
[61] The final step in the s. 24(2) analysis requires the court to weigh the results of the three lines of inquiry. It is the cumulative weight of the first two lines of inquiry that must be balanced against the third line of inquiry: Beaver, at para. 134.
[62] In the circumstances of this case, the cumulative weight of the first two lines of inquiry strongly points toward exclusion of the evidence. While society has a significant interest in an adjudication on the merits and the evidence seized is reliable and crucial, the seriousness of the police misconduct in this case requires the court to dissociate itself from that conduct by excluding the evidence so as to preserve public confidence in and ensure state adherence to the rule of law. Failure to exclude the evidence seized would, in my view, bring the administration of justice into disrepute.
[63] I therefore conclude that the impugned evidence seized from 1123 Secord Avenue must be excluded under s. 24(2) of the Charter.
Conclusion
[64] Without the evidence obtained in the search, the Crown has no case against Mr. Harper. Accordingly, acquittals will be entered on counts 1, 2, 3, and 5 on the indictment, and count 4 marked as withdrawn.
Justice Robyn Ryan Bell
Released: February 12, 2024
