On January 14, 2010 members of the Fredericton Police Force, with warrant in hand, used a battering to conduct a "hard entry" into an apartment where Kevin Sexton was located and arrested. The evidence gathered by the police once inside that residence became the subject of a Charter motion brought by Sexton and ultimately granted by the trial judge. The judge found that the execution of the warrant, including the hard entry, was unreasonable. The Crown appealed: R v Sexton, 2011 NBCA 97
Kevin Sexton was apparently trafficking in cocaine. In the month leading up to January 14, 2010 (following the police attendance at Sexton's apartment for a domestic involving Sexton's brother) the police obtained information about Sexton and his trafficking business. This led to a plan to execute the warrant at Sexton's apartment without notice - a "hard entry". The reason for this type of entry was noted as follows: (i) concerns about office safety; (ii) concerns about the safety of neighbours; (iii) and preservation of evidence [para 12].
During the Charter motion the Crown led evidence about Sexton's criminal record which included weapons offences, drug offences and an outstanding charge for assault police; the Crown also led information from CPIC that he was believed to be "armed and dangerous".
In rejecting this as a basis for conducting the hard entry the trial judge held:
The police also state they were somewhat at risk. They rely on Exhibit P3 [the CPIC report containing the cautions for violence and armed and dangerous] to justify their basis for that risk. Quite frankly, and with all due respect to the police, that suggestion is absolutely comical when one reviews in detail Exhibit P3. It is ripe with numerous errors. And states “Caution – this is not a criminal record”.Furthermore, when you review the alleged crimes previously committed by Mr. Sexton, and in particular, the various sentences handed down for those crimes, it is obvious that Mr. Sexton could not be considered a risk of violence under Exhibit P3. [Underlining in Court of Appeal ruling].
In addition the trial judge objected to the use of balaclavas by the entry officers.
On appeal Bell JA, for the court, considered the trial judge's finding that reliance on CPIC was "comical". Bell JA offered the following in rejecting this finding:
In deconstructing the Provincial Court judge’s reasoning, I would first consider his observation that police reliance upon CPIC cautions that Mr. Sexton was violent and armed and dangerous was“absolutely comical”. In addition to judicial and legislative dictates, there are two very practical reasons why police must take very seriously the search of someone else’s residence. First, it is highly likely that suspects will know the layout of the place being searched much better than the authorities. They will know potential means of escape and potential sources of weapons. Second, the person whose residence is being searched will, in most cases, have a better knowledge of who is present in the premises. The two unknowns of layout and occupancy provide a practical advantage to the person whose residence is being searched in the event that person wishes to destroy evidence or obstruct, evade or cause injury to police. Those two very practical observations were at play on the day Mr. Sexton’s residence was to be searched. In addition to those factors, police knew Mr. Sexton possessed a criminal record for weapons and drug offences and was awaiting trial on a charge of assaulting a peace officer. Information appearing in CPIC, a national database, maintained by the Royal Canadian Mounted Police, constitutes a source of information which is used by virtually every police officer in Canada and whose information is communicated to, and relied upon, by courts throughout the country on a daily basis. Not only should police rely upon CPIC, they would no doubt be negligent and subject to disciplinary action if they choose to disregard it. While the Provincial Court judge was correct to state that the CPIC report does not constitute a criminal record, that fact does not render the cautions contained therein unreliable. Furthermore, even if Mr. Sexton had established that the CPIC cautions were unreliable, that fact would have had no impact upon the right of police officers to use the information unless they had doubts about its reliability. There is no evidence of any such doubts.
...As noted by Justice Cromwell in Cornell, after the fact assessments are unfair and inappropriate when applied to situations like this where officers must exercise discretion and judgment in difficult and fluid situations [paras 26-27]; [emphasis added].
Turning to the trial judge's criticism of the police use of balaclavas, Bell JA again disagreed with the trial judge and concluded as follows:
In assessing the reasonableness of the search, the Provincial Court judge expresses particular disdain because the police officers were dressed in full emergency response gear, including tactical weapons, goggles, helmets and balaclavas.
With respect to the use of masks, Constable Haines testified their purpose was to protect police officers "if there happens to be any glass, shattering of glass for whatever reason, or flame, it's flame retardant. It's basically to protect, give our faces some protection if was happen to encounter anything". As Justice Cromwell observed, courts should not be micro-managing the police force's choice of equipment. To the extent the Provincial Court judge relied upon the presence of balaclavas to conclude the search was conducted in an unreasonable fashion, he erred [paras 29 and 30]; [emphasis added].