ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Riehl, 2015 ONSC 1399
COURT FILE NO.: 33/14
DATE: 2015/03/03
BETWEEN:
HER MAJESTY THE QUEEN
Darren G. Anger, for the respondent
Respondent
- and -
JEREMY MATTHEW RIEHL
J. Ronald Charlebois, for the applicant/accused
Applicant/Accused
HEARD: February 9, 2015, at
St. Catharines
J. W. Quinn J. ─
I. INTRODUCTION
[1] While inside the residence of the accused on an unrelated matter, police observed a marihuana grow operation. They exited immediately, secured the residence, obtained a tele-warrant, returned to the residence and conducted a search, seizing 163 marihuana plants along with miscellaneous growing equipment and packaging materials. The accused was charged with various drug-related offences (production, possession and possession for the purpose of trafficking).
[2] Police entered the residence in what they contend were exigent circumstances.
[3] The accused has brought a pre-trial application in which he argues that the entry into his residence was warrantless, unreasonable and a violation of his right, under s. 8 of the Canadian Charter of Rights and Freedoms, “to be secure against unreasonable search and seizure.”
[4] If it is found that exigent circumstances existed and that police were justified in their warrantless entry of the residence, the warrant subsequently obtained is not challenged.
II. BACKGROUND
The background evidence comes from the testimony of three police officers at the preliminary inquiry: Sergeant Ken Bettes; Det. C. Sherriff; and Det. C. Nicholas Hawrylyshyn.
1. Police dispatched
[6] Officer Bettes testified in-chief, at p. 4 of the preliminary inquiry transcript, about a call concerning some dogs and being dispatched to the scene:
Q. Can you tell us how you became involved in the investigation that ultimately led to drugs being found at 126 Carlton Street in St. Catharines?
A. At 2:07 p.m. on [February 19, 2013], I was on patrol when I received a radio call by Constable Sherriff and Constable Hawrylyshyn, in relation to an animal control call that they had received to 115 Carlton Street . . . I can go into the content of the call . . . It was indication of two dogs attacking each other. One being a pit bull. The woman was screaming, indicating that it was bad and that the Humane Society had been contacted as well, and there was a duplicate call indicating three or four dogs were fighting and they are now attacking people. So at 2:14, I’d monitored and heard that call, but I hadn’t attended, and it was at 2:14 that there was a request by – I can’t remember if it was Constable Sherriff or Hawrylyshyn, for a Sergeant to attend immediately.
2. Upon arrival
[7] Officer Sherriff testified in-chief, at pp. 14 and 15, regarding what occurred upon his arrival at Carlton Street:
Q. How is it that you became involved in this matter . . . on February 19th, 2013?
A. I was on general patrol in the City of St. Catharines, and I was dispatched to an animal complaint in the area of 115 Carlton Street, and I attended that area and dealt with a matter involving pit bull dogs that were running loose, and as a result of that, I ended up shooting one of the dogs . . .
Q. Okay, and what were the dogs doing when you arrived?
A. When I arrived, I observed two dogs fighting in the street with each other. They disappeared in between a few houses down from 126 Carlton Street, and shortly after, one dog appeared and charged at me growling, at which point I shot the dog three times.
3. Pre-entry of 126 Carlton Street
[8] In this court, and at the preliminary inquiry, the conduct of the police, before they entered 126 Carlton Street, was scrutinized.
[9] Officer Bettes testified in-chief, at p. 6:
Q. Okay, what did you – tell us about that. What did you do or say?
A. Just say ‘police, we’re, we're coming into the residence’, just announce ourselves, and to see if someone would come out of the residence, but there was no answer, so....
Q. Okay.
A. And it....
Q. So you, you, you told us about why you went in.
A. Yeah.
Q. Actually, let’s explore that a little bit further. How long, time-wise were your efforts to try to use verbal commands to identify an occupant of the house before you entered into the residence?
A. Well, the circumstances itself would obviously lend itself to citizens coming out of their residence, obviously with police firearms being discharged in a, in a neighbourhood, and so there was a lot of people coming out, so that itself I would think would be a very loud declaration for any homeowner to come out of that residence if they were able to. It would be just a simple, probably about 10 seconds maybe at the doorway. ‘Police,’ you know.
[10] And, at pp. 11 and 12, Officer Bettes was cross-examined:
Q. So there were no phone calls made to the residence?
A. No, it’s, it’s exigent circumstances. This is not a time to be doing interviews and other things, that, that, that there was a....
Q. Let’s, let’s take it one step at a time. You didn’t know that there was even anyone in the premises at the time, did you?
A. That’s correct.
Q. You didn’t know whether or not there were any dogs still in the premises at the time?
A. There was a third one that was caught, but the indication was, depending on the call, it said three or four dogs. Now, there was three accounted for, but is there a fourth dog? We don’t know that as well too.
Q. To answer my question, you didn’t know that there was, or would be, any more dogs in the premises.
A. That’s correct.
[11] At pp. 19 and 22, Officer Sherriff was cross-examined:
Q. You didn't know whether there were any other dogs inside, did you?
A. I did not at that point, no.
Q. No. You didn't know if there were anybody else inside, did you?
A. Correct.
Q. All you knew, to be fair – well, let’s put it this way, someone had called out that the dogs came from 126 Carlton Street.
A. Yes.
A. I based it on the problem that was outside, and I believed that I had exigent circumstances to enter the residence...
[12] Officer Hawrylyshyn testified in cross-examination, at pp. 27 and 29:
Q. Okay, and, so what did you do next?
A. Yeah, so Constable Sherriff and I then approached that residence. We observed that the side door, which is facing west on Carlton Street, was ajar and based on the circumstance of the animals exiting from the residence, according to the neighbour, we both believed this was exigent circumstances, so we entered the residence and we did so checking to make sure there was nobody injured or any other, you know, animals in there injured or anything, and then we came to finding several marijuana plants in the residence.
[13] Officer Hawrylyshyn was cross-examined on a statement given by a neighbour, at p. 29:
Q. We’re gonna hear evidence, if need be, that she did. I’m going to read you her statement, just see if that coincides with what she said to you. This is a statement taken on March 14th, and this is how it reads, and this is from the same lady, Miss McLaughlin:
On February 19th, 2013, I was sitting in my living room when I heard shots. I looked out to see two dogs fighting. After the dogs were shot, I went outside, and an officer approached me to ask if I knew whose dogs they were. I told him I believed they belonged to 126 Carlton. The reason I believed they came from the house was because I knew they had three dogs that have pit bull in them. The dogs were never walked or taken care of properly, so I couldn't say for sure that they were the same dogs, but they did look familiar.
[14] The cross-examination of Officer Hawrylyshyn continued:
Q. I don’t want you to be at any disadvantage here. I’m just looking ‘after getting information that they may have belonged to 126 Carlton’ at line 22 of first page, it says, ‘Fearing the dog owner may be harmed, or there may be more vicious dogs inside the residence, Sherriff and I entered the residence.’ Fair enough?
A. Yes.
Q. But if there were more dogs in the residence, the Humane Society was already on scene. Correct?
A. Yeah, yes, the Humane Society was there.
Q. Is that not a matter for the Humane Society regarding other dogs on the premises, may need some assistance or something?
A. No.
[15] Officer Hawrylyshyn was cross-examined further, at pp. 31 and 33:
Q. Okay, and you didn't know whether there were any dogs still in that property.
A. We had no clue what was in the...
Q. Yeah.
A. ... in the house.
Q. No, and you had no clue as to whether there was anybody in there even.
A. That’s correct.
Q. Fair enough?
A. Yeah.
Q. And what steps, if any, did you take to find out whether or not the owner was still in house, or not still in the house? Do, do you know what I mean? The door was open. You indicated he didn’t appear to be on scene. What efforts did you make, if any? In other words, did you phone the residence, see if anybody answered a phone?
A. No.
Q. No. Did you check, you know, did you call the city, have them check the city directory to find out the name of the person who lived there, or anything like that?
A. No.
Q. Did you check licence plate numbers to any vehicles in the vicinity?
A. I don’t think we saw any vehicles in that area, of where the residence was. I don’t remember anything.
Q. So, in fairness, you didn't know whether there were any other dogs in the, in the, in the house. Fair enough?
A. Yes, yeah.
Q. And you didn't know whether there was anybody else in the house.
A. That's correct.
Q. And that’s why you went in, to determine that.
A. To determine their safety and their welfare.
Q. If there was anybody there.
A. If there was anyone in it, that’s correct, yes.
Q. But you didn't know there was somebody in there, correct?
A. That’s correct.
Q. And you really had no reason to think that there was somebody in there. There may have been, it’s a, it’s a house.
A. Well, I, I believed there could have been someone in there, based on the fact the door’s wide open and a neighbour points out there’s three dogs coming from that residence.
Q. So there may have been, or may not have been. As it turns out there wasn’t.
A. There wasn’t, that’s right.
4. Entry of 126 Carlton Street and arrest
[16] Upon entering 126 Carlton Street, police observed an active marihuana grow operation. The officers exited the residence without seizing anything. The accused arrived and identified himself as the owner of the dogs and the renter of 126 Carlton Street. He was arrested for producing marihuana.
[17] During the search of the accused, incident to arrest, police found keys to the residence. The keys were used to secure the premises while police applied for a search warrant.
[18] The initial team of officers referred the case to members of the Guns, Gangs and Grow Unit, a specialized team within the Niagara Regional Police Service. Det. Osti applied for, and was granted, at 7:18 p.m., a judicial authorization, by way of a tele-warrant.
[19] At 8:08 p.m., police re-entered 126 Carlton Street and seized 163 marihuana plants and approximately $4,000.00 worth of growing equipment (including high intensity lighting, electric ballasts, fans and charcoal filters) along with packaging material (large and small baggies) and an amount of marihuana seeds.
[20] At the police station, the accused provided a statement to Det. Osti, saying that he was growing the marihuana for his medical needs and that he also provided marihuana seeds to other people with medical issues.
III. DISCUSSION
1. Section 8
(a) warrantless searches
[21] Section 8 of the Charter guarantees that “everyone has the right to be secure against unreasonable search and seizure.”
[22] Warrantless searches are prima facie unreasonable and contrary to s. 8.
[23] The burden is on the Crown to establish, on a balance of probabilities, that a warrantless search was reasonable.
(b) duties of police under Police Services Act
[24] “The powers and duties of a peace officer emanate from common law and statute. The general duty of a peace officer is to preserve the peace as it relates to the protection of life and property . . . In Ontario, these common law duties have been codified in s. 42(1) and (3) of the Police Services Act, R.S.O. 1990, c. P.15”: see R. v. Sanderson, 2003 ONCA 20263 at para. 26.
[25] Section 42(1) of the Police Services Act states, in part:
42(1) The duties of a police officer include:
(a) preserving the peace:
(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;
(c) assisting victims of crime;
[26] Section 42(3) provides:
42(3) A peace officer has the powers and duties ascribed to a constable at common law.
(c) police duties include “the protection of life”
[27] “. . . the common law duties of the police (statutorily incorporated in s. 42(3) [of the Police Services Act, R.S.O. 1990, c. P.15] include the ‘preservation of the peace, the prevention of crime, and the protection of life and property [emphasis in original] . . . the common law duties of the police have yet to be judicially circumscribed. Furthermore, the duty to protect life is a ‘general duty’ . . . and is thus not limited to protecting the lives of victims of crime”: see R. v. Godoy, 1999 SCC 709 at para. 15.
(d) exigent circumstances
[28] “. . . if there were grounds to suspect that someone was injured in the house and was in need of assistance, a quick sweep through the house to look for any such injured person, and not to search for evidence, would be justified pursuant to common law police duties ‘to protect life’”: see R. v. Darteh, 2014 ONSC 895 at para. 196, citing various authorities, including R. v. Kelsey, 2011 ONCA 605 at paras. 39-50.
[29] “One of the long-standing common law exceptions to the requirement of obtaining a warrant is based on necessity or exigent circumstances. In situations of exigency, the police are justified in making a warrantless entry into premises in order to protect or preserve life. This common law power parallels the responsibilities of the police set out in section 42 of the Police Services Act”: see R. v. Pillay, 2004 ON SC 17544 at para. 41.
[30] “Exigent,” of course, means “urgent’ or “pressing.”
(e) must be reasonable basis to believe exigent circumstances exist
[31] “The question of whether an unauthorized search is justifiable in the exercise of the duty to protect the public is generally fact-driven, and depends on the circumstances of the individual case. Given the importance of protecting life and safety, it is accepted that the police must err on the side of caution . . . the standard is objective, and the evidence must reveal a reasonable basis for a police officer’s subjective belief that public safety concerns necessitated a search”: see R. v. Jones, 2013 BCCA 345 at para. 27.
[32] “The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference”: see Dedman v. The Queen, 1985 SCC 41, [1985] 2 S.C.R. 2 at p. 35.
[33] “In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual’s liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public”: see R. v. Clayton, 2007 SCC 32 at para. 26.
2. Conclusion re section 8
[34] The Crown correctly submits that the police were genuinely concerned that there could have been persons in distress inside 126 Carlton Street and, therefore, made the reasonable decision to check on the welfare of any occupants. The initial entry was not a drug investigation or a search for evidence. It was a display of concern. The initial entry into the residence was not a search of the residence. The subsequent search and seizure were pursuant to a judicially authorized search warrant.
[35] The police conduct fell within the scope of their duties and did not involve any unreasonable use of power. The decision to enter the residence was, as argued by Mr. Anger for the crown, based upon reasonable and specific inferences drawn from the known facts.
[36] Section 8 of the Charter has not been breached.
[37] Before leaving this part of my Reasons, I wish to address R. v. Kim, [2005] O.J. No. 1827 (S.C.J.), a decision relied upon by Mr. Charlebois, counsel for the accused.
[38] In R. v. Kim, police were dispatched, at 7:00 p.m., to a residential area following a report about “two vicious dogs being at large” and one resident in the neighbourhood having been bitten. Upon arriving at the scene, one officer fired his service revolver at a dog, but missed. The two dogs ran into a residence through an open door. An officer “went onto the property, up to the front door, and while he was walking towards the residence said that he detected a strong smell of unburned marihuana. He then reached into the foyer of the residence to pull the front door shut in order to keep the dogs in the residence, and detected a very strong smell of unburned marihuana coming from inside the residence.” The officer testified that the door was loose on its hinges and he believed there might have been a break and enter and that someone could be in the house requiring assistance.
[39] Later that night, police officers entered the premises, along with animal control officers, to remove the dogs. While inside the residence, police found a quantity of marihuana and “obvious signs that the house was being used for a hydroponic marihuana grow operation.”
[40] It was not until the following morning, at 10:00, that a search warrant was issued. The scenes-of-crime officer entered the residence three hours before the warrant was issued to take photographs and a video.
[41] In R. v. Kim, the court found that exigent circumstances did not exist, the warrantless entry was unreasonable and the evidence was excluded pursuant to s. 24(2) of the Charter. The court concluded that: (1) police were not motivated by the exigent circumstances they alleged; (2) it was not reasonable for police to believe that there might be someone on the property that required assistance; (3) there was no corroborating evidence of a problem with the front door; (4) the police did not make inquiries of neighbours about a break and enter; (5) the length of time police were on the scene detracted from the required imminence; (6) the police did not make a genuine effort to obtain a search warrant before re-entering the premises to conduct a search; (7) the good faith of the police was undermined by misleading statements in the information to obtain the search warrant.
[42] Once we get past the similarities of the police responding to a call about vicious dogs, the discharge of a firearm and the dogs fleeing into the residence, the seven findings of the court that I set out above are absent in the case before me and are sufficient to distinguish R. v. Kim. In particular, the police at bar: immediately exited the residence when they observed evidence of the marihuana; quickly sought a tele-warrant; did not return to the residence until the warrant was in hand; and, did not exhibit a lack of good faith.
3. Section 24(2)
[43] In the circumstances, I will not embark upon an analysis of this case in the context of s. 24(2) of the Charter but, I will volunteer the view that, had I found a breach of s. 8, admission of the evidence obtained in the search, under s. 24(2), would not bring the administration of justice into disrepute. Indeed, it is the exclusion of the evidence that would have such an effect.
IV. RESULT
[44] Despite the always able submissions of Mr. Charlebois, the application is dismissed.
The Honourable Mr. Justice J.W. Quinn
Released: March 3, 2015
CITATION: R. v. Riehl, 2015 ONSC 1399
COURT FILE NO.: 33/14
DATE: 2015/03/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
JEREMY MATTHEW RIEHL
Applicant/Accused
REASONS FOR JUDGMENT
J.W. Quinn J.
Released: March 3, 2015