Ontario Superior Court of Justice

Court File No.: CR-159/11
Date: 2012-06-08

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – MICHAEL JAMES PURCELL Applicant

M. Edward Graham, Counsel for the Federal Crown/Respondent
Russell Allegra, Counsel for Mr. Purcell/Applicant

Heard: May 31 & June 1, 2012

CHARTER RULING

Murray J.

[ 1 ] The accused, Michael James Purcell, is charged with producing a controlled substance, to wit: cannabis marijuana (greater than 3 kg) contrary to section 7(1) of the Controlled Drugs and Substances Act and unlawful possession of a controlled substance, to wit: cannabis marijuana, (greater than 3 kg) for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act .

[ 2 ] The Halton Regional Police responded to a 9-1-1 call. After tracing the source of the call, they forced entry into the home of the accused who resided at […] Rd. in Burlington Ontario. The police searched the home of the accused. During the search, they found quantities of marijuana in various stages of maturation. The accused was charged with the offences outlined above.

[ 3 ] The issue to be determined at this stage of the proceedings is whether the police search of the residence violated the Charter rights of the accused person.

The Facts

[ 4 ] There is no dispute with respect to the facts leading up to the search. At approximately 2:04 a.m. on the morning of December 26, 2009, the Halton Regional Police Service received a 9-1-1 emergency call. At the time the call was made, the dispatcher heard in the background, at the location of the call, yelling and swearing between a male and female and concluded that a heated argument was going on between individuals at that location. The 9-1-1 call was disconnected at source without anyone responding to the dispatcher who said “hello” on two occasions prior to the call being disconnected. An immediate return call by the HRPS communications dispatcher who had received the 9-1-1 call to the number of the 9-1-1 caller resulted in the phone being picked up by a male. The HRPS communications dispatcher stated: “9-1-1 Emergency”. The male responded: “Hold on a second” after which a female spoke to the HRPS dispatcher. After the female said hello, the dispatcher responded: “Hello, it's 9-1-1 emergency”. The female then responded: “Oh I'm so sorry, I accidentally dialled the number.” When asked her name by the dispatcher the caller advised it was Francine. The woman who identified herself as Francine said: “I accidentally called like my cell phone number and my pin number is 9-1-10.” When asked her last name she stated it was MacDonald. The person who identified herself as Francine McDonald repeated that “it was because I was putting in my password and I didn't realize my phone was on.” When asked by the dispatcher if she was located in the […] Road area, the caller stated that she was not in the […] Road area but was in Oakville. When asked if her cell number was […] (the cell phone number from which the 9-1-1 call was initiated) the female caller said that her cell number was […] and not […]. The dispatcher advised the woman who identified herself as Francine that the dispatcher dialled the […] in response to the 9-1-1 call from that number and Francine commented that was “weird”. The dispatcher indicated to the person who identified herself as Francine McDonald that she had received a call from […] and that there was a lot of yelling and screaming going on in the background at the time of the call. The female stated that the dispatcher must have the wrong number. When Francine was asked by the dispatcher to provide an address, the phone call was terminated. Database inquiries made by HRPS confirmed that the cell phone number associated with the 9-1-1 call was registered to a Michael Purcell of […] Rd. in Burlington.

[ 5 ] On December 26, 2009, at approximately 2:23 a.m., uniformed members of the Halton Regional Police Service (hereinafter “HRPS") on patrol were dispatched to […] Rd. in Burlington, Ontario in response to the 9-1-1 call. Officers, Dobbin, Vanderheyden and Jovic were advised by their communications bureau that during the initial 9-1-1 call no one responded to the dispatcher and that during the call a male and female could be heard having a heated argument with yelling and swearing before the call was disconnected. The female caller, who was identified as Francine McDonald, was described to the officers as uncooperative in providing information when the dispatcher had called the telephone number from which the 9-1-1 call had been made. The dispatcher had identified […] Rd., the residence of Michael Purcell, as being the likely place from which the 9-1-1 call had been made.

[ 6 ] […] Rd. is a townhouse unit - one of four units in a building. […] Rd. was at the northeast corner of the building, at the rear of the four-plex. The unit owned by Mr. Purcell had a door at the side of the building and at the rear. The rear door had a window in the door and from this door one entered directly into the kitchen area. Located next to the rear door was a window through which the police could see into the ground floor of the unit. The other entrance to the house was from a door on the side of the house which was in fact the front door. When three officers arrived on the scene at approximately 2:27 a.m., there were lights on in the house. There was some inconsistency as to whether the upstairs lights of the house were on but all officers were in agreement that the downstairs lights were on as was the television, which could be seen through the window adjacent to the back door on the ground floor level. Sgt. Brenda Fraser became aware of the 9-1-1 call at approximately 2:31 a.m. on 26 December 2009. She was also made aware from officers already at the scene that a male and a female had been observed in the townhouse unit located at […] Rd. in Burlington, Ontario.

[ 7 ] Officers Dobbin, Vanderheyden and Jovic initially attended at […] Rd. and they all observed a male sitting on a sofa next to the window and heard a dog barking from inside. The police shouted “Police – open the door”” on numerous occasions with no response from the occupants. One officer (Dobbin) stationed himself at the front door, Officer Vanderheyden went to the back area of the house and looked through the window adjacent to the back door. Another officer was at the rear door. From where Officer Vanderheyden stationed himself he could see into the living room area and he could hear Officer Dobbin knocking at the front door of the house. All officers observed a male occupant in the house who made no effort to respond to continuous knocking on the window, and on both doors or to numerous statements that it was the police and that they needed to speak to the occupants because of a 9-1-1 call. At one point, the male occupant asked (without opening the door) directly what the police wanted and was advised that the police were there in response to a 9-1-1 call and needed to make sure everyone was safe. The male occupant responded that no one had called 9-1-1. Officers knocked on the window next to the back door, on the front door and on the back door. All this was ignored. The officers also observed a female occupant in the house. Sgt. Fraser, who arrived at […] Rd. at approximately 2:40 a.m., also observed a male and a female inside the residence who were ignoring the efforts of Officers Dobbin, Vanderheyden and Jovic who were trying unsuccessfully to make meaningful contact with the occupants of the home. At one point, when the female came to the door (but did not open it) Sgt. Fraser explained to the female occupant the need to speak to her because of the 9-1-1 call and further explained that the police needed to confirm that everyone in the house was safe. The female responded that it was a mistake and then retreated upstairs to the second floor of the house without opening the door. In sum, the officers indicated to the occupants that they needed to speak to the occupants in the house, that they were there in response to a 9-1-1 call and that they needed to ensure the safety of everyone inside the residence. The occupants were advised to open the door on numerous occasions or it would be broken down. There is no doubt that the occupants understood that the police were there and wanted the door opened in response to a 9-1-1 call to ensure the safety of all occupants of the house. The male occupant came to the back door on a number of occasions looking at the police through the window and refused to open the door. Immediately prior to forcible entry, the male occupant was standing by the back door refusing to open it. He was asked again on numerous occasions to open the door and was advised that if he did not there would be forcible entry. After requests to open the door, and warnings that there would be forcible entry if he did not, the male occupant was given a final warning and told that if he did not open the door in five seconds the police would force entry. Officer Vanderheyden asked the male occupant to stand back and after counting out loud from 5 to 0 forced open the back door at 2:46 a.m. The male occupant refused to stand back as requested and when the door was forced open, it hit the male occupant on the head, knocking him down and causing a bruise. He did not require medical treatment.

[ 8 ] Upon entry, Sgt. Fraser immediately went to the male occupant, who identified himself as Michael Purcell, and who reported to her that he had had a verbal argument with a female in the residence. She stayed with the male occupant.

[ 9 ] Immediately after the police had entered the home, the female occupant came downstairs to the living room area and was approached by Officer Vanderheyden. He and other officers described her has looking like she had been crying with swollen, puffy eyes. She identified herself to the police as Francine King. She indicated that she had called 9-1-1 by mistake, that she and Mr. Purcell had had a verbal argument and she advised police that there was no one else in the house.

[ 10 ] Officer Dobbin and Officer Vanderheyden were not satisfied that their 9-1-1 investigation should end with a discussion with the female occupant who identified herself as Francine King and both searched the upstairs and the basement of Mr. Purcell's house. They stated without qualification or caveat that, in the circumstances of this case, they viewed it as their duty to check the rest of the house in order to ascertain whether there was another person in the house who might be in need of police assistance. They were not prepared to take the word of the person who identified herself as Francine King or of the accused that there was no one else in the house or that the 9-1-1 call had been made by mistake.

[ 11 ] While Officer Vanderheyden thought he could smell of fresh marijuana in the house upon entry, Officer Dobbin said that he did not before he commenced the search of the house. During the search of the house, the police officers discovered garbage bags filled with mature marijuana plants and plastic containers with water and marijuana plants in various states of growth. The police found no other persons in the house. They charged Michael Purcell with the offences for which he now stands before the Court.

[ 12 ] The evidence of all the police officers - Fraser, Dobbin, Vanderheyden and Jovic - was consistent and credible in all essential matters. All officers agreed they did not know whether there was another person in the residence when the search of the residence was undertaken. All officers agreed that the 9-1-1 call was not evidence that a criminal offence had been committed. All officers were in agreement that this 9-1-1 call was treated as an “unknown problem” which warranted a priority response. According to the police witnesses, the only emergency call which would rank higher in priority would be one of a police officer in distress. In short, the police treated this 9-1-1 call as a call which required an immediate response in order to provide assistance to the caller or other person who may have been at risk of injury or death. All officers were of the view that in all the circumstances, a search of the house was required to ensure the safety of any person who might have been in the house at the time.

The Charter Issue

[ 13 ] As noted above, the issue to be determined at this stage of the proceedings is whether the forcible entry and subsequent search of […] Rd. violated the s. 8 Charter rights of the accused person, Mr. Michael Purcell.

Analysis

[ 14 ] I begin my analysis of this case with the trite observation that members of the community and the police are well aware of circumstances where males and females have participated in horrific criminal acts against victims, both young and old. Courts in this province, and in the country, have also acknowledged the extent and seriousness of domestic violence situations and the consequences of victims in the community when the police fail to respond. See for example: R. v. Sanderson , 2003 20263 (ON CA) , [2003] O.J. No. 1481 . On some occasions, forced entry has been found to be necessary in order for the police to fulfill their duty in response to a 9-1-1 call. See for example, R. v. Nicholls , 1999 2750 (ON CA) , [1999] O.J. No. 3660 . However, police conduct must always be assessed in context. A 9-1-1 call is not carte blanche justifying all police conduct. In R. v. Nicolosi , 1998 2006 (ON CA) , [1998] O.J. No. 2554 , the Court of Appeal stated as follows at paragraphs 24 - 26:

It sometimes happens that police conduct amounting to a search or seizure yields evidence of a crime even though the purpose motivating the police conduct had nothing to do with the investigation of crime. The reasonableness of that conduct cannot be judged as if it was performed for the purpose of investigating a possible crime. The reasonableness standard established by s. 8 is sensitive to the context in which the impugned search or a seizure takes place. The nature of the duty performed by the state agent and the purpose behind the search or seizure are crucial considerations when assessing the constitutional legitimacy of a particular search or seizure: R. v. Caslake (1998) 1998 838 (SCC) , 13 C.R. (5th) 1 at 13 (S.C.C.) .

The case law considering the constitutionality of administrative searches and seizures provides a good example of how context informs the reasonableness assessment. … Similarly, the recent decision of this court in R. v. Godoy (1997), 1997 557 (ON CA) , 115 C.C.C. (3d) 272 , … demonstrates that the reasonableness of a police search conducted to protect the life or safety of others must be judged with that purpose in mind and not according to the standard which would apply if the conduct was motivated by investigative purposes.

That is not to say that the state is immune from the constitutional limits of s. 8 when it acts for purposes other than investigative ones. Section 8 applies to all state-sponsored searches or seizures. In stressing the purpose of the particular search or seizure, I mean only to emphasize that the reasonableness inquiry will vary with that purpose. Concepts like reasonable and probable grounds, articulable cause and prior judicial authorization, which are the touchstones of reasonableness in the investigative context, will have less and perhaps no relevance where a search or seizure occurs in an entirely different context.

[ 15 ] I now turn to the case of the Court of Appeal in R. v. Godoy (1997), 1997 557 (ON CA) , 33 O.R. (3d) 445 , 115 C.C.C. (3d) 272 , which demonstrates that the reasonableness of a police search conducted to protect the life or safety of others must be judged with that purpose in mind and not according to the standard which would apply if the conduct was motivated by investigative purposes. In Godoy , the OCA considered police response to a 9-1-1 call which, as in this case, was properly interpreted as a distress call. The Court of Appeal observed at paragraph 16 - 17 as follows:

While the disconnected 9-1-1 call in the case under appeal would not have given the police reasonable and probable grounds to believe that an indictable offence had been committed, I think that it would have given them reasonable and probable grounds to believe that there was an emergency in the apartment and that the caller was in distress. Clearly they were obliged to investigate further. While they did not know the express reason for the call, there were several possibilities. P.C. Clafton, being a twenty year veteran of the police force, was undoubtedly familiar with the reasons for a disconnected 9-1-1 call in the middle of the night. It may have been a caller who was seriously ill, or who had injured himself or herself. It may have been a caller who was interrupted by a criminal intruder. It may have been an abused wife whose husband forced her to hang up as she was dialling 9-1-1. It may even have been a crank call.

I think it important that there is an established police procedure with respect to this specific type of 9-1-1 call. All 9-1-1 calls are treated as serious emergencies and an "unknown trouble" call is second in priority only to a call to respond to an officer in distress. The high priority given by the police to disconnected 9-1-1 calls relative to other serious emergencies is instructive. It reflects the collective experience of the police force in responding to this type of distress call.

[ 16 ] In Godoy , the Court of Appeal found that police have the power to enter a private dwelling where they reasonably believe that the occupant is in distress and entry is necessary, not to make an arrest, but to protect life, prevent death and prevent serious injury. In Godoy, police conduct which interfered with an individual's liberty or freedom was found to have been authorized by the common law if two criteria are satisfied: (a) the police were acting in the course of their duty when they effected that interference, and (b) the conduct of the police did not involve an unjustifiable use of power in the circumstances. The Court of Appeal concluded in Godoy that in applying these two criteria to the facts, the police did have the power at common law to enter a private dwelling in response to a disconnected 9-1-1 call in circumstances of that case. The Court of Appeal found that investigating a disconnected 9-1-1 call, the police were acting in the course of their duties to protect life, including preventing death and serious injury. In Godoy , the police had a reasonable belief that someone inside the house was in distress and that his or her life or safety might be in danger. Entry was necessary to determine the cause of the distress and to give aid to anyone who might be in danger. Entry was therefore found to be lawful. In considering whether the police used justifiable force, the Court of Appeal determined that the “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.”

[ 17 ] In the Supreme Court of Canada, the decision of the Court of Appeal in Godoy was upheld: See: R v Godoy , 1999 709 (SCC) , [ 1998] S.C.J. No. 85 . In language reminiscent of the Ontario Court of Appeal, the Supreme Court of Canada stated as follows at para 16:

A 9-1-1 call is a distress call -- a cry for help. It may indeed be precipitated by criminal events, but criminal activity is not a prerequisite for assistance. The duties specifically enumerated in s. 42(1) of the Act may or may not be engaged. The point of the 9-1-1 emergency response system is to provide whatever assistance is required under the circumstances of the call. In the context of a disconnected 9-1-1 call, the nature of the distress is unknown. However, in my view, it is reasonable, indeed imperative, that the police assume that the caller is in some distress and requires immediate assistance. To act otherwise would seriously impair the effectiveness of the system and undermine its very purpose. The police duty to protect life is therefore engaged whenever it can be inferred that the 9-1-1 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined.

[ 18 ] With respect to whether the police used unjustifiable force in the circumstances, Supreme Court of Canada concluded that forced entry was not unjustifiable force in the circumstances of a response to a 9-1-1 call, The Supreme Court applied the test articulated by the Court of Appeal. In concluding that the police did not use unjustifiable force, the Supreme Court agreed with the Court of Appeal that entry to the apartment was necessary to determine the nature of the distress call. The Court stated at para 18 -19:

it was necessary for the police to enter the appellant's apartment in order to determine the nature of the distress call. There was no other reasonable alternative to ensure that the disconnected caller received the necessary assistance in a timely manner. While the appellant suggested that the police could knock on the neighbours' doors and question them, or wait in the apartment corridor for further signs of distress, in my view these suggestions are not only impractical but dangerous. If a 9-1-1 caller is in serious danger and is unable either to communicate with the 9-1-1 dispatcher or answer the door upon police arrival, the caller's only hope is that the police physically locate him or her within the apartment and come to his or her aid.

There is unquestionably a recognized privacy interest that residents have within the sanctity of the home. In R. v. Plant, 1993 70 (SCC) , [1993] 3 S.C.R. 281 , this Court recognized that the values underlying the privacy interest protected by s. 8 of the Canadian Charter of Rights and Freedoms are (per Sopinka J. at p. 292) "dignity, integrity and autonomy". In R. v. Edwards, 1996 255 (SCC) , [1996] 1 S.C.R. 128 , at para. 50 , Cory J. elaborated that one aspect of this privacy interest is "[t]he right to be free from intrusion or interference". However, dignity, integrity and autonomy are the very values engaged in a most immediate and pressing nature by a disconnected 9-1-1 call. In such a case, the concern that a person's life or safety might be in danger is enhanced. Therefore, the interest of the person who seeks assistance by dialing 9-1-1 is closer to the core of the values of dignity, integrity and autonomy than the interest of the person who seeks to deny entry to police who arrive in response to the call for help.

One can imagine, for example, a person having a heart attack who dials 9-1-1 but cannot speak. Perhaps there is no one home to answer the door. Would a reasonable person expect that the police would take steps to ensure that the 9-1-1 caller was all right? I believe so. A further example might be a situation where a home is burglarized and a resident is being held at gunpoint. Assuming a resident can actually make the 9-1-1 call, he or she might answer the door to the police under a threat of bodily injury should the police be allowed to enter. On the other hand, the person who answers the door might well be the intruder. I see no other use for an emergency response system if those persons who are dispatched to the scene cannot actually respond to the individual caller. I certainly cannot accept that the police should simply take the word of the person who answers the door that there is "no problem" inside.

Further, the courts, legislators, police and social service workers have all engaged in a serious and important campaign to educate themselves and the public on the nature and prevalence of domestic violence. One of the hallmarks of this crime is its private nature. Familial abuse occurs within the supposed sanctity of the home. 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 household. If our society is to provide an effective means of dealing with domestic violence, it must have a form of crisis response. The 9-1-1 system provides such a response. Given the wealth of experience the police have in such matters, it is unthinkable that they would take the word of the person who answers the door without further investigation. Without making any comment on the specific facts of this case, it takes only a modicum of common sense to realize that if a person is unable to speak to a 9-1-1 dispatcher when making a call, he or she may likewise be unable to answer the door when help arrives. Should the police then take the word of the person who does answer the door, who might well be an abuser and who, if so, would no doubt pronounce that all is well inside? I think not.

[ 19 ] The case law makes it clear that a 9-1-1 call does not, in and of itself, justify either forcible entry or search of residential premises without a warrant. The Supreme Court of Canada in Godoy made this point very clear at para. 22:

However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 9-1-1 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 9-1-1 call ends there. They do not have further permission to search premises or otherwise intrude on a resident's privacy or property. In Dedman , supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 9-1-1 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances.

[ 20 ] I will now turn to the facts:

1. the police had received a disconnected 9-1-1 emergency call;

2. the background of the call indicated an altercation between a man and a woman;

3. on a second call from the 9-1-1 emergency dispatcher to the 9-1-1 caller, the caller had identified herself as Francine McDonald who said she had made the 9-1-1 call by mistake;

4. the female caller suggested the call had been made from another phone (her phone rather than the phone of the accused);

5. during the second call, the 9-1-1 caller was uncooperative with the emergency dispatcher and would not advise her of her present whereabouts;

6. the second call initiated by the emergency dispatcher was disconnected for reasons unknown;

7. the police made consistent efforts to gain access to the premises at […] Rd. without the use of force from the time of arrival, at approximately 2:27 a.m., to the time of forced entry at 2:46 a.m.;

8. during the period from the time of arrival at […] Rd. to the time of forced entry at 2:46 a.m., the police made it clear to the male and female occupants on multiple occasions that they were there in response to a 9-1-1 call and they wanted to ensure the safety of any persons on the premises;

9. at the residence, and prior to forcible entry, the female occupant indicated to police that the 9-1-1 call had been made by mistake;

10. at the residence, and prior to forcible entry, the male occupant indicated to the police that the 9-1-1 call had not been made from the residence;

11. after forcible entry, the female occupant identified herself as Francine King;

12. after forcible entry, the female told police that she had made the call by mistake;

13. after forcible entry, the female occupant indicated to the police that there had been a verbal altercation between her and the male occupant, Michael Purcell,

[ 21 ] As in Godoy, the case at bar is not about whether the police had reasonable and probable grounds for making an arrest. The police officers had no intention of arresting anyone when they entered the residence of the accused. The police in this case entered […] Rd. because they considered it their duty to respond to the 9-1-1 call which was properly interpreted by them as a distress call. In short, the police had reasonable and probable grounds to believe that there was an emergency in the residence and that the caller was in distress and they were obliged to investigate further.

[ 22 ] In the case at bar, the forced entry into the appellant's home was justifiable considering the totality of the circumstances. The police were responding to an unknown trouble call. They had no indication as to the nature of the 9-1-1 distress. They did not know whether the call was in response to a criminal action or not. They had the duty to act to protect life and safety and therefore the duty to respond to the 9-1-1 call. Having arrived at the residence of the accused, their duty extended to ascertaining the reason for the 9-1-1 call. In my view, acceptance of Mr. Purcell's statement that the call had not been made from […] Rd., or acceptance of the contradictory statement made by the female occupant that the call had been made by mistake, would have been insufficient to satisfy that duty. As has been held by our Court of Appeal, and by the Supreme Court of Canada, in such circumstances the police have the power, derived as a matter of common law from this duty, to enter the residence of the accused to verify that there was in fact no emergency. In this case, the accused and the female occupant had for in excess of 15 minutes refused to respond in a meaningful way to the police. In the circumstances, consistent with the jurisprudence, the privacy interest of the occupant must yield to the interest of another person or persons inside the apartment who may have been in danger. As the Supreme Court of Canada said in Godoy : “A threat to life and limb more directly engages the values of dignity, integrity and autonomy underlying the right to privacy than does the interest in being free from the minimal state intrusion of police entering an apartment to investigate a potential emergency.”

[ 23 ] I further find in the circumstances of this case that the search of the premises was reasonable. There was no reason why the police officers should have accepted the representations of the woman who identified herself as Francine King that she was the person who made the 9-1-1 call and that she had done so by mistake. The caller had identified herself as Francine McDonald. The caller - for reasons unknown to the police - had been uncooperative when asked by emergency dispatcher where she was located. The caller had said she used a cell phone belonging to her when the dispatcher read out the number from which the call had been made. The male occupant and the female occupant had given different reasons for the police not to be concerned. The male had stated that no 9-1-1 call had been made from […] Rd. and the female occupant had indicated that the 9-1-1 call had been made by mistake. The occupants had refused to open the door to the police for a significant period of time notwithstanding constant requests by the police, who were clearly identified as police and who clearly identified the purpose of wanting entrance.

[ 24 ] In my judgment, a search of the premises in the circumstances to ascertain that there were no other persons on the premises who needed help was eminently reasonable. As was asked rhetorically by the Court of Appeal in Godoy :

How demoralized would a victim of burglary, sexual assault or spousal abuse be if the culprit was able to get rid of his or her rescuers simply by telling them that "there is no problem"? Entry into the private dwelling to investigate a disconnected 9-1-1 call is justified even if someone answers the knock at the door, where as here, that person is evasive and uncooperative in response to the police officer's proper questions.

[ 25 ] I am of the opinion that in all the circumstances of this case, forced entry and a search of the premises were reasonable. The occupants of the premises had given unsatisfactory and conflicting stories about the 9-1-1 call. The female occupant, while stating that she had made the 9-1-1 call, used a different name when the police entered the premises than the name given to the emergency dispatcher by the 9-1-1 caller. The 9-1-1 caller had been uncooperative during the call for reasons unknown to the police. The police could not be sure, based on the representations of the person who called herself Francine King, that she was the 9-1-1 caller. Mr. Purcell, the male occupant and owner of the residence, denied that a call had been made. Both parties had given the police ample reason to believe their statements were unreliable. There was no rational basis for the police to conclude with a reasonable degree of certainty that there was no other person in the house who could have been in need of assistance. The disconnected 9-1-1 call signalled "unknown trouble." The police had a duty to investigate the call and to endeavour to find out the reason for the call. The conduct of the occupants of the house did nothing to satisfy the reasonable concerns of the police that there may have been another individual or other individuals in the house who needed police assistance. The conduct of the occupants of the house, including the responses made to the emergency dispatcher, only served to augment the concerns of the police that there may have been another person or persons in the house who needed police assistance. The police were obliged to pursue their investigation and were not required to cease their investigation based on the representations of the male and female occupant of the residence. In searching the residence, the police were acting in the course of their common law duty to "protect life", "prevent death" and "prevent serious injury". As the Supreme Court of Canada in Godoy stated:

Given the wealth of experience the police have in such matters, it is unthinkable that they would take the word of the person who answers the door without further investigation. Without making any comment on the specific facts of this case, it takes only a modicum of common sense to realize that if a person is unable to speak to a 9-1-1 dispatcher when making a call, he or she may likewise be unable to answer the door when help arrives. Should the police then take the word of the person who does answer the door, who might well be an abuser and who, if so, would no doubt pronounce that all is well inside? I think not.

[ 26 ] I conclude that the police did not violate the s. 8 Charter rights of Mr. Purcell in searching the residence at […] Rd., Burlington, Ontario and that the evidence seized as a result of that search is admissible in the trial.

MURRAY J.

Released: June 8, 2012

COURT FILE NO.: CR-159/11
DATE: 2012-06-08

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Crown/Respondent – and – MICHAEL JAMES PURCELL Applicant CHARTER RULING MURRAY J.

Released: June 8, 2012