Court of Appeal for Ontario

Date: March 29, 2017

Docket: C60117

Judges: Laskin, Gillese and Watt JJ.A.

Between

Her Majesty the Queen Respondent

and

Harley Davidson Appellant

Counsel

For the Appellant: R. Craig Bottomley and Sherif M. Foda

For the Respondent: Vanita Goela

Heard: September 27, 2016

On appeal from the conviction entered by Justice John R. McIsaac of the Superior Court of Justice on December 20, 2014.

Reasons for Decision

Laskin J.A.:

A. Overview

[1] In R. v. Godoy, [1999] 1 S.C.R. 311, the Supreme Court of Canada held that the police can enter a home without a warrant if they have reasonable grounds to believe it is necessary to do so to protect a person's life or safety. The principal question raised on this appeal is whether the trial judge wrongly extended Godoy beyond its limited scope.

[2] At 10:00 am one June morning, a four year old boy, clad only in a diaper, was seen standing alone at a busy intersection in Barrie, Ontario. A passing motorist called 911. By the time the police arrived, the boy was safely in his mother's arms, wrapped in a blanket. The appellant, Harley Davidson, the boy's father, arrived soon after. He explained to the police that his son is autistic and has a tendency to wander away from the family home, which was 50 metres away. Davidson said he had installed a special lock high up on the door to the house but that his son had managed to open it and get out.

[3] The police insisted on examining the lock, and Davidson agreed they could do so. Although satisfied with the lock, the police then insisted on looking inside the house. They had no warrant but claimed they were entitled to look around the house to check on the boy's well-being – to ensure he was safe and properly nourished.

[4] Three police officers entered the Davidson home. On first entering the house, the lead investigator smelled marijuana. He conducted a brief search of the upstairs of the house, checking the kitchen cupboards and the refrigerator for food. He then went down to the basement, where the smell of marijuana became overwhelming. The smell came from behind a closed and locked door. When the police asked for the key, Davidson kicked the door open, revealing numerous marijuana plants. He was arrested and charged with production of marijuana, possession of marijuana, and possession of marijuana for the purpose of trafficking.

[5] At the beginning of the trial, Davidson brought an application to exclude the evidence of the marijuana because of numerous breaches of the Canadian Charter of Rights and Freedoms. The trial judge found that the police had committed three breaches of the Charter:

• They failed to advise Davidson of his right to counsel contrary to section 10(b) of the Charter after they smelled the marijuana, even though by then Davidson was effectively detained;

• They again failed to advise Davidson of his right to counsel before questioning him about the marijuana;

• They breached Davidson's right to be secure against unreasonable search, contrary to section 8 of the Charter, by "discovering" the marijuana without a warrant.

[6] But the trial judge rejected Davidson's main claim: that the police breached his section 8 rights when they initially entered his home. The trial judge ruled that Godoy entitled the police to do a "protective sweep" of the house because of their "child protection concerns".

[7] The trial judge then held that the evidence of the marijuana was admissible under section 24(2) of the Charter. The Crown withdrew the possession of marijuana charge, and the trial judge convicted Davidson of production of marijuana and possession of marijuana for the purpose of trafficking and sentenced him to 18 months in custody.

[8] Davidson appeals his convictions. He argues three issues:

1. Did the trial judge err by ruling that the police's initial entry into the Davidson home did not breach section 8 of the Charter?

2. Did the trial judge err by ruling that the evidence of the marijuana was admissible under section 24(2) of the Charter?

3. In preferring the evidence of the police to that of Davidson, did the trial judge apply a stricter standard of scrutiny to his evidence?

[9] I would answer "yes" on the first two issues. It is therefore unnecessary to address the third issue. I would allow the appeal, set aside Davidson's two convictions and enter acquittals.

B. The Issues

(1) Did the trial judge err by ruling that the police's initial entry to the Davidson home did not breach section 8 of the Charter?

(a) The trial judge's finding on the purpose of the search of the home

[10] Some of the evidence of the lead police investigator, Sergeant Henderson, suggests he was not just concerned about the boy's safety; he was looking for drugs. For example, in his examination-in-chief, Henderson testified:

And I didn't know Mr. Davidson, I had never met him before, that I recollect, I wanted to ensure that the house was actually safe. Very often with drug users and…children aren't looked after because the parents are passed out, the parents are high, the parents are whatever the situation may be. They're more concerned about getting crack cocaine than they are about taking care of their children. I wanted to ensure that that wasn't the case here.

[11] Henderson continued in the same vein:

I was concerned – I wasn't thinking grow-op at all. I was more thinking cocaine, crack cocaine, heroin, those kinds of things that the people that are involved with those heavier drugs quite often are very neglectful parents and I wanted to ensure that that wasn't the case here.

[12] And:

I'm looking for initially what he advised were there, the measures to keep the child in the house, and also that there's not needles, crack pipes, there's food in the house, that the children are coming from a house where it's safe for them to be.

[13] Despite this evidence, the trial judge found that "the primary motivation of this police intervention was the welfare of this youngster". He rejected "any suggestion that the police were using the opportunity of this apparently abandoned child as a ruse or pretext to insinuate themselves into a suspected drug operation." The trial judge did acknowledge that the police's initial intervention had "a secondary criminal law aspect" but found that this aspect of the police's entry "never overcame [their] primary child protection concerns".

[14] The trial judge then held that the principles underlying Godoy were "sufficiently malleable" to justify the police's entry into the Davidson home. They were lawfully entitled to go into the home "to assess the degree of risk" to the young boy and his two siblings. Thus the police's initial entry into the home did not amount to a breach of section 8.

[15] Although I have some concerns about the trial judge's assessment of the evidence, for my analysis I will accept his finding on the police's purpose in searching the home.

(b) The positions of the parties

[16] Davidson submits that the trial judge erred in law by misapplying Godoy. He contends that the police's initial entry into the home without a warrant was unreasonable and breached section 8 of the Charter. The Crown contends that the principles underlying Godoy are sufficiently flexible to support the trial judge's ruling.

[17] Alternatively, the Crown seeks to support the trial judge's ruling on either of two other bases: Davidson consented to the search; or the provisions of the Child and Family Services Act (the "CFSA"), R.S.O. 1990, c. C.11 justified the search of the home without a warrant. In response, Davidson argues he did not consent to the search and the trial judge did not find that he did; and the criteria under the CFSA for a warrantless entry into a home were not met.

[18] Thus the first issue raises three specific questions:

1. Did the trial judge misapply Godoy?

2. Did Davidson consent to the search?

3. Does the CFSA authorise the warrantless search?

[19] My answer to these three questions are "yes", "no" and "no". I would hold that the police's initial entry into the home breached Davidson's section 8 rights.

(c) Did the trial judge misapply Godoy?

[20] The section 8 right to be secure against unreasonable searches protects a person's expectation of privacy from state intrusion. Nowhere is that expectation of privacy higher than in one's home. To enter a home, police ordinarily need previous authorization: a warrant. Warrantless entries of a home are presumed to be unreasonable and in breach of section 8. See R. v. Silveira, [1995] 2 S.C.R. 297, at para. 162.

[21] But exceptions exist, both by statute and at common law. For example, under section 529.3 of the Criminal Code, R.S.C. 1985, c. C-46, the police may enter a home without a warrant to arrest or apprehend a person if the conditions for obtaining a warrant exist but "exigent circumstances" – that is, urgent or pressing circumstances – make it impractical to obtain one. The Code includes among exigent circumstances those where the police have reasonable grounds to suspect entry into the home is necessary to protect a person's imminent harm or death, or to prevent the imminent loss or destruction of evidence.

[22] A common law exception to the presumed unreasonableness of warrantless entries into a home is at issue in this appeal. Godoy affirms the principle that the police have a common law duty to protect a person's life or safety and that duty may, depending on the circumstances, justify a forced, warrantless entry into a home.

[23] Godoy arose in the context of the police's response to a 911 call from Mr. Godoy's apartment. The line was disconnected before the caller spoke. The police went to the apartment and asked to investigate the call. Mr. Godoy, however, told them there was "no problem", did not explain the call and tried to close the door. The police then forced their way inside and found a woman curled up and crying. She said Godoy had hit her. He was arrested and charged with assault, but eventually acquitted because the trial judge held the police's entry into the home was not authorised.

[24] On summary conviction appeal, the acquittal was set aside and a new trial was ordered. This court upheld that result. The Supreme Court then ultimately upheld the police's warrantless entry into the home on the basis of their common law duty to protect a person's life or safety.

[25] Chief Justice Lamer, writing for the court, held that when the police receive a 911 call they have authority to investigate the call. A 911 call is a call for help. The call may be triggered by criminal activity but it may not be. A person having a heart attack may call 911 for assistance but be unable to speak. Godoy confirms that the police have the duty, and thus the authority, to investigate all 911 calls.

[26] But Godoy also narrowly limits when the police can enter a person's home without a warrant in response to a 911 call. The police must reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a resident's privacy or property.

[27] In Godoy itself, these limits were easily met. Much like what is now codified under section 529.3 of the Criminal Code, the police were facing exigent circumstances, an unknown emergency. They had good reason to believe the life or safety of a person inside the home was at risk and their only course of action to immediately find out about the 911 caller's health or safety was to force their way into the home. Thus the warrantless entry was justified.

[28] In the case before us, as in Godoy, the police responded to a 911 call. But there the similarity ends. In Godoy, when the police arrived at the apartment, the emergency was not resolved – the police did not know whether the 911 caller was still in danger. Here, by the time the police arrived at the intersection, any emergency that had existed had ended since the boy was safely in his mother's arms. In Godoy, the victim was inside the home; here the boy was outside the home, 50 metres away.

[29] In summary, in the case before us by the time the police arrived at the intersection, no exigent circumstances existed. There was no reason to believe the life or safety of any person inside the Davidson home was at risk. They could see for themselves that the boy was safe and not in any immediate danger. Moreover, after the police had ascertained the reason for the 911 call, they were not entitled to search the Davidson house.

[30] In his evidence, Sergeant Henderson conceded he did not believe the life or safety of a child inside the home was in danger:

I don't have a – I don't hear screaming or anything like that that leads me to believe that something is going on, aside from this child is clearly not supervised properly and there is other children in the house. I don't know whether they were being supervised properly. I don't have enough information yet. So, no, I don't have anything that says kick this door in, there's a kid in there who is bleeding and needs help. I don't – I don't have that.

[31] And Henderson conceded he would have had no grounds to obtain a search warrant for the search he wanted to conduct:

No, because I couldn't get a search warrant – with a search warrant you need specific things that you're searching for. There was nothing specific I was searching for. I was going in to ensure that these children have food. You can't get a search warrant to go check somebody's cupboards to make sure that there's food in the cupboard, so no.

[32] Godoy does not give the police sweeping authority to enter a home without a warrant to investigate whether a child's mother and father are good parents. In the present case, at most the police were entitled to inspect the lock, which they could do without going inside the home. Godoy did not support their warrantless entry and the trial judge erred in holding that it did.

(d) Did Davidson consent to the search?

[33] The trial judge made no finding on whether Davidson consented to the search of his home. Indeed, the trial Crown had conceded a section 8 breach, only to resile from that concession in closing argument when the trial judge urged the Crown to rely on Godoy.

[34] I agree with counsel for Davidson that even accepting the police's evidence, at most it showed Davidson acquiesced to the police's inevitable intrusion into his home, but not that he consented. Three aspects of Sergeant Henderson's evidence bear on the question of consent.

[35] First, Henderson never told Davidson of his right to refuse the police's entry into the home because Henderson believed that Davidson did not have the right to do so. Second, Henderson acknowledged that Davidson did not expressly consent to the search of his home:

Q: … I'm going to suggest to you that Mr. Davidson did not ask you to come in and check the residence.

A: He didn't. No, he didn't ask us to come in.

Q: Okay. Mr. Davidson did not consent to you entering his residence?

A: I don't believe he ever verbally said "I consent", but he didn't object at all. He came into the house with us. He took us into the house.

[36] And third, Henderson agreed that his police force has a form they ask a homeowner to sign before doing a consent search of a home and that he never asked Davidson to sign this form:

Q: The Barrie Police Force has a consent form that they read to a person and have them sign before they perform a consent search of a residence?

A: Yes.

Q: You're a Sergeant with the Barrie Police Force?

A: Yes.

Q: You've been with this police force for 14 years?

A: Yes.

Q: You did not provide one of those consent forms to Mr. Davidson?

A: No, those consent forms are if we're going in to search for something, like stolen property, drugs, something offence related. I wasn't going in offence related at all. That wasn't on my mind even a little bit. I was going in to ensure that these kids were safe.

[37] Overall the evidence shows that the police thought they had the right to enter Davidson's home without his consent. The warrantless search of his home cannot therefore be justified on the basis of his consent.

(e) Does the CFSA authorize the warrantless search?

[38] The provisions of the CFSA relevant to this question are sections 40(2), (7), (11) and (13). Under section 40(2), a child protection worker may obtain a warrant to seize a child from a home if reasonable and probable grounds exist to show the child is in need of protection and a less restrictive course of action will not protect the child adequately.

[39] Section 40(7) authorizes a child protection worker to enter a home without a warrant to bring a child to a place of safety, but only if two conditions are met. The child protection worker must believe on reasonable and probable grounds that:

• The child is in need of protection; and

• There would be a substantial risk to the child's health or safety during the time needed to obtain a warrant or to bring the matter on for a hearing.

[40] Section 40(11) supplements section 40(7) and provides that if necessary the child protection worker can enter a home by force to search for and remove a child. Section 40(13) provides that a police officer has the same powers as does a child protection worker under section 40(2), (7) and (11).

[41] The Crown relies on section 40(7) of the CFSA to justify the police's warrantless entry into the Davidson home. I do not agree with the Crown's position. Even if Davidson's son was in need of protection, as the trial judge seemed to suggest, the second condition required for a warrantless entry did not exist. There was no evidence of any risk, let alone a substantial risk, to the boy's health or safety if the police had taken the time to try and obtain a warrant. Also, as I have already said, Sergeant Henderson conceded he had no grounds to obtain a warrant. Section 40(7) does not assist the Crown. It did not authorize the police's warrantless entry into the Davidson home.

[42] I conclude that the trial judge erred in ruling that the police's initial entry into the home did not amount to a section 8 breach. In my view it did. I now turn to whether the trial judge erred in his section 24(2) ruling.

(2) Did the trial judge err by ruling that the evidence of the marijuana was admissible under section 24(2) of the Charter?

(a) The trial judge's ruling

[43] Section 24(2) of the Charter provides that evidence obtained in breach of a Charter right or guarantee shall be excluded if its admission would bring the administration of justice into disrepute. Under the Supreme Court of Canada's decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, to determine whether evidence should be excluded or admitted under section 24(2) a court must balance three considerations: the seriousness of the Charter breach or breaches; the impact of the breach or breaches on the accused's Charter-protected interests; and society's interest in an adjudication on the merits.

[44] The trial judge found three Charter breaches and he assessed the three considerations mandated by Grant. On the seriousness of the breaches, the trial judge found that the first section 10(b) breach (when Davidson was initially detained) was not "wilful or flagrant"; the second 10(b) breach (when Davidson was questioned) was "disturbing tending to tip the scale towards exclusion of the evidence"; and the section 8 breach (when the police "discovered" the marijuana) was "at the mid-range of seriousness".

[45] The trial judge then found that the three Charter breaches were "technical in nature" and "had a minimal impact" on Davidson's interests. Finally, in light of the "nature of this 'grow-op'", the trial judge found that society's interest in an adjudication on the merits "strongly favours" admission of the evidence. He then balanced the three considerations and ruled that neither the seriousness of the breaches nor their impact on Davidson should foreclose the admission of "the extremely cogent and reliable evidence of this 'grow-op'".

(b) Did the trial judge err in his section 24(2) analysis?

[46] A trial judge's section 24(2) ruling is entitled to deference from an appellate court. But an appellate court is entitled to intervene and reassess the section 24(2) considerations afresh if the trial judge's ruling is unreasonable or reflects an error in principle. See Grant, at paras. 86, 129; Silveira, at para. 144; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64.

[47] Davidson submits that the trial judge made several errors in principle in his section 24(2) ruling, justifying appellate intervention. It is unnecessary to consider these submissions. The trial judge's error in failing to find that the police's initial entry amounted to a section 8 breach – a serious Charter breach – entitles this court to reassess whether the evidence of the marijuana should have been admitted at trial.

(i) Seriousness of the Charter breaches

[48] In my opinion, the Charter breaches, cumulatively, are at the high end of "seriousness" because of the following:

• The police committed not one, but four separate breaches of Davidson's Charter rights. Multiple Charter breaches tend to aggravate the overall seriousness of the violations. See R. v. Calderon, 188 C.C.C. (3d) 481 (Ont. C.A.), at paras. 93-94.

• The police's initial entry into the home was by itself especially serious. As Cory J. said in Silveira, at para. 148: "The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy. It is a denial of one of the fundamental rights of individuals living in a free and democratic society."

• The police not only entered Davidson's home without a warrant, they conceded they had no grounds to get a warrant. Instead, they relied on their misguided belief they could enter the home to find out whether the boy's parents were good parents.

• The trial judge made no express finding that the police acted in good faith and no such finding can be made when the police's breach of section 8 was committed in ignorance of the scope of their constitutional authority. See R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59.

• The police admitted to a systemic practice of warrantless searches of homes to check on the well-being of children. Sergeant Henderson admitted to conducting four or five of these searches every year – searches that the police could not justify by any constitutional authority.

[49] This consideration therefore strongly favours excluding the evidence.

(ii) Impact of the breaches on Davidson's Charter-protected interests

[50] Contrary to the trial judge's finding, I consider that the impact of the breaches on Davidson's Charter-protected interests was significant for two reasons. First, the police entered an area where Davidson had a high expectation of privacy: his home. Second, once inside the home, the police engaged in conduct that infringed on Davidson's dignity. They searched his cupboards and refrigerator, and then questioned him in front of his family. See Grant, at paras. 78, 113.

[51] This consideration, too, favours exclusion of the evidence.

(iii) Society's interest in an adjudication on the merits

[52] The marijuana is relevant and reliable evidence, and is important to the Crown's case. The public interest in having a trial on the merits favours the admission of the evidence on this basis.

(iv) Balancing

[53] Balancing the three Grant considerations, I would hold that the trial judge erred in his section 24(2) ruling. Although the marijuana evidence is reliable, the reliability of evidence should not be permitted to overwhelm the section 24(2) analysis: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 40. Indeed, in McGuffie, Doherty J.A. recently held that where the first and second Grant criteria favour exclusion, the third factor "will seldom, if ever, tip the balance in favour of admissibility": at para. 63. See also R. v. Paterson, 2017 SCC 15, at paras. 55-56.

[54] Admitting the evidence of the marijuana would bring the administration of justice into disrepute. The seriousness of the breaches, especially the initial section 8 breach, and the significant impact of the breaches on Davidson's expectation of privacy and dignity favour exclusion of the evidence, and outweigh society's interest in deciding the case on its merits. If there were any doubt, the police's utter disregard for constitutional standards would, if the evidence were admitted, bring the justice system into disrepute.

C. Conclusion

[55] I would allow the appeal and set aside Davidson's convictions. As I would exclude the evidence of the marijuana, there is no longer any evidence against him to support the charges. I would therefore enter an acquittal on each charge.

Released: March 29, 2017

"John Laskin J.A."

"I agree. Eileen E. Gillese J.A."

"I agree. David Watt J.A."