COURT FILE NO.: CJ 7546

DATE: 2012-11-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Respondent

AND:

Oliver Bareuther and Joanna Hunter, Applicants

BEFORE: The Honourable Mr. Justice C.S. Glithero

COUNSEL: Richard Prendiville, Counsel for the Respondent

J. Brennan Smart, Counsel for the Applicant, Bareuther

Craig Parry, for the Applicant, Hunter

HEARD: October 25, 2012

RULING ON PRE-TRIAL APPLICATION

[1] Both applicants seek a ruling that their section 8 and section 9 Charter rights were breached, and an order under section 24(2) excluding from evidence at trial the results of a search performed on or about February 10, 2011.

[2] During the search the police found 6 immature marijuana plants, approximately 12” high, located in a closed self-contained wardrobe, which was in turn located inside a closed closet in a bedroom in the apartment where the two applicants resided as tenants.

[3] As a result, they stand charged with unlawful production of marijuana contrary to section 7(1) of the Controlled Drug and Substances Act, and their trial is set for the week of January 28, 2013, with a jury.

[4] The evidentiary basis for this application is two-fold. Firstly, all three counsel agreed that I should rely on the transcript of the evidence given by the three officers called on the preliminary inquiry. Secondly, Constable MacDonald was called to give viva voce evidence before me on the application and accordingly by agreement I have both that evidence from him, as well as his evidence at the preliminary.

Review of the Evidence

(a) The transcript evidence of Cst. MacLeod

[5] Constable Peter MacLeod and Constable Brian MacDonald, both of the Waterloo Regional Police Service, were separately dispatched to this call and arrived at virtually the same time in separate cruisers at the apartment building which housed the unit rented by the applicants.

[6] Constable MacLeod testified at the preliminary hearing that dispatch advised that a complainant had called the police to report that “he heard what he believed was a female crying out “help me”” at the address in question. Constable MacLeod indicated he believed that it was a domestic dispute that he was responding to. When they attended at the apartment door they listened before knocking and he testified that he could hear somebody breathing quite heavily, inside the apartment, as if they had been crying or taking deep breaths. The police knocked on the door and several seconds later Ms. Hunter partially opened the door. The police informed her why they were there and asked what was going on. He testified that Ms. Hunter had clearly been crying as her eyes were red and bloodshot, and that Ms. Hunter told the police that she was upset because a dog or a family pet had passed away. His evidence continued that they informed her that based on what they had been told by dispatch that the police were going to enter the apartment and ensure the wellbeing of Ms. Hunter and anyone else who was there. He testified that Ms. Hunter refused entry but was told by the officers that they had to come in anyway, and so she allowed them in.

[7] As they were entering the apartment, Constable MacLeod saw Mr. Bareuther come out from one of the back bedrooms into the entry area and the officer observed him to have a small injury below one eye. MacLeod stayed with the two applicants while Constable MacDonald went to search through the rest of the apartment to ensure there were no other persons hidden there. MacDonald returned shortly thereafter to announce that he had found a small grow operation in a closet of one of the bedrooms. At that point, the two applicants were arrested for the drug offence.

[8] On cross-examination, Officer MacLeod agreed that from dispatch he had the name of the complainant and the phone number of the complainant and agreed that neither officer took any steps to speak to the complainant so as to acquire further information about the circumstances which prompted the call to the police. The officer agreed that if he had wished to he had the ability to contact the named complainant at the given number so as to acquire further information, but did not do so. The officer agreed on cross-examination that the caller’s belief that he had heard a female say “help me” could have many meanings depending on the circumstances.

[9] In cross-examination, Officer MacLeod also agreed that in addition to the explanation that her dog had recently died, Ms. Hunter, when asked who else was present in the apartment, provided the name of Mr. Bareuther, her boyfriend and roommate. He agreed he had no reason to disbelieve that there was only the two of them in the apartment as claimed by Ms. Hunter. He agreed that the report that only the two of them were in the apartment was consistent with the impression that he had from dispatch that the call involved a domestic dispute.

[10] Despite being advised by Ms. Hunter of the reason why she was crying, and despite having no reason to disbelieve her assertion that it was only she and Mr. Bareuther in the apartment, Officer MacLeod agrees that he advised her that the police were obligated to enter the apartment. He agrees that the police did not ask her to come out of the apartment so they could speak to her alone about her wellbeing and safety, or her condition. He agrees they did not ask her about her wellbeing while they were at the door.

[11] They observed no injury to her, and did not ask Ms. Hunter anything about any injury or threat to her safety. He testified further that Mr. Bareuther advised them that he had scratched himself under the eye during an argument, in response to the police question as to how the scratch had occurred.

[12] The officer confirmed in cross-examination that Ms. Hunter verbally refused them permission to enter, but that after being advised that the police were entering anyway she offered no further resistance.

[13] In cross-examination, Constable MacLeod also testified that it was police policy to enter an apartment, with or without consent, when attending in response to a domestic call so as to be able to search the apartment to see if there is anyone else present who needs help, regardless of whether the police have any reason to believe that anyone else is in the apartment. MacLeod testified that he felt there were little or no exceptions to this policy, and certainly no exceptions that applied in this case.

[14] Constable MacLeod agreed in cross-examination that up to this point in time the police had no grounds to arrest either of the applicants for anything, and no grounds to believe that a crime had been committed, and no grounds to believe that there was anyone else in the apartment.

[15] He further agreed in cross-examination that neither he nor Constable MacDonald called out into the residence to inquire as to whether anyone else was present. He agreed that he could not recall whether police policy required the police to go through each and every room of the residence regardless of the circumstances, but he agreed that whether it was policy of the police force or not, it was his policy in every domestic dispute he attends that he search through the apartment to make sure no one else was present. He agreed that in this case he believed that the domestic dispute had involved these two applicants. He also agreed that while initially in the living room of the apartment he had no reason to believe that there was marijuana in the apartment, and this only changed when Constable MacDonald came out from conducting his search and advised that he had found a small grow operation. He further agreed that in his training and experience as a police officer he had been taught to and had experienced the smell of fresh marijuana, as well as the smell of burned marijuana. He had no recollection of smelling marijuana in this apartment.

[16] Constable MacLeod agrees that he gave no thought to whether or not a search warrant ought to be sought before the apartment was searched.

[17] After the finding of the marijuana, both the applicants were placed under arrest for the marijuana offence. No further investigation was done to enquire as to whether or not there had been a domestic disturbance. After the two accused were arrested on the drug offence, they were released without ever leaving their apartment. In other words, the two applicants were left alone, together, in the apartment without any apparent concern on the part of the police for the safety or wellbeing of either.

[18] On cross-examination by counsel for Ms. Hunter, Constable MacLeod agreed that he had no information as to whether the person who had called the police purported to have been in the apartment, or where he purported to have been when he thought he heard the “help me” comment. The officer had no information as to whether the named complainant had called the police as a 911 call, or whether he had called the general police number.

[19] Constable MacLeod further admitted that even before entering the apartment he had already decided that the apartment was going to be searched to see whether there was anyone else in the apartment and if so to determine their wellbeing. He agreed this was going to happen, from his point of view, regardless of what he was told by Ms. Hunter, and he agreed that as far as he was concerned the search of the apartment was going to take place whether she agreed or not, and in spite of her initial refusal to permit entry.

[20] At another point in his cross-examination, Officer MacLeod testified that the search of the apartment for other individuals was being conducted for purposes of officer safety, and to determine the wellbeing of anyone else that might be in the apartment.

[21] Later in his cross-examination, Constable MacLeod reiterated that there was a policy of the Waterloo Regional Police Service that a dwelling should be searched when the police are called on a domestic disturbance call, and he further testified that he had been trained to do so in his initial police training. He could not recall any further particulars of the policy.

(a) Constable MacDonald’s Preliminary Hearing Evidence

[22] He testified that the information received over his police cruiser computer indicated that a caller had reported that a female may have been yelling “help” or “help me””. Upon arriving outside the door of the applicants’ apartment unit, he heard what he believed to be the sound of a female sobbing inside. In response to police knocking on the door, Ms. Hunter opened the door some 10 or 12”, and it appeared to the officer, as a result of her watery eyes, that she had been crying. His evidence is that what they learned from speaking to Ms. Hunter at the door was that her boyfriend was in the apartment. The police advised that they were coming in to make sure everybody was okay and Ms. Hunter indicated she did not want them to do that.

[23] Constable MacDonald testified that after advising Ms. Hunter that the police were coming in, Mr. Bareuther then appeared from a bedroom hall into the front hallway area and he appeared to have a fresh scratch under his right eye. Constable MacDonald indicated that this indicated to him that there had been a struggle of some kind. He indicated in that point of his evidence that the initial report had been of a struggle, although that was not described in his initial description of the information received.

[24] Constable MacDonald testified that it was the Supreme Court of Canada case of R. v. Godoy (infra) that stood for the proposition that where officers attend in response to a call reporting a disturbance that police have the right to enter the dwelling to investigate so as to ensure the safety of those inside. In order to do so, what the police do is a room by room search of the dwelling.

[25] His evidence is that while searching one of the bedrooms he opened the closed closet door by sliding it open and found inside the cupboard a free-standing wardrobe that was about 5 feet tall, 1½ or 2 feet deep, and approximately 3 feet wide. It too was closed but he opened it up. He opened it up to see if there was a person hiding inside. Inside this wardrobe he found what he recognized to be marijuana plants.

[26] The officer agreed in cross-examination that the initial call did not provide much information, but he indicated the initial information suggested a fight inside the apartment with a female saying something to the effect of “help me”. His understanding was that that information was called into the police by someone who was not inside the unit. He did not know whether the initial call was in the form of a 911 call, or just a call to a general police number.

[27] Constable MacDonald in cross-examination testified that when there is a report of a disturbance in a house, whether it is a disturbance by fighting or somebody yelling for help, or the physical sounds of a fight occurring, or if someone is reported to have yelled for help, then the police have the authority to enter the dwelling house and search it so as to ensure the wellbeing of anyone found therein. He agreed that in this case on arrival at the apartment there were no signs of anyone yelling, and no sounds of a fight. He could not recall whether he asked Ms. Hunter whether she was alright when she opened the door. He did recall asking her who else was in the apartment and receiving the answer that her boyfriend was. His evidence is that she did not advise the police why she had been crying.

[28] Mr. Bareuther then entered the officer’s line of sight while the officer was still out in the hallway. Neither Ms. Hunter nor Mr. Bareuther was asked to step out into the hall so that their wellbeing could be ascertained individually. That was not done because the officer had decided he was going to enter the dwelling to search it. He agreed on cross-examination that he had no belief that there was anyone else in the apartment and he had no other information that made him suspect there was anyone else in the apartment. He agreed he was not asking the occupants for permission to enter and search, but rather he was telling the occupants that that’s what he was going to do, even though he admits Ms. Hunter indicated she did not want the police entering the apartment.

[29] Officer MacDonald denied that he was searching for marijuana when he conducted the search of the apartment and he agreed that he knew that would not be lawful, as he believed that his right to search at that point was restricted to searching for other persons. This is despite his evidence that he detected the strong odour of fresh marijuana as opposed to burnt marijuana, upon entering the apartment. He testified that prior to opening the wardrobe door, he saw an electrical cord running into the wardrobe and he could hear a fan running. In his experience, electrical cords going into a wardrobe and the sound of a fan operating within the wardrobe could be consistent with marijuana production.

[30] No questions were asked of the applicants about the marijuana, because the police were only interested at that point, Constable MacDonald says, in the issue of whether or not there was anyone else in the apartment. He agreed there were no signs of a struggle in the apartment. He did not ask either of the applicants whether there had been any kind of physical altercation in the apartment. He agreed that while conducting the search he never called out that he was a police officer or asked anyone to indicate their presence. He admitted in cross-examination that at the time he searched the apartment he had no belief that there was anyone else there.

[31] The officer agreed that before attending at the unit he did not make any inquiries through police computer systems as to any prior occurrences at this apartment and accordingly upon attending there he had no reason to believe either of the two individuals in the apartment had any prior dealings with the police, or whether either had a criminal record. He agreed that he routinely would search a dwelling house when attending there on a report of a disturbance. He agreed though that he would not do a search if upon arrival there was nothing to indicate that there had been anything going on in the residence. But he also testified that if someone however answers the door in response to a police knock, then his position is that he is going to enter the residence whether the person answering the door consents or not. If they resist they would be arrested for obstruction.

[32] In cross-examination by Mr. Parry the officer agreed that the original information received from dispatch was not definitive. It was to the effect that the caller reported that it sounded like a female saying “help me”. He added that the initial report referred to a fight. Officer MacDonald didn’t know whether the original caller had provided his name or a phone number. His evidence is that he would only attempt to speak to the informant if he had decided that charges were going to be laid, and that would be for the purpose of obtaining a statement.

[33] Officer MacDonald agreed that he believed at the time that Ms. Hunter was likely the female that had been referred to in the initial report, and that he had no belief that reference to a female in the original call involved anyone other than Ms. Hunter. He agreed he did not ask her if she had called out for help. He made no inquiries as to whether she was the person who made any remark that could have been referred to in the original call. He agrees he made no inquiry about Mr. Bareuther’s safety, or that of Ms. Hunter, and made no enquiry about what had occurred before the arrival of the police.

(b) Constable MacDonald’s Evidence on this Application

[34] As indicated earlier, aside from being invited to consider his evidence at the preliminary hearing, I am asked to also take into account for purposes of this application the evidence he gave before me.

[35] Before me he indicated that he went to the apartment as a result of being notified that “it sounded like a fight in an apartment ... with a female yelling “help me””.

[36] He testified that when they arrived and Ms. Hunter opened the door partially she was crying and that she initially would not disclose what was going on, that the officers indicated they had to come in, she refused entry, and that the police advised they were coming in anyway.

[37] He indicated before me that the officers asked both applicants whether there was anyone else in the apartment and both of them advised there was not.

[38] Before me he testified that he wanted to search the apartment in order to ensure officer safety and to make sure there was no one else in the apartment who was injured or being held against their will.

[39] Before me he reiterated that he believed he had authority under the Godoy case (infra) to enter an apartment to ensure the safety of the occupants and further that pursuant to Waterloo Regional Police policy, in cases of reported disturbances, the police have to ensure the safety of all parties.

[40] On cross-examination by Mr. Smart, Constable MacDonald testified that all the evidence he gave at the preliminary hearing was true and accurate.

[41] He testified that the information he received that led him to go to the apartment was information received on a police cruiser computer screen, which had indicated that there had been a fight and a female was yelling “help me”. He was then directed to page 80 of his transcript evidence in which he testified that over the police computer he received information of a report of a disturbance and that a female may have been yelling “help” or “help me” and he agreed that was his evidence and he confirmed that in fact the information relayed to him was that the caller may have heard a female yell “help” or “help me”. When asked further about it, he then indicated that the information he received was that a female was saying something to the effect of “help me”. He agreed the information he received had no description of the parties, that he didn’t know whether the call was on a 911 basis or a call to a general police number, and he agreed he did not make any inquiries of the dispatcher as to any further details and that he could have done so had he wished to. He agreed he could have sought information about prior occurrences at that apartment. He made no enquiries about the identity of the caller and made no enquiries as to the basis for the caller’s information.

[42] He did not agree that he had already decided to enter the apartment and search it room to room before he even got there, and instead indicated that it would all depend on what he could ascertain when he arrived at the apartment. He agreed that on arriving at the apartment he did not hear any yelling, but merely the sound of what he believed to be a sob behind the closed door. When Ms. Hunter partially opened the door, her appearance was consistent with having been crying, in the officer’s assessment, but he did not ask her why, while at the door. Once in the apartment he testified before me that he asked her why she was crying and that he believed she said there had been an argument. He didn’t remember her saying anything about the death of a dog. He agrees he did not ask her if she needed any assistance, nor did he ask her if she had called out for help, nor did he ask her to identify herself, or step out into the hall so that he could ascertain if she needed assistance, free of any possible coercion from the man in the apartment. When asked why not, he agreed it was because he was going to enter the apartment regardless of what the situation was as it presented itself to him at the door. He agreed he had no grounds to arrest anyone, and no reason to believe that any offence had occurred. He agreed he had no grounds to disbelieve Hunter when she indicated that it was only she and Mr. Bareuther in the apartment.

[43] He testified before me that it did not matter what position the applicants took in terms of whether the police should be allowed to enter the apartment as he had decided he was going to enter the apartment and search room by room no matter what the occupants of the apartment said, even though he had no grounds to believe that any offence had been committed, and no grounds to believe that there was anyone else in the apartment. He agreed he had no grounds upon which to disbelieve the accused when they indicated that there were only the two of them in the apartment. He was going to search the apartment regardless.

[44] Later in his cross-examination he also testified before me that when en route to the apartment he had already decided he would be entering the apartment and searching it room by room.

[45] He reiterated before me that his aim was to enter the apartment and search it to locate anyone who might be there even though he had no information that caused him to believe that there was anyone else in the apartment. He didn’t call out to anyone else.

[46] In cross-examination he admitted that he detected the smell of marijuana from within the apartment while he was standing at the entry door, and again when he was in the apartment and accordingly he suspected there was marijuana within. The smell was of fresh marijuana as opposed to burnt marijuana, such as would be consistent with a grow operation. He agreed that he believed there was marijuana in the apartment before he searched it but he never asked either of the applicants if that were so. He insists however that he was searching the apartment for other people, as opposed to marijuana.

[47] In cross-examination by Mr. Parry, he agreed he didn’t remember whether or not dispatch had relayed to him the caller’s name or phone number. He agreed that once he had located the marijuana he did nothing thereafter to further the investigation in any way to ascertain whether there had been any domestic violence offences.

[48] Officer MacDonald agreed in cross-examination that when he saw Ms. Hunter as she opened the door, he believed it was she who was the subject of the reported call to the police and that he had no reason to believe the call related to any other female. He saw no injuries on her. He asked her nothing about her safety. He agreed he was going to force his way into the apartment whether she agreed to let him enter or not. He agreed that he smelled the marijuana when she first partially opened the door and while the officers were still out in the hallway. He agreed that his position is that in every reported disturbance case, no matter what circumstances present themselves when he arrives at the location, he’s going to enter the residence and search it even though he believes those involved are there at the door and he has no reason to believe there is anyone else in the residence.

[49] He admitted that he was aware that if all he had as grounds for a search warrant was the information of an informant, he would have to verify the information. He agreed that for all he knew the reported call of “help” or “help me” was equally consistent with a woman asking a male companion to help with the dishes, as it was with signifying that she was the subject of some sort of assault.

[50] In answer to my questions, Constable MacDonald testified that he received the information from the dispatcher both by way of a voice message over the police radio system, and by means of information that appeared on his cruiser computer screen. He also agreed that the information as it was relayed by the dispatcher would have been saved and would be retrievable if anyone had sought to do so.

(c) Evidence of Constable Kevin McCarthy

[51] This officer was with the drug squad at the relevant time and was phoned by the other two officers and asked to respond to the apartment after the search had been completed and the marijuana had been discovered.

[52] He was not there to participate in a search, or to give an opinion as to the validity of the search, but rather to view the drugs and related equipment and took charge of the marijuana and other items.

[53] This officer agreed in cross-examination that it was he who seized the marijuana and production paraphernalia and he agreed that he did not believe that a warrant was necessary for him to conduct the seizure.

Position of the Parties

[54] The parties are in agreement that as this was a warrantless search and seizure, there is a prima facie presumption of unreasonableness and the onus is on the Crown to justify the search.

[55] The Crown’s position is that there was no violation of the applicants’ Charter rights under Section 8 or 9 and even if there were, the violation is not such as to justify any remedy under the Charter.

[56] The Crown expressly stipulates that this is not a case involving reasonable grounds to believe that an offence had been committed (prior to the search), and it is not a case involving exigent circumstances where reasonable grounds exist but officers cannot await a warrant. The Crown also agrees it is not a case about hot pursuit or warrantless arrest. The Crown further concedes in paragraph 5 of its factum that this is not a case about the preservation or loss of evidence, or the prevention of imminent bodily harm or death or serious damage to property.

[57] Rather, the Crown submits that the search in question was reasonably necessary.

[58] The sole basis sought to justify the search and seizure is that set out in paragraph 4 of the respondents factum, namely that it was “reasonably necessary as an exercise of the statutory and common law duties of the officers as defined by the Waterfield test and applied in R. v. Godoy and discussed in R. v. Sanderson and R. v. Kelsey. To the extent that the applicants were detained in the course of this exercise of police duty the detention was lawful as a necessary adjunct of the exercise”. Those cases are reported at: R. v. Waterfield, [1963] 3 All E.R. 659; R. v. Godoy, 1999 709 (SCC), [1999] 1 S. C. R. 311; R. v. Sanderson (2000) 20263 (ON CA); R. v. Kelsey, 2011 ONCA 605, [2011] O. J. No. 4159 (Ont. C. A.).

[59] Essentially the Crown position is that the searching officer, Constable MacDonald, had reasonable grounds to believe and did believe that in the circumstances he could not have excluded the possibility of a third person being in the apartment and requiring assistance, other than by searching the entire premises. The Crown asserts that it was the duty of the officer to protect and preserve life and there was no unjustifiable use of power associated with that duty in this case.

[60] In one submission the Crown parallels the position taken by the applicants in that he asserts that “reasonable necessity in the exercise of the police duty to preserve life may best be assessed on a case by case basis with the benefits of common sense and experience”.

[61] The Crown candidly concedes that the Supreme Court of Canada decision in Godoy requires a case by case contextual analysis and this cannot be replaced by reliance on policy, habit or common practice.

[62] In oral submissions, Mr. Prendiville differentiates between 911 calls originating from within the apartment as compared to other types of calls to the police from a person outside of the apartment. He says in the former, the caller is available to shed light on the circumstances. In the latter, there could always be someone still in the apartment in danger or in trouble no matter what the police are told by those present when they arrive.

[63] Crown counsel seeks to draw many parallels between the circumstances in this case and those of Godoy, to which I will make further reference in my analysis.

[64] Mr. Smart, on behalf of Mr. Bareuther, submits that the Godoy case has given rise to a current practice constituting a “911 search warrant” as officers are too often assuming that the case justifies the forcible entry of a residence arising out of a need to protect life and safety. He urges a careful reading of Godoy and asserts that the case creates no such right. His position is that Godoy makes it clear that there must be case by case consideration of the circumstances which exist upon police arrival response to a telephone call. Mr. Smart’s position is that here there was no investigation by the officers as to the circumstances in existence when they arrived at the apartment. Rather, there was just a forcible entry and warrantless search irrespective of the information available to the police.

[65] Mr. Smart’s submissions continue that here the searching officer, Constable MacDonald, does not even assert a reasonable belief that there were others in the apartment requiring assistance, and he further submits that there is no evidence to support any such belief on an objective basis.

[66] Mr. Parry, on behalf of Ms. Hunter, echoes the position taken by Mr. Smart on behalf of his client. He further asserts that the searching officer, Constable MacDonald, admitted to a subjected belief that these two tenants were the subject matter of the call to the police, and that he had no grounds upon which to believe there was anyone else in the apartment. Mr. Parry takes the position that the officer admitted that his decision to enter and to search was one based on his perception of police policy, and was a belief unfounded in terms of circumstances.

Discussion

[67] It may be helpful to observe as a starting point that as far back as 1984 the Supreme Court of Canada held in Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S. C. R. 145 that the protection afforded by Section 8 requires in most cases that there be prior authorization in the form of a warrant, as opposed to efforts to justify searches after they have happened.

[68] As determined in R. v. Collins, 1987 84 (SCC), [1987] 1 S. C. R. 265 the Supreme Court of Canada held that the norm will require prior judicial authorization based upon sworn information providing reasonable grounds to believe that the search will afford evidence of the commission of a crime.

[69] As enunciated in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 the “reasonable and probable grounds” requirement contains both the objective and subjective standards with the former requiring the searching officer to subjectively believe that he has the required grounds, and the latter requires that his subjective belief must be objectively reasonable.

[70] It has been repeatedly held that mere suspicion is not sufficient unless it rises to the point of credibility-based probability.

[71] As held in the English case of R. v. Waterfield, (supra) regard must be had as to whether the police actions fell within the general scope of any statute or common law duty, and secondly, do the actions of the police, even if exercised within the general scope of such a duty, involve an unjustifiable use of powers. In R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 Justice Doherty put it this way at para. 34:

The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties. Police duties and their authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assisted in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law.

[72] As noted by Justice Rosenberg in R. v. Kelsey (2011), 2011 ONCA 605, 280 C.C.C. (3d) 456, exigent circumstances do not constitute nor take the place of reasonable and probable grounds to believe that a search will produce evidence of a crime. The part played by exigent circumstances in the analysis is that where reasonable and probable grounds independently exists, then “exigent circumstances” may serve to provide relief from the normal requirement that a warrant be obtained prior to the search of a dwelling house. This ruling was made despite the fact that it was a 911 call which caused the police to attend the premises.

[73] The Crown urges a close consideration of the Godoy case as being similar to the case before me and supporting the proposition that the police have the authority to enter and search without consent or prior authority in order to perform the duty to protect life. Defence counsel also urge a close examination of Godoy but on the basis that the court required that there be an examination of all of the circumstances and submit that when properly read, the case actually leads to the conclusion that the search was not justified in the circumstances here.

[74] In Godoy the police responded to a 911 emergency call which was shown to have originated from the accused’s apartment, and involving circumstances where the call had been disconnected before the caller spoke any words. On police arrival, the accused partially opened the door, indicated there was no problem, and tried to close the door when the police asked for permission to enter. The police prevented the shutting of the door, entered and immediately heard a woman crying and located her in a bedroom crying and with injuries. She advised the police the accused had caused these injuries. The accused was arrested and resisted and injured an officer which led to a charge of assaulting a police officer. The accused was acquitted of that offence at trial on a finding that the police entry into the apartment was unauthorized. The acquittal was set aside and the eventual appeal to the Supreme Court of Canada was unsuccessful.

[75] At para. 11, Chief Justice Lamer held that public policy required that police have the authority to investigate 911 calls but went on to hold that “but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case”. The court expressly followed the Waterfield test which required, in circumstances constituting a prima facie interference with liberty or property, consideration of two questions. The first is whether the conduct falls within the scope of a common law or statutory duty imposed on the police and if so, the second issue of whether or not police conduct, although within the scope of the duty, involved an unjustifiable use of powers. (emphasis added).

[76] The court held that a 911 call is a distress call and that the purpose of the 911 system is to provide assistance. The court went on to hold that in the case of a disconnected 911 call, the nature of the distress is unknown, but that the police are entitled to assume that the caller is in some distress and requires immediate assistance. Cases where the 911 call is disconnected before words are spoken gives rise to a police duty to protect life. The first branch of the Waterfield test is met.

[77] The larger issue is whether or not the police conduct involved in an unjustifiable use of police powers, in the circumstances, so as to fail the second branch of the Waterfield test.

[78] In that case it is important that the call was in the form of a disconnected 911 call which came from within the accused’s apartment. That in itself gives reason to believe that someone else is in the apartment and placed the call and in so doing thought they required police assistance.

[79] Accordingly the court held that the police duty to protect life justified a forced entry into a home in circumstances of a disconnected 911 call from within that unit. At para. 22 Chief Justice Lamer emphasized however that the intrusion is limited to that protection of life and safety. The police authority was to investigate the 911 call by locating the caller, determining the reasons for the call and providing required assistance. That was where the police authority ended for being on the private property from which the 911 call was shown to have originated. (emphasis added).

[80] The police were found to have no authority to further search. The court further held that if a 911 caller could be located without police entry into the home then that is the course of action the police must follow and “each case will be considered in its own context, keeping in mind all of the surrounding circumstances”. In the circumstances of that case the police were not required to accept the denial of trouble advanced by the accused who then tried to shut the door and the police had the power to enter the apartment. Upon entering the apartment, they immediately heard the woman crying which then gave rise to a duty to search the apartment to find the person who was crying. (emphasis added).

[81] In this case, in my opinion it is clear that the police had no grounds to believe that an offence had been committed. The information received from a caller was not at all detailed. The police do not know whether it was a 911 call, and although they apparently had the name and phone number of the caller, and despite the fact that to have heard any cry for help the caller must have lived very close, no steps were taken to ascertain more information or to assess the reliability of the information received. Upon arrival at the door the police received an explanation for the upset condition of the female. There was no sign of injury to her, and none claimed. There was no request for assistance. The 2 occupants were cooperative in identifying themselves and that they were the only 2 occupants. No enquiries were made about what if anything had transpired before the police arrived. Yet without such enquiries the police saw fit to leave the 2 applicants alone in the apartment when they left.

[82] Most importantly both officers testified that the had decided to search the apartment before they even arrived there, and hence the decision disregarded what the circumstances might be when they arrived. The decision was made on the basis of a policy, whether it be that of the police service, or that of these 2 officers. Both officers, and importantly the searching officer, conceded that they had no reason to doubt the assertion that there was no one else in the apartment, and that they had not formed any belief that there was anyone else there who required police assistance. The search was conducted as a matter of policy, to be undertaken whenever anyone calls the police and reports a disturbance, particularly of a domestic nature.

[83] There was no consideration of the circumstances here before deciding to search. It was perfectly obvious that neither occupant needed assistance or protection. There were no enquires made to that end. No effort was made to speak to the occupants separately so as to cover off any potential for denials being the result of coercion.

[84] There was no basis for a properly grounded belief that entry was necessary to discharge a police duty, certainly at least by the time the police were in the entry hall and has spoken to the occupants. No such belief is claimed.

[85] In my opinion, applying the analysis in Godoy, this search was in violation of the section 8 rights of the applicants.

[86] The applicants also claim a violation of their section 9 Charter right not to be arbitrarily detained. Here the police entered without invitation and in spite of an initial refusal. The 2 applicants were then required to wait in their living room with Cst. Macleod while his partner searched the balance of their apartment in circumstances which I find to be unreasonable and to constitute a section 8 breach. In my opinion, applying the analysis found in R. v. Grant, 2009 SCC 32, [2009] 2 S. C. R. 353 summarized at paragraph 44, a reasonable person would consider themselves detained when so directed after police have indicated they are coming in and searching regardless of the wishes of the occupants. The detention was not authorized by law and is accordingly arbitrary. The respondent offered no submissions on this ground. I find that the applicants were arbitrarily detained during the period they were kept in the living room with Cst. Maclean while the search was conducted.

The application of section 24 (2)

[87] As indicated in Grant, there must be a balance between the public interest in the of protection charter rights and the public interest in adjudication of criminal allegations on the merits.

[88] As to the protection of constitutional rights, I take into account that this was a warrantless unreasonable search of a dwelling house, one conducted without even a professed reasonable and probable belief that there was anyone in the apartment who required assistance. Our dwelling houses have always attracted special and significant protection from unreasonable intrusion.

[89] This was admitted to be a search based on a policy, either that of the individual officers, or that of the police service, as vaguely described as that may be in this case. It is a policy which dictates that in any case where the police are called to a residence by anyone, even an unknown person, and regardless of whether it is a 911 call or not, in respect of a disturbance of a domestic dispute, there will be a search of the entire residential premises….regardless of the circumstance which present when the police arrive, and without any consideration of such circumstances. It is a policy said to be founded on a case which clearly specifies and restricts the power to search and requires that consideration be given to the situation existing upon arrival. It is a case which is 13 years old. It is a policy which would allow the police to conduct a detailed search of every corner of the dwelling houses of any law abiding citizen merely on the strength of a call from a totally unknown informant without any effort to ascertain his or her reliability or the accuracy of what was actually observed and reported. This policy would permit the search to proceed irrespective of the circumstances found to exist on arrival, and without any belief on the part of the searching officer that anyone was in need of assistance.

[90] I am very mindful of the difficult task often faced by police officers. They have onerous duties to perform. However, one of those duties is to be aware of the limits of the powers available to be utilized in the performance of those duties. In my opinion the appropriate limitations on police powers are readily apparent from a rudimentary perusal of the Godoy case. To hold it out as authority for something it specifically refutes is a serious matter.

[91] As to the public interest in adjudication on the merits, the evidence obtained in violation of the charter right is reliable. The evidence is essential to the prosecution. On the other hand it is a drug which is at the lower end of those made criminal by our laws. It involves 6 immature plants—obviously at the very low end of circumstances giving rise to this type of charge. In that sense it is not a serious crime when viewed as against the type of evidence underlying most prosecutions for this offence.

[92] In the end, the issue comes down to whether the administration of justice is better served by excluding the evidence or by admitting it. In my estimation the repute of justice is better served by excluding the evidence as the offence is said to involve circumstances at the low end of the scale, while the unconstitutional acquisition of the evidence involves activity in clear breach of a right to be free from unlawful intrusion into our own homes.

[93] For these reasons, I rule the evidence of the finding of the drugs shall be excluded at trial.

Released: November 22, 2012. ___________________________________

C. Stephen Glithero