Appeal of drug conviction spotlights improperly executed Feeney warrants

Law360 Canada (June 13, 2024, 10:14 AM EDT) --

John L. Hill

The Toronto Police Service became aware of Daveion Brown through the interception of private communications authorized during Project Sunder, a multi-jurisdictional investigation targeting the Eglinton West Crips.

That gang was suspected of criminal activity that included firearms and narcotics. Brown had been spotted dealing firearms and drugs previously. On Oct. 15, 2020, the “takedown day” for Project Sunder, Feeney warrants were obtained to enter multiple residences and arrest those suspected of trafficking in firearms and drugs.

Brown’s apartment was a residence to be entered. The Feeney warrant is an arrest warrant giving police the power to enter the property and effect an arrest of the person named in the warrant. The Criminal Code’s s. 529 permits such warrants and was drafted in response to the Supreme Court’s decision in R. v. Feeney, [1997] 2 S.C.R. 13, requiring police to obtain a warrant before entering a private residence. Except in exigent circumstances, police should give notice of presence by knocking or ringing the doorbell, give notice of authority by identifying themselves as law enforcement police officers and give notice of purpose by stating a lawful reason for entry. Furthermore, before forcing entry, police should, at minimum, request admission and have admission denied.

The police officer, before Brown’s arrest, did not read or understand the requirements of a Feeney warrant and made a forcible “no-knock” entry into Brown’s unit to effect the arrest and seizure of the weapons, drugs and cash.

At trial, Brown objected that his rights in ss 7, 8, and 9 of the Charter had been violated. The trial judge agreed, but instead of dismissing all charges, the trial judge stayed the firearms-related charges but allowed the drug trafficking charge to proceed, giving police a strongly worded reprimand. Brown was convicted of drug trafficking and sentenced to 15 months. He had sought to reopen the Charter challenge, but the trial judge refused. Brown appealed his finding of guilt and dismissal of his Charter application. The Crown appealed on the finding that Brown’s rights had been violated.

The Appeal Court, therefore, had to determine if police conduct was in line with the Supreme Court decision in R. v. Babos, 2014 SCC 16. That court had stated that a stay of proceedings for an abuse of process would only be warranted in the most straightforward cases.

Two types of state conduct may warrant a stay: (a) conduct that compromises the fairness of an accused’s trial and (b) conduct that does not threaten trial fairness but may undermine the integrity of the judicial process. The test for determining if either type exists requires: (1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; (2) there must be no alternative remedy capable of redressing the prejudice; and (3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.

The trial judge had authorized a partial stay, citing R. v. Le, 2019 SCC 34, and R. v. Morris, 2021 ONCA 680, in finding that the police dynamic entry was particularly egregious to racialized community members who had a history of being over-policed.

The Court of Appeal held that the trial judge had made a reversible error in making a Charter ruling and that appellate intervention was authorized (R. v. Brunelle, 2024 SCC 3). The trial judge had mistakenly believed that Brown had been charged with only the gun-related offences when the Feeney warrant was executed. Had the trial judge notified the parties that she was considering a partial stay, she would have been apprised that she misunderstood the facts of the case. The drug dealing and the firearms trafficking all formed the basis for the issuance of the warrant and related to the Charter violations. There was no rational basis for distinguishing the firearms offences from the drug charges.

Furthermore, the trial judge failed to consider remedies other than a partial stay, such as reducing the jail sentence. This analysis limited the remedies for violating rights in the Babos residual category. 

The first category in Babos was met. The police failed to understand the meaning of a Feeney warrant.

The stay remedy limits the truth-seeking purpose of a trial and the rights of victims to seek redress. Here, there was no suggestion that Brown was targeted because of his race in the police misconduct. A stay of the weapons charges was uncalled for. The appeal court denounced the police’s failure to understand their role in executing the warrant (R. v. Brown, 2024 ONCA 453). Such misconduct may be grounds to reduce the sentence if Brown is convicted of the weapons charges in a continuation of the trial now ordered on those offences.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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