R. v. Davidson, 2015 ONSC 1015

BARRIE COURT FILE NO.: CR-14-037

DATE: 20150213

CORRECTED DATE: 20150220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HARLEY DAVIDSON

Applicant

Phillip J. Brissette, for the Crown

Chris Sewrattan, for the Applicant

HEARD: October 27-29, 2014

Corrected decision: The text of the original judgment was corrected on February 20, 2015 and the description of the correction is appended

RULING

McISAAC

[1] These are my formal reasons for dismissing Mr. Davidson’s application to exclude the evidence of his residential “grow-up” which was interdicted by members of the Barrie Police Service on June 2, 2013.

1. OVERVIEW

[2] As a result of an emergency call from a concerned driver who reported that she had almost struck the applicant’s four year old son as he walked on a major thoroughfare in Barrie, the police undertook what they described as a cursory risk assessment of his nearby residence. It was during this exercise that the officers located a clandestine marihuana plantation in a converted bedroom that came into their plain view when the locked door of this location was kicked in by Mr. Davidson.

[3] The applicant alleged breaches of s.8 and s.10(b) of the Charter of Rights and Freedoms and sought exclusion of all of the evidence garnered against him. Given the extreme circumstances prevailing, I doubt that anyone would disagree that this intervention by the authorities was either logical or laudable. The main issue is whether or not it was legal: see R. v. David William Sanderson, unreported judgment of the Court of Appeal for Ontario dated April 29, 2003 at para. 36-7.

2. BACKGROUND

[4] At approximately 10:00 a.m. on the day in question, members of the Barrie Police Service attended a location near a major intersection in that city where a female driver had reported that she had had to rescue an apparently abandoned toddler who, while dressed in only a diaper, had ventured onto the busy roadway and had almost been hit by her. The driver further advised that it took some 10 minutes before anyone attended to claim responsibility for the helpless child. This person turned out to be his mother who lived close by with the applicant and two other children aged seven and two years. Mr. Davidson eventually turned up in his boxer shorts and told the officers that the subject child was autistic and had a tendency to elope from his home. He further advised that in response to this danger, he had installed a special locking mechanism for the side door that would have impeded this elopement.

[5] The officers wished to confirm the operation of this device and they proceeded to the residence which was located some 50 metres from the point near the roadway where they had met the driver. According to the officers, the applicant had no apparent problem with them entering the residence to observe the locking mechanism from the inner landing. Mr. Davidson insists that he did not allow the officers to come inside but required them to check the locking mechanism from outside.

[6] In any event, according to two of the officers, once they were on the inside landing of the residence they smelt the obvious odour of vegetative marihuana. The senior office conceded that, from that point, Mr. Davidson was in a state of detention and that he was not given his rights to counsel. According to the applicant, this same officer, Sergeant Henderson, had put his foot in the door and insisted that he was going to have a look around the house and that he did not need a warrant as the search was authorized by reason of “child safety”.

[7] There is no issue that two of the officers began a cursory “sweep” of the residence and eventually ended up in the basement where there was located a children’s play area and television. At this point, both of the officers described the marihuana smell to be now “overwhelming” and that it appeared to be coming from a locked room which they described as the “grow room”. When they asked Mr. Davidson where the marihuana was located, he initially refused to answer but eventually admitted it was in the locked room. According to the officers, the applicant then “spontaneously” kicked in the door of this room thus exposing it to their plain view following which Mr. Davidson was arrested, cautioned and given his rights to counsel. The applicant agrees that he kicked in the door to the “grow op” but only did so because of a latent threat on the part of the officers to “trash” his children’s toys.

3. POSITIONS OF THE PARTIES

[8] The Applicant suggests that his right to counsel under s.10(b) of the Charter was breached when he was initially detained for the obvious odour of marihuana sensed by the officers once they entered his residence and they failed to advise him thereof. Mr. Davidson also argues that there was a further breach when he was questioned about the source of the over-whelming smell of marihuana once all of them had proceeded to the basement. The Crown concedes these breaches but submits they are of a “less serious” nature.

[9] Mr. Davidson also takes the position that his s.8 Charter rights were breached by the unwarranted search of his residence allegedly conducted for the safety of his children. The Crown initially conceded this breach in its Notice of Response. However, when I brought to counsels’ attention the judgment of the Supreme Court of Canada in R. v. Godoy 1999 709 (SCC), [1999] 1 S.C.R. 311, the Crown was permitted to withdraw this concession and now takes the position that this search was justified under the “Waterfield” doctrine applied in that case.

[10] The Applicant posits that, as a result of the egregious nature of these breaches, all of the evidence obtained by the prosecution should be excluded from the trial. On the other hand, the Crown, having conceded the s.10(b) breach, is content that any utterances made by Mr. Davidson in the vicinity of the “grow-op” in the basement should be excluded but that the balance of the application should be dismissed under s.24(2) of the Charter.

4. ANALYSIS

[11] As I see it, the following issues require consideration in this ruling:

• Credibility of the witness;

• Whether there were any breaches of s.8 of the Charter;

• Exclusion of the evidence under s.24(2) of the Charter.

(i) Credibility of the witness

[12] The applicant testified that he was continuously resistant to the officers entering this residence and demanded on several occasions that they needed a warrant to do so. He only allowed them to look at the locking mechanism from outside the house and that Sergeant Henderson forced his way into the house in order to have a “look around”. The evidence of the officers is diametrically opposed to these allegations. According to their testimony, the applicant was anxious to show them the preventative measures that he had undertaken to limit his autistic son from eloping from the premises. There was no reluctance on his part to have them come into the entry to look at the mechanism that had been installed on the door at a height where it could not be accessed by the youngster.

[13] According to Mr. Davidson, when they reached the basement and the officers began to question him about the “grow room”, he pointed out a foot-mat at its entry which announced in bold print “Come Back with a Warrant”. The officers deny that there was any such reference by the applicant and Sergeant Henderson claims not to have seen it until later in their involvement. The applicant insists that he was directed to open the door to the “grow room” by Sergeant Henderson and that he only kicked in the door when he made veiled threats to “trash” his children’s toys. The police witnesses deny any such intimidation and admit only asking Mr. Davidson where the “grow” was located and where the key for the “grow room” was to be found. There was no insistence on his part that they obtain a warrant to search any part of these premises.

[14] I am satisfied that the officers’ version of these events is the more credible for the following reasons. First, Mr. Davidson has a criminal record for a property offence in 1999 and a drug trafficking conviction more recently in 2005. In my view, these criminal antecedents compromise to some degree his credibility as a witness. Second, Sergeant Henderson’s testimony on these issues is supported to a significant degree by that of Constable Peters who was with him throughout this intervention and arrest. I find absolutely no hint of collusion between these two witnesses and, indeed, none was suggested during their cross-examination. Finally, but to a lesser degree, I find the applicant’s description of how he was able to demonstrate the inside mechanism of the locking device on the inside door jam to someone while they remained outside as difficult, if not impossible, to envision. Although Mr. Davidson filed some photographs of his living arrangements, he did not include in them any photo of this locking mechanism.

(ii) Alleged breach of s.8

[15] The applicant placed considerable reliance on the judgment of Caldwell, J. in R. v. Ashkewe, 2007 ONCJ 152. In that case, the Court considered the authority of the police to search premises pursuant to the child apprehension mechanism provided for by s.40(7) of the Child and Family Services Act, R.S.O. 1990, c.C-11 (“CFSA”). A police officer has ex-officio the powers of a child protection worker for child apprehension purposes: see s. 40(13) CFSA. I agree with this ruling insofar as it goes. There is nothing in that Act that permits a police officer to enter premises to investigate the potential basis for a warrantless apprehension. However, it does not appear that the case of R. v. Godoy, supra, was advanced or considered by the court in resolving the issue of police authority.

[16] In that case, the Supreme Court of Canada had occasion to consider the power of the police to enter a dwelling in response to an emergency 911 call. The court applied the so-called “Waterfield” doctrine which permits the interference with a person’s liberty or property when two conditions are met: first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law?; and, second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty? (see para. 12). I find these principles sufficiently malleable to function as a paradigm for the instant case.

[17] First, I reject out of hand any suggestion that the police were using the opportunity of this apparently abandoned child as a ruse or pretext to insinuate themselves into a suspected drug operation. It is true that they associated some cases of child neglect as suggestive of the lifestyle of inmates of a “crack” house. However, I am convinced that the primary motivation of this police intervention was the welfare of this youngster and his two siblings who remained inside where their father claimed he had simply fallen asleep. In my view, these officers were clearly acting within the scope of their duty to protect the life and limb of these vulnerable children from what had almost been a fatal incident a few minutes before on one of the busiest streets in Barrie.

[18] In assessing the second precondition to the justifiable exercise of this extraordinary authority to enter a dwelling house, the court in R. v. Godoy, supra, adopted the following list of non-exhaustive factors at para. 18:

• 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.

[19] In the present case, in light of the incident on the roadway, I am satisfied it was necessary for the police to enter the applicant’s home in order to assess the degree of risk prevailing therein to those children who were unable to protect themselves. I read nothing in R. v. Godoy, supra, limiting the authorities to a mere reactive response; given the potentially horrific consequences to the eloping child that triggered their intervention, the police were fully entitled to adopt a protective mode with their brief entry and protective sweep of this house. There was no other reasonable response to ensure that the home environment for these children were safe. The initial detection of the odour of marihuana was sufficient for an investigative detention only as it was, by definition, based on a mere reasonable suspicion and was insufficient for the issuance of a search warrant.

[20] It is beyond debate that the privacy of one’s home is a value to be assiduously preserved and promoted; however, it should not be permitted to trump the safety of all members of the household, especially the young and the vulnerable: see R. v. Godoy, supra, at para. 21. Although there was a secondary criminal law aspect to this initial intervention, I am satisfied that it never overcame the primary child protection concerns that motivated these officers up until the point where they came upon the overwhelming evidence of the “grow-op” in the applicant’s converted bedroom: see R. v. Godoy, supra, at para. 22. At that point, I am satisfied that there were reasonable grounds to arrest Mr. Davidson: see R. v. MacCannell, 2014 BCCA 254. Accordingly, I am satisfied that the Crown has established that the initial stages of this unwarranted search were reasonable, and in the result, legal. It would have been a simple cursory search absent the overwhelming smell of marihuana encountered in the basement.

[21] This takes me to a consideration of the “discovery” of the grow-op in the locked room before the applicant kicked it open. It was a discovery in the sense that at the time the two officers were struck by the olfactory sensation of the overwhelming odour of the “grow-op”, they were conducting a justified “sweep” of the premises and they came upon it by the ordinary use of their sense of smell: see R. v. Buhay, 2003 SCC 30 at para. 37. Despite how obvious was the conclusion that the location of the “grow-op” was behind the locked door of this converted bedroom, a search warrant was still required to determine the source of this overwhelming smell: see L’Espérance v. R., 2011 QCCA 237. The applicant was aware of this requirement as evidenced by the floor mat he had placed at the entry into his plantation. However, once the “grow-op” was exposed to their plain view after Mr. Davidson kicked the door open, the police were entitled to seize the contraband incidental to the arrest that was immediately executed. This factor is what distinguishes this case from the one relied upon by the applicant, R. v. Crevier (2006) 2006 63691 (ON SC), 149 C.R.R. (2d) 23 (Ont. S.C.J.). In that case, the contraband, an inoperable World war II vintage 303-calibre rifle, was hidden under a bed where the accused was arrested.

[22] This takes me to a consideration of the status of the authority of the officers to continue their protective sweep of the home once there were reasonable grounds to believe there was a “grow-op” somewhere in the basement. As R. v. Godoy, supra, makes clear at para. 22, once the protective aspect of their intervention has been overtaken by a criminal law initiative, the police are required to retire from the premises forthwith unless there are reasonable grounds for some other form of police action. In this case, I have already found that the circumstances of the overwhelming smell of marihuana would have justified an immediate arrest of Mr. Davidson and the issuance of a warrant to effect an entry into the converted bedroom. However, this is not what the officers did. Instead they chose to question the applicant in a manner that had the potential to incriminate him by exposing the contents of this room to their plain view. This they were prohibited from doing absent compliance with s.10(b) of the Charter. In addition, although the initial “sweep” of these premises was justified on the basis of child protection concerns, that search became illegal once the focus of the intervention switched to a criminal law context.

(iii) Exclusion under s.24(2)

[23] This assessment must be conducted based on the following factors as dictated in R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71:

• The seriousness of the breaches;

• The impact of the breaches on the Charter – protected interests of the accused; and

• Society’s interest in the adjudication of the case on the merits.

[24] Although this case is a landmark ruling from the Supreme Court of Canada, it must always be remembered that it did not change the former principles of admissibility; it simply reconfigured them.

Seriousness of the breach

[25] I have found that there was a breach of the informational component of s.10(b) at that point in the police intervention when they first entered Mr. Davidson’s residence to check the locking mechanism on the side door and they smelled the odour of marihuana. They failed to advise him of his right to speak to counsel when he had become the subject of an investigative detention. In addition, they later questioned him about the “grow room” once they had made their way to the basement. This breached the implementational component of s.10(b) in that they attempted to elicit incriminating evidence from the applicant before he had the opportunity to exercise his right to counsel.

[26] The applicant has failed to satisfy me that the initial breach of s.10(b) was serious in nature. One must never lose sight of the fact that the initial basis of the police intervention was premised on child protection based on what had apparently almost happened to his four year old out on the street a few minutes before. It appears to me that the Charter-imposed obligations imposed on these officers got “lost in the shuffle” of their child protection concerns which obviously were taking precedence. This does not excuse the default but does go a long way in mitigating it given these extenuating circumstances: see R. v. Grant, supra, at para. 75. This is not the kind of breach from which the court should find a need to disassociate itself. I have not been persuaded that it was either wilful or flagrant.

[27] I take a different view of the questioning that took place outside the “grow room”. By this time the criminal context of the intervention had become abundantly clear and the attitude of the police had become significantly confrontational although not abusive or intimating as described by the applicant. If the officers did not know that they should not have questioned Mr. Davidson, they should have known of the prohibition. Although not the most egregious breach of s.10(b), it definitely cannot be described as trivial. It can be best described as disturbing tending to tip the scale towards exclusion of the evidence.

[28] I turn now to a consideration of the breach of s.8 based on the change of focus triggered by the detection of the overwhelming smell of marihuana from the converted bedroom in the basement. This is based on the limitation articulated in R. v. Godoy, supra, at para. 22. Although the officers were unable to pin down the specific statute or principle of common law that authorized this child protection intervention, they were firm in their belief that it existed somewhere. As it turns out, they were correct in their understanding. However, if they appreciated their authority, they should also have been aware of its limitations. They clearly did not respect those limits and should have either retired from the premises or looked for some other justification for continuing their invasion of this domicile. Although on initial impression this appears to be an aggravated breach of s.8, I am satisfied that it was considerably attenuated by the fact that the officers could have arrested Mr. Davidson for drug offences at this point thus authorizing their continued presence on the premises. In the result, I find the s.8 breach to be at the mid-range of seriousness.

Impact on the Accused

[29] This factor calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed and whether it involved a fleeting or technical interference as opposed to a profoundly intrusive one: see R. v. Grant, supra, at para. 76. In this case, the breach of s.10(b) prevented Mr. Davidson from accessing legal advice as to the authority of the police to conduct the child protection sweet of his home without a warrant. One would assume that he would have been advised that the police were entitled to do so under the authority of R. v. Godoy, supra. I make this comment in full recognition of the fact that both counsel before me did not appear to be aware of its application to the issues I had to resolve. Insofar as the exchange related to the “grow-op” situated in the converted bedroom in the basement, the applicant eventually conceded that it was indeed in that room when questioned by Sergeant Henderson. However, by that time, it had become abundantly evident that the “grow-op” was located somewhere in the basement and a warrant would have issued in any event of the applicant’s responses. In my view, both of these breaches of s.10(b) turned out to be technical in nature and had a minimal impact on Mr. Davidson’s interests.

[30] The same can be said for the overholding by the officers once they moved from a child protection context to a criminal law interest after they moved the “sweep” into the basement. In my view, this was a relatively trivial breach of s.8 as the grounds for arrest were already developed based on the overwhelming smell of marihuana. As well, the applicant was immediately arrested shortly thereafter when he kicked in the door of the “grow op” exposing it to the plain view of the officer.

Society’s interest in adjudication on the merits

[31] In relation to contraband such as illicit drugs and illegal firearms, the factor almost always favour inclusion. However, I emphasize that there is no presumption in favour of the admissibility of this type of evidence; it is only one of several factors that has to considered. Given the nature of this “grow-op”, it is evident that this factor strongly favours admission at trial.

[32] Having considered the three factors mandated by R. v. Grant, supra, I must now weigh the various indications with an appreciation that no overarching rule governs the task of how the balance is to be struck. I acknowledge that mathematical precision is impossible in undertaking this exercise. Although unfortunate, the applicant has failed to satisfy me that these defaults, even in combination, do not amount to deliberate or egregious conduct on the part of the police. The single occasion of a breach approaching the serious level was when the police attempted to illicit incriminating responses from the applicant after having deprived him of his right to counsel. However, as with the other found breaches, they had little, if any, impact on the interests of the accused protected by these two Charter guarantees.

[33] In the final analysis, I am not persuaded that these breaches are of such seriousness and impact that the extremely cogent and reliable evidence of this “grow-op” should be foreclosed from the trial.

CONCLUSION

[34] For all of these reasons, the application herein is dismissed.

McISAAC J.

Released: February 20, 2015

1. The addition of proper punctuation in paragraph 16.

2. Correction to the spelling of the case citation R. v. Godoy in paras. 18 and 19.