COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lowes, 2016 ONCA 519

DATE: 20160630

DOCKET: C57703

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jacob Daniel Lowes

Respondent

Amber Pashuk, for the appellant

Yoni S. Rahamim, for the respondent

Heard and released orally: June 22, 2016

On appeal from the acquittal entered on September 6, 2013, by Justice C.R. Westman of the Ontario Court of Justice.

ENDORSEMENT

[1] This is a Crown appeal from acquittals on several drug-related charges.

[2] A neighbour called 9-1-1 reporting that she heard her neighbours arguing. She had heard the male threaten to kill the female. She also heard the female crying and pleading, “Please don’t kill me.” The neighbour also heard loud banging and crashing.

[3] In response to this 9-1-1 call, the police arrived at the residence within minutes. Both before and after confirming with the neighbour the location of the apparent assault, the police knocked on the door attempting to gain entry. There was no answer. Eventually, a woman, Ms. Muller, came to the window on the third floor. The police officer explained to her why the police were there. She said she was in bed and told the officer to leave. Ms. Muller refused to open the door. She insisted there was no one else in the apartment. However, it was obvious to the police that Ms. Muller was speaking to someone who was standing behind her.

[4] The police at the scene, concerned that Ms. Muller and/or others were in immediate danger, decided to seek permission from their superiors to break down the door and enter the residence. Before the police could move to force their way into the apartment, Ms. Muller appeared at the door. She had no visible injuries. She stepped outside and spoke to the police. She clearly did not want the police inside her residence. There were no sounds coming from inside.

[5] The police decided to enter the residence without Ms. Muller’s permission. They did so out of concern for the safety of Ms. Muller and any other unknown person who might be in the residence with the person who had been heard uttering the death threats.

[6] The police concern was based on:

• the contents of the 9-1-1 call as reported to the police;
• the obvious lies told by Ms. Muller about the presence of anyone else in the house; and
• the demeanour of Ms. Muller, both when she spoke to them from the window and at the door.

[7] The police entered the residence and the officers observed marijuana and other drugs. They found the respondent hiding under a cover under the bed. They continued to search the apartment looking for anyone else who might be in the residence. In the course of doing so, they found additional contraband. The police eventually removed the respondent, “sealed” the residence and applied for a warrant. The warrant was granted, the police executed the warrant and seized the drugs.

[8] The trial judge held that the police entry was unlawful rendering the search and seizure of the contraband unconstitutional. He excluded the seized material under s. 24(2). Without that evidence the Crown had no case and the respondent was acquitted.

[9] The trial judge delivered two sets of reasons which should be read together in order to understand his ruling. The trial judge acknowledged that the police can enter a residence without a warrant if the police have reasonable grounds to believe that entry is necessary to protect the lives and safety of others: see R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311. Unfortunately, the trial judge failed to apply that legal principle to the undisputed facts before him.

[10] The trial judge held that the police could not enter the residence without taking what he described as additional investigative steps. He referred to three. The trial judge indicated that the police could have further questioned Ms. Muller about the circumstances and presumably about what had gone on in the apartment, or they could have further questioned the neighbour who made the 9-1-1 call, or they could have applied for a telewarrant. It is unclear whether he was referring to a telewarrant for the arrest of the person in the apartment, or to search the apartment.

[11] In our view, none of those steps were necessary or, indeed, even relevant to whether the police were under a duty to enter the premises when they did to ensure that there was no one in the premises whose life or safety was in immediate danger and to ensure that Ms. Muller’s life or safety was not in immediate danger should she choose to re-enter the residence.

[12] The circumstances in which the police found themselves strongly suggested that Ms. Muller was the victim of ongoing domestic abuse when they arrived at the residence. She clearly lied to the police when they first spoke to her. In these circumstances, the police would have been derelict in their duty had they accepted what Ms. Muller said without going into the residence.

[13] Any further discussion with the neighbour would not in any way have detracted from the emergency situation faced by the police. Nothing the neighbour could possibly have said would have eliminated the immediate risk to the lives and safety of others, including Ms. Muller. Finally, the delay inherent in obtaining a telewarrant, assuming the police could get one, created obvious and significant risks that in these circumstances the police could not, in good conscience, take.

[14] In our view, the police acted entirely within the law in entering the premises as they did. The trial judge erred in law in holding otherwise.

[15] The Crown is entitled to a new trial on the charges. The acquittals are quashed and a new trial ordered. Nothing in our reasons is intended to be a comment on whether the scope of any search conducted by the police after they entered the premises went beyond the boundaries of s. 8. That is an issue that may have to be litigated on the new trial.

“Doherty J.A.”

“K. Feldman J.A.”

“D.M. Brown J.A.”