Cornell: A Divided Court Accords Too Much Latitude to the Police – 'Canada Is Not a Police State'
Response or Comment
R v Cornell, Search Warrants, Police Discretion, Criminal Code s 29, Charter of Rights and Freedoms, Protection of Privacy
R. v. Cornell is a narrowly (4:3) and sharply divided decision which has ominous implications for the control of the police when they execute search warrants. The majority countenanced the ramming open of the front door of an occupied residence by "nine masked officers," "who did not have a copy of the search warrant with them", "without knocking or announcing their presence." In a mood of excessive generosity given the startling facts of this case, they allowed the police a "certain amount of latitude in the manner in which they decide to enter premises", forbidding a reviewing court from becoming "a Monday morning quarterback." In stark contrast, the dissent denounced "a more serious affront to the administration of justice: grossly excessive and entirely unjustified violence, accompanied by psychological intimidation unwarranted in the circumstances." The conflict in the camps' evaluation of the conduct of the police will leave observers of s. 8 jurisprudence feeling tremulous about the future of the Charter as a limitative and preventative instrument, especially in the context of searches of dwellings. As Wilson J. stated in Debot, the Charter is meant to "circumscribe these coercive powers of the state within the boundaries of justice and fairness to the individual", providing "the most formidable defences the individual can marshall against state power." Cornell fails to accord Canadians this level of protection.
In this comment, it is seen as unfortunate that Cornell was not chosen to delve into the compatibility of the common law rules on the manner of executing search warrants with what has been portrayed as the heightened privacy protections introduced by the Charter. It is contended that the judiciary ought to limit police discretion on when the knock and announce rule can be abandoned, preferably by imposing more substantial obligations on the search warrant issuance process. The combination of the use of the tactical team, drawn weapons, masks and forced entry is viewed as a problematic example of an entirely police-con-trolled execution process with its inherent dangers of overzealousness and unnecessary violence. The dilution of the s. 29(1) obligation in the Criminal Code for officers to have the warrant "with him" is condemned. Finally, the tolerant stance of the majority is depicted as raising even more concerns in that it emerges from the interminable war on drugs wherein much of the case law since the promulgation of the Charter has been formed, or, at times, distorted.
H Archibald Kaiser, "Cornell: A Divided Court Accords Too Much Latitude to the Police – 'Canada Is Not a Police State'" (2010) 76 CR (6th) 263.