Searches of a residence

R. v. Cornell 2010 SCC 31 was released today. It permitted a search of a residence made without prior announcement but in so doing set out the customary process. The Court held:

[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.