Manner of Authorized Entry into a Dwelling House: Difference between revisions
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==Departure from "Knock and Announce" Rule== | |||
The burden is upon the police to prove on a balance of probabilities that the departure from the knock-and-announce rule was justified.<ref> | The burden is upon the police to prove on a balance of probabilities that the departure from the knock-and-announce rule was justified.<ref> | ||
{{CanLIIRP|Cornell|2bttk|2010 SCC 31 (CanLII)|[2010] 2 SCR 142}}{{perSCC|Cromwell J}}{{atL|2bttk|20}} | {{CanLIIRP|Cornell|2bttk|2010 SCC 31 (CanLII)|[2010] 2 SCR 142}}{{perSCC|Cromwell J}}{{atL|2bttk|20}} | ||
Revision as of 09:51, 26 August 2021
| This page was last substantively updated or reviewed August 2021. (Rev. # 78466) |
General Principles
At common law, police must comply with the knock-and-announce rule.
- Search Warrant
Generally, in executing a search warrant of a person's home, the police must:[1]
- notice of presence by a knock on the door or ring of the doorbell,
- announce their authority by identifying themselves as law enforcement and
- announce the purpose by stating the reasons for law entry.
This is known as the knock-and-announce rule.
If, after doing those three steps, only then can police force entry.[2]
- Arrest Warrant
When executing an arrest warrant for someone in a residence, the police may enter under the "knock and announce" doctrine without a residential search warrant.[3]
- Waiting After Announcement Before Forced Entry
Once the announcement has been made the police must give the potential occupants a reasonable amount of time to answer the door.[4]
Where announcement has been made and the police receive no answer, they are entitled under the knock-and-announce rule to enter the home by force (a so-called "knock-and-break-in-the-door-if-no-answer" rule). [5]
- Purpose of Rule
The purpose of this rule is to protect "the dignity and privacy interests of the occupants of the house, and the enhancement of the safety of the police and the public".[6]
- Warrant Available to Occupants
An officer executing a search warrant must have the warrant available for production to allow the occupant to know (1) the reason for the search, informing them of their legal position and (2) that there is a "colour of authority for the police to enter.[7]
- ↑
R v Cornell, 2010 SCC 31 (CanLII), [2010] 2 SCR 142, per Cromwell J, at para 20 (knock and announce rule)
R v Burke, 2013 ONCA 424 (CanLII), 285 CRR (2d) 6, at para 41
Eccles v Bourque, 1974 CanLII 191 (SCC), [1975] 2 SCR 739, per Dickson J at p 747 (SCR)
- ↑ Eccles, ibid. at p. 747 (SCR)
- ↑
Cornell, supra, at para 19 (knock and announce rule)
Eccles v Bourque, 1974 CanLII 191 (SCC), [1975] 2 SCR 739, per Dickson J at p 747 (SCR) See Execution of Search Warrants#Lawful Entry into a Dwelling House
Also Warrant Arrests#Feeney Warrant of Arrest
- ↑
R v Pan, 2012 ONCA 581 (CanLII), 292 CCC (3d) 440, per Laskin JA, at para 40
also R v Cao, 2008 BCSC 139 (CanLII), 167 CRR (2d) 120, per Bruce J
- ↑ Pan, supra, at para 38
- ↑
Pan, supra at paras 35 to 36 citing Cornell, at para 19
- ↑ See Search and Seizure Law in Canada, at pp. 17-5
Departure from "Knock and Announce" Rule
The burden is upon the police to prove on a balance of probabilities that the departure from the knock-and-announce rule was justified.[1]
Departure from the rule requires "exigent circumstances", which include prevention of the "destruction of evidence", ensuring safety of police or occupants, or a matter of "hot pursuit".[2]
Police may enter a residence with a search warrant and not follow the common law rule where they have grounds to believe that announcing may result in evidence being destroyed or resistance may be made where officers will be put at risk. [3] This has been approved in circumstances involving investigation for child pornography.[4]
It is not specifically required but it is a recommended practice that the use of a no-knock entry should be specified in the ITO filed with the authorizing justice.[5]
- Section 14 NCA Search
There is suggestion that the knock-and-announce rule does not apply to a search authorized under the NCA.[6]
- Hard Entry
A hard entry (or dynamic entry) is an entry into a house without following the "knock-and-announce" common law rule. The use of "hard entries" does not require judicial approval, but including it in the ITO would go contribute to the validity of the warrant.[7]
- ↑
R v Cornell, 2010 SCC 31 (CanLII), [2010] 2 SCR 142, per Cromwell J, at para 20
Burke, supra, at para 41
- ↑
Burke, supra, at para 41
Eccles, at p. 747(complete citation pending)
Cornell, supra, at para 20
- ↑
R v Thompson, 2010 ONSC 2862 (CanLII), 255 CCC (3d) 236, per Code J - deployed a flash-bang device and left house in disarray.
R v Jordan, 2011 ABQB 105 (CanLII), 506 AR 163, per Mahoney J - ↑ Burke, supra
- ↑ Thompson, supra at para 59 ("there is no present authority requiring the police to obtain prior judicial approval, when seeking a search warrant, of any plan they might have to execute the warrant without making the common law announcements. Although it would be wise practice to disclose such a plan in the search warrant Information, as some police units presently do, the case law has not yet mandated such an approach as being required by s.8 of the Charter. ")
- ↑ Thompson, supra at para 41
- ↑ Thompson, supra