COURT FILE NO.: CR-15-9-178
DATE: 20160322
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
LIN AUNG NYAN
Applicant
Aaron Shachter, for the Respondent
Misha Feldmann, for the Applicant
HEARD: February 16-18, 2016
ruling on application to exclude evidence
DUNNET J.: (Orally)
Overview
[1] The applicant is charged with drug offences. He seeks an order pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms declaring that his right to be free from unreasonable search and seizure has been violated and an order excluding evidence obtained in a manner that infringed his right.
The Evidence
Nadarajah Srikanthan
[2] On July 28, 2014, Nadarajah Srikanthan was a security officer at 20 Wade Avenue in Toronto. The applicant’s father, Myint Aung, who lived in apartment 106, told Mr. Srikanthan that his son had just beaten him three times and asked him to call the police.
[3] Mr. Srikanathan dialed 911 and told the operator that Mr. Aung had just been assaulted by his son who had been smoking marihuana. Mr. Aung did not know where his son was and he was afraid to return to his apartment. When the police did not arrive promptly, Mr. Aung became very agitated. Mr. Srikanthan dialed 911 again and told the operator that Mr. Aung was shouting and screaming.
[4] When the police arrived, they spoke to Mr. Aung and asked him if they could look inside the apartment, but he did not have a key. Mr. Srikanthan recalled using a master key to open the front door.
Police Constable Neal Murray
[5] Neal Murray has been with the Toronto Police Service Primary Response Unit for ten years. In 2012, he completed a course on training new police officers while they are in the field. On July 28, 2014, he was on general patrol coaching his partner Rian Hamilton.
[6] At 8:50 p.m., the two officers received a radio call from the 911 dispatcher about an assault at 20 Wade Avenue. They had information that Mr. Aung had just been assaulted by his twenty-three-year-old son, who had been smoking marijuana, and that Mr. Aung was afraid to return home. There were no weapons involved and the whereabouts of his son was unknown.
[7] Officers Murray and Hamilton arrived on scene at 8:57 p.m. and spoke to Mr. Aung. His eyes were glossy, his speech was blurred and his behaviour was erratic. The officer concluded that he had been drinking. Mr. Aung said that his son had assaulted him and he wanted him thrown out of the apartment.
[8] Officer Murray asked the man if his son was on the lease or was paying rent and Mr. Aung said no. Officer Murray testified that he was trying to determine whether this was a family dispute that could be resolved by separating the parties for the evening. He asked if the son was at home and Mr. Aung said that he thought so. The officer asked if they could go into the apartment to see if the son was there and Mr. Aung said, “Yes, please.”
[9] The officer testified that he had experience with the aggressor being the person calling the police to deflect responsibility and he wanted to speak to the son to see if he was the one who was injured, particularly because Mr. Aung did not appear to have any injuries.
[10] When they arrived at the apartment, the front door was closed. They walked into the apartment and checked large spaces in the living room, kitchen and hallway where a person might be hiding.
[11] Officer Murray was aware from a police briefing a few days earlier that there had been a home invasion at the apartment. Although he was not involved in the investigation, his concern for the safety of the other party was heightened. He saw no signs of a struggle and became suspicious about the reliability of Mr. Aung’s information.
[12] When he came upon a locked door, Officer Murray could hear loud music inside. He knocked several times and said, “Police. Open the door.” Mr. Aung appeared behind him and was becoming more agitated. He said, “He’s in there. I want him out.” He grabbed a broken hammer and tried to force the bedroom door open. Officer Murray intervened, knocked again and said, “Police. We’re coming in.” He took one kick and the door opened.
[13] The room was dark. When he turned on the light switch, he saw that the room was cluttered and he smelled copper, which he believed from his experience as a Scenes of Crime officer was consistent with the presence of blood. A futon was propped on its side blocking a view to the room from an outside window. He looked to see if someone was hiding or injured behind the futon and there was no one there.
[14] By the foot of the bed, he saw a cage that was covered with a blanket. He lifted up the blanket and saw two empty bowls and a disemboweled brown and white dog lying on its side. He backed out of the room and closed the door to preserve the scene.
[15] He told Officer Hamilton to call for a supervisor. Officer Murray testified that he had never experienced such a horrific scene and he wanted guidance on how to proceed with the investigation.
[16] Seven minutes later, Sergeant Joslyn Watson arrived. They entered the bedroom and Officer Murray showed her the dog. On the floor near the bed, he saw a digital scale. On top of the scale was a clear glass bowl containing a green leafy substance emitting a pungent odour. He believed that the substance was marihuana. On the floor against the wall he saw a sandwich bag filled with light powder, which he believed was cocaine. Officer Murray testified that they were inside the bedroom for two or three minutes. They left the room and closed the door.
[17] When Officer Hamilton told him that the applicant had returned to the apartment shortly thereafter, Officer Murray told her that he was to be arrested for killing and maiming the animal and possession of marihuana and cocaine.
[18] Officer Murray testified that it was his decision to enter the bedroom. He had information that an assault had just occurred in an apartment that was the scene of a previous home invasion. The alleged victim was intoxicated and behaving erratically. He said that his son had assaulted him. Inside a locked bedroom from which loud music was emanating, there was no response to their demands to open the door. Mr. Aung believed that his son was inside the bedroom and the officer knew that Mr. Aung had access to a broken hammer which he had tried to use to open the door. The officer believed that someone was inside the room in medical distress and if he did not enter, he would be neglectful of his duty to preserve life and render aid if needed.
[19] Officer Murray knew that there was a window in the bedroom, but he did not believe that he had time to go outside to look into the window because of his concern that the person in the bedroom may have been a victim of the assault.
Police Constable Rian Hamilton
[20] At the time of this incident, Rian Hamilton was a probationary police officer in training. She and Officer Murray responded to a radio dispatch call at 8:42 p.m. concerning a 911 call about a father who had just been assaulted by his son in apartment 106 at 20 Wade Avenue. They met with Mr. Aung who told them that his son had assaulted him and he wanted him thrown out of the apartment. She observed that the man was impaired and she did not see any apparent injuries.
[21] Officer Murray asked if the son was on the lease and Mr. Aung said no. Officer Hamilton testified that this would be a factor in determining whether the son could be removed from the apartment legally. When he was asked if his son was in the apartment, Mr. Aung said, “I think so.” Officer Murray asked Mr. Aung for permission to enter the residence to look for his son and he said yes.
[22] Officer Hamilton testified that when she arrived at the apartment, she recalled that there had been a violent home invasion one month earlier involving guns, masked men and misfortune to the applicant and she became concerned about his safety. Her involvement had been to canvass the neighbourhood for witness accounts. She had not entered the apartment and had nothing in her notes about Mr. Aung or his son.
[23] Officer Hamilton recalled that they entered the apartment through the front door, which was open. She saw no signs of a struggle or drug use.
[24] When they came upon a locked door and loud music coming from the room, Mr. Aung told them that the room belonged to his son. They knocked on the door, announced that they were police and made demands to open the door. They asked Mr. Aung for a key to the door, but he did not have one.
[25] Officer Hamilton recalled that Mr. Aung retrieved a hatchet and came at the door with the handle, which he was holding upside down. She and Officer Murray intervened and told him that they would deal with it. She testified that Mr. Aung was intoxicated, very upset and agitated. He believed that his son was inside and was adamant that the police remove him from the apartment.
[26] As Officer Murray breached the door, Officer Hamilton was caught off guard by flies escaping from the dark room. She did not enter the bedroom. From the doorway, she observed that after Officer Murray turned on the light, the room remained dim and appeared cluttered and dirty. He looked behind the futon and removed a blanket from a cage. Lying inside the cage was a dead dog.
[27] Officer Hamilton testified that as this was not something they were expecting, they decided to call for a supervisor to advise them as to how the investigation should continue. After that, she remained outside the apartment until she was advised by Mr. Aung that his son was approaching the residence on foot.
[28] Officer Watson told her that the applicant was to be arrested for cruelty to animals, possession of marihuana and possession of marihuana and cocaine for the purpose of trafficking.
[29] Officer Hamilton testified that from their arrival on scene until the locked door was breached, events were moving at a quick pace and the investigation was quite fluid. Although they were aware that there had been an assault, they did not have much more information about the condition of the parties involved. She was concerned that the individual on the other side of the door could be injured and unable to receive help and they wanted to ensure that all of the parties involved were okay.
Sergeant Joslyn Watson
[30] At 9:08 p.m., Sergeant Joslyn Watson received a request to attend apartment 106 at 20 Wade Avenue. When she arrived at 9:15 p.m., Officer Murray informed her that as a result of a 911 call about an assault, he found an eviscerated dog at the scene and because of the unusual circumstances he wanted her to see the dog. They entered the bedroom together and when they lifted the blanket covering the cage, Officer Watson observed a dog lying beside a blood-soaked towel with its innards hanging out. She observed broken beer bottles and baggies with pill casings. In front of the cage she saw an electric scale and a glass bowl containing a leafy substance. She noted a strong smell of marihuana.
[31] She left the room and contacted major crime to continue the investigation. Officer Watson testified that her sole purpose for entering the room was to ensure that the dog was dead. She was inside the room for a couple of minutes and after she left, she did not enter the room again.
The Search Warrant
[32] At 9:40 p.m., Detective Constable Sean Mathers received a call in relation to an assault in apartment 106 at 20 Wade Avenue and at 10:54 p.m. he began to prepare a search warrant. In the Information To Obtain a Search Telewarrant (ITO), he stated that Officers Murray and Hamilton relayed information to him that when they arrived on scene, Mr. Aung told them that he had just been assaulted by his son who was in the bedroom of the apartment.
[33] Fearing for the safety of the complainant and with his permission they entered the apartment and located a locked bedroom. The officers knocked on the door several times with no answer. They noted loud music coming from the room. They forced entry to the room in an attempt to locate the applicant.
[34] On the floor, Officer Murray located in plain view a small bowl filled with a quantity of what he believed to be cannabis on top of a digital scale and a quantity of cocaine in a clear plastic bag. He noted a cage with what appeared to be a deceased dog inside.
[35] Officer Watson relayed to Officer Mathers that when she arrived on scene, she attended the bedroom with Officer Murray and observed a cage with what appeared to be a deceased dog inside. On the floor in plain view, she observed what appeared to be a small bowl of cannabis on a digital scale and a clear plastic bag of what appeared to be cocaine.
[36] At 2:00 a.m., Officer Mathers received the warrant granting the police authorization to search the address. At 2:20 a.m., the search warrant was executed and the following items were seized:
• On the floor beside the bed: black weigh scale with a glass bowl on top containing marihuana residue; black bucket containing bags of marihuana; weigh scale.
• On the floor at the end of the bed: suspected MDMA in capsules in a yellow plastic case; six clear vials with black lids, five of which were in a Ziploc bag.
• Beside the bed: bags of empty capsules; suspected MDMA capsules in a clear Ziploc baggy.
• On the shelf beside the bed: bag of suspected MDMA.
• On the TV shelf: plastic container with empty capsules with black lids.
• On the closet shelf: three cell phones; debt list.
• Exact location unknown: Ziploc bag of powder of suspected ketamine.
[37] The suspected drugs were submitted to Health Canada for analysis and tested as 54.38 grams of Ketamine, 162.86 grams of Cannabis (marihuana) and 116.98 grams of Methylone.
The Position of the Applicant
[38] The position of the applicant is that the search of his bedroom was in violation of his Charter right to be free from unreasonable search and seizure. Accordingly, the information provided by Officers Murray and Watson should be excised from the ITO, leaving no reasonable and probable grounds for the issuance of the search warrant that resulted in the applicant’s arrest.
[39] The applicant submits that the only information known to police was that there had been a recent assault with no apparent injury to Mr. Aung and a vague understanding that there had been some violence at the apartment during a home invasion one month before. After speaking with Mr. Aung, the officers did not believe that he was the individual who was assaulted. Inside the apartment, there was no evidence of a struggle. Further, Mr. Aung was inconsistent about the whereabouts of his son and he did not have a key to the bedroom. It is submitted that the police took minimal steps to ascertain the state of affairs inside the bedroom by looking through the outside bedroom window.
[40] The applicant contends that the police may have had a subjective belief that the applicant was in distress, but their belief was not objectively reasonable based on the information they had.
[41] The applicant also submits that the entry into the bedroom by Officer Murray to search for a person in medical distress based on the smell of blood was unreasonable.
[42] It is asserted that when a junior officer is taking instructions from a more experienced officer, there is a need to be vigilant about the constitutional duty to refrain from entering a place with a high expectation of privacy.
[43] The position of the applicant, therefore, is that there were no grounds for the issuance of the search warrant. The constitutional breach was serious, the police were not acting in good faith and admission of the evidence would bring the administration of justice into disrepute.
The Position of the Respondent
[44] The respondent submits that Officers Murray and Hamilton were the first responders to a 911 call about an assault that had just occurred. Officer Murray’s sole purpose for entering the bedroom was to ensure the safety of the other party involved. In fulfilling his common law duty to protect life, he was inside the bedroom for a brief time and conducted a limited search.
[45] It is submitted that the information known to the police was that Mr. Aung had been assaulted by his son. He was intoxicated and wanted his son out of the apartment. He told them that his son was not on the lease and they entered the apartment with his permission. They did not find the applicant.
[46] The bedroom door was locked and loud music was emanating from the bedroom. Mr. Aung was behaving erratically by trying to force the door open with a hammer or hatchet and there was no response to their demands to open the door. Officer Murray believed that it would have been negligent to ignore his duty to protect the life of the person inside.
[47] Thus, the position of the respondent is that the entry was justified, the search was reasonable and the evidence seized is admissible.
Analysis
[48] The right to be secure from unreasonable search or seizure protects reasonable expectations of privacy. The reasonableness of an expectation is determined by having regard to all of the relevant circumstances in a particular case: see R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, at para. 31.
[49] In R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 22, Chief Justice Lamer stated:
[T]he importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident’s privacy interest. However, I must emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 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 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.
[50] The issue in this case is whether the forced entry into the bedroom was a justifiable use of police powers in the totality of the circumstances. If the police conduct was lawful, they are entitled to seize evidence of crime in plain view.
[51] Officer Murray entered the bedroom to conduct a safety search looking for an individual. Once he saw the disemboweled dog, he left the room and called for a supervisor. He entered the room again briefly with the supervisor to view the dog at which time they saw the drugs in plain view, froze the scene and obtained a search warrant. Officer Murray explained that he did not notice the drugs the first time he went into the room because he was looking for a person and left immediately when he came upon the dog.
[52] It is apparent from listening to the two 911 calls from the security officer that there is an agitated individual in the background. When Officer Murray arrived, Mr. Aung appeared agitated and intoxicated. He said that he was assaulted by his son and was afraid to go back to his apartment. The officers were aware of a home invasion at the same apartment, which heightened their concern for the safety of the person inside, particularly when they did not observe any injuries to Mr. Aung.
[53] The evidence of Officers Murray and Hamilton was forthright, candid and unfolded naturally. Any inconsistencies, such as whether Mr. Aung used the head of a hammer or a hatchet, were minor and attributable to the frailty of human memory.
[54] There was a total of eleven minutes from the time of Officer Murray’s arrival on scene to the call for back-up. During that time, he was trying to sort out what had happened and de-escalate the situation by asking about the lease.
[55] Mr. Aung believed that his son was inside the bedroom and he became more agitated when there was no response to the police demands to open the door. He was attempting to open the door himself with a hatchet or hammer when the police intervened. Given the officers’ concern about someone who might be in medical distress, I find that it was reasonable not to leave the scene, but to breach the door.
[56] Contrary to the submission of the applicant, the smell of blood or marihuana did not form the grounds for Officer Murray’s entry into the bedroom. It was after he entered the room that he noticed the smell of blood and searched behind the futon for its source. He then lifted the blanket on top of the cage and saw the dog. I accept his evidence that he was inside the room for two or three minutes, which is consistent with conducting a safety search. I find that his conduct in the circumstances was reasonable and professional.
[57] Officer Hamilton did not enter the bedroom. Her evidence about the demeanour and conduct of Mr. Aung and the fluidity of the investigation corroborates the evidence of Officer Murray.
[58] Officer Watson’s sole purpose for entering the bedroom was to confirm that the dog was dead. Both she and Officer Murray observed drugs in plain view and froze the scene until a search warrant could be obtained.
[59] A reasonable suspicion, based on the circumstances that someone is lying injured on the other side of a closed door, creates a legitimate cause for concern justifying entry and search of the room for persons: see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, at p. 13. It was not reasonable, in my view, for Officer Murray to have gone back outside to look through the bedroom window before he breached the door. Events were moving quickly at that point and contributed to his legitimate cause for concern.
[60] I conclude that the entry was a justifiable use of police powers in light of all of the information in their possession at the time. The entry was brief and the scene was frozen until a search warrant could be obtained. There was a basis for believing that the safety of the public was at risk and the search was reasonably necessary.
[61] Accordingly, the police conduct was lawful and the search was justified.
Section 24(2)
[62] If I am wrong and the evidence was obtained in some manner that infringed the applicant’s rights, I am of the opinion that the breach was minor and the officers did not act with any deliberate intent to ignore the applicant’s constitutional right to privacy. They were well aware of their common law duty and were acting in good faith, motivated by a legitimate concern that someone may have been in medical distress inside the locked room. There were compelling reasons to enter the room and not to walk away.
[63] As soon as Officer Murray saw the dog, he left the room and notified his supervisor. As soon as he and Officer Watson entered the room to view the dog, they saw the drugs on the floor, secured the premises and obtained a search warrant. The Charter infringement was not serious.
[64] There is no issue that the search of the bedroom has a serious impact on the applicant’s right to privacy. The evidence is reliable and plays a central role in the prosecution of the offences which are serious.
[65] Balancing the various considerations, I find that in all the circumstances, admission of the evidence would not bring the administration of justice into disrepute. The application is dismissed.
Dunnet J.
Date: March 22, 2016
COURT FILE NO.: CR-15-9-178
DATE: 20160322
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
LIN AUNG NYAN
Applicant
ruling on application to exclude evidence
Dunnet J.
Released: March 22, 2016