“Dynamic Entires” are a tactic commonly used by the police in drug investigations. Although they thought they could, it turns out the police cannot just have a policy of bashing in your door and throwing a “distraction device” into your front entrance way scaring the hell out of you just because they have a warrant. In a case that shed a little light on the operation of the Ottawa police tactical unit, Justice Gomery of the Superior Court reminded police of their 400 year old constitutional obligations and found that they breached the Charter rights of the people inside of a house when they executed a search warrant. A lot of people haven’t had the pleasure of having their front door opened with a battering ram followed by an explosion in their front hallway that sounds louder than a hand grenade, a blinding flash of light and smoke that fills their home. Lucky them. As Justice Gomery found in R. v. Bahlawan, 2020 ONSC 952, that kind of entry can have a profound effect on the people in the home, including the innocent family members of the search target. In Bahlawan the police knew no target was in the residence but entered in a so-called “dynamic entry” anyway.
The defence challenged the method of entry. In Canada, searches are reasonable and Charter compliant if they are authorized by law, if the law itself is reasonable and if the manner in which the search is reasonable. Where the method of entry does not comply with the law, the manner of the search is unreasonable, in violation of the right against unreasonable search and seizure as guaranteed by s. 8 of the Charter. Justice Gomery accepted the defence position and found that the Charter rights of Ms. Bahlawan and her family members were violated.
The evidence on the application demonstrated that all searches for drugs, guns and child pornography in Ottawa are conducted by the tactical unit. Unless there is “zero chance” there is a gun or evidence that could be destroyed in the residence, the default for Ottawa police is a dynamic entry with all of the associated demonstrations of force. As pointed out by Justice Gomery, it is almost impossible to imagine a scenario in which there is “zero chance”. Unfortunately for police, zero is not the test. The default for all searches, mandated by the Supreme Court of Canada in Eccles v. Bourque, is to knock, announce your presence and state the purpose for attending the residence before entering. That has been the law for over 400 years. That was news to the Ottawa police.
From now on, police should know they can’t just presumptively smash your door down and throw a distraction device in your front hallway. If a search warrant is being executed, police have to start with a consideration of a “knock and announce” entry. Where they use dynamic entry tactics, police will ultimately have to convince a Judge that, based on what they knew at the time, there were reasonable grounds to be concerned of a risk of harm to officers or occupants or that evidence could be destroyed. The greater the departure from the 400 year old rule described in Eccles v. Bourque, the heavier the onus will be on police to justify the departure. A decision making process will not be inferred from the results. It will have to be demonstrated.
The Judge in Bahlawan found that innocent family members were “profoundly shaken” by the horrifying display of force executing the warrant. Where police fail to demonstrate reasonable grounds justifying dynamic entries, judges will tell the Crown they can’t use the evidence seized. All police forces are on notice that the 400 year old rules they were supposed to apply still apply.