The following is a summary of the facts found at trial in R. v. Cornell. Cornell appeals to the Court of Appeal.
How do you think Cornell (the appellant) should arrange the facts in his factum? How should the Crown arrange its facts?
In this exercise, your group should first choose whether it wants to be the Crown or the defence. Then it should think about how it would arrange the facts in the facts section of the factum.
Your group's assignment is to come up with the headings you would use in your factum in the Ontario Court of Appeal. (The headings will tell me what facts your group would place under each heading - there is no need to describe further the facts under the headings.) Then arrange the headings to maximize your client's chance in the appeal. This will show me the structure of the facts section of your factum.
In wording your headings, don't forget the three rules of writing - choose your words carefully.
Submit your headings (and just the headings), in your preferred order in the body of an email (not as an attachment) to dstratas@yahoo.com. Please identify the memebrs of your group
Over several weeks, the police investigated two known gang members and suspected drug traffickers, Henry Nguyen and Tuan Tran. The police believed that Nguyen and Tran were running a "dial-a-dope" operation. The police had those two under surveillance for a while.
Nguyen and Tran's gang was of great concern. Police believed that this gang had been engaged in a violent war with another criminal gang that had resulted in a number of shootings and deaths.
Of course, the problem of drugs is of grave concern in Canada. Gangs are often involved, and there is often bloody violence associated with them.
Based on their surveillance and other evidence, the police thought that Cornell's house was being used in Nguyen and Tran's operation. However, from that surveillance and evidence, the police knew:
- The Cornell house was neither a gang house nor a drug house frequented by addicts or users.
- Nguyen entered the Cornell house four times: once "for approximately two minutes"; once "for approximately eight minutes"; next, for "a short visit"; and, finally, for "a short stop". This meant that the police had good reason to believe that Cornell was associated with at least one of the gang members.
- Nguyen was never seen carrying anything into or out of the Cornell house.
- Tran was never observed entering the Cornell house at all, but had been seen in the vicinity.
- Neither Nguyen nor Tran were ever observed in the presence of Cornell or any member of his family.
The residents of the Cornell house were Lorraine Cornell and her three children: Ashley, 17; the appellant Jason, 21; and Robert, 29, who has a mental disability.
None of the Cornells had a criminal record or any history of violent behaviour. No one else lived with them in their home. There was no reason to believe that anyone in the house was armed or dangerous.
Detective Barrow of the Calgary Police Service swore an Information to Obtain A Search Warrant relating to the Cornell house. That information, among other things, included the following details:
- An informant had told police that Nguyen and Tran ran a cocaine dial-a-dope operation.
- This information was substantiated by investigation which included surveillance of Tran and Nguyen, checks in various police and other databases and by the opinion of a police officer with long experience and expertise in the investigation of drug trafficking.
- The activity at the Cornell house and another house was consistent with them being used as stash locations where Nguyen would reload his cocaine supply for the dial-a-dope business. In particular, the Information stated that Nguyen had made brief visits to Cornell's house on four occasions over a period of approximately two weeks. On the last visit, an unknown male accompanied Nguyen back to the vehicle for a short time and then returned to the Cornell house.
- The Cornell house was owned by Phuong Kim Thi Le and was occupied by Lorraine Cornell.
- Nguyen had been taken into custody two months before the search and released. A mobile phone registered to Cornell as subscriber was found in the car Nguyen was driving at that time. The subscriber information for the telephone showed Cornell's address as being that of the Cornell house.
- The tactical team would have to enter the residence in order to avoid the destruction of evidence by potential occupants and for the safety of both the public and the police because of Nguyen and Tran's history of violence and association with the criminal gang. The allegations of possible destruction of evidence were generic and general - the police did not offer particulars that would support this assertion.
- The Information did not offer any grounds for believing that there would be any weapons in the Cornell house.
The police did not do any investigation or research about the character or background of those in the house. There was no evidence to suggest that it would have been difficult to do that, or that there was urgency.
Based on the Information, the police obtained a warrant to search the Cornell house. At the same time, they got two other search warrants. These concerned another house and a motor vehicle, both suspected to be used in the criminal activity under investigation. These searches were the culmination of the police's long investigation.
The police felt that it was important to execute the three warrants as closely in time as possible. As Constable Smolinski explained in his trial testimony, the police were concerned that if a person inside one residence was able to make a phone call, it might lead to loss of valuable evidence at the other. A tactical team was to be used at both residences and in the stop of the vehicle. Its job was to secure the site and then turn it over to the investigators who would conduct the search.
The Cornell house was placed under surveillance from the morning of November 30, 2005, until the search warrant was executed shortly before 6:00 that evening.
Shortly before executing their warrant to search the Cornell house, the police observed Lorraine and Ashley Cornell leave and drive away. The other search warrants relating to this operation had already been executed, and Nguyen, the only suspected drug dealer or gang member ever observed entering the dwelling, was already in police custody.
The police made no effort to intercept the departing women in order to secure or at least attempt to secure a nonviolent, peaceful means of entering the residence to search within. Instead, some 15 minutes later, the tactical team made its unannounced and violent dynamic entry into the Cornell house.
Three were nine police officers with weapons drawn and wearing balaclavas and body armour. "Dynamic entry" involved battering the front door and entering the house while yelling "Police, search warrant".
The police dented the front door with their battering ram and broke the door frame, destroyed some of the interior doors, pried locks off a garage door and rendered the garage door itself inoperable.
The only person in the house at the time was the appellant's brother, who was 29 years old and mentally challenged. Robert was forcibly taken down, pushed to the floor, proned out, and handcuffed with his arms behind his back. Robert's emotional distress became quickly apparent and the officer dealing with him removed the handcuffs, took off his balaclava, and called the accompanying paramedic to assist. The police contacted his mother to ask that she return home to care for her distraught and very scared son.
According to the evidence, from the time of entry to the time that Robert was out of the handcuffs and seated on a couch being comforted by one of the officers was about four minutes.
Robert's mother came back home. She testified that, upon her arrival, she was initially prevented from seeing Robert:
. . . I wanted to see my son [Robert] because they told me that the paramedics were there, . . . and they didn't let me in right away. They told me to sit on the hood of a police car. They also told me I was under arrest.
When she was let back into the Cornell house, she found that her "house was a shambles: Chaos, doors broken, my stuff was -- my bedrooms were destroyed. . . . They had everything pulled out from my rec room to Jason's room, Ashley's room, my bedroom, Robert's room. But she also testified at trial that she was able to repair much of the damage with material she had around the house without incurring any much expense.
The tactical team did not have the search warrant with them when they entered the house. Section 29(1) of the Criminal Code reads as follows:
It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.
The Crown led no evidence that it was not feasible in this case. Detective Bent, who was in charge of the investigation and of the search that started as soon as the house was secured by the tactical team, had a copy of the warrant. He entered the residence approximately four minutes after the tactical team went in. The lone occupant present in the house at the time of entry did not ask to see the warrant and neither did Ms. Cornell, although she was shown a copy when she came back to the house not long after Detective Bent's arrival.
The investigating officers discovered 99.4 grams of cocaine in the corner of the basement bedroom of Jason Cornell, in a box marked "Jason's stuff". Cornell was later arrested at his place of employment. He formally admitted that he possessed this cocaine for the purposes of trafficking.
The issue before the trial judge was whether the police conducted the search of the Cornell house in a reasonable manner, consistent with s. 8 of the Charter.
The trial judge dismissed the s. 8 challenge. He found as a fact that the police had no means of knowing before executing the warrant who, if anybody, was in the residence or whether there was anyone in the residence who might destroy the cocaine, if there was any, upon learning of the police presence at the door. The trial judge also found that the police had done what could reasonably be expected in formulating their decision to use a forced entry. Finally, the trial judge found that the forced entry and corresponding deviation from the standard practice of "knock and announce" when executing a search warrant were justified in the circumstances. In his opinion, the police had reasonable grounds to anticipate either the use of violence by the residents of the Cornell home or the destruction of evidence.