Exercise: structuring the facts

[1] 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 selling cocaine.  The police had those two under surveillance for a while.

[2] 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.

[3] 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.

[4] Based on their surveillance and other evidence, the police thought that Cornell’s house was being used in Nguyen and Tran’s operation as a “stash location,” that is, a place at which Nguyen would reload his cocaine supply for the dial a dope business.  However, from that surveillance and other investigation, the police:

- Had no reason to believe that the Cornell house was neither a gang house nor a drug house frequented by addicts or users. The police had reason to believe, based on their experience, that stash locations could contain drugs, money, weapons and score sheets.

- Knew that 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.” On the last visit, an unknown male accompanied Nguyen back to the vehicle for a short time and then returned to the Cornell house. This meant that the police had good reason to believe that Cornell was associated with at least one of the gang members and that that individual was welcome in the home

- That Nguyen was never seen carrying anything into or out of the Cornell house and that Tran was never observed entering the Cornell house at all, but had been seen in the vicinity. 

[5] At the time of the search, the police did not who resided there.  They did know the name of the owner of the premises and that it was rented to a Lorraine Cornell.  Jason Cornell (the suspect) had given this address as his home after a car accident at the same address was shown as his residence on the records for the cell ‘phone found on Nguyen mentioned earlier. In fact, 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. 

[6] None of the Cornells had a criminal record or any history of violent behaviour. 

[7] 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.

- 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 and reasonable grounds to fear the destruction of evidence. 

[8] 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.

[9] 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.

[10] 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.

[11] 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. 

[12] Shortly before executing their warrant to search the Cornell house, the police observed two people, later identified as Lorraine (Jason’s mother) and Ashley Cornell (his sister) 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. 

[13] 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.

[14] 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”.

[15] 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.

[16]  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.

[17]  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.

[18]  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.

[19]  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 expense.

[20] 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.

[21]  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.

[22]  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.

[23]  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. 

[24]  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. 

Cornell appeals to the Court of Appeal.  How do you think Cornell should arrange the facts in his appellant’s factum?  How should the Crown arrange its facts?  Set out the headings each should use in the facts section and arrange them in a persuasive way.