Imagine you’re at home, watching TV with your spouse. Without warning, armed men wearing balaclavas smash through your front door with a battering ram. They throw a “flash-bang” grenade into the hallway. It explodes with an ear-shattering force, and spews a disorienting plume of smoke and sparks. The intruders yell “Police! Don’t move!” and charge in with their semi-automatic rifles pointed at you. They order you to the floor and handcuff you.
What you’ve just experienced is what police in Canada call a dynamic entry. That euphemism hardly describes the violence of this tactic. And now there is reason to worry that some police forces are reflexively using it to execute search warrants related to drug crimes and are no longer even bothering to consider their legal obligation to knock and announce their presence.
Last month in Ottawa, a 23-year-old man fell 12 stories to his death when the Ottawa Police Service sent a tactical unit to smash their way into his parents’ apartment.
At the time, Anthony Aust was out on bail on charges of drug and gun possession related to a traffic stop. He was confined to the apartment with a GPS ankle monitor. His mother says he was suffering from depression.
The Ontario Special Investigations Unit is looking into the death. The police had a warrant and may have had good reason to visit Mr. Aust’s home. But were they justified in using the violent dynamic entry? It’s not clear that anyone in the apartment posed a risk that justified it.
More troubling still, the incident comes on the heels of a court ruling that found Ottawa police have been routinely executing search warrants with SWAT-team tactics, without considering other, less violent approaches.
The incident described at the start of this editorial happened in Ottawa in 2016, when police were looking for drugs they believed were stashed in a suburban home by the daughter of the unwitting owners.
Last February, an Ontario Superior Court justice ruled that the use of a dynamic entry in that case violated the constitutional right “to be secure against unreasonable search or seizure.”
Ottawa police argued in court that they needed the element of violent surprise to protect officers’ safety, and to prevent evidence from being disposed of.
Indeed, Canadian courts, all the way up to the Supreme Court, have upheld the right of police to use dynamic entries – when the situation clearly calls for it.
But the judge in the Ottawa case ruled that there was no evidence the police ever considered anything other than going in heavy. One officer testified that Ottawa police always use a dynamic entry unless there is “zero risk” of resistance or destruction of evidence – a policy that excludes any other form of entry.
That’s not how it’s supposed to work in Canada. The law clearly says police must knock and announce their presence as their primary way of executing a search warrant, and should only resort to dynamic entries when there is real evidence someone may be armed on the other side of the door or that the evidence is at a high risk of being destroyed.
In the United States, dramatic door-busting raids occur by the tens of thousands each year. Surprised and confused residents often fire back. People die. The death of Breonna Taylor this year led to a justified outrage against what in the U.S. are called no-knock warrants.
But at least in the U.S., police need to get a warrant before they use a no-knock entry. In Canada, judges grant search warrants based on a reasonable belief a crime has been committed, but it’s the police themselves who decide whether to knock or bust their way in.
There is no way of knowing how many dynamic entries are executed each year in Canada or where they’re taking place. Given recent incidents, it may be time for Parliament to amend the Criminal Code so police must first obtain a judge’s approval to use a dynamic entry.
It is an ancient legal maxim that a person’s home is their castle – “the final refuge and safe haven for all Canadians,” as one Supreme Court ruling put it.
There will be times police need to execute a warrant by means of what is in effect a home invasion. But if Canadian police are making that their first resort rather than their last, they are acting like American police – and taking this country in the wrong direction.
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