ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-70000832

DATE: 20141128

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SAMSON ARVIKO, HASAN MOHAMMED CUMOR and RUKIYO OMAR

Defendants

J. Pollard and B. Clendenning, for the Crown

S. Freeman, for Samson Arviko

C. Rippell, for Hasan Mohammed Cumor

N. Wansbutter, for Rukiyo Omar

HEARD: October 16 and 17, 2014

Molloy J.:

REASONS FOR DECISION #1

(Search Warrant – Section 8 Application)

Background

[1] The three accused are charged with: conspiring together to traffic in cocaine (Count 7); conspiring together to traffic in a firearm (Count 1); and possession of a handgun for the purpose of transferring it (Count 6). Ms Omar is also charged with possession of proceeds of crime in the approximate amount of $1600, found in her purse at the time of her arrest (Count 5).

[2] In addition, Hasan Cumor and Rukiyo Omar are jointly charged with: unlicensed possession of a Ruger 40 caliber semi-automatic handgun (Count 2); possession of that same handgun knowing the serial number had been defaced (Count 3); and possession of proceeds of crime in the amount of approximately $10,000 (Count 4). The Ruger and the cash were found on February 8, 2011 during the execution of a search warrant at a townhouse (67 Valleyview Drive, Unit 27, in Kitchener), alleged by the Crown to be the residence of Mr. Cumor and Ms Omar. The Crown’s case in respect of Counts 2, 3, and 4 is entirely dependent on the validity of the seizures made under the search warrant.

[3] Mr. Cumor sought to have the evidence obtained excluded from the trial on the grounds that it was obtained in breach of his rights under s. 8 of the Charter. More particularly, it is not alleged that there was no evidentiary basis upon which to issue a warrant. Rather, the defence position is that the search warrant did not authorize a “no-knock entry” and that there were no exigent circumstances to authorize such an entry. Therefore, the defence argues that the fact that the police entered unannounced, by breaking down the door and storming into the residence with their guns drawn, was unreasonable and in breach of the Charter.

[4] Ms Omar does not claim any standing to challenge the validity of the search.

Standing

[5] Mr. Cumor did not file an affidavit in support of his application and did not admit that he was an owner or tenant of the townhouse in question. There were, however, some agreed facts that point to Mr. Cumor having a privacy interest in respect of the premises.

• Mr. Cumor signed a tenancy agreement that was still in force for the month of February 2011.

• He is known to have spent time at the residence on February 1 and 2, 2011.

• Officers conducting the search found a letter from Corporate Services of Owen Sound addressed to Mr. Cumor at the subject address and dated February 1, 2011.

• Officers also found a Notice of Impending Conviction with respect to a traffic offence in Toronto, addressed to Mr. Cumor at the subject address and showing an offence date of January 6, 2011.

[6] At the time the search warrant was executed, Mr. Cumor was in the rental office of the complex, located in the parking lot just outside Unit 27, meeting with a representative of the landlord.

[7] In the Information to Obtain the search warrant (“the ITO”), the police took the position that Mr. Cumor lived at the subject address.

[8] Although the Crown argued to the contrary, I am satisfied on a balance of probabilities that Mr. Cumor lived at the premises and had a sufficient privacy interest to have standing to bring this application.

Grounds for the Search Warrant

[9] The ITO set out information obtained from wiretaps and surveillance indicating that Mr. Cumor lived at the subject premises, that Ms Omar was there frequently, and that Mr. Arviko also visited there. Based on the wiretaps and their observations, police investigators asserted reason to believe that these three individuals were drug dealers. Further, based on wiretaps, police believed that Mr. Arviko was dealing with Ms Omar and Mr. Cumor with respect to the sale of a Beretta handgun to other parties, with the Beretta being held for at least some of this time at the subject premises. It appeared that the sale had not yet been concluded and police therefore believed that the Beretta would still be at the subject premises. The police sought the search warrant for the purposes of seizing a firearm and ammunition, which they believed would be in the residence.

[10] The applicant does not challenge that the search warrant was properly issued based on the information provided by the police to the Justice of the Peace, as set out in the ITO.

The Endorsement of the Justice of the Peace on the Search Warrant Application

[11] In the ITO, the police requested authorization for a “No Knock” entry. The ITO stated (at para 74), “Due to the nature of this investigation, a dynamic entry may be utilized at the discretion of the Emergency Response Unit supervisor.”

[12] Justice of the Peace Thomas Stinson issued the search warrant, authorizing entry between the hours of 10:00 a.m. and 9:00 p.m. on February 8, 2011. The Justice of the Peace crossed out the two paragraphs of the ITO following the heading “Method of Entry” and hand wrote on the ITO:

No-knock entries can only be authorized under s. 529.4. No authority to issue in this case.

[13] Further, the Justice of the Peace issued a memo to the officer who had sworn the ITO, stating as follows:

I have signed the search warrant and sealing order. However, I am NOT authorizing a no-knock entry. A no-knock entry may only be attached to a Feeney warrant under section 529.4 of the Criminal Code. There is no authorize (sic) to authorize a dynamic or no-knock entry for other warrants because this is governed by the common law which requires an announcement prior to entry unless at the time of the execution the police determine exigent circumstances exist.

[14] Sgt. Andrew Harrington was the senior officer in this investigation. He testified that he reviewed the endorsement and concluded that the Justice of the Peace was of the view that he simply had no authority to authorize a no-knock entry, but that this did not prohibit the police from making such an entry. To be certain, he sought the opinion of a senior Assistant Crown Attorney prior to executing the warrant. Based on his experience and the advice received, he determined to go ahead with the dynamic entry as planned.

[15] This interpretation of the endorsement is correct. The Justice of the Peace made no finding as to whether a no-knock entry was appropriate. He merely said that he had no jurisdiction to authorize it. This was a decision to be made by the police officers involved and is dependent upon their being exigent circumstances warranting a dynamic entry without notice to the occupants. Even if the Justice of the Peace had authorized such an entry, it would not be valid unless the Crown could establish the circumstances at common law that would support it. Nothing turns on what the Justice of the Peace said. The onus remains on the Crown to establish that the manner in which the police entered the premises did not make the search unreasonable.

There Were Exigent Grounds for Surprise Entry

[16] On February 8, 2011, police officers with the Emergency Response Unit (“the ERU”) of the Waterloo Regional Police entered Unit 27 at 67 Valleyview Drive in Kitchener without warning. They had been given access to the complex itself by the landlord. Upon reaching Unit 27, they battered down the door and stormed into the townhouse with weapons drawn. Once the unit was secured, they withdrew, and other officers began the search authorized by the search warrant.

[17] The applicant, Mr. Cumor, argued that this method of entry was unreasonable, was a breach of applicable common law principles, and violated the s. 8 Charter guarantee of freedom from unreasonable search and seizure.

[18] It is well-established at common law that, except in exigent circumstances, police officers must make an announcement prior to entering a private home. In Eccles v. Bourque,[^1] the Supreme Court of Canada held that no precise form of words is necessary, but that in the ordinary course, police officers 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.

[19] Where the police depart from this principle, they bear the onus of establishing that it was necessary to do so by showing “reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence.”[^2] In reviewing whether the police decision to act as they did was reasonable, the trial judge must be guided by what the police knew or reasonably could have known at the time.[^3]

[20] Based on the testimony of the two senior officers involved in the decision making, I am satisfied that the police subjectively believed a dynamic entry was required for the protection of the officers involved, the protection of the public, and the preservation of evidence. Further, I find that, objectively assessed, this was a reasonable decision in all of the circumstances.

[21] The two decision-makers involved were Sgt. Andrew Harrington (the officer in charge of the investigation) and Cst. Chris Ebel (the team leader of the Emergency Response Unit that carried out the entry). I found both officers to be forthright, honest and thoughtful in their evidence.

[22] Sgt. Harrington testified that the Emergency Response Unit is brought in to execute all search warrants where firearms or drugs are involved. He said that this does not necessarily mean that there will be a dynamic entry. That decision is left to the ERU.

[23] Cst. Ebel confirmed that he was responsible for the decision to enter the subject premises without prior warning. He made that decision after considering all of the facts available to him and assessing the risks. He reviewed his decision with Sgt. Harrington and other senior officers, none of whom suggested any changes. Cst. Ebel denied that a dynamic entry was always appropriate whenever guns were involved, stating that it would depend on the circumstances. He gave as examples, a situation in which the officers at the threshold would be able to take cover, or where the arrival of the police would likely be detected by individuals within the premises in any event. He also testified that a “knock and announce” entry might be appropriate where the overall risk to officers was low and where there was no prior record of violence or guns. It was the cumulative effect of the various factors at play that led him to his decision, and no single factor was determinative. Cst. Ebel took into account the following information.

(a) There was reason to believe that a handgun would be in the residence and notice to the occupants would give them an opportunity to access it.

(b) There was reason to believe that occupants of the premises were also involved in drug trafficking.

(c) Hassan Cumor, believed to be one of the likely occupants, had a history of previous involvement with weapons and violent offences.

(d) Mustaf Omar, also believed to be an occupant, had previous drug and violence charges and was currently flagged on C.P.I.C. as being “armed and dangerous.”

(e) The door to the unit was in a narrow hallway, with no opportunity for cover.

(f) The unit was part of a larger complex of townhouses backing onto an open area. It would not be possible to cover the back entrances with enough officers to prevent occupants from escaping to the rear. There had been previous incidents in this complex in which occupants had escaped by going out a back third floor balcony and leaping from there to other adjoining balconies.

(g) Because this was a daytime entry, there was a greater risk that there would be people, including children, in the grounds surrounding the area, such that an escape by a person with a handgun could be a risk to the general public, particularly if pursued by police.

(h) A large Rottweiler dog was known to be in the unit.

[24] Based on these factors, Cst. Ebel concluded that a dynamic entry was warranted for the protection of the police officers involved and the public, to prevent the occupants from accessing a weapon, and to prevent the occupants from escaping and possibly escaping with the weapon being sought. In my opinion, Cst. Ebel acted reasonably and responsibly in these circumstances. The exigent circumstances fully justified the use of a surprise entry for all of the reasons he stated. Accordingly, I find no breach of the common law principles relating to police entry into residences and no breach of s. 8 of the Charter.

[25] Mr. Rippell, for the defence, conceded that Cst. Ebel, who made the decision to enter without announcement, subjectively believed that his plan was the best and safest. However, he argued that since the officer did not believe in the foundational principle of the common law that violence begets violence, his approach could not be said to be objectively reasonable. I disagree. The plan devised was both objectively and subjectively reasonable. I do not consider it a fair characterization of the officer’s evidence to say that he did not “believe in” common law principles or that he rejected the notion that violence begets violence. On the contrary, he gave thoughtful responses to questions of principle posed to him and did not simply adopt the more “violent” route believing police force to always be the safer option. Rather, he considered the relevant factors and weighed them in the balance, reaching what was in my view a reasonable conclusion. Even if the officer had said he did not believe in the foundational principles suggested by Mr. Rippell, that is essentially a philosophical debate, not a legal requirement. Both subjectively and objectively, there were circumstances to reasonably support the decision to effect a surprise entry in this case, chief among them the possible presence of a gun, the criminal antecedents of the persons believed to be in the apartment, the presence of a large dog, and the nature of the physical environment. Police officers are not required to put their lives and safety in jeopardy in order to execute a search warrant.

[26] Mr. Rippell also argued that in all cases in which courts have upheld a “no knock” entry, there was a basis for concern that evidence could be destroyed if the police announced their entry, although that factor was often present along with other factors. He sought to distinguish this case on the basis that what was sought was a gun and guns cannot be destroyed in the same fashion as other evidence.

[27] I reject that argument for two reasons. First, it is simply not the case that the possible destruction of evidence must always be present as a factor in order to justify a “no knock” entry. The safety of officers and of the public has always been recognized as exigent circumstances supporting a forced surprise entry. As stated succinctly by Cromwell J. writing for the majority of the Supreme Court of Canada in R. v. Cornell,[^4] “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, or about the destruction of evidence.”

[28] Second, it is simply not accurate to say that the evidence of the gun could not be lost based on the fact that a gun is a large item that cannot be “destroyed” in the same way that drugs or pieces of paper can be disposed of as soon as the occupants know the police are about to enter. The police officers in this case were concerned that the occupants of the apartment could escape through the third floor balcony by jumping from balcony to balcony. They had experience in this very complex in which this had happened and knew they could not marshall the necessary manpower to prevent that from happening. Given that possibility, it is equally possible that a person fleeing could take the firearm with him, especially given the consequences of being found in possession of a firearm. That would result in the evidence disappearing in much the same way as drugs being flushed down a toilet. Further, it represents an even greater risk to the public.

[29] In my opinion, the police acted reasonably and in full compliance with common law principles in this situation. The circumstances were such that a “no knock” entry was justified. In this regard, I find the following words of Justice Cromwell in Cornell (at para. 24) to be particularly apt:

Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

Alternatively, Admissible Under s. 24(2)

[30] If I had concluded that the police acted unreasonably in using a dynamic or “no knock” entry in this case, I would have found a breach of s. 8 of the Charter. However, I would nevertheless have found the evidence derived to be admissible under s. 24(2) of the Charter.

[31] The test to be applied, as articulated by the Supreme Court of Canada in R. v. Grant,[^5] is well settled. I must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the individual whose rights have been breached; and (3) society’s interests in an adjudication on the merits.

[32] With respect to the first of these factors, the police conduct was not egregious. They sincerely and honestly believed that the steps they took were necessary for their own protection and that of the public. The decision was not made automatically or as a matter of police policy, but rather was a considered one in which the relevant factors were taken into account and weighed in the balance. This is a factor favouring admissibility.

[33] This application was brought by Mr. Arviko. The fact that the police broke the door down and stormed in, as opposed to knocking and announcing their presence, had no real or direct impact on him. He was not in the apartment at the time the search warrant was executed. This factor also favours admissibility.

[34] Without the gun and the cash found in the apartment, the Crown has no case on these counts. The other counts are not dependent upon what was found by the search warrant, but that does not address these particular charges. An unlicensed illegal firearm, particularly with its serial number defaced, is a serious matter. The illegal source of the cash is a less serious matter, but is nevertheless not inconsequential. There is a substantial, albeit not overwhelming, public interest in having these charges proceed on their merits.

[35] Weighing all of these factors in the balance, I find that a reasonable person knowing the circumstances would be more affronted by the exclusion of the evidence and the dismissal of these charges than by any Charter infringement involved. Excluding the evidence would be more likely to bring the justice system into disrepute than admitting it.

[36] Accordingly, even if I had found a common law or Charter infringement, I would have admitted the evidence.

MOLLOY J.

Released: November 28, 2014

Footnotes

[^1]: Eccles v. Bourque, [1975] 2 S.C.R. 739, https://www.canlii.org/en/ca/scc/doc/1974/1974canlii191/1974canlii191.html

[^2]: R. v. Cornell, [2010] 2 S.C.R. 142, https://www.canlii.org/en/ca/scc/doc/2010/2010scc31/2010scc31.html at para 20

[^3]: Ibid, at para 22

[^4]: R. v. Cornell, supra note 2, at para. 20.

[^5]: R. v. Grant, [2009] 2 S.C.R. 353, https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html