Case Report – Appeal court says “no knock” entries need not be endorsed in a warrant

13 Mar

On February 26th, the New Brunswick Court of Appeal held that the police need not have express authorization to use a “no knock” or “dynamic” entry in searching a suspect’s residence. The thrust of the judgement is nicely summarized in the following paragraph:

Neither the police nor the Crown requested the issuing judge make an endorsement authorizing a “no knock” entry. Furthermore, the issuing judge did not, on his own motion, choose to make such an endorsement. I also note there is no legislative provision which requires or permits such an endorsement. No doubt for good reason. It does not take much imagination to think of situations where circumstances change after the issuance of a warrant, which either eliminate the need for a “no knock” entry or require one which was previously thought unnecessary. Following the issuance of the warrant, police officers and judges should not be required to meet again to address the appropriate mode of entry. To impose such a requirement upon police and the judiciary would result in the micro-management of police investigations. The development of the law should not sanction the management of police operations by the judiciary except where necessary in the course of fulfilling judicial functions. I do not consider the pre-determination of the method by which police are to exercise their discretion and respond to changing circumstances in executing the search of a suspect’s premises to constitute part of the judicial function.

Based on this reasoning, the Court also held that the evidence the Crown can use in demonstrating that the reasonableness of using a no knock entry is not limited to that which it put before the issuing judge.

R. v. Perry and Richard, 2009 NBCA 12 (CanLII).

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