Toronto police failed to get necessary judicial permission before forcing their way into a man’s home at 5 a.m. with a battering ram, a judge ruled in tossing the man’s gun charges.
Daveion Brown, 25 at the time, was in bed with his girlfriend in his basement apartment when six armed police officers stormed in early on Oct. 15, 2020, according to Ontario Court Justice Apple Newton-Smith’s Dec. 15 ruling.
Police had received the necessary judicial permission in order to arrest Brown at his home, but what they failed to ask for was permission to enter without first announcing themselves, such as a knock on the door, Newton-Smith found.
“It is offensive to our societal notions of fair play and decency when the police, through ignorance or carelessness, choose to ignore the terms of a judicial authorization and take it upon themselves to force their way into someone’s home,” Newton-Smith said.
Brown and his girlfriend “are young Black people living in Toronto,” the judge noted.
“It is particularly egregious that, as members of a racialized community with a history of over-policing which has been, and continues to be, acknowledged by our Court of Appeal and Supreme Court, they were subjected to such an invasion of their dignity and privacy without judicial authorization.”
She said both Brown and his girlfriend were left traumatized by the incident.
The arrest violated several of Brown’s constitutional rights, Newton-Smith said, including his right to life, liberty and security. As result, she stayed his charges of possession and trafficking in a firearm.
That decision came just five days before another judge tossed all charges in a separate firearms case, also due to Toronto police conduct.
In that case, Justice Hafeez Amarshi found that police failed to disclose evidence in a timely fashion, saying their slow pace was “bordering on negligent.” He ruled that the delay in completing the accused man’s case had violated his right to a trial within a reasonable time.
And yet another judge acquitted a man of gun possession charges after finding, in written reasons released this month, Toronto police officers racially profiled him and his friend when they questioned and later arrested the pair, claiming they had been loitering in an apartment building lobby. Justice Lori Anne Thomas also found the man’s right to counsel had been violated, and she threw out the firearm evidence as a result.
Each of the three rulings laid the blame for the collapse of firearms prosecutions at the feet of Toronto police at a time when police forces and politicians have blamed the courts for being too lenient on gun cases.
Brown’s defence lawyer, Laura Metcalfe, declined to comment. Toronto police did not return a request for comment.
Brown’s charges stem from a massive investigation called Project Sunder, which began in September 2019 and involved multiple police forces from Toronto to Thunder Bay. The project led to more than 800 charges for over 100 people, relating to firearms, drugs, gang activity and murder.
Oct. 15, 2020, was Project Sunder’s takedown day, and numerous people, including Brown, were arrested.
In order to arrest someone at their home, police typically first need to get judicial authorization, known as a Feeney warrant, which is what police did in Brown’s case. But the warrant still requires police to announce themselves prior to entering, unless they also request permission for a “no-knock entry.”
To do so, police need to provide their reasons for such an entry, selecting one of two options on the warrant form: reasonable grounds that prior announcement would either expose officers or others to “imminent bodily harm or death,” or would result in imminent loss or destruction of evidence.
No option was selected on the Feeney warrant used to arrest Brown.
“The officers here had no regard for what they were judicially authorized to do,” Newton-Smith wrote. “The officer in charge of the execution of the warrant testified that he could not recall if he had read the warrant.”
In applying for the warrant, a police officer swore that they had information Brown had been involved in alleged firearms trafficking in May 2020, the offence for which he was arrested on Oct. 15 and which was later stayed by Newton-Smith. No evidence was actually seized at his home during the arrest.
The officer in charge on Oct. 15 testified that “he believed that the safest thing to do was to enter without knocking because he did not know Mr. Brown and he did not know what was behind the door,” Newton-Smith wrote. He also said that he knew Brown had fled from police during a prior arrest that year on drug charges, which are still before the courts.
Even if police haven’t received permission for a no-knock entry, they can still proceed with one if an emergency situation arises that requires it, Newton-Smith wrote.
In this case, the concerns described by the officer in charge had been known to the police prior to the arrest and therefore they could have made the case to a judge for a no-knock entry, Newton-Smith said. But for whatever reason, police did not do so.
This is why, Newton-Smith said, the Crown also conceded that Brown’s rights had been violated. But the Crown argued that the remedy for that violation should either be a reduction in sentence, restitution for the damaged door — Brown had to pay $500 to fix it — or a “judicial condonation” of the police’s actions.
“A sternly worded judgment does not address police conduct which ignored the terms of a judicial order,” Newton-Smith wrote, disagreeing with the Crown’s suggestions.
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