R. v. Kelsy, 2011 ONCA 605

CITATION: R. v. Kelsy, 2011 ONCA 605

DATE: 20110922

DOCKET: C49873

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Feldman JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Marsha Kelsy

Appellant

Michael Dineen, for the appellant

Dena Bonnet, for the respondent

Heard: May 5, 2011

On appeal from conviction entered by Justice Gary Trotter of the Superior Court of Justice, dated May 27, 2008.

Rosenberg J.A.:

[1] The appellant appeals from her conviction by a court composed of Trotter J. and a jury on several charges arising from her possession of a loaded prohibited firearm and a quantity of heroin. The only issues raised concern the decision of the trial judge dismissing the appellant’s motion to exclude the prosecution evidence pursuant to s. 24(2) of the Charter of Rights and Freedoms. The firearm and the heroin were found during a search of the appellant’s knapsack in the course of an investigation sparked by a 911 call to the police. The trial judge found that the warrantless search of the knapsack was reasonable because it was authorized by exigent circumstances or was a justifiable use of police powers. There was therefore no violation of the protection against unreasonable search and seizure as guaranteed by s. 8 of the Charter. In any event, even if there was a violation of the appellant’s rights, the evidence should not be excluded.

[2] For the following reasons, I would dismiss the appeal. In my view, the appellant’s s. 8 rights were violated, but I agree with the trial judge that the evidence should not be excluded under s. 24(2) of the Charter.

THE FACTS

[3] On January 19, 2004, the appellant and her two-year-old daughter spent the night at the apartment of the child’s father, D’Angelo Christie. Mr. Christie was a drug dealer. While the appellant did not often stay with Mr. Christie, the appellant was to start a new job the following day and Mr. Christie’s apartment was near her daughter’s new daycare.

[4] The following morning, Mr. Christie left his sixth-floor apartment at approximately 7:00 a.m. and was immediately set upon by two armed men who pistol-whipped him and wrapped him with duct tape. The appellant heard the struggle. She went out on the apartment balcony and asked the next-door neighbour to telephone the police. The neighbour called 911.

[5] The appellant testified that the previous evening, while she was alone with her daughter, she discovered a handgun in a dresser drawer. When she heard someone trying to get into the apartment she wrapped the handgun in a sweater and concealed it in a knapsack. At that point a man with a gun entered the apartment and told the appellant to remain with her daughter on the bed while he searched the apartment. He soon left.

[6] In response to the 911 call, uniformed police officers, including members of the Emergency Task Force (ETF), arrived on the scene and made their way to the sixth floor. Among the uniformed officers who came to the sixth floor was Constable Mansoor Ahmad. It was Constable Ahmad who would later open the appellant’s knapsack and discover the contraband.

[7] To appreciate the s. 8 issue it is important to understand what the police and especially Constable Ahmad knew prior to the opening of the knapsack. Constable Ahmad testified that the initial information he received over the police radio was that there was some shouting and screaming at 640 Sheppard Avenue. It was unknown how many people were involved and there was a female on the balcony of apartment 607 screaming for help. A second radio call advised that another police unit was on the scene and that it was a hostage situation and guns were involved. A minute later another call came with information that one of the suspects went into the sixth floor laundry room. Constable Ahmad then received information that the police had the hostage; that he had been pistol-whipped and one of the suspects had gone down the garbage chute and one had gone into apartment 607.

[8] When the first police officers arrived, one of the assailants was still on the sixth floor holding Mr. Christie near the garbage room. That man fled down the garbage chute. Mr. Christie told the police that two men had attacked him, one had gone in the garbage room and the other into his apartment where his girlfriend and daughter were present.

[9] When Constable Ahmad arrived on the sixth floor he found several other officers. A short time later the ETF arrived and began their preparations to clear the apartment. By this time Constable Ahmad had also learned that a female and a child were possibly in apartment 607. An ETF officer knocked on the door to Mr. Christie’s apartment. After the knock, the appellant came out with her daughter. She was carrying the knapsack and two shopping bags. The police told her to drop the bags, which she did. Constable Ahmad described the appellant as seeming to be surprised and not knowing what was going on. After dropping the bags, the appellant stood beside Constable Ahmad and asked what was going on and why there were so many police officers. When asked if there was anyone else in the apartment, the appellant said there was not. She asked Constable Ahmad if she could just get her knapsack. She said that it had her daughter’s belongings and she had to take her daughter to daycare. Constable Ahmad told her that she would get the knapsack as soon as ETF clears that apartment, because there were two males who had guns. The appellant and her daughter were escorted downstairs by another police officer. The appellant was not searched at that time. The ETF went into the apartment and confirmed that no one was present.

[10] Once the appellant and her daughter were gone, Constable Ahmad unzipped the knapsack and looked through it. He found the loaded handgun and a magazine wrapped in a shirt. As well, he found a scale, a pocket telephone book and a plastic bag containing heroin. The knapsack also contained some papers belonging to the appellant, a purse and a passport in the name of a man, not Mr. Christie. The shopping bags were clear and Constable Ahmad could see that they contained child’s things. Another officer looked through the shopping bags.

[11] Constable Ahmad testified about why he looked in the appellant’s knapsack. The trial judge accepted his evidence on this issue, which he described as follows:

In his testimony, he testified that he searched it because the information that he had at the time was very confusing. He did not have a description of any of the suspects. He testified that he "didn't know who [was] who." Out of concern for the safety of everyone concerned, including the many people who lived in the building, he wanted to ensure that there was nothing in the bag that could harm anyone.

[12] Constable Ahmad also testified that he had told the appellant that he would return her bags. He said: “I wanted to give her the knapsack back, I wanted to make sure that there’s nothing in there that could hurt another officer or another person.” He had not asked the appellant what was in the bags and did not seek her permission to search the bags.

[13] The appellant testified on the voir dire. The trial judge referred to some of her testimony as follows:

In cross-examination, Ms. Kelsy testified that she put the gun in the backpack in order to protect herself and her daughter. She was "happy and relieved" to see the police when she got outside of the apartment. Indeed, while she was in the apartment, she wondered what was taking the police so long to get there. At one point during questioning, Ms. Kelsy said she was happy to get away from the backpack and she was happy the police were able to take the gun so that nobody else would be threatened by it. Importantly, she said it would have been her plan to give the gun to the police. [Emphasis added.]

[14] The police later obtained a search warrant for Mr. Christie’s apartment. No further drugs were found in the apartment, but Mr. Christie was found in possession of a quantity of cocaine. He later pleaded guilty to offences involving possession of the gun and the heroin found in the knapsack. It was the Crown’s position at the appellant’s trial that Mr. Christie was the principal offender and the appellant was a party. After the trial judge gave his ruling that the gun and heroin were admissible, the appellant’s trial continued before the jury.

THE REASONS OF THE TRIAL JUDGE

[15] As I have said, the trial judge accepted Constable Ahmad’s evidence as to why he opened the backpack. In deciding whether the search of the backpack was authorized by law, the trial judge turned first to the law of exigent circumstances. He made these important findings about exigent circumstances:

In the case before me, there was no evidence that the police had reasonable grounds to believe that the backpack contained contraband, evidence or dangerous items. P.C. Ahmad was acting on a hunch, his attention being drawn to the bag after Ms. Kelsy requested its return. This is not a case where the exigent circumstances made obtaining a warrant impractical. Instead, the issue in this case is whether a search without reasonable grounds can be authorized by exigent circumstances. [Emphasis added.]

[16] Later in his reasons, the trial judge returned to the evidence of Constable Ahmad and characterized that evidence somewhat differently:

I find that while P.C. Ahmad had well founded concerns, they had not yet crystallized into reasonable grounds to believe the backpack contained evidence of criminal offences or something that might compromise officer or public safety. Out of an abundance of caution, in a dynamic and fast-moving situation, Officer Ahmad decided to take a look. This was not for the purposes of investigating Ms. Kelsy. Instead, he wanted to ensure that the bag did not contain anything that could be harmful to any of the officers on the scene, or to the many people who would be in circulation in the building, emerging from their apartments to begin their day. [Emphasis added.]

[17] The trial judge found that Constable Ahmad did not violate the appellant’s s. 8 rights based on a combination of doctrine derived from the exigent circumstances cases and the justifiable use of police powers cases found in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.).

[18] The trial judge went on to consider the application of s. 24(2) of the Charter, in case he was wrong in finding that there had not been any s. 8 violation. The case was heard before R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and so the trial judge applied the framework from R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607. Since the evidence sought to be excluded was real evidence, the factors relating to trial fairness were not engaged. As to the seriousness of the breach, this was a “close call” for the officer and if the officer’s actions were unlawful, “they were barely so”.

[19] The trial judge accepted that the appellant had a privacy interest in the knapsack. However, he found that, in the context, her expectation of privacy was “significantly diminished”. The trial judge referred to a combination of unique circumstances: it was the appellant who had initiated the 911 call requesting emergency assistance; she had testified that she was anxious to get away from the gun; and, it was her plan to give the gun to the police. He found that the police acted in good faith and that there was no blatant or callous disregard of Charter rights by any of the officers who dealt with the appellant. Specifically as to Constable Ahmad, the trial judge found that he acted with the best of intentions, in very difficult circumstances. If his actions involved the unjustifiable use of police powers, “it barely crossed the line of what the law permitted”.

ANALYSIS

Unreasonable search and seizure

Introduction

[20] For the reasons that I will develop, it is my view that the search of the appellant’s bag could not be justified either on the basis of exigent circumstances or the Waterfield doctrine or by combining the two concepts. On the trial judge’s findings of fact there were no exigent circumstances that could justify a search of the bag. While Waterfield has been used by Canadian courts to justify some police conduct not previously justified under statute or existing common law, it could not justify the state action in this case.

[21] In my view, the police only had the power to seize the appellant’s bag until the situation was no longer in the chaotic state Constable Ahmad found it. At that point, if there were no grounds to obtain a warrant to search the bag, it had to be returned to the appellant, unless she gave a valid consent to search it.

[22] In Collins at p. 278, Lamer J. held that while the burden of proof of a Charter violation is ordinarily on the accused, once the accused has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable within the meaning of s. 8. A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. In this case, the only issue was whether the search of the appellant’s knapsack was authorized by law. As there was no statutory authorization for the search, any justification had to be found in the common law.

[23] I will consider the two bases upon which the trial judge rested his conclusion: exigent circumstances and the police powers or Waterfield doctrine.

Exigent Circumstances

[24] Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety.

(1) Imminent risk of loss or destruction of evidence

[25] In my view, the premise underlying the exigent circumstances doctrine where there is an imminent risk of loss or destruction of evidence is that, if time permitted, the police could have obtained prior authorization, usually in the form of a search warrant. Ordinarily, this means that the police would have had reasonable grounds. Therefore, in this context, exigent circumstances do not justify a warrantless search for evidence or contraband on less than grounds for obtaining a warrant. Warrantless searches on less than reasonable grounds may be recognized in other circumstances where there is a lower expectation of privacy, such as border searches, but those circumstances did not apply here.

[26] The Supreme Court of Canada has dealt with exigent circumstances in a number of situations involving the imminent risk of loss or destruction of evidence. In R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, the court considered the constitutionality of s. 10 of the former Narcotic Control Act, which authorized a warrantless search of a place other than a dwelling house on the basis of reasonable grounds to believe that the place contained narcotics. The court held that s. 10 was valid only insofar as it authorized a search in exigent circumstances, which Sopinka J. defined in these terms at pp. 241-42:

This exception to the general rule which proscribes warrantless searches must be narrowly construed. In general, the test will only be satisfied where there exists an imminent danger of the loss, removal, destruction or disappearance of the evidence sought in a narcotics investigation if the search or seizure is delayed in order to obtain a warrant.

[27] The common law power to search for evidence in exigent circumstances has largely been codified since the enactment of the Charter. As the trial judge noted, s. 487.11 of the Criminal Code authorizes a warrantless search by a peace officer if the conditions for obtaining a warrant under s. 487(1) (the normal search warrant provision) or s. 492.1(1) (the tracking warrant provision) exist “but by reason of exigent circumstances it would be impracticable to obtain a warrant”. Similar provisions exist in s. 117.02 for search and seizure of weapons and in s. 11(7) of the Controlled Drugs and Substances Act.

[28] As the trial judge noted, while these provisions do not define exigent circumstances, s. 529.3(2) of the Criminal Code does contain a definition of exigent circumstances. Section 529.3 is part of a package of amendments enacted in the wake of the Supreme Court of Canada decision in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, where the court held that an arrest warrant did not authorize entry into a dwelling-house to effect the arrest. Section 529.1 provides for the issuing of a warrant to enter a dwelling-house to arrest or apprehend a person where the conditions set out in that section are met. Section 529.3 allows an officer to enter a dwelling-house without a warrant where the conditions for issuing the warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. The definition of exigent circumstances in s. 529.3(2) refers to (a) danger to people and (b) loss of evidence and provides as follows:

For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

[29] Section 529.3(2)(b), like s. 487.11, is premised on the existence of grounds to obtain a warrant. The urgency of the situation relieves against the necessity to obtain the warrant, not the necessity for the grounds to obtain the warrant. Cases since the enactment of the Charter that have considered exigent circumstances as a basis for searching for evidence or contraband appear to have assumed that grounds to obtain a warrant were required. See R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80 (C.A.), leave to appeal to S.C.C. refused, [1984] S.C.C.A. No. 107; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297; R. v. Feeney.

[30] A distinct line of cases has developed using the Waterfield test, which I will discuss below. However, it seems to me that at least when considering the loss or destruction of evidence, the exigent circumstances doctrine should be confined to cases where the officer had grounds to obtain the prior judicial authorization but could not do so because of the risk of imminent loss or destruction of the evidence. In my view, this conclusion is also consistent with this court’s decision in R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 29 O.R. (3d) 321, aff’d 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, a case concerning search of a motor vehicle. Speaking for the court at p. 339, Doherty J.A. held that in exigent circumstances, where it is not feasible to obtain a warrant, “a police officer may search a lawfully detained motor vehicle if the officer has reasonable and probable grounds to believe that the search will disclose evidence”. He went on to state that: “[t]his exception to the general warrant requirement must, however, be narrowly construed where the search is conducted as part of a criminal investigation”.

[31] I point out that the need for this common law power may have largely disappeared in light of the statutory amendments.

(2) Public and police safety

[32] The second set of exigent circumstances that appears to have been recognized is where there is a concern for the safety of the public or the police. The parameters of the power to search without warrant in such circumstances appear somewhat vague except where they have been codified as in s. 529.3(2)(a) and this common law power has largely been overtaken by the Waterfield doctrine. In any event, even in this context, something close to reasonable grounds appear to be a prerequisite to a valid search.

[33] Thus, in a somewhat different context where exigent circumstances were invoked, in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, the court required reasonable grounds as a precondition to a field strip search said to be required for officer safety. Iacobucci and Arbour JJ. wrote as follows, at para. 102:

Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported to the police station. Such exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station. Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee's bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances. [Emphasis added.]

[34] I should not be taken as having held that reasonable grounds are required in other circumstances where the exigent circumstances doctrine is invoked to justify a search for the purpose of protecting the public or police officers. It may be that a lesser standard, such as articulable cause or reasonable suspicion, as codified in s. 529.3(2)(a), will be appropriate in some circumstances. Thus, see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.) at p. 759.

(3) General comments re: exigent circumstances

[35] However, whether exigent circumstances are invoked to search for evidence or to protect the public or for officer safety, it is the nature of the exigent circumstances that makes some less intrusive investigatory procedure insufficient. By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only where necessary. Sopinka J. made that point in R. v. Feeney at para. 52:

According to James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances arise usually where immediate action is required for the safety of the police or to secure and protect evidence of a crime. With respect to safety concerns, in my view, it was not apparent that the safety of the police or the community was in such jeopardy that there were exigent circumstances in the present case. The situation was the same as in any case after a serious crime has been committed and the perpetrator has not been apprehended. In any event, even if they existed, safety concerns could not justify the warrantless entry into the trailer in the present case. A simple watch of the trailer in which the police were told the appellant was sleeping, not a warrantless entry, would have sufficiently addressed any safety concerns involving the appellant. [Emphasis added.]

(4) Application to this case

[36] On the findings of fact by the trial judge, the doctrine of exigent circumstances could not justify the search of the appellant’s knapsack. The police did not have any grounds, let alone reasonable grounds, to believe that the knapsack contained evidence or contraband and the trial judge did not base his decision on the first branch of exigent circumstances. As the trial judge put it, Constable Ahmad was acting on a hunch. Further, again as the trial judge said, this was not a case where it was impractical to obtain a warrant. The police could have seized the bag until they obtained a warrant. The appellant had been removed from the scene; there was no imminent risk of loss or destruction of evidence.

[37] Similar considerations apply to the safety branch of exigent circumstances. There were no grounds to believe that the knapsack contained anything that threatened the safety of the public or the police officers. And, in any event, the less intrusive procedure of simply seizing the bag until the situation had stabilized was available. Just as in Feeney, the police could simply have kept watch on the bags.

[38] A very recent decision from this court, R. v. Stevens, 2011 ONCA 504 makes a similar point. In that case, sheriff’s officers acting to enforce an eviction order found what appeared to be two gun cases in the accused’s empty apartment. They called the police. The police arrived and opened the gun cases finding firearms that were improperly stored. The superintendent then changed the lock on the apartment. In finding that there was no s. 8 violation, the trial judge in Stevens found that there were exigent circumstances. This court disagreed. At the time the police entered the apartment and opened the gun cases there was no serious safety issue. Once the locks had been changed the accused could not gain access to the firearms. The safety concern was sufficient to explain why the police were called, but not why they opened the gun cases.

The Waterfield Doctrine

[39] Despite the many statutory investigatory powers that Parliament has provided since the enactment of the Charter, it is well-established that the courts will continue to recognize the exercise of police powers that comply with the common law Waterfield test: see R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 per Binnie J. at paras. 49-51. Where, as here, the police conduct constitutes a prima facie interference with a person’s property, the court will consider two questions:

(1) Does the conduct fall within the general scope of any duty imposed by statute or recognized at common law?

(2) Does the conduct involve a justifiable use of powers associated with the duty?

[40] The Supreme Court of Canada has considered the application of this test in several different contexts. The trial judge referred extensively to R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, which concerned the exercise of police powers in the context of investigating a 911 call. I agree that Godoy provides a very helpful analogy to this case, which also began with a 911 call. When the police, including Constable Ahmad, attended at Mr. Christie’s apartment in response to the 911 call initiated by the appellant, they were acting within the general scope of their duties to provide whatever assistance was required and to protect life: Godoy at paras. 15 and 16. In my view the first part of the Waterfield test was satisfied in this case.

[41] I do not agree that the search of the appellant’s knapsack was a justifiable use of powers associated with this duty. In Godoy, at para. 18, Lamer C.J. adopted the explanation of “justifiable” use of police powers provided by Doherty J.A. in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at p. 499:

the justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

[42] In that same paragraph, Lamer C.J. found that it was “necessary” for the police in that case to forcibly enter the accused’s apartment and that there was “no other reasonable alternative” to ensure that the 911 caller received the necessary assistance. In this case, a search of knapsack was not necessary and there were other reasonable alternatives by which the police could carry out their duties in response to the 911 call. Specifically, the police could have seized the bag until they had assisted Mr. Christie and ensured that the appellant and her daughter and anyone else in the building were no longer in danger from the assailants. At that time, as I have said earlier, the police could have returned the bag to the appellant and let her go on her way, sought her consent to search the bag, or obtained a search warrant if they had the requisite grounds. The appellant had been removed from the immediate area and the knapsack had been left where she had been told to drop it. There was nothing in the circumstances known to Constable Ahmad that necessitated searching the knapsack. The legitimacy of the police conduct cannot be measured by the fact that, as it turned out, the bag contained a loaded firearm and a quantity of a dangerous narcotic.

[43] The court’s decision in Godoy justifies significant intrusions into privacy to investigate a 911 call, in that case, a forced entry into a dwelling-house. But there are limits to the police power, as made clear at para. 22 of the reasons:

The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident's privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident's privacy or property. [Emphasis added.]

[44] In this case, the police had power to forcibly enter Mr. Christie’s apartment to investigate the 911 call and to locate the assailants. The police authority did not extend to opening the appellant’s bags and backpack.

[45] The concept of necessity can be found throughout Supreme Court of Canada cases applying the Waterfield test. In one of the foundation cases, Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2 at p. 35, Le Dain J. described the test in these terms:

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.

[46] In a more recent case, R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725 at para. 26, Abella J. described this branch of the test as one of “reasonable necessity”:

In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual’s liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public.

[47] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, where the court dealt with the legality of investigative detention, Iacobucci J. wrote in similar terms at para. 34:

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officers’ reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officers’ duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. [Emphasis added.]

[48] Mann is helpful in resolving this case because it demonstrates that the reasonable necessity test must be applied at all stages of the exercise of the police power. In Mann, it was necessary to measure the police conduct not only at the initial detention stage but as the investigation progressed. At paras. 39 - 40 of Mann Iacobucci J. returned to the Waterfield test again when considering whether a search of the detainee could be justified. He specifically held that a search incident to an investigative detention could not be based merely on a hunch or a vague concern about officer safety:

To continue in the Waterfield analysis, the conduct giving rise to the interference must involve a justified use of a police power associated with a general duty to search in relation to the protection of life and property. Put differently, the search must be reasonably necessary. The relevant considerations here include the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference: Dedman, supra, at pp. 35-36.

The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2002), 2 C.R. (6th) 49, at p. 63. The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. [Emphasis added.]

[49] On the trial judge’s findings of fact that Constable Ahmad acted on a hunch, this search could not be justified on the Waterfield test. Vague concerns because of the confusing situation could not be used to justify an intrusion into the appellant’s privacy interest in her bags. Later in his reasons, in the passage quoted above at para. 16, the trial judge referred to “well-founded” concerns and the officer’s desire to ensure that the bag did not contain anything harmful. However, he made no finding that these concerns reached the level of reasonable necessity.

[50] Thus, the search in this case fails to meet the Waterfield tests on two grounds. It was not reasonable, since there were was no basis for believing that the safety of the public or the police was at risk. Second, the search was not reasonably necessary since there were other less intrusive measures that could have been used.

Combining the Two Doctrines

[51] It will be recalled that the trial judge found that the search was reasonable by drawing on both doctrines of exigent circumstances and the Waterfield test. While the two doctrines can, in some circumstances, be related and may even overlap, in my view, it is preferable to keep them distinct in determining whether police conduct is justified. I say that primarily because of my concern that by combining the two there is a risk that the reasonableness requirement that lies at the heart of the s. 8 analysis may be weakened.

[52] The two doctrines are meant to address different concerns and are context-specific. Reasonableness in the exigent circumstances doctrine rests primarily on the fact that the officer did have grounds to obtain prior judicial authorization. The fact that it is not feasible to obtain a warrant merely sets the scene for possibly engaging the exigent circumstances doctrine, it does not justify the search. While there is a vague and ill-defined basis for search in exigent circumstances involving officer or public safety, even then there must be some reasonable basis for the search. Reasonableness in the Waterfield context rests on the reasonable necessity of the police action. Again, the fact that officers were acting generally in the course of their duties merely sets the scene; but is only one half of the test that must be met. By combining the two doctrines and taking only certain elements from each, the core safeguard of reasonableness may be lost.

[53] In concluding that the search in this case did not violate s. 8, the trial judge said the following:

In this case, I accept that P.C. Ahmad faced exigent circumstances when he searched Ms. Kelsy's backpack. I also find that the police were obviously acting in the course of their duties when they responded to the 911 call and that the search of the backpack did not involve an unjustifiable use of powers in the circumstances. On the contrary, the non-invasive search was prudently undertaken to ensure the safety of all concerned, civilians and police officers alike. Consequently, I find that the search was authorized by law. Section 8 of the Charter was not infringed.

[54] The trial judge found that Constable Ahmad faced exigent circumstances, but since there were no grounds to obtain judicial authorization, the core reasonableness requirement on the first strand of the exigent circumstances doctrine was missing. It may be, as the trial judge suggested, that something less than reasonable grounds to obtain a warrant may justify a search on the second aspect of the exigent circumstances doctrine, where there is concern for the safety of the police or the public. But, even on this aspect, the reasonableness safeguard at least requires something in the nature of reasonable suspicion or articulable cause to search, which was also missing in this case.

[55] The trial judge also found that the officer was acting in the course of his duties and that the search was prudently undertaken, an analysis having elements of the Waterfield doctrine. However, where, as the trial judge found, the officer was acting on a hunch and the search, however non-invasive, was not reasonably necessary, the second branch of the Waterfield test was not met.

[56] I entirely agree with the trial judge that the volatile circumstances in which Constable Ahmad and the other officers found themselves had to be taken into account. They were responding to a 911 call and such cases rightly give the police considerable latitude. Justice Doherty articulated that point very well in R. v. Golub in speaking of the circumstances of an arrest. As he said at p. 757 the scene of an arrest is a volatile one where the police must expect the unexpected and where the “price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed”. The circumstances in which these officers found themselves was very similar and similar considerations apply. Again, the point made by Doherty J.A. in Golub on the same page is apposite:

In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised.

[57] Thus, if the police cannot act to protect themselves and others when responding to a 911 call and if they feel that they will be unreasonably second-guessed at every stage of a fast-moving, quickly-evolving and chaotic situation, the safety of the public will be compromised. However, this reality does not place police action beyond review. The Waterfield test as applied by the courts of this country is not a particularly exacting one, but it does rest on reasonable necessity and that core element was lacking here.

[58] To summarize my view of the application of s. 8 of the Charter to this case:

• Exigent circumstances should be primarily reserved for cases involving imminent destruction of evidence or contrabrand and has largely been codified.
• As the trial judge recognized, the first branch of exigent circumstances, based on imminent destruction of evidence had no application, since the officer had no grounds to obtain a warrant.
• The second branch of exigent circumstances, based on police and officer safety could not apply since there was no finding of, at the very least, articulable cause; this branch has largely been overtaken by the Waterfield doctrine.
• The search in this case should have been analyzed through the Waterfield doctrine.
• While the 911 call and the chaotic circumstances gave the police grounds to temporarily seize the appellant’s bag, a search of the bags was not reasonably necessary within the meaning of the Waterfield doctrine.

[59] Since, in my view, the appellant’s s. 8 right to protection against unreasonable search and seizure was violated it becomes necessary to consider whether the evidence should be excluded under s. 24(2) of the Charter. I will now turn to that issue.

Section 24(2) of the Charter

[60] Although he found that there was no Charter violation, fortunately, the trial judge went on to consider the application of s. 24(2). As the trial judge recognized, his decision to admit the evidence assuming there was a violation would not be entitled to deference on appeal. However, his findings of fact are entitled to deference and based on those findings, I would admit the evidence.

[61] The trial judge found that any breach of the appellant’s rights was not serious and that the police acted in good faith. As he said:

On the other side of the equation, I find that the conduct of the police was undertaken in good faith. There was no evidence of a blatant or callous disregard of Charter rights by any of the officers who dealt with Ms. Kelsy. I find that the searching officer, P.C. Ahmad, acted with the best of intentions, in very difficult circumstances. If P.C. Ahmad's actions did involve an unjustifiable use of police powers, it barely crossed the line of what the law permitted.

[62] It may be that Constable Ahmad had a hunch that something was wrong with the appellant’s backpack, but he was also motivated by the need to return the appellant’s property to her so that she could be on her way with her daughter. He acted in haste in the confusion of the 911 call.

[63] The majority of the court in Grant (2009), discussed the concept of good faith at para. 75:

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith … Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. [Emphasis added.]

[64] In a sense, the facts of this case resemble Grant. An important consideration favouring admissibility of the evidence in that case was that the law respecting investigative detention was uncertain. The court explained this aspect of the case at para. 133:

The officers went too far in detaining the accused and asking him questions. However, the point at which an encounter becomes a detention is not always clear, and is something with which courts have struggled. Though we have concluded that the police were in error in detaining the appellant when they did, the mistake is an understandable one.

[65] Similarly, in this case, on the findings of fact made by the trial judge, the mistake made by Constable Ahmad was an understandable one. He went too far in opening the bag, but he was entitled to seize the bag until the scene had stabilized. This case is one of first impression and the limits of permissible investigative procedures in the course of responding to a 911 call were not entirely clear.

[66] There were also extenuating circumstances; Constable Ahmad was dealing with a chaotic situation in which the primary concern was for the welfare of the public and the police. This was not a case of flagrant disregard for Charter rights.

[67] The second inquiry requires the court to consider the impact of the Charter breach on the appellant’s Charter-protected interests. This was a serious intrusion into the appellant’s privacy; the backpack contained the appellant’s personal papers and her purse. On the trial judge’s findings of fact, however, the impact on the appellant’s privacy rights was mitigated. The circumstances were unique given the appellant’s own testimony that she had intended to give the gun to the police in any event. I accept that the impact of the Charter breach on the appellant’s privacy interest was somewhat diminished.

[68] The third Grant inquiry looks to society’s interest in an adjudication on the merits. The most significant factor in this inquiry tends to be the reliability of the evidence. In this case, the firearm, ammunition and drugs were reliable evidence, a factor favouring admission of the evidence. In an interesting submission, Mr. Dineen, counsel for the appellant, submitted that the societal interest in an adjudication on the merits was attenuated because the principal offender, Mr. Christie, had been convicted and received a significant prison sentence. At para. 80, the Grant court noted that s. 24(2) “mandates a broad inquiry into all the circumstances not just the reliability of the evidence”. Thus, I think the disposition of the case against Mr. Christie was a matter to consider. That said, I would not give it undue weight. Society still had a significant interest in correctly disposing of the charges against the appellant. As the court said in Grant at para. 81: “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”.

[69] Finally, the court is required to balance the three inquiries to determine whether admission of the evidence would bring the administration of justice into disrepute. The factors relating to the seriousness of the breach and the reliability of the evidence favour admissibility. While the impact on the appellant’s Charter-protected interests was mitigated because of the unique circumstances that the appellant wanted to hand over the gun to the police anyway, the intrusion was still a serious one. The appellant’s professed desire to distance herself from the firearm and hand it over to police did not in any significant way diminish her privacy interests in the other contents of the backpack and the bags containing her daughter’s belongings. The second line of inquiry favours exclusion of the evidence.

[70] On balance, I would resolve this case in the same way as did the court in Grant. There, as here, the most important consideration was the context of legal uncertainty in which the police were operating: see para. 140 of Grant. In my view, the repute of the justice system would not suffer from allowing the firearm and the drugs to be admitted in evidence against the appellant.

DISPOSITION

[71] Accordingly, I would dismiss the appellant’s appeal from conviction.

Signed: “M. Rosenberg J.A.”

“I agree John Laskin J.A.”

“I agree K. Feldman J.A.”

RELEASED: “JL” September 22, 2011