Dynamic Entry: Preservation Over Protection - Avery Marshall

On March 13th, 2020, Breonna Taylor, was fatally shot in her apartment by members of the Louisville Metro Police Department, while they were executing a search warrant of her boyfriend’s apartment. Officers claimed that they announced themselves before gaining entry into the apartment, but this fact has been disputed by others around the scene at the time. This case has caused backlash in the United States around police conduct, as well as the issue around “no-knock warrants”, which allow police officers to enter a residence with a warrant, without having to announce themselves first. Breonna Taylor does not stand alone, she is accompanied by a Canadian, Anthony Aust who died on October 7th, 2020, while Ottawa police executed a search warrant at the apartment of Anthony and his family, while using the same tactic, known in Canada as a “dynamic entry”.

Anthony was awaiting trial on firearms and drug trafficking charges when police obtained a warrant to search his family’s residence, and burst into the home unannounced, setting off flash grenades with rifles drawn. Anthony, jumped out of his 12th-story bedroom window in an act of fear from this intrusion. Accompanying Anthony in the home was his 12-year-old brother, his sister, step-father and grandmother. His step-father, who is a stroke survivor, had been handcuffed and pushed to the ground, and was not released until his body started to slump. This tragic event has shed more light on the casual disregard for Charter rights, and the long-standing practice that Ottawa police use, which is to favor dynamic entries and not announcing themselves in all situations, rather than only in exigent circumstances.

The decision of R v Bahlawan (“Bahlawan”), which came out in February 2020, has also shed some light on the practice of dynamic entries in Canada. In Bahlawan, police entered the residence by forcing open the door with a battery ram, and threw distraction devices into the front hallway. Police ran into the home yelling, wearing dark tactical gear, helmets, and vests, while carrying long guns. This case reiterates the law around searches in Canada, which is that in order for a search to be valid, it must be authorized by law, the law itself must be reasonable, and the manner in which the search is carried out is reasonable. This case brings attention to the issue around whether dynamic entries are a reasonable manner in which search warrants should be carried out.

As a general rule, police must knock and announce their presence before entering a home unless there are exigent circumstances that justify entering without announcing. When police enter a residence without announcing their presence, they must be able to justify their decision to depart from the standard knock-and-announce rule. The Crown must prove that the police had reasonable grounds to be concerned about the risk of harm to officers or occupants, or the destruction of evidence, and these grounds must be based on what police knew at the time, as opposed to an ex post facto justification for the dynamic entry.

The policy considerations behind dynamic entries is that experience has shown, these not only protect the dignity and privacy interests of occupants in the dwelling, but also enhances the safety of the police and the public. Police are authorized to make dynamic entries as they are not required to put their lives or safety on the line if there is even a low risk of weapons being present. My concern is that the privacy interests, or safety of the occupants of the residence, takes a back seat to the interests of preserving evidence, or police safety. In Bahlawan, tactical officers involved in the execution of the warrant testified that no consideration was made to another method of executing the warrant other than a dynamic entry, and that dynamic entry is used whenever there is any possibility that evidence will be destroyed. In my opinion, this is not a reasonable way to handle high tensity situations that may involve innocent people.

I think a more comprehensive look at dynamic entries is required in light of cases like Anthony and Bahlawan, that must go beyond the court saying that police violated the Charter and executed a warrant unreasonably. I think an important step would be education on the dangers of dynamic entries on the residences involved, and how preservation of evidence should not override the Charter rights that individuals have towards searches conducted in an unreasonable manner. These types of searches do have their place as a tool for law enforcement, but they must conform with the Charter and our laws that state they should only be used in exigent circumstances, rather than deployed as a general practice. Considerations of alternative methods should always be at the forefront, as those inside the residence are still members of the public, and police should still have an obligation to keep them safe as well.

A further consideration can be made to who makes the call for a dynamic entry. Although I do believe that police may be in a better position to determine whether a dynamic entry is required given the changing circumstances that can occur, getting prior judicial authorization for this type of entry may be a step towards ensuring that police are not using this method arbitrarily, and have objective facts that point towards a need for a dynamic entry. A policy change to dynamic entries need not be extreme, but rather a more comprehensive educational tool to demonstrate the pitfalls of these entries towards public safety, and the weighing of what is important to us as a society should be in question. Are we as a society still willing to put the importance of the preservation of evidence over the risk of life that comes with dynamic entries? I don’t believe we are, and with the unfortunate events of both Breonna Taylor in the United States, and Anthony Aust here in Canada, I hope considerations will be made towards dynamic entries and their use in our Country.

Endnotes

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1 Scott Glover, Collette Richards, Curt Devine & Drew Griffin, “A key miscalculation by officers contribute to the tragic death of Breonna Taylor”, newspaper (2020) electronic source.

2 Manisha Krishnan, “Police Were Warned About No-Knock Warrants. Now, a Black Man is Dead” (2020), online: Vice

<http://www.vice.com/en/article/889wpv/ottawa-police-were-warned-about-no-knock-warrants-now-a-black-man-anthony-aust-is-dead>.

3 R v Bahlawan, 2020 ONSC 95 [Bahlawan]

4 R v Collins, (1987) 1 SCR 265.

5 Bahlawan note 3 at para 14.

6 Bahlawan note 3 at para 17.

7 Ibid at para 16 & 21.

8 Ibid at para 38.