COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Phoummasak, 2016 ONCA 46

DATE: 20160119

DOCKET: C59559

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vicith Phoummasak

Appellant

Timothy E. Breen, for the appellant

Chris de Sa, for the respondent

Heard: December 9, 2015

On appeal from the convictions entered by Justice Faye E. McWatt of the Superior Court of Justice at Toronto, Ontario on September 19, 2014.

Doherty J.A.:

I

[1] On March 15, 2012, the police, relying on the exigent circumstances exception in s. 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"), entered the appellant's residence without a warrant and secured the residence pending the obtaining of a search warrant. A warrant was obtained and a search conducted. Drugs were found and charges laid.

[2] At trial, the appellant argued that the search was unlawful and a violation of his rights under s. 8 of the Charter. He submitted that the exigent circumstances exception to the warrant requirement could not apply when, as in this case, police operational decisions made in the course of an ongoing investigation had effectively created the exigent circumstances relied on by the police to justify the warrantless entry into the appellant's residence. The trial judge rejected this submission and convicted the appellant.

[3] On appeal, the appellant advances essentially the same argument. At the end of oral argument, the court dismissed the appeal with reasons to follow. These are those reasons.

II

[4] An undercover police officer purchased 4.53 grams of cocaine from a man named Mengitsu on February 14, 2012. The purchase took place at Mengitsu's apartment. The undercover officer arranged a second purchase on February 24, 2012. Mengitsu told the officer that he had to get the cocaine from his supplier. Mengitsu was seen entering unit 428N at 1169 Queen Street. He rejoined the officer in his vehicle a few moments later and completed the sale. Mengitsu left the vehicle and returned to unit 428N.

[5] After the second transaction on February 24, the police believed that Mengitsu's supplier lived in, or was otherwise connected to, unit 428N. The officer in charge of the investigation believed he had grounds after the second transaction to obtain the search warrant for unit 428N. He did not apply for one, however, because he wanted "to confirm a 100% that this was the back end's address". In his experience, Mengitsu's visit to the apartment on one of the two occasions when he sold drugs to the undercover officer did not confirm that his supplier was in that apartment.

[6] The undercover officer arranged for a third purchase from Mengitsu on March 15, 2012. The police had decided to arrest Mengitsu after this transaction along with anyone else they had reasonable and probable grounds to believe was involved in the transactions. The police set up surveillance in the area of the apartment building at 1169 Queen Street. If Mengitsu went to unit 428N in connection with the third purchase, the police intended to apply for a warrant to search the apartment. One of the officers began working on the necessary paperwork before the March 15 transaction.

[7] On March 15, the undercover officer drove Mengitsu to 1169 Queen Street. Mengitsu went inside and returned to the vehicle about 10 minutes later. He and the undercover officer drove a short distance away at which point Mengitsu produced 15.34 grams of cocaine. The officer gave Mengitsu $800 and took the drugs. Mengitsu left the vehicle. The police intended to arrest Mengitsu immediately after he left the vehicle, however, he made his way back to 1169 Queen Street before the surveillance officers were able to apprehend and arrest him. The arrest took place in front of the apartment building.

[8] Mengitsu's cell phone began to ring repeatedly immediately after he was arrested. The call display on the cell phone indicated that the calls were all coming from someone named "Vic". The police believed that these calls were from Mengitsu's supplier who they thought was in unit 428N. The police were worried that the supplier would become suspicious when Mengitsu did not answer his cell phone and would take steps to destroy any evidence relating to the drug transactions in the apartment. The police decided to enter the apartment immediately and "freeze the residence" until a search warrant could be obtained.

[9] The police entered the apartment building using a fob seized from Mengitsu. They went to the door at unit 428N. One of the officers knocked. The occupant (the appellant) declined to open the door. The officers heard noises coming from inside the apartment. Using a key seized from Mengitsu, the officers entered the apartment. As they entered, they saw the appellant coming back into the apartment from the balcony. A police officer stationed outside of the building saw the appellant throw what turned out to be three baggies containing drugs off the balcony.

[10] The officers secured unit 428N and arrested the appellant. The police applied for and obtained a search warrant for the apartment. They executed the warrant and found various drugs and over $5,000 in cash.

III

[11] Generally speaking, the police cannot enter a residence to search for evidence without prior judicial authorizations. There are a few exceptions to that rule. Section 11(7) of the CDSA recognizes the common law exigent circumstances exception to the warrant requirement. It provides:

A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

[12] Section 11(7) of the CDSA, unlike other statutory provisions providing for exigent circumstances searches (e.g. Criminal Code s. 529.3), does not define exigent circumstances. In my view, the phrase has the same meaning in s. 11(7) of the CDSA as it does in the Criminal Code provisions and at common law. Exigent circumstances under s. 11(7) exist if (1) the police have grounds to obtain a search warrant under s. 11 of the CDSA (the probable cause requirement) and (2) the police believe, based on reasonable grounds, that there is imminent danger that evidence located in the premises will be destroyed or lost if the police do not enter and secure the premises without delay (the urgency requirement): See R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at paras. 25-27; R. v. McCormack, 2000 BCCA 57, 143 C.C.C. (3d) 260, at paras. 17-25; R. v. Duong and Tran, 2002 BCCA 43, 162 C.C.C. (3d) 242, leave to appeal to SCC refused, [2002] S.C.C.A. No. 112.[^1]

[13] Counsel for the appellant accepts that both preconditions existed when the police entered the appellant's apartment. He submits, however, that the exigent circumstances exception, because it is an exception to the warrant requirement, must be strictly construed and that the police cannot manufacture exigent circumstances. Counsel submits that the police had reasonable grounds to obtain a warrant for the appellant's apartment before the third transaction took place on March 15, 2012, but instead chose to proceed with that transaction without a warrant. He contends that the police knew that the implementation of their plan would eventually place the police outside of the apartment door with good reason to believe that the occupant would be suspicious because Mengitsu had not returned to the apartment and would take steps to destroy any evidence in the apartment. Counsel contends that a scenario that is the inevitable result of police conduct cannot provide exigent circumstances which justify a warrantless entry into and search of a residence.

[14] I accept that the police cannot orchestrate exigent circumstances by creating the requisite urgency through a preplanned course of conduct: see R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per LaForest J. (in dissent), at paras. 53, 74-85. See also W. LaFave, Search and Seizure, 4th ed., Vol. 3, (West Publishing, 2004), at pp. 400-403. I also agree with counsel, contrary to the trial judge's holding, that the police had grounds to obtain a search warrant for the appellant's apartment prior to the undercover officer's third purchase of drugs from Mengitsu. Had the police obtained the warrant, they could have entered the appellant's apartment immediately upon the arrest of Mengitsu under the authority of a warrant.

[15] I do not, however, agree that the evidence in this case can reasonably support the claim that the police anticipated that the investigative steps they took would create the urgency relied on by the police to justify the entry into the apartment without a warrant. I will deal first with the failure to obtain a warrant before the third transaction. The existence of reasonable grounds to obtain a warrant does not preclude the existence of exigent circumstances. To the contrary, probable cause is a prerequisite to the existence of exigent circumstances. However, evidence that the police had grounds to obtain a search warrant, but did not obtain a warrant and instead proceeded with other investigative measures, can in some situations afford evidence that the police set out to create exigent circumstances to justify entry into a premise without a warrant. If that inference is drawn, the circumstances are not exigent and cannot justify a warrantless search or entry.

[16] The inference that the police set out to avoid the warrant requirement does not flow automatically from the fact that the police could have obtained a search warrant for the premises before the exigent circumstances arose. The specific circumstances of each case must be examined.

[17] In this case, the officer in charge explained his reasons for not applying for a warrant before the third drug transaction. That explanation was not unreasonable. Mengitsu had made two sales to the undercover officer, one unconnected to unit 428N and the other connected to unit 428N. The officer in charge reasonably believed that it was prudent to seek further confirmation of the connection of the apartment to the drug transactions before seeking a warrant. The reasonableness of the officer's approach is evident from the trial judge's opinion that the police did not have reasonable grounds to obtain a search warrant before the third transaction. Although I disagree with her assessment, this difference of judicial opinion suggests that the officer's decision to seek further confirmation of the connection between unit 428N and the drug transactions before applying for a warrant was a reasonable one.

[18] Counsel's argument that the police created or fully anticipated the exigent circumstances relied on to permit their entry into the appellant's apartment is further undermined by the actual facts relied on by the police to provide the requisite urgency to justify their entry. The police relied on Mengitsu's arrest in front of the apartment building, and the unanswered cell phone calls to Mengitsu immediately after his arrest. Neither event was anticipated by the police.

[19] The plan was to arrest Mengitsu as soon as he got out of the undercover officer's car. The police could not know the direction Mengitsu would go, or that he would make it back to the front of the apartment building before the members of the surveillance team were in a position to apprehend him. The police could not have anticipated that the arrest would occur in plain view of the apartment building, thereby creating the risk that the occupant of the apartment could become aware of the arrest.

[20] Nor, in my view, could the police reasonably anticipate the repeated calls to Mengitsu immediately after his arrest. Those calls combined with the reasonable belief that they came from Mengitsu's supplier, and that Mengitsu's failure to answer the calls would make his supplier suspicious, provided the main ground for the police belief that there was an imminent danger of the destruction of evidence relating to the drug transactions.

[21] This is not a case in which the police, through a "planned and calculated procedure", created an artificial situation of urgency: R. v. Silveira, at para. 85. The trial judge properly held that the police acted lawfully in entering and securing the appellant's premises.

[22] The appeal is dismissed.

Released: "DD" "JAN 19 2016"

"Doherty J.A."

"I agree S.E. Pepall J.A."

"I agree M. Tulloch J.A."

[^1]: The urgency requirement may also be satisfied based on safety concerns. These reasons do not address that application of the exigent circumstances doctrine.