COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Nordheimer and Harvison Young JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Matthew Stairs
Appellant
Erin Dann and Lisa Freeman, for the appellant
Diana Lumba, for the respondent
Heard: in writing
On appeal from the conviction entered on June 18, 2018, with reasons reported at 2018 ONSC 3783, and the sentence imposed on July 16, 2018 by Justice Kendra D. Coats of the Superior Court of Justice.
I. Overview
1A civilian was driving southbound when he saw a male driver of another vehicle striking his female passenger. About 15 minutes later, the civilian called 9-1-1 to report what he had seen.
2Three police officers located what they believed to be the vehicle parked in the driveway of a residential address, close to where the 9-1-1 caller had made his observations. Despite repeatedly knocking at the front door of the residence, and announcing the police presence, no one came to the door. Concerned for the safety of the female passenger, the police entered the home, located a woman who appeared to have fresh facial injuries, and arrested the appellant. While in the home, they located methamphetamine.
3At trial, the appellant brought a ss. 8, 9 and 24(2) Charter application. He claimed that he was the subject of cascading Charter breaches, starting with an unlawful entry into the home and ending with an unlawful search. The Charter application was dismissed and the appellant was convicted of assault, breach of probation, and possession for the purpose of trafficking.
4This is an appeal from the possession for the purpose of trafficking conviction only. The appeal rests on a challenge to the Charter ruling. Although the appellant challenged the warrantless home entry at trial, he is now prepared to accept the lawfulness of that entry. Even so, he maintains that the trial judge erred by concluding that:
(a) the police had sufficient grounds to make the arrest;
(b) a Feeney warrant was not required in order to make the arrest inside of the home; and
(c) the discovery and seizure of the methamphetamine did not constitute a s. 8 Charter breach.
5In the reasons that follow, I will explain why I would dismiss the appeal.
II. The Authority to Enter the Residence
6While the appellant does not challenge the trial judge’s conclusion that there was a lawful basis upon which to enter the residence without prior judicial authorization, the legality of that entry sets the context for what followed. Accordingly, I will briefly address the legal basis for entering the home without a warrant.
7The police received an emergency call from a civilian, claiming that he had seen a woman being attacked in a motor vehicle. The caller was able to describe the make, model and colour of the car, and its licence plate number. About eight minutes after being dispatched, three police officers located a similar car in a driveway, geographically proximate to where the 9-1-1 caller had last seen the vehicle. Not only did the make and colour of the car match the caller’s description, but the licence plate was “BEWN 840”, strikingly close to the caller’s suggestion that the plate was either “BEWN 480” or “BEWN 483”. Understandably, the police were satisfied they had the right car.
8The 9-1-1 caller had identified the male driver as being white, between the ages of 25 to 35, with a buzz cut or shaved head. Although the car came back as registered to the appellant’s father, the appellant was listed as an additional driver. A quick record check showed that the appellant had police cautions registered for violence, family violence, and being a flight risk.
9The most senior officer on the scene decided to make direct contact with the 9-1-1 caller to confirm the information that the police had received. The caller not only confirmed the information, but added to it, explaining the fact that the female had been struck multiple times – in a “flurry of strikes” – and that she had been placed in a headlock and was “turtling” from the strikes.
10Armed with that information, the officers were seriously concerned about the female’s safety. They knocked loudly and repeatedly at the front door to the residence. They also called out “police” on multiple occasions. When no one answered, two of the officers decided to enter the residence through a side door that they found unlocked. All the while, they kept loudly announcing “police.”
11One of the officers looked down the basement steps and saw a man run by, from the right to the left side of the basement, into what turned out to be a laundry room. The officer instructed all those present in the basement to come upstairs. Eventually, a woman came up the steps. She had what appeared to be fresh injuries to her face. Two officers then descended into the basement, found the man who had hidden in the laundry room and arrested him.
12The trial judge concluded that the police entered the home because they were legitimately concerned with the safety of the female car occupant. According to the trial judge, that entry was justified under the common law ancillary powers doctrine. I agree with her conclusion in this regard.
13When determining whether the ancillary powers doctrine has been properly invoked by the police as a justification for interfering with property and liberty, the court will look to a two-step test, often referred to as the “Waterfield test.” That test was first used in the pre- Charter era and has since been “refined and incrementally applied”: R. v. Waterfield (1963), [1964] 1 Q.B. 164 (Eng. C.A.); R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 25; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311; R. v. MacDonald, 2014 SCC 3, [2014] S.C.R. 37. The test involves a consideration of police duties and their relationship to police powers, which are not always correlative in nature: Mann, at para. 35.
14The first step involves considering whether the police were operating within the scope of a duty imposed by statute or by the common law. If so, the second step involves considering whether the actions taken in fulfillment of that duty constitute a justifiable use of power: Godoy, at para. 12; Mann, at paras. 24-25. In other words, the question is whether the exercise of power was reasonably necessary in the circumstances.
15To a large extent, the common law duties of the police rest in sync with their statutory duties. For instance, at common law, the police have a duty to preserve the peace, prevent crime, and protect life and property: Dedman, at p. 32. Similarly, s. 42(1)(c) of the Police Services Act, R.S.O. 1990, c. P.15, requires that the police keep the peace, prevent crime, assist with crime prevention, apprehend criminals and other offenders, and assist victims of crime.
16Any number of these common law and statutory duties were at play in this case. In particular, the duties to protect life and assist victims of crime were front and centre when the police entered the home.
17Turning to the second step of the Waterfield analysis, whether the exercise of police powers was reasonably necessary in the circumstances, the trial judge also answered that question in the affirmative.
18The officers on scene, whose evidence the trial judge accepted as credible and reliable, repeatedly knocked at the front door to the residence, yet were met with silence. That silence was concerning. At the time, all the police knew was that a female had been seriously assaulted in a motor vehicle that was now sitting in the driveway of the home. With the car present, it was reasonable to expect that the car occupants were in the home and to fear that the door was not being answered because the victim was suffering further violence.
19It is against that backdrop that the police had to make a decision. The consequences of not responding quickly and decisively could have been grave. While the female in this case eventually walked out of the basement, in another case, she might not have. The luxury of time was not on offer. The police had a duty to ensure safety and their exercise of powers – entering the home without a warrant in order to locate the female occupant that had been seen by the 9-1-1 caller – was a justifiable exercise of power associated with that duty.
20For purposes of this appeal, though, the appellant places in issue the trial judge’s findings about what came next.
III. Valid Grounds for Arrest
21The appellant maintains that the trial judge erred by concluding that there were reasonable grounds to make the arrest. In particular, the appellant claims that the trial judge failed to appreciate that there was an absence of objective grounds capable of supporting the officers’ subjective beliefs that it was the appellant whom the 9-1-1 caller had seen assaulting the female.
22Although the appellant acknowledges that a car matching the description provided by the 9-1-1 caller was parked outside of the residence, the appellant claims that this fact must be weighed against others, including that: (a) there was no direct evidence that the male and female in the residence were the people observed by the 9-1-1 caller; (b) there was no evidence that the injuries on the female’s face were caused by an assault; (c) one of the officers acknowledged that some of the injuries may have been dated in nature; and (d) the officers did not ask the female any questions that would provide them with additional information.
23I see no error in the trial judge’s approach. The trial judge accurately summarized the threshold test for arrest. She specifically referred to s. 495(1)(a) of the Criminal Code, setting out the statutory basis upon which a warrantless arrest may be made. She also quoted the classic test for a warrantless arrest from R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51.
24As set out in Storrey, there is both a subjective and objective component to the test for a warrantless arrest on an indictable offence. The subjective component requires that the police hold an honest belief that the person committed the offence. The trial judge accepted that the officers in this case subjectively believed that they had reasonable grounds to arrest. The objective component requires that the officer’s belief be objectively reasonable in the circumstances known to the officer at the time of the arrest: Storrey, at pp. 250-51; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 21.
25In my view, the circumstances of this case amply justified the arrest from both a subjective and objective perspective. I would not give effect to the appellant’s suggestion that the objective grounds were weakened by the fact that there was no direct evidence that the woman and man in the residence were the people from the car. The fact is that there is no requirement that an arrest rely upon direct, as opposed to circumstantial, evidence. In this case, there was very strong circumstantial evidence that the people located in the home were the ones seen by the 9-1-1 caller.
26From the first floor, one of the officers saw a man matching the description given by the 9-1-1 caller (white, 25-35 and shaved head). The female had visible injuries to her face, described as cuts, scratches, bruising, markings and swelling, all consistent with the assault that the 9-1-1 caller had described. With a minor variation to the licence plate number, the car in the driveway matched the description given by the 9-1-1 caller. The appellant was also associated to that vehicle through a police record check.
27I see no error in the trial judge’s conclusion that a reasonable person in the position of the arresting officers would be able to conclude that there were objectively reasonable grounds to arrest: Storrey, at p. 251.
IV. Feeney Warrant Not Required
28The appellant argues that, even if this court finds that the police had sufficient grounds to make the arrest, they were required to obtain what is colloquially referred to as a Feeney warrant before doing so: R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13. Feeney decided that it is necessary to obtain judicial authorization to effect an arrest inside of a residence, resulting in the enactment of a statutory scheme to accommodate these entries: Criminal Code, ss. 529(1), 529.1.
29Given that the home entry in this case was predicated on concerns over safety, the appellant argues the police had to stick with that purpose for entry. Once the female had been isolated from the appellant, she was safe and the police were required to leave the residence to obtain the Feeney warrant to effect the arrest. The appellant further contends that if the female did not wish to go with them when they left to get the Feeney warrant, then an officer could have stayed with her in the kitchen and the appellant in the basement, while the other officers went to get the warrant.
30I agree with the trial judge that this was not necessary. Although the police originally entered the home over safety concerns, once they found a female inside of the residence and concluded that she was the victim of the assault witnessed by the 9-1-1 caller, it was open to them to go into the basement to effect the arrest.
31The officers were understandably concerned about what the appellant was doing in the basement when he refused to come upstairs in response to the police commands. As one of the officers explained, in evidence accepted by the trial judge: “I don’t know what he’s doing, if he’s grabbing a weapon in that room, so no, … she’s not a hundred per cent safe at that point, … I don’t know what he’s doing in that room so she’s, in my mind she’s, she’s not a hundred per cent safe.” In that officer’s view, the best way to ensure the woman’s safety, and officer safety, was to effect the arrest: “I didn’t spend too much time talking to her. I didn’t know what he was doing so my main focus was on him. If I stopped to talk to her and he came out with a weapon, I’d be at a disadvantage.”
32In any event, as important as a Feeney warrant is for protecting the privacy of those inside of private dwellings when the police come to effect arrests, they authorize the police to “enter a dwelling-house described in the warrant for the purpose of arresting or apprehending” a person: Criminal Code, ss. 529(1), 529.1. The whole purpose of the Feeney warrant is to protect the elevated privacy interests in a home, requiring certain grounds to be met before entry can be made to effect an arrest. Yet, in this case, the police had already legitimately entered a dwelling-place under the ancillary powers doctrine. They were lawfully inside of the residence and it would make no sense to require them to leave to obtain an authorization to enter again, only to effect an arrest that they could clearly make without warrant if it was anywhere other than a private dwelling.
33Moreover, it would be impractical in circumstances like this case to require the police to leave and obtain a home entry warrant to make an arrest in a home that they were already lawfully in. This is particularly true in this case, where the appellant acknowledges that, if the complainant had been unprepared to leave, an officer would have had to wait inside of the residence with her while other officers did the work to obtain a Feeney entry warrant. Any such approach would have the effect of potentially aggravating – not assuaging – privacy concerns.
34The appellant leans on Godoy in support of the proposition that where the police enter a home in response to a 9-1-1 call, they must limit their activity in the home to providing assistance to any possible victim: Godoy, at para. 22.
35I do not agree that Godoy would preclude the arrest here. Indeed, that is precisely what happened to Mr. Godoy. The police attended the Godoy residence in response to a 9-1-1 call that had been hung up. They eventually worked their way into the residence and found the injured victim lying in a bedroom. They then proceeded to arrest Mr. Godoy: Godoy, at paras. 4, 27. There was no need for them to leave and obtain a Feeney warrant: Godoy, at paras. 25-26. Since the police had entered in exigent circumstances, concerned for the safety of a person possibly in need of assistance, they were permitted to effect the arrest once those grounds for arrest crystalized. That is also what happened in this case.
V. No Section 8 Breach
36Finally, the appellant argues that, after he was arrested, the police conducted an unlawful search of a basement living room. There is no dispute that the methamphetamine was located in that room.
(i) Factual Background
37In the house where the search was conducted, one can go either right or left at the bottom of the stairs. To the immediate right is a living room area. To the immediate left is a laundry room. When the police first saw the appellant, he was running from the right (living room area) to the left (laundry room).
38When the police descended the stairs to make the arrest, they looked briefly to the right, into the living room area, scanning it from the doorway. From that vantage point, they could not see anyone in the room. They then turned to the left, where they located the appellant inside of the laundry room close to the stairs. He was placed in handcuffs.
39While one of the officers attended to the appellant, the other conducted what he described alternately as a “sweep” and a “clearing” search of the living room area. As reflected in the exhibits from trial, and as discussed by the officer in his testimony, the room was not a picture of order. It contained a good deal of furniture and significant clutter. Around the middle of the room, there was a sofa. Looking into the living room from the doorway, it was not possible to see what was on the floor behind the sofa. There was a large space back there, large enough to hold a desk, a chest of drawers and luggage.
40The officer conducting the sweep was clear that he was not looking for evidence or conducting a search. Rather, the officer emphasized that his primary obligation was to the safety of those in the house and the police. As he had no idea how many people might have been hiding in the basement, or whether there may have been weapons lying about, he said that he felt that he needed to sweep the room because “you never really know what kind of hazards could be down there.” As the officer emphasized, “You don’t want to be in a basement where weapons or firearms are sitting out in [the] open.”
41During his brief, visual sweep of the living room, the officer saw a plastic container sitting out in the open on the floor – what he described as a Tupperware container – with a coloured, but somewhat transparent lid, and transparent sides. He said that he could see what looked like glass shards inside the container. He knew that these glass-looking shards were likely methamphetamine.
42The officer recalled that at some point he removed the lid to the container but could not recall whether he did that while still at the residence or once he was back at the police station. The second officer in the basement was also unable to recall whether the lid was removed while still in the house.
43As he was finishing his sweep of the room, the officer also saw a plastic Ziplock bag lying near a pizza box, containing what he also believed to be the same drug. Both items were seized.
(ii) The Trial Judge’s Reasons for Rejecting the Section 8 Claim
44The trial judge found that it was more likely than not that the lid was removed while in the basement. Even so, she concluded as a fact that the officer who conducted the sweep had identified the substance in the container prior to picking the container up. In other words, having removed the lid “added nothing” to the officer’s belief about what was inside of the container that he first saw sitting out in the open on the floor behind the sofa.
45The trial judge accepted that the search was conducted for safety reasons. She concluded that this was a “valid objective,” making sure that “no one else was there and that there were no other hazards.” In these circumstances, the trial judge concluded that the items were simply located in plain view and could be seized.
46I read the trial judge’s reasons as effectively combining two warrantless search doctrines. First, she employed the search incident to arrest doctrine to justify the officer having entered the living room after the arrest to ensure that there were no safety hazards. Second, the trial judge employed the plain view doctrine to justify the officer having seized the methamphetamine that was sitting out in the open when the officer did a brief sweep of the room for safety purposes.
(iii) The Appellant’s Section 8 Argument
47The appellant argues that the trial judge erred by finding that the entry into the living room under the search incident to arrest doctrine was justified. The appellant says that this doctrine is simply unavailable to the police when they have effected an arrest inside of a dwelling place, particularly without a Feeney warrant in place.
48Instead, the appellant maintains that if the police wish to conduct a safety search in these circumstances, they must first have reasonable grounds to believe that officer safety is at stake and that a search is necessary to address the specific concern: MacDonald, at para. 41. The appellant argues that the trial judge’s conclusion that the police were “not satisfied that there were no more threats based on a quick look as they came down the stairs,” provides an insufficient basis upon which to have conducted the “search” of the living room.
49Finally, the appellant argues that the trial judge failed to appreciate the significance of the officers having lied about the fact that they could not recall whether the lid to the Tupperware container was removed while in the basement. According to the appellant, they were called out on that lie when the trial judge found that it was more likely than not that they had removed the lid while still in the basement. The appellant contends that the trial judge failed to provide any reasoning to explain why that critical lie did not undermine the officers’ evidence about why the basement living room had been entered and the circumstances surrounding the identification of the drugs.
(iv) Search for Safety at the Location of an Arrest
50Had the appellant been arrested outside of his home, there is no question that the well-known and often applied search incident to arrest doctrine would have been available to conduct a search: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at p. 186; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 19, 25; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49. A search incident to arrest must be “truly incidental to the arrest,” meaning that the police must have a “reason related to the arrest for conducting the search” at the time that it is carried out. The search must also be objectively reasonable in nature: Caslake, at para. 25.
51The purposes for a search incident to arrest include that the police are searching the immediate surroundings to the arrest to: (a) ensure the safety of the police, the public and the accused; (b) preserve evidence; and (c) discover evidence that may be used at trial: Cloutier, at pp. 182, 186; Caslake, at paras. 19-20. Therefore, when considering whether a search is lawful incident to arrest, the court must consider: (a) the purpose of the search; (b) whether that purpose was a valid law enforcement purpose that was connected to the arrest; and (c) whether the purpose identified for the search was objectively reasonable in the circumstances: R. v. Santana, 2020 ONCA 365, at paras. 25-26.
52I do not accept the appellant’s core proposition that the only way that the police could enter the basement living room, and look behind the sofa located closer to the centre of the room, was if they had reasonable grounds to believe that their safety was at risk. If that were the test to be applied in circumstances such as these, the police would often be at grave risk.
53While the appellant is right that the MacDonald decision speaks in terms of police safety searches being done on the basis of reasonable grounds to believe that safety is at risk, that decision arises from a completely separate context that is far afield from the circumstances of this case: MacDonald, at para. 41.
54The MacDonald decision arises out of a home entry that occurred in the wake of a police officer harbouring a concern about what was in Mr. MacDonald’s hand as the officer stood outside of the residence door trying to speak with Mr. MacDonald about a noise complaint. It is in that factual context that the court drew on and interpreted a line of authority involving the grounds necessary to search incident to investigative detentions: Mann, at paras. 38-40; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20-21. None of those authorities, nor MacDonald, suggest that in the context of an arrest, the police must hold back on safety searches unless they have reasonable grounds to believe that their safety is at risk.
55The safety search doctrine arising from the MacDonald decision – and the majority’s interpretation of the investigative detention cases – does not transfer easily to the arrest context.
56A person under arrest does not stand in the same constitutional position as a person who is only fleetingly, investigatively detained or a person who is merely interacting with the police prior to a detention (as Mr. MacDonald was). Indeed, as noted in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 56, a person who is under lawful arrest has a lower reasonable expectation of privacy. In the context of an arrest, the key consideration is not whether there exist reasonable grounds to believe, but whether the objective of the search is connected to the arrest and whether it is reasonable in the circumstances. Therefore, when it comes to searching for safety concerns incident to a lawful arrest, Cromwell J. for the majority observed in Fearon, at para. 68:
[R]equiring reasonable and probable grounds to search for the purpose of protecting the police, the accused, or the public overshoots the point at which the public’s interest in being left alone by government must give way to intruding on an individual’s privacy to advance law enforcement objectives.
57Searching for safety at the scene of an arrest has long been understood to be of critical importance. The ability of the search incident to arrest doctrine to permit the police to respond to the dynamic and often dangerous nature of arrest scenes has remained a staple in s. 8 jurisprudence. Doherty J.A. put it this way in R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097, at para. 44:
In this case, I am concerned with the police interest in protecting the safety of those at the scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex-post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions. [Emphasis added.]
58I accept the appellant’s suggestion that when the police enter a residential address in circumstances such as this, in fulfillment of their obligation to protect life, they are highly constrained in what they can do. The law must not develop in a way that allows the police to use a home entry in urgent circumstances to create the opportunity for a windfall search.
59At the same time, the law must be practical. The police can be placed at serious risk when they enter a private residence. So too may civilians be placed at serious risk. In this case, the police were essentially in the basement of a home, with a man in handcuffs, and no way of knowing whether someone with access to a weapon was hiding behind the sofa in the room that they would have to pass in order to ascend the stairs with the handcuffed man and to exit the residence. This was a potentially dangerous situation.
60In my view, when the police are present in a residence without judicial authorization, it may well be that the full panoply of police powers that are typically available under the search incident to arrest doctrine are not available with the same force as they would otherwise be. In particular, it may be that a search for evidence that may be permitted outside of the residence, would not be permitted in this situation: Golub, at para. 43.
61That is not this case, though. Here, the trial judge accepted as a fact – a fact to which we must show deference on appeal – that the police only swept the room looking for safety hazards. It is in the context of that sweep that she accepted that the officers found the methamphetamine in plain view.
62Of course, the plain view doctrine is a seizure doctrine, not a search doctrine. As this court held in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 56, there are four criteria to be applied in determining whether the doctrine is operative: (a) whether the police were lawfully positioned relative to where the item(s) were found; (b) whether the nature of the evidence was immediately apparent as constituting an offence; (c) whether it was discovered inadvertently; and (d) whether the item(s) were visible without any exploratory search.
63The trial judge accepted the evidence of the officer who conducted the sweep, all of which supported the factors underpinning the plain view and search incident to arrest doctrines.
64I do not agree with the appellant’s suggestion that we should find that the trial judge failed to appreciate the significance of the fact that the officers had misled the court about whether they had looked inside of the Tupperware container while still in the basement. The trial judge was well aware of the importance of this issue. In the end, though, she was entitled to believe the officers’ evidence that they could not recall whether they had looked into the container while still in the residence. The record supports that conclusion.
65Indeed, both officers acknowledged that it was “possible” that they had looked inside of the container. The fact that the trial judge concluded that it was more likely than not that they had removed the lid does not mean that she concluded that they had lied.
66What is important is her factual conclusion, based on all of the evidence, that the officer who found the Tupperware container was telling the truth about its location and that he was able to determine its contents by looking through the container. The trial judge is entitled to deference on this finding. She heard the officer testify and was in a position to look at the Tupperware container to determine its degree of transparency.
67In the end, the police were able to articulate why they had safety concerns. That articulation made sense. They had descended into a basement where they had never been before, in a house they had never been in before. While the 9-1-1 caller said that there were two people in the car that he observed, that did not mean there were only two people in the home. Nor did it mean that there were no other safety concerns hiding around corners.
68In particular, the police could not see behind the sofa from the doorway to the living room. It was not unreasonable to take a quick visual scan of the room in the circumstances. They had a person in handcuffs and needed to ascend the stairs, which were located right beside the living room, to safely get him out of the residence, all while the female remained on the first floor. The fact that the methamphetamine was sitting out in plain view meant that it could be seized.
VI. Conclusion
69I would dismiss the appeal.
“Fairburn A.C.J.O.”
“I agree Harvison Young J.A.”
Nordheimer J.A. (Dissenting):
70I have read the reasons of my colleague. I agree with her analysis and conclusion regarding the police entry into the residence, that the police had valid grounds to arrest the appellant, and that the police did not require a Feeney warrant. I do not agree with her analysis and conclusion regarding the asserted breach of s. 8 of the Charter of Rights and Freedoms.
The s. 8 breach
71In my view, my colleague’s conclusion on this issue, in the context of this case, has the potential to provide the police with a broad licence to undertake warrantless searches, one that is inconsistent with the protections intended to be subsumed with s. 8 of the Charter. It is also inconsistent with existing authorities from this court and from the Supreme Court of Canada on the issue.
(i) The search was a safety search
72It is well-established that warrantless searches are presumptively unreasonable: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 36. There is no dispute that the officer’s “safety search” of the basement living area was a warrantless search. The respondent contends, and my colleague accepts, that the warrantless search was nonetheless reasonable because of safety concerns for the officers.
73In order to utilize the safety exception as a justification for a warrantless search, the police must show “objectively verifiable necessity”: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 at para. 31.
74The trial judge appears to have accepted that the officer had a reasonable subjective belief that the search was necessary for safety purposes. At para. 282 of her reasons, she said:
[The officer] testified that he searched to make sure no one else was there and that there were no other hazards. This is reasonable.
75The trial judge did not undertake the analysis mandated by MacDonald. In particular, the trial judge did not undertake any objective analysis of the reasonableness of the officer’s belief as to the need for the search. She simply accepted what the officer said on the point. This was an error. Indeed, the trial judge spends very little time scrutinizing the validity of the search, instead concentrating on whether the drugs in question were in plain view. The plain view doctrine only arises if the search itself is justified, in other words, if the police are otherwise engaged in a lawfully authorized search: R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 56.
76No one takes issue with the fact that the police have the authority to conduct safety searches under their common law duty to protect life and safety. The issue with such searches is whether the exercise of that authority is justified in the circumstances of a given case. In order to be justified, the search must be “reasonably necessary” in light of the prevailing circumstances: MacDonald, at para. 36. A search is reasonably necessary when “police officers have reasonable grounds to believe that there is an imminent threat to their safety”: MacDonald, at para. 43.
77The risk of too easily providing justification to the police for a warrantless safety search is that it runs roughshod over the individual’s right to privacy, which is especially high in a person’s home. While everyone might agree, in a theoretical context, that the police should do whatever they can to protect people’s lives and safety, utilizing that theoretical notion to justify all police conduct has serious ramifications. As Dickson J. aptly cautioned in his dissent in the Wiretap Reference, 1984 CanLII 31 (SCC), [1984] 2 S.C.R. 697, at pp. 718-719:
The fact that police officers could be described as acting within the general scope of their duties to investigate crime cannot empower them to violate the law whenever such conduct could be justified by the public interest in law enforcement. Any such principle would be nothing short of a fiat for illegality on the part of the police whenever the benefit of police action appeared to outweigh the infringement of an individual's rights.
78In MacDonald, LeBel J. cited, at para. 39, three factors that helped to define the limits of the police power to conduct a safety search. Those three factors are (i) the importance of the duty; (ii) the necessity of infringing rights to perform the duty; and (iii) the extent of the infringement. With respect to the second factor, LeBel J. noted, at para. 39, that when the police interact with a person who they “have reasonable grounds to believe is armed and dangerous”, an infringement may be necessary. LeBel J. also warned that, in considering whether a safety search is reasonable, one must start from the premise that a warrantless search is always presumed to be unreasonable.
79In my view, a fair reading of the decision in MacDonald establishes that the police have a high hurdle to overcome in justifying safety searches, especially when those searches are conducted within a private residence. I draw that conclusion from the observations that LeBel J. made, at para. 41, in which he made the following clear:
- The power to carry out safety searches is not unbridled;
- The power may be exercised only when circumstances, viewed reasonably and objectively, show that the search is needed to address an imminent threat to the safety of the public;
- Such searches will be authorized by law only if the officer believes that his or her safety is at stake;
- A safety search cannot be justified based on a vague concern for safety.
80I would note, in passing, that in addressing the nature of the circumstances that would justify a safety search, LeBel J. referred to the risk being “imminent” four times in the space of five paragraphs of his reasons.
81The trial judge did not make any finding that the officers were facing an imminent threat while they were within the residence. Indeed, there is little, if any, analysis or discussion in her reasons about any safety risk to the officers. The few times that safety is mentioned in the trial judge’s lengthy reasons, it relates to the safety of the female victim. It is not directed at the officers. Even if the officers thought they were facing an imminent threat, which they do not appear to have expressed, the trial judge did not make any finding that their views were objectively and reasonably based.
(ii) MacDonald is not distinguishable
82My colleague does not attempt to fill this gap in the trial judge’s reasoning by suggesting that any imminent threat existed. Rather, my colleague attempts to distinguish MacDonald on the basis that it did not involve a search incident to an arrest. Indeed, she says, at para. 53, that “the MacDonald rule arises from a completely separate context that is far afield from the circumstances of this case”.
83Having thus attempted to distinguish MacDonald, my colleague advances the following proposition, at para. 52:
I do not accept the appellant’s core proposition that the only way that the police could enter the basement living room, and look behind the sofa located closer to the centre of the room, was if they had reasonable grounds to believe that their safety was at risk.
This proposition explains my colleague’s need to distinguish MacDonald because that is precisely what the decision in MacDonald says the police must establish to justify a warrantless safety search. Indeed, it is the reasonable grounds to believe standard, as opposed to a reasonable grounds to suspect standard, that separates the majority from the minority in the decision.
84I do not find the basis advanced by my colleague for distinguishing MacDonald compelling. There is nothing in MacDonald that suggests that the decision was being restricted to pre-arrest searches. To the contrary, the decision speaks to safety searches generally and the need to constrain those searches to those relatively rare circumstances where there is an imminent risk to public safety. Nor does my colleague’s distinction make practical sense, as the facts of this case demonstrate. Why would a different standard apply to justify the safety search if the police had searched the living room area a minute before they arrested the appellant as opposed to a minute after? In fact, given the layout of the basement, if the police reasonably had concerns about a threat from the living room area, then one must wonder why they did not search that area before they spent the time standing at the laundry room door, conversing with the appellant, and then arresting him, all the time with their backs to that very area.
85Even if one could accept that a distinction exists between pre-arrest and post-arrest safety searches, my colleague does not explain how that difference would serve to justify a warrantless search of a private residence in the one but not in the other. It is one thing to determine that warrantless searches of a person, or their belongings, are necessarily justified incident to arrest. It is an entirely different matter to determine that warrantless searches of private residences are so justified. Indeed, if my colleague’s distinction is a true one, it would seem to be a very small step to use it, in this case, as a justification for the police officers to search the upstairs bedrooms of the home, if they had chosen to do so.
86Further, to the extent that my colleague attempts to distinguish MacDonald on a factual basis, I would say that no two cases are going to have the same facts. Established principles must often be applied to different facts. And in this case, the difference in the facts between this case and MacDonald are revealing, but not in the way that my colleague would have them operate. In MacDonald, the officer reasonably believed that the accused had a gun (or perhaps a knife). The officer had seen what appeared to be a gun in the accused’s hand. At the same time, the accused had adamantly refused to show the officer what was in his hand. Similarly, in another case upon which my colleague relies, R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), there were reasonable grounds to suspect that an unknown person had a loaded submachine gun in the premises.
87The facts, in this case, pale in comparison to the facts in both of those cases. As I shall explain, the officers did not have any basis for a reasonable ground to believe, or even a reasonable ground to suspect, that there was an imminent threat to them.
(iii) The search was not objectively reasonable
88I begin with the fact that the police did not have any reason to believe, or even suspect, that the appellant had a gun. They did not find any gun, or any other weapon, on the appellant when they arrested him nor had the appellant threatened the use of a weapon. The police had no knowledge of the appellant having access to guns; no knowledge of the appellant having a history of gun possession; nor any other basis for any belief or suspicion that there were guns present in the home. In fact, as recited by the trial judge, the officer who conducted the warrantless safety search merely said he was looking for any “potentially unsafely stored firearm or weapon”. He did not say that he was concerned that there was an armed person in the living room area ready to do harm to the officers. Indeed, none of the officers ever asked either the female or the appellant whether there was anyone else in the residence. Really, the only information that tilted in the officer’s favour, in any way on this point, was a reference from the police computer check to the appellant’s tendency to violence, and an unparticularized one at that. Consequently, any concerns that the police might have had regarding the possibility of guns amounted to no more than the type of vague safety concern that LeBel J. cautioned against using as a justification in MacDonald.
89I contrast the situation here with the one in Golub where there was a reasonable suspicion that a person was behind a closed door with a loaded submachine gun. While Doherty J.A. understandably found that circumstance justified the warrantless search, he was also careful to delineate how rare a situation it will be that will afford that justification. He said, at para. 41:
In my opinion, searches of a home as an incident of an arrest, like entries of a home to effect an arrest, are now generally prohibited subject to exceptional circumstances where the law enforcement interest is so compelling that it overrides the individual's right to privacy within the home. [Emphasis added.]
90Doherty J.A. also took care in Golub to observe that the officer involved did not order an entry into the residence just because it was a “gun call” situation nor was the officer acting on an “unsubstantiated hunch” or any other form of vague safety concern. The same cannot be said for the officer here.
91What facts could then have justified the warrantless safety search in this case? The first rationale that my colleague advances, at para. 59, is the fact that the police would have had to pass by the basement living area to ascend the stairs with the accused once he was arrested. However, the facts are that the officers had been opposite the basement living area for the entire time that they were dealing with the appellant in the laundry room, including demanding his surrender and eventually taking control of him, arresting him, and handcuffing him. They were as exposed to the basement living area throughout all of that time as they would be when they started to ascend the stairs. Any risk to the officers did not increase from the former time to the latter.
92The second rationale, in my colleague’s view, at para. 67, is that the officers “had descended into a basement where they had never been before, in a house they had never been in before”. If those facts are enough to justify a warrantless search on safety grounds, then virtually every entry into a home will justify a warrantless safety search. It is will be a very rare situation where the same police officers would be going into a residence that they have been in before. That reality demonstrates that unfamiliarity with a residence can hardly be an adequate justification for engaging in a warrantless safety search. Again, one must remember that these safety searches are established as an exception to the general rule that warrantless searches are presumptively unreasonable.
93Finally, on this point, my colleague says, at para. 58:
The law must not develop in a way that allows the police to use a home entry in urgent circumstances to create the opportunity for a windfall for search.
With respect, my colleague’s reasoning and conclusion in this case provides the police with exactly that windfall.
94In my view, the officers did not have sufficient objectively reasonable grounds to conduct a safety search of the basement living area. That warrantless search breached the s. 8 rights of the appellant.
The s. 24(2) analysis
95Having concluded that a Charter breach occurred, I must consider whether the evidence of the drugs, which was found as a direct result of the breach, should be excluded from the evidence under s. 24(2).
96The trial judge did her own s. 24(2) analysis. Examining the three factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, she found that the officers had acted in good faith, but she also found the impact of the breach was significant. She further found that society’s interest in an adjudication on the merits favoured admission of the evidence. Balancing those factors, the trial judge concluded that the evidence should not be excluded.
97While a trial judge’s s. 24(2) analysis is normally entitled to deference, I find that the analysis in this case does not attract that deference because the trial judge failed to undertake the proper analysis in terms of the Charter breach. Having not properly understood and applied the Charter principles that were in play in deciding the s. 8 issue, she failed to understand the seriousness of the officer’s actions. As LeBel J. pointed out in MacDonald, at para. 38:
Moreover, safety searches can often give the police access to a considerable amount of very sensitive personal information.
98This error infected her s. 24(2) analysis, especially respecting the gravity of the breach under the first Grant factor. It undermines her conclusion that there was “no evidence of a blatant or callous disregard of the Charter rights by any of the three officers”. In fact, the opposite is true regarding the one officer who conducted the warrantless search for claimed safety reasons.
99In terms of the first factor, that is, the seriousness of the Charter-infringing state conduct, these officers knew, or ought to have known, that they were not entitled to conduct a search without judicial authorization, especially within the private residence of an individual. They had the situation that caused them to come to the home, and which had justified their entry into the home (also without judicial authorization), under control. They had to know that they were treading on dangerous ground by deciding to wander through another portion of the residence to look around, and yet that is what the one officer chose to do, and for no legally permissible reason. In my view, that is serious misconduct by the officer. It is difficult to accept that the officer acted in good faith when he proceeded to conduct a search, within a private residence, in violation of the well-established principles regarding such searches and the equally well-established high degree of privacy that exists in any person’s private residence.
100I will pause at this point to address another issue raised by the appellant which also tends to undermine the trial judge’s conclusion that the officers acted in good faith. Contrary to the evidence of the officer who conducted the warrantless search, the trial judge concluded that he had, in fact, opened the Tupperware container (with the drugs in it) while he was still in the basement living area. I note, on this point, that both of the officers involved were extremely reluctant to admit this fact in their evidence. Instead, they testified that they could not remember whether or not the officer conducting the search removed the lid at the scene. I would also note that the searching officer is the same officer who was unable to remember, and thus unable to mark it on a photograph of the basement living area, where he actually found the Tupperware container. These failings raise serious concerns regarding the officer’s conduct underlying this warrantless search. However, the trial judge fails to mention these salient facts in the course of her s. 24(2) analysis, especially as it relates to her finding that the officers acted in good faith.
101I do agree with the trial judge on the second factor. The high expectation of privacy in an individual’s home is well-established. The breach of that expectation of privacy is significant.
102Given that I view both the first and second Grant factors as pulling in favour of the exclusion of the evidence, the third factor is not sufficient to tilt the balance in the other direction: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63.
103I would exclude the evidence from the trial. There being no other evidence on the drug charge, an acquittal must be entered on that count.
Conclusion
104I would grant the appeal, set aside the conviction on count #1, and enter an acquittal.
Released: “JMF” “OCT 27 2020”
“I.V.B. Nordheimer J.A.”
