A number of recent cases of police raids in Canada that went off the rails point to the need to reconsider how they’re regulated, some legal experts say.
That could mean everything from changes to the Criminal Code to requiring officers who bash down someone’s door to video-record the operation so that a judge can assess it afterward if necessary.
An Alberta couple who say they were traumatized after police smashed in their living room window with an armoured vehicle and fired tear gas into their home are just the latest example of a tactic that can have severe consequences. A CBC News investigation found that police mistakenly believed the home was a drug den, and caused more than $50,000 in damage.
Other cases recently unearthed by CBC News include an Ottawa family whose house was raided in 2016 by rifle-wielding police who believed the parents were hiding weapons and explosives. They weren’t, and no charges were ever laid.
“When this type of raid is perpetrated on a homeowner or a family, that can have long lasting, significant effects well beyond what might be replaced by way of property,” said Sarah Inness, a criminal lawyer in Winnipeg who was on a panel of jurists that critically evaluated a sample of 125 Manitoba search warrants for a 2017 reseach study.
Make police get judicial approval to conduct a no-knock raid
Police almost always need a warrant to search a home, but then they have wide latitude on how to execute it: knock and announce, or bash down the door?
“The manner of execution, that’s definitely something that would be helpful if it’s also the subject of judicial review prior to it happening,” said Dean Embry, a member of the executive committee of the Ontario-based Criminal Lawyers’ Association.
Three dozen U.S. states require police to obtain prior approval from a magistrate to execute a search warrant by bashing down doors. Embry and fellow criminal lawyer Kim Schofield both noted that the Criminal Code already requires police to get special permission to execute a search warrant at night.
Tom Stamatakis, a veteran police constable in Vancouver and president of the Canadian Police Association, told CBC earlier this year that “if there’s a desire to create more strident conditions around the use of this tactic, or any other policing tactic, then that is entirely appropriate and the responsibility of our provincial and federal governments, and there’s no issue with that.”
Have a special advocate available to counter the police
When investigators apply to a justice of the peace or a judge for a search warrant, they’re the only ones in the room. Police officers are supposed to be full, fair and frank with the evidence, but there’s no guarantee.
“This is one of the only processes in the criminal justice system that takes place in the absence of the other side,” Ottawa criminal lawyer Lawrence Greenspon said.
“There’s nobody to argue … as to why they shouldn’t get the warrant.”
Greenspon suggested courts could have lawyers similar to the special advocates in immigration law, where independent, security-cleared lawyers confidentially represent non-citizens facing deportation in national-security cases.
Require police to videotape no-knock raids
If officers violate someone’s constitutional rights in the way they execute a search warrant — for example, an unreasonably aggressive no-knock raid — any evidence found, and any resulting criminal charges, can often be tossed out. But it can be hard to prove.
“Where there’s no video recording or audio recording, it’s really just the evidence of officers and then the evidence of homeowners or accused people,” Inness said. “Judges are really stuck then.”
A number of Canadian police forces already outfit some of their officers with body-worn cameras.
Make it easier to get compensation
When a door-bashing raid causes substantial damage, but police find nothing and lay no charges, it’s “an uphill battle” for occupants to get any compensation, said Greenspon.
“It’s very clear what the police would do in terms of a defence: They would say, ‘Look, this is judicially authorized, so you can’t challenge it.’ “
The only remedy victims have is to sue, but that can take years. Greenspon fought for five years for the Ottawa couple whose house was raided in 2016 before they settled out of court with the city.
Stamatakis, of the Canadian Police Association, emphasized that officers are highly trained and weigh public safety considerations, but acknowledges that mistakes happen. “There are always going to be incidents where there are outcomes that no one’s happy with, but we also have to remember that in most cases these warrants are executed without incident.”