A Dynamic Euphemism

If you watch television, "dynamic entry" might refer to Kramer entering Jerry's apartment. If you are a member of the Ontario Court of Appeal, "dynamic entry" means kicking down a door and pointing a bunch of guns at an unsuspecting guy then yelling at him to lie on the ground. 

In Burke 2013 ONCA 424, the Ontario Court of Appeal upheld a dynamic entry, no-knock search for child pornography on the accused’s computer in which the police kicked in the accused’s unlocked door, pointed firearms at him, ordered him to the floor, and handcuffed him.

I'm not even sure it's necessary to avoid knocking in this situation, let alone necessary to point guns at the accused. I haven't had the opportunity to survey possessors of child pornography but I doubt they would delete all their CP files the moment someone knocked on their door.

Exacerbating the matter is that the police could have asked for permission to be so "dynamic" in their warrant but didn't bother. Per the Ontario Court of Appeal:

[36]      Here, the search warrant did not specifically authorize a no-knock entry. ... [P]olice now add “no-knock” to the ITO when seeking to obtain search warrants in these types of cases.

[37]       The Tactical Unit executes the warrant in the manner in which they have been trained to do unannounced entries.  According to Det. Bryden, they operate as a team.  One covers the back of the residence, one covers the front. The rest of the team enter together kitted up in their uniforms; they wear body armour; some have semi-automatic weapons and it is possible that some wear balaclavas. They clear the place as soon as possible.

The legal realist in me wonders how much more graphic this description would read if the justices had thought the execution of the generic warrant was over the top and not commensurate with the danger of the situation?

I would describe the tactics employed by The Tactical Unit as the result of ongoing police power creep but it sounds like their powers might already be maxed out because they are at a military level. In fact, one shouldn't speak of their "tactics" but of their "tactic" because they apparently know only one way to enter an abode, i.e. violently dynamically.

Appellate Justice Weiler justifies their actions by arguing that digital files can be easily deleted or encrypted. Presumably Weiler pictured the accused with his cursor hovering over the "permanently delete" button for all his CP files, ready to click the moment he heard knuckles meet wood on his front stoop. And Weiler apparently felt this way even though the affidavit sworn to get the warrant itself stated that persons who possess child pornography often do so for an extended time and also stated that the accused had already possessed the files for a period of eight months. I guess no one had knocked on the accused's door in the past eight months.

The other implicit presumption Weiler makes is that the police -- who demonstrated in the lead-up to bashing down the accused's door that they have the advanced technological expertise to identify CP files online and where they are going -- lack the ability to recover files once they are deleted. That presumption is false. The police have software like "EnCase" that can recover deleted documents including metadata. This software has been successfully used in many criminal prosecutions in Canada. In fact, according to judges in other cases, even reformatting the computer would not remove all of the offensive material. Here's an Albertan judge summarizing the power of EnCase back in 2003: 

The Encase program images everything on the hard drive, which would include information that a user may have “deleted,” but still remains on the hard drive. 

The court upheld the manner of the search was reasonable since the police did not know whether the accused would be using his computer or be near it at the time of entry. But by the same token, the police didn't know if the accused would be sleeping, arming a bomb, or pointing a gun at a hostage at the time of entry. In those types of situations the police would be much better off taking a less forceful approach. There is an inherent risk of escalating the situation unnecessarily when you break into a building so "dynamically".

Finally, I should mention that the reliability of the method used to track the CP to the accused's computer was in question on the appeal. The police are lucky that it was there because it's a lot easier to justify their "dynamism" with that bit of a posteriori knowledge.

Weiler's vision of police electronic forensic experts once computers have been seized