Hamilton police violated woman's Charter rights with no-knock raid, judge rules

A judge has ruled Hamilton Police Service (HPS) violated a woman's Charter rights with "cavalier disregard" after smashing their way into her downtown apartment home to look for drugs.

The case against the Hamilton woman and the evidence officers seized which included $500,000 of cannabis products, $50,000 in cash and some magic mushrooms were thrown out of court, according to a Jan. 25 ruling by Ontario Superior Court Justice Andrew Goodman.

Goodman foundHamilton police couldn't explain why they chose to execute a dynamic entry, also called a no-knock raid, that day in June, 2021. Hefound theofficers, despite being experienced,did notreport the evidence they seized and did not properly informthe woman of her right to a lawyer.

No-knock raids are supposed to be rare because, by law, officers usually must knock on a home's door, identify themselves as police, and wait for someone to answer before executing a search warrant. Police services say no-knock raids make situations safer and are generally only used if there's a higher risk of danger or the potential destruction of evidence.

But prior CBC investigationshaveshownthese raids have become more common,despite coming under scrutiny after some raids turned deadly, such as in the case of Anthony Aust in Ottawa and Breonna Taylor in the U.S.

In Hamilton, Goodman said the raids are "verging on becoming a systemic problem" after HPS officers told him when they execute search warrants, no-knock raids are used over 90 per cent of the time.

This caseis the second time a judge has found HPS violated someone's Charter rights using a no-knock raid in recent years, according to publicly accessible court rulings. A judge gave a similar ruling ona police raidin 2019.

While HPSmade some changes to its no-knock policyin late 2023, including training officers on Charter rights,Kim Schofield, the lawyer representing the woman, says there should be even more oversight.

"This is a perfect example of the police steadfastly refusing, systemically, to accept the fact that dynamic entries are dangerous and should be the exception, not the rule," Schofield told CBC Hamilton.

How the raidunfolded

Court documents and a video clip obtained by CBC Hamiltonshow how things unfolded.

In late 2020, Hamilton police started investigating an illegal cannabis dispensary that was operating as an online delivery service. HPS eventually pinpointed two units inside a downtown apartment building as the source of the deliveries and got a search warrant to enter the units.

On an afternoon in June 2021, the HPS drug and gangs team executed the search warrant by doing a no-knock raid.

Surveillancecamera footage from inside the apartment, provided to CBC by Schofield, shows the door startingto give way to abattering ram. A woman briefly approaches the door and scurries away as police continue to force their way in.

After about 20 seconds, police break through and seven officers wearing bullet-proof vests over street clothesflood into the unit. The footagestops shortly after all the police officers enter.

WATCH|The moment Hamilton police raid a downtown apartment unit

Watch the Hamilton police raid that violated a womans Charter rights

10 months ago

Duration 0:39

Video obtained by CBC Hamilton shows the moments police raided a downtown Hamilton apartment in 2021. A judge later ruled police violated a womans Charter rights.

"Get on the fing ground!" at least one officer yells, with at least one other shoutingthe words "search warrant."

Goodman's ruling states officers didn't have safety concerns before entering the unit and couldn't explain why they decided to use a no-knock raid.

Some officers cited the "usual" concern for loss of evidence and told Goodman HPS used no-knock raids "90 per centof the time and maybe even more often than that."

Officers also told Goodman they identified themselves as police,but the video evidence contradicted their claims.

"The way in which the police said it happened, it just didn't happen that way," Schofield told CBC Hamilton. "Luckily, for us, we had video."

Experienced officers 'failed completely,'judge says

After entering the unit, officers confronted the woman and three others, according to Goodman's ruling.

The woman was facing charges for distributingmarijuana, possession for the purpose of distribution and a charge for the magic mushrooms. Police informed her of her right to a lawyer for the first two charges but not the third, which was another Charter breach.

Police also never filed a report to justice regardingthe evidence seized, which breached the Charter. Without that, police are not legally allowed to hold onto the evidence.

"Follow-up and diligence are built into the system, and yet a handful of experienced HPS officers failed completely in compliance," read the ruling.

"Many of these officers are senior members of the police service's drug and gangs team and are therefore supposedly experienced in the seizure of such items. Their participation in this failure makes this Charter breach all the more egregious."

Schofield said it was a "terrifying experience" for her client, who declined to do an interview.

Similarly, the trial judge for the 2019 raid by HPS ruled it contravened the Charter becauseofficers could not justify why they used a no-knock raid.

Unclear if officers will face any discipline

CBC Hamilton requested an interview with HPS about the 2021 raid. Spokesperson Jackie Penman replied with a written statement.

She said Goodman's decision has been sent to the HPS professional standards branch for review to determine if there is a need for more training or disciplinary measures.

Last year per recommendations to all police services from the Office of the Independent Police Review Director HPS told the police board it made changes to the planning stages of no-knock raids, what happens after the raids and how it tracks that data.

It also trained officers on the Charter, Penman said.

HPS board Chair Pat Mandy saidin an interview the police service is meeting all the recommendations in the review director's report and eventually the board will be able to ask more questions about no-knock raids.

CBC Hamilton previously filed a freedom of information request about no-knock raids done by HPS from 2019 to 2021. The resulting datashowed the number of raids was on the rise,but those statistics only captured raids by the emergency response unit.

Penman said HPS could not say how often no-knock raids took placebefore 2024.

Schofield said the law needs to change to improve the oversight on raids. For one, she said, judges, not police, should decide how a warrant gets executed.

"Hopefully this is the end of this type of warrant execution," she said. "It really has to change."