COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Depace, 2014 ONCA 519

DATE: 20140703

DOCKET: C55568

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tomasso Depace

Appellant

Aaron Prevost, for the appellant

Nicholas Devlin, for the respondent

Heard: June 26, 2014

On appeal from the conviction entered on February 9, 2012 by Justice Johanne N. Morissette of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant challenges the warrantless search the police conducted at his home following a 911 call. The call was made by the appellant’s common law wife’s mother after she received a call from her 11 year old grandson that his parents were fighting. She later told police that if her grandson called her it was serious.

[2] The grandmother first called 911 then headed over to her daughter’s home. The police came there as well. They saw the kitchen light turned off after they knocked and identified themselves and heard a dog barking but no one answered the door for 25 minutes. At that time the police forcibly entered the home. By then there were 5 officers involved. The police had checked their records of the occupant of the house and had the appellant’s name and photograph as well as information that he was associated with the Hell’s Angels.

[3] The appellant appeared to be drunk when the police entered the house. They saw him as well as a woman and boy on the main floor of the house, which was relatively small and open. One of the officers then decided to check both upstairs and downstairs to make sure there was no one else there who needed help as well as for officer safety.

[4] The officer said he did not know exactly who was who in respect of the 911 call and whether there wasn’t another person there who had been involved in the reported fighting.

[5] The appellant agrees that the police were entitled to forcibly enter the house in response to the 911 call. He argues that they were not then entitled to go to the basement where they observed in plain view evidence of drug dealing including scales with white powder, debt lists and cash. After testing the white powder and finding that it was cocaine, they obtained a search warrant and found a large quantity of cocaine and money.

[6] At trial, the appellant challenged the initial warrantless search and the introduction into evidence of the cocaine and money that were later found. The trial judge found no breach of s. 8 of the Charter and further held that had he found a breach, he would have admitted the evidence under s. 24(2).

[7] The appellant appeals the trial judge’s rulings. He submits that the exigent circumstances that allowed the police to enter the home were over once the police found the mother and child safe and unharmed and all three occupants of the home accounted for, and that at that point, the liberty interest of the subject overrode any risk to safety. He argues further that the police could have assured themselves that the three were unharmed and alone by asking them, having heard no noise or anything else to suggest that there might be someone else there.

[8] We do not accept these submissions. The fact that the occupants denied entry to the police for 25 minutes made the 911 situation much more acute and suspicious. As the Supreme Court said in R. v. Godoy 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311 at para. 20, in the context of a 911 emergency call, the police do not need to take the word of the occupant that everything is alright. They are entitled to satisfy themselves. The extent of what they may need to do will depend on the particular circumstances. In this case, the grandmother did not know who might be in the house as she was called by her grandson. At para 21 of Godoy, the court stated the applicable principle as follows: “While there is no question that one’s privacy at home is a value to be preserved and promoted, privacy cannot trump the safety of all members of the house-hold.”

[9] In this case, the search was undertaken for two legitimate purposes: to ensure no one else was there either injured or frightened on the one hand, or threatening on the other. The search itself was cursory and non-invasive. We find no merit in this ground of appeal. As there was no breach of s. 8, the evidence was admissible and the appeal of the s. 24(2) issue does not arise.

[10] The appeal is therefore dismissed.

“G.R. Strathy C.J.O.”

“K. Feldman J.A.”

“David Watt J.A.”