Court File and Parties

Court File No.: CR-23-101703 Date: 2024/06/20 Superior Court of Justice - Ontario

Re: MICHAEL THEBERGE, Applicant And: HIS MAJESTY THE KING, Respondent

Before: Gibson J.

Counsel: Harald Mattson, Counsel for the Applicant Kathleen Nolan, Counsel for the Respondent

Heard: June 18, 2024

Decision on Pre-Trial Motion

Execution of Search Warrant

Overview

[1] The Applicant Michael Theberge is charged with numerous drug and weapons offences under the Criminal Code and the Controlled Drugs and Substances Act. On December 3, 2021, the Waterloo Regional Police Service (“WRPS”) applied for a s.11 CDSA warrant to search his residence at 2730 Kressler Road, Heidelberg, Ontario.

[2] On December 6, 2021, the Drugs and Firearms Unit of the WRPS prepared an Operational Plan and Risk Assessment (“SMEAC”) on how to execute this warrant. As a result of confidential informant information, the target of the investigation was the Applicant. On that day, when the police went to that address to execute the warrant, they were unable to carry out their plan due to severe weather conditions. As a result, the police sought a second search warrant on December 7, 2021.

[3] The police then formulated a new Operational Plan and Risk Assessment (SMEAC) for the execution of the second warrant for December 8, 2021. This particular operational plan was prepared by the Emergency Response Unit (“ERU”) of the WRPS and not the Drugs and Firearms Unit.

[4] The Deliberate Action Plan portion of this SMEAC provided the following:

On December 8th, 2021, at 0600hrs members of the Emergency Response Team will assist D&F with the execution of a high risk CDSA search warrant at 2730 Kressler Rd, Heidelberg. ERT will conduct a mechanical breach and conduct a limited penetration entry into the residence. ERT will clear the residence and safely arrest THEBERG using the least amount of force as necessary having regard for the safety of the public, occupants and police.

[5] This search warrant was executed on the early morning of December 8, 2021. As a result of the search, the police seized drugs, money, firearms and ammunition, which lead to the charges currently before the Court. Mr. Theberge was arrested at that time.

[6] The police used a variant of a “dynamic entry”: a battering ram was used to breach the door of the residence, and they conducted a “limited penetration entry” into the residence.

[7] The Applicant contends that the use of a “dynamic entry” into the residence was, on the facts of this case, an unwarranted and unreasonable use of force that violated s.8 of the Charter. He seeks the exclusion of the evidence obtained as a result of the search on December 8, 2021 from evidence at his forthcoming trial.

[8] The Respondent Crown resists the application, contending that the application should be dismissed. It submits that the police had ample reasonable grounds to affect their chosen method of executing the search warrant in this case, and that the Applicant’s s.8 Charter rights were not violated. It further submits that if the Court were to find a breach of the Applicant’s s.8 Charter rights, the evidence is properly admissible under s.24(2) pursuant to the test elaborated in R. v. Grant, 2009 SCC 32.

Issue

[9] The issue in this application is whether the Applicant’s s.8 Charter rights were breached by the manner of the police execution of a search warrant at his residence on December 8, 2021, and, if so, whether the evidence should be excluded at trial.

Law

[10] The Applicant submits that the critical issue in this case is whether the manner of entry by the members of the police tactical team was reasonable in the circumstances.

[11] In R. v. Cornell, 2010 SCC 31, Cromwell J. for the majority set out the relevant legal principles at paras. 16-25:

[16] 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 p. 278. There is now no dispute that the first two of these conditions are met; the only issue is whether the lawfully authorized search was conducted reasonably.

[17] The onus is on the appellant, as the party alleging a breach of his Charter rights, to prove that the search contravened s.8 of the Charter.

[18] 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 door bell, (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 p. 747.

[19] Neither the wisdom nor the vitality of the knock and announce principle is in issue on this appeal. Experience has shown that it not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public: Commission of Inquiry into Policing in British Columbia, Closing The Gap: Policing and the Community — The Report (1994), vol. 2, at pp. H-50 to H-53. However, the principle, while salutary and well established, is not absolute: Eccles v. Bourque, at pp. 743‑47.

[20] Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so. 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. 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: see R. v. Genest, [1989] 1 S.C.R. 59, at pp. 89-91; R. v. Gimson, [1991] 3 S.C.R. 692, at p. 693. I would underline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”: p. 90. I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 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”: para. 24.

[21] Although Genest sets out the correct legal test, it is important to note that the facts in Genest are not similar to those in this case. Whereas in this case, the search was conducted pursuant to a valid search warrant, in Genest, the evidence did not support the issuance of a search warrant. Accordingly, the search in Genest, regardless of how it was conducted, was unreasonable because it was not authorized by law. Furthermore, there was no factual foundation presented to account for the means used by the police during the search. In the case before us, there was a valid warrant and an extensive evidentiary basis for the manner of search.

[22] The main question is whether the police had reasonable grounds for concern to justify use of an unannounced, forced entry while masked in this case. The trial judge is required to assess the decision of the police to act as they did and the appellate court is required to review the trial judge’s conclusions. Three things must be kept in mind throughout these reviews.

[23] First, the decision by 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. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.

[24] 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.

[25] Third, the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellate review.

[12] In R. v. Pileggi, 2021 ONCA 4, at paras. 20-28, Trotter J.A. provided the following analysis:

[20] The police must exercise restraint when executing search warrants. This is rooted in statute, the common law, and Charter jurisprudence.

[21] Section 12(b) of the CDSA authorizes the police to "use as much force as is necessary in the circumstances" when executing a search warrant issued under s. 11. Of more general application, s. 25(1) of the Criminal Code, R.S.C. 1985, c. C-46 uses the same language.

[22] Police officers executing search warrants must "knock and announce" their presence at the place to be searched. In Eccles v. Bourque, at p. 747 S.C.R., Dickson J. (as he then was) held that, in the ordinary case, the police 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".

[23] However, these well-established criteria are not absolute: Eccles v. Bourque, at pp. 743-47 S.C.R. Public safety (including the safety of police officers), as well as preventing the destruction of evidence, may relieve the police of the "knock and announce" requirement: Cornell, at para. 20.

[24] The Eccles v. Bourque framework has been absorbed into our Charter jurisprudence: see R. v. Genest, [1989] 1 S.C.R. 59, [1989] S.C.J. No. 5, at pp. 85-87 S.C.R., and R. v. Gimson, [1991] 3 S.C.R. 692, [1991] S.C.J. No. 104, at p. 693 S.C.R. The Supreme Court addressed the issue extensively in Cornell.

[25] In Cornell, the police obtained a warrant to search for drugs in a private dwelling. The police used a "hard entry" into the home: they rammed the door open and did not knock or announce their presence. A tactical team of nine officers entered the house with their weapons drawn, wearing body armour and balaclavas. As in this case, once they were inside the Cornell residence, the police yelled: "Police, search warrant." On the facts of that case, the trial judge found that the officers' actions were reasonable in the circumstances and not in violation of s. 8 of the Charter. A majority of the Alberta Court of Appeal agreed.

[26] In upholding the decision of the Court of Appeal, a majority of the Supreme Court addressed the circumstances in which the police may dispense with the "knock and announce" requirement, as well as the approach to be employed by judges reviewing the conduct of the police.

[27] In terms of departures from the "knock and announce" rule, Cromwell J. (for the majority) set out the following requirements, at paras. 20 and 23:

-- Where the police depart from the knock and announce rule, they must explain why they thought it was necessary to do so. -- The Crown must lay an evidentiary foundation that the police had reasonable grounds to be concerned about the possibility of harm to themselves or the occupants, or about the destruction of evidence. -- The greater the departure by the police from the knock and announce rule, the heavier the onus to justify what they did. -- The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. In other words, ex post facto justifications will not suffice.

[28] In applying these factors, courts must be alive to the realities of policing. The police are afforded a certain amount of latitude when they decide to enter residential premises, based on information that is reasonably available to them. As Cromwell J. said, at para. 24: "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." Similarly, in R. v. Rutledge, 2017 ONCA 635, 387 C.R.R. (2d) 78, at para. 26, this court observed that: "Omniscience is not a prerequisite for a search to be conducted in a reasonable manner."

[13] At paras. 31-36, Trotter J.A. continued:

[31] The Crown at trial advanced both justifications to depart from the "knock and announce" rule: namely, the destruction of evidence and officer safety. With respect to the potential loss of evidence, the trial judge relied upon the officers' evidence that drugs in pill form can be easily flushed down the toilet, especially in a two-story house where there are readily accessible washrooms on both floors. Citing James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, 10th ed. (Markham: LexisNexis, 2017), the trial judge said: "This is not an idle observation. Drugs are notoriously easy to dispose of expediently": R. v. Pileggi, 2019 ONSC 2097, at para. 39. At para. 40 of her reasons, the trial judge also accepted Sgt. Buligan's evidence that he "had no idea where Mr. Pileggi might be in the home but believed that wherever he was located, he would have quick and ready access to a washroom in which to dispose of the pills, if entry were to be announced".

[32] I would adopt the trial judge's analysis on this point. The police had reasonable grounds to conclude that an unannounced and forced entry was required to prevent the destruction of evidence. Given the size and layout of the house, as well as 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.

[33] Turning to safety considerations, the trial judge accepted the evidence of P.C. Sharp and P.C. Black about how weapons are often present at places where they execute search warrants. As P.C. Sharp testified, while there may be no information indicating that weapons may be located in the place to be searched, it does not necessarily mean that weapons will not be there. The trial judge concluded that safety concerns also justified a departure from the knock and announce rule.

[34] I agree with the trial judge that safety concerns also justified the officers' forced entry. As noted above, P.C. Black testified that in his experience, when executing drug warrants, weapons are often discovered in residences. Although there was no information available to the officers suggesting that there were firearms located at the appellant's residence, the allegations involved serious drug charges. The all too typical toxic combination of drugs and guns is well known to the police and the courts: R. v. Wong, 2012 ONCA 767, at paras. 11-13; R. v. Rider, 2013 MBQB 116, 292 Man. R. (2d) 174, at para. 20. Police must be entitled to some degree to rely upon their collective experience when approaching situations that may endanger their lives. As Cromwell J. held at para. 20 of Cornell: "[s]ection 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".

[35] In paras. 49-52 of her reasons, the trial judge rejected the submission that, instead of making an independent assessment of the circumstances they faced, the police simply acted in accordance with a blanket policy to conduct forced entries when executing search warrants for drugs. The appellant submits that she was wrong to do so. I see no basis upon which to upset this factual finding. The trial judge's conclusion was supported by the uncontradicted evidence of three police officers.

[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.

Evidence

[14] In the present case, four documents were made exhibits on the voir dire: a judicial summary regarding information redacted from the SMEAC; the SMEAC from December 6, 2021; the Information to Obtain Telewarrant to Search; and the SMEAC for December 8, 2021.

[15] Two WRPS police witnesses gave viva voce evidence: retired Staff Sergeant Michael Hinsperger, and Constable Michael Murphy. Both witnesses had previously given evidence at the Preliminary Inquiry in this case. I found both witnesses to be credible, and I accept their evidence.

[16] Staff Sergeant Hinsperger was the tactical commander of the Emergency Response Unit (ERU) of the WRPS in 2021. His role in the execution of the search warrant was that of tactical command. Final approval of the plan was given by Inspector McBride, who was the incident commander. He reviewed and approved the SMEAC on December 7, 2021. Staff Sergeant Hinsperger explained the general operation of the ERU, and why a limited penetration technique was chosen in this instance, as it was deemed to present the least amount of risk having regard to the “priorities of life,” including the presence of two other persons in the residence (Mr. Theberge’s female partner Carli Lanka and her eight year old son), the public in general in the vicinity of the premises to be searched, the police themselves, and the subject of the search, Mr. Theberge. The early morning hours were chosen to mitigate the risk of members of the public being in the vicinity, and the likelihood that the occupants would still be in bed and would not have the opportunity to arm themselves or to destroy evidence. He considered the options of a street arrest, a breach and callout, and a knock and announce, but concluded that they were not risk effective.

[17] Staff Sergeant Hinsperger testified that he was unaware of the contents of the earlier SMEAC when he considered the SMEAC for the proposed operation on December 8. He did not recall what information he had received from Detective Constable Aitchison, who was the author of the ITO. In conducting the search, the police were operating under the authority of a search warrant. They did not have an arrest warrant for Mr. Theberge.

[18] Constable Murphy was a member of the WRPS ERU in 2021, and continues in that role at present. On December 7, 2021, he was provided with a SMEAC for the proposed operation on December 8. He prepared the Deliberate Action Plan portion of the SMEAC, including determining the proposed manner of entry into the residence. He then submitted the completed operational plan to Staff Sergeant Hinsperger for review and approval. He proposed a “limited penetration entry,” and explained what factors in his risk assessment led him to choose that option. These included a concern for the potential presence of weapons, isolating the subject of the search Mr. Theberge, and minimizing the opportunity to destroy evidence, as well as the police awareness of the likely presence of two other persons in the residence.

Assessment

[19] Applying the principles set out in Cornell, in Pileggi, in R. v. ChungKuong, 2012 ONSC 3488, and in R. v. Musara, 2022 ONSC 3190, at para. 128, the essential question is whether the search overall, in light of the facts reasonably known to the police, was reasonable.

[20] The Applicant submits that the police have not offered an acceptable explanation for the differences in the SMEACs prepared for December 6 and December 8, and that they should have gone with a “knock and announce” option. He submits that it was just an arbitrary decision to use a form of dynamic entry, and that this was unreasonable in the circumstances.

[21] The Respondent submits that the police made a measured, considered decision regarding their manner of entry in conducting the search on December 8, 2021, and that there were no cavalier decisions.

[22] I have reviewed the evidence in light of the principles set out in Cornell and in Pileggi.

[23] The police actions on December 8, 2021, were within the scope of their duties, having regard to the circumstances and to their knowledge at the time, the latitude afforded to police officers in the manner in which they chose to enter, and in light of all the surrounding circumstances. It is legitimate for police to have concerns for the destruction of evidence and their safety in the execution of a drug search warrant. The police in this case had reasonable grounds to be concerned about the possibility of harm to themselves or to the occupants, and about the potential destruction of evidence, which justified their departure from the “knock and announce” rule.

[24] The Applicant asserts that the police simply acted in accordance with a blanket policy to conduct forced entries in drug cases, instead of making an independent assessment of the circumstances they faced. I see no support for this proposition in the evidence. I accept the evidence of Staff Sergeant Hinsperger and Constable Murphy that they considered the appropriate factors in making an individualized assessment about the appropriate manner of search, and that there was sufficient reason to depart from the “knock and announce” standard.

[25] I repeat what Trotter J.A. said in Pileggi: the fact that police act in the same way in the vast majority of drug 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 the circumstances permit. Safety concerns and concerns regarding the potential destruction of evidence justified the officers’ forced entry. The all too typical toxic combination of drugs and guns is well known to the police and the courts. Police must be entitled to some degree to rely upon their collective experience when approaching situations that endanger their lives. Section 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.

[26] I would add two further observations. First, the Applicant complains that there was a very short interval, some two minutes, from when the police arrived, and when they executed the limited penetration variant of a dynamic entry, and that there were 11 officers in tactical gear involved. There is no merit to this complaint. There is a valid reason such searches are executed in this fashion. If police have selected a dynamic entry on an appropriate basis, then operational effectiveness of the technique once engaged requires that it be executed expeditiously. If one is going to use this technique, it must be done quickly: overwhelming force in terms of the rapidity of the breach and the number of officers involved aids in rapidly gaining control of the situation, and is required to maintain both the safety of the police and the occupants, and the effectiveness of the entry. This is especially the case if there is a concern about the potential presence of weapons. This is not a licence for abuse, and the subsequent search must be conducted in a reasonable fashion, but there are certain inescapable realities inherent in the use of this technique.

[27] Second, the Applicant suggests that the fact that there were differences between the planned approach between the SMEAC for December 6 and December 8 renders the latter plan improper. I do not accept this proposition. Once individual police officers are tasked with planning and executing an operation, they are responsible to apply their own individual judgment, having regard to their experience, and the information known to them. It is they and the other members of their search team who have then have a direct stake in the operation at that point. They are responsible to make their own assessment, and to be accountable for their choices. That different police officers might come to different judgments as to the best plan does not necessarily render the subsequent plan improper. It is a matter of individual judgment. Police must be accorded a reasonable margin of appreciation in their individual assessment and planning. As was stated in Cornell, 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.

[28] In this case, the police have explained why they thought it was necessary to depart from the “knock and announce” rule. The Crown has laid an evidentiary foundation that the police had reasonable grounds to be concerned about the possibility of harm to themselves or the occupants, or about the destruction of evidence. The evidence to justify the police choices is apparent in the record and was available to the police at the time they acted. I do not accept the submission of the Applicant that there was no information available to the police that plausibly suggested the potential presence of weapons on the premises.

[29] I find that the police had reasonable grounds to execute the search in the manner that they did, and that there was no violation of Mr. Theberge’s s.8 Charter rights.

[30] Given this, it is not necessary to engage in the Grant s.24(2) analysis.

[31] The application to exclude the evidence seized by the police on December 8, 2021, is dismissed.

Released: June 20, 2024 M. Gibson J.