COURT FILE NO.: 117/17

DATE: 2018 06 18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Christina Lynch, for the Provincial Crown Respondent

Mark Miller, for the Federal Crown Respondent

• and -

MATTHEW WILLAIM GEORGE STAIRS

William Caven, for the Applicant

HEARD: March 19-21, April 12, and April 27, 2018

REASONS FOR RULING (APPLICATION TO EXCLUDE EVIDENCE)

COATS J.

Introduction

[1] Matthew Stairs stands charged with possession of a controlled substance for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”), assault, contrary to s. 266 of the Criminal Code of Canada (“Code”), and breach of probation, contrary to s. 733.1(1) of the Code, from events that transpired on June 1, 2017.

[2] Mr. Stairs brought a pre-trial application, arguing that his rights pursuant to s. 8 and 9 of the Canadian Charter of Rights and Freedoms (“Charter”) were violated. Mr. Stairs seeks an exclusion of the evidence obtained from the entry and search of his residence, and his arrest, pursuant to s. 24 (2) of the Charter.

Overview of the Facts

[3] Between 12:45 p.m. and 1:15 p.m. on June 1, 2017, Santos Andrew Berlingieri was driving southbound on Ford Drive in Oakville, Ontario, and observed an assault being committed by a male driver against a female passenger in a car stopped and facing the opposite direction on the other side of the road. Mr. Berlingieri drove past the car and continued southbound, and observed the car take a U-turn and drive behind his truck in the same direction. He continued to observe the driver and the passenger, and continued to witness the ongoing assault. Approximately fifteen minutes after observing the assault, Mr. Berlingieri called the Halton Regional Police Service (“HRPS”) to report the incident. Mr. Berlingieri provided the HRPS with the make and colour of the car, as well as the licence plate of “BEWN 480 or 483”. The HRPS computer system was eventually updated to include the description of the parties involved in the assault, as well as the negative results of licence plate checks based on the numbers provided by Mr. Berlingieri.

[4] Three officers (Police Constable Christopher Brown (‘Brown”), Police Constable Jesse Vandervelde (“Vandervelde”), and Police Constable Joshua Martin (“Martin”)) responded to the call. At approximately 1:24 p.m., Vandervelde located a car matching the description given to dispatch at 2273 Devon Road, Oakville, Ontario. Brown and Vandervelde ran a search of the licence plate, which revealed that car was associated with the Applicant. The search also revealed three cautions registered for the Applicant (flight risk, violence, and family violence). Brown called Mr. Berlingieri to confirm what he had observed, and then the officers knocked on the front door and announced themselves. Brown located a side entrance, and Brown and Vandervelde entered the residence without a warrant after no one answered the front door or their announcements.

[5] Upon entering the house, a female, later known to be Marcela Manriquez, came up from the basement stairs and met with the officers. The officers observed that Ms. Manriquez had injuries to her face. Vandervelde observed the Applicant run across the foot of the stairs in the basement and into another room. Vandervelde and Brown descended to the basement, and Brown eventually arrested the Applicant for assault and breach of probation. A subsequent search of the basement revealed illicit substances, and the Applicant was consequently arrested and charged with possession for the purposes of trafficking.

[6] Initially, the Applicant had also challenged the validity of a subsequent Garafoli search warrant for his residence. However, at the onset of the voir dire, counsel informed me that this issue was no longer being argued. At the voir dire, counsel also agreed that Mr. Berlingieri need not be called as a witness, but rather, anything he said that was adduced by virtue of the officers’ evidence would be admitted not for the truth of its contents, but to form the context of what the officers understood at the time of incident.

The Evidence

PC Christopher Brown

[7] Brown has been a police officer with Halton Regional Police since August of 2012. On June 1, 2017 he was on duty in uniform and was in a coaching officer role to PC Martin, who was driving the cruiser. He observed a call come in at 1:16 p.m., and was dispatched at 1:17 p.m.

[8] In chief, he testified that from the dispatch call, he received information that an incident had occurred on Ford Drive in Oakville, north of Lakeshore, involving a charcoal gray Toyota Corolla and that a male was beating up a female. The plate number on the Corolla was given as “BEWN 480 or 483”. The vehicle was last seen travelling eastbound on Devon Road. He was also dispatched the complainant’s phone number.

[9] After being dispatched, he and Martin travelled to the area and were notified that Vandervelde had located a vehicle matching the description at 2273 Devon Road, Oakville. Brown and Martin arrived at this address at 1:24 p.m. On route, Brown had not seen another vehicle of the same make, colour and model.

[10] The vehicle was in the driveway. Brown observed that one window was partially down and he could see a phone and possibly clothing inside the car. The vehicle had plate number BEWN 840.

[11] Brown said he looked in the vehicle and one minute later around 1:25 p.m. he called the complainant Mr. Berlingieri. Brown testified that he was told the following by Mr. Berlingieri based on Mr. Berlingieri’s observations (this was admitted not for proof of the truth but for what Brown understood the situation to be):

1. The Corolla was parked on the tracks, facing northbound.

2. A female was outside the vehicle and got in the passenger seat.

3. The male hit the female. Mr. Berlingieri saws this as he passed by.

4. Mr. Berlingieri kept looking in his driver’s side mirror. The Corolla did a U-turn and proceeded to travel southbound behind Mr. Berlingieri.

5. The Corolla was swerving and the male continued to hit the female. There was a “flurry of strikes”. Mr. Berlingieri was unsure if it was with an open or closed fist.

6. Mr. Berlingieri observed one hit as he drove by, and three or four through the driver’s side mirror.

7. At one point, the male had the female in a headlock and the female looked like she was turtling (huddling in an attempt to protect herself).

8. The vehicle had turned east on Devon Road from Ford Drive. Mr. Berlingieri had observed the licence plate through the driver’s side mirror.

9. The male driver was described as white, shaved head, 25 – 30 years old.

10. The female was described as white.

[12] Brown testified that it made sense to him based on the fact that the complainant had observed the assault through his driver’s mirror, the complainant may have switched two numbers in the plate.

[13] Brown felt that the complainant had accurately observed the incident. Brown felt that Mr. Berlingieri had focussed heavily on what he was looking at, and that he was specific and alert. Brown had no concerns about the information Mr. Berlingieri provided him. He also looked around the Corolla vehicle, and observed no pedestrians on the street.

[14] Brown could see on the computer in the cruiser (which dispatch also advised), that the plate numbers Mr. Berlingieri provided had not been matched to a Toyota. As a result, information was retrieved based on the licence plate of the car located at 2273 Devon Road. The car was registered to John Stairs, who was a resident at that address. The vehicle was also known to be driven by Matthew Stairs. John Stairs’ birthdate was provided, and Brown believed he was 70 years of age.

[15] Brown knew of Matthew Stairs over the years. He had in the past observed Matthew Stairs at a traffic stop conducted by another officer. In the information they received on June 1, 2017 about Matthew Stairs, there was a caution for escape risk, violence, and family violence. These cautions were received by Brown through police communications. Brown described Matthew Stairs as being well known for domestic violence offences.

[16] Brown could not recall if at that time he had received any information about any delay between Mr. Berlingieri’s observations and the time Mr. Berlingieri called the police.

[17] Brown testified that Martin and Vandervelde went to do a front door knock, and he walked around the east side of the house to see if anyone was outside. He did not see anyone. After being notified that no one had responded to the front door knock, he went to the side door on the east side and tried the handle and found the door to be unlocked. He called for Vandervelde to come and assist. Martin remained at the front door. Brown testified that it was important to enter the house to check on the safety of the female due to the concerns that the female could have injuries.

[18] Brown could not recall if they knocked on the east door before entering. He stated he did believe that they did knock. Prior to entering, he did not see anyone inside the residence. He had looked in windows.

[19] Once inside, Brown observed stairs to the basement located close to the east door. He could see a light on and hear music. No one was on the main floor level. Brown knew this as he walked through the main level to let Martin in the front door. He said that he announced their presence by shouting “police” as soon as he entered the east door. On the main level, there were no lights on. Nothing stood out. Nothing was broken.

[20] After he let Martin in, Brown testified that Vandervelde told him that he saw a male run across the bottom of the basement stairs. Brown went to the area where Vandervelde was located. Brown said “police” again and a female emerged from the west side of the bottom of the basement steps and she walked up the stairs.

[21] Brown described the female as white, with a darker complexion and darker hair. She was thin and 30 – 35 years old. Brown said the female had injuries to her face. She had cuts to her right cheek, and a couple of scratches. He could not recall whether the scratches were bleeding at the time. There was also bleeding from her nose (he was unsure which nostril) and bruising on her forehead. He described the bruising on her forehead as minor, and he could not recall what part of her forehead was injured. He believed this female to be involved in what Mr. Berlingieri had witnessed.

[22] Brown asked the female to wait with Martin. Brown testified that Martin stayed with the female to ensure her safety, and to make sure that she did not run downstairs when Vandervelde and he were downstairs. Further, he testified that he was concerned that the Applicant, whom he knew had cautions, was downstairs, and went downstairs to initiate an arrest and ensure there were no other victims or parties invovled.

[23] Brown and Vandervelde went downstairs. At the bottom of the stairs was the utility room, and a laundry room door to the left. The door was closed. The male was inside that room. Due to the cautions registered to the Applicant, Brown drew his taser and issued a demand for the male to exit. The male opened the door, saw Vandervelde and Brown, and immediately closed the door. Brown issued a further command. The male opened the door and went to the ground on his stomach, as he had been directed to, and was handcuffed and arrested by Brown. The male was arrested for assault and for failure to comply, as Brown knew he was on probation at the time. The arrest occurred at 1:35 p.m.

[24] Brown described the grounds for arrest as the information he had from Mr. Berlingieri, the description of the vehicle, the licence plate being similar with two digits reversed, the female’s injuries, and that the description of the driver was similar to Mr. Stairs’ appearance. He testified that he formed the grounds for arrest at the time he was speaking to the female as she was on the basement stairs.

[25] Brown described the female as not cooperative but not combative. He did not believe she would have followed them if they left the residence to get a warrant. This would have left her inside with the male party, who he had grounds to believe had assaulted her.

[26] The accused was searched incident to arrest by Brown in the laundry room. He only had money in his possession, and the money was left at the home.

[27] Vandervelde proceeded to do a sweep of the basement, and checked the west side of the stair area. Brown saw Vandervelde carry out a Tupperware container, clear, with a red lid. Inside was a shard-like substance that Brown said looked like crystal methamphetamine. Brown looked around the laundry/utility room to see if anyone else was there. No one was.

[28] Brown then went upstairs to speak with Ms. Manriquez. She did not provide much information. She denied that an assault had occurred. She said they were playing around.

[29] Brown described her as emotionally distraught. She looked like she had been crying. Her eyes were down when they were talking, and she took long pauses when she was asked questions that were challenging her. At some point, he learned that her name was Marcela Manriquez.

[30] At around 1:50 p.m. Brown advised the Applicant that he was being charged with possession.

[31] Brown recalled that Vandervelde had said he found the container behind the couch in the living room area of the basement. He could not recall Vandervelde seizing other items.

[32] The house was secured until a search warrant was obtained. Brown said the warrant was obtained to do a more thorough search, now that there were no safety concerns to address.

[33] Brown was cross-examined. I will highlight the relevant evidence from the cross-examination.

[34] Once their patrol car was dispatched, Martin drove the vehicle in the normal manner. The siren and/or lights were not activated. They did not run red lights or weave through traffic. They were searching and looking at plazas. They started looking for the vehicle when they got to the Ford Drive area, not from their original location to Ford Drive. Brown confirmed that they were dispatched at 1:17 p.m. and arrived at the Devon Road address at 1:24 p.m.

[35] Based on his experience, Brown believed this was a Priority 3 call. Brown understood this to mean to respond to it as soon as possible/as soon as you can.

[36] Dispatch did not, to his recollection, tell them whether the Toyota was an early or late model, and did not tell them whether the vehicle had distinctive markings or damage. Because of the inconsistencies between the licence plate information given by dispatch and the car in the driveway, Brown called Mr. Berlingieri around 1:25 p.m. Brown said he knew the male was white with a shaved head/buzz cut. He could not recall if he got the age range of 25 – 35 years for the male from Mr. Berlingieri or dispatch. He acknowledged that it would be hard to identify anyone based solely on the description he had. He could not recall the dispatch description of the female. Brown confirmed that dispatch did not mention any weapons, and that the description of a male beating up a female was a general description.

[37] Brown was presented with the dispatch tape to listen to at trial. On June 1, 2017, he had access to the dispatch call by audio and on the computer screen to read. He acknowledged that that dispatch referenced a 15 minute delay on the call. Brown agreed that it sounds like there was a 15 minute delay in the making of the 911 call. He did not recall hearing or seeing anything about a 15 minute delay at the time of the incident. He agreed that between the dispatch and the end of his call to Mr. Berlingieri, 13 to 14 minutes had lapsed, and that if the event took place 15 minutes before the 911 call, 28 – 29 minutes had elapsed by 1:31 p.m.

[38] On the licence plate issue, Brown agreed the first number on the marker given by dispatch did not match the first number on the Corolla plate. The 4 was an 8. The second number did not match. The 8 was a 4. The 3rd number from dispatch was a 0 or 3 and on the Corolla was a 0. Brown acknowledge that two numbers that Mr. Berlingieri provided were reversed on the Corolla, and the third number provided by Mr. Berlingieri was in question.

[39] Brown acknowledged that he did not state that the registered owner of the Corolla was John Stairs in his notebook, in his witness statement, or in his chief at the preliminary inquiry. He said it did not cross his mind. Brown also testified that the search results showed that Matthew Stairs was associated with the Corolla vehicle, but did not provide information on when he had last driven the vehicle or how often he drove it.

[40] Brown acknowledged that it is possible to access prior occurrence reports from the police cruiser connected to a person or vehicle, and that these reports can include contact information/phone numbers. He did not request past occurrence reports for the Applicant or John Stairs, and did not know if another officer had done so. Brown said he could have “technically” searched for Matthew Stairs’ phone number, but the matter was time sensitive. He called Mr. Berlingieri, the complainant, and the officers then proceeded to the door knock. He also confirmed he did not run the address and he did not ask the other officers to do so.

[41] Brown confirmed that he did not put his hand on the Corolla hood to see if it had been recently driven. He also confirmed that there was no evidence of any assault having occurred in the Corolla – no blood, no torn upholstery, and nothing else. Once Brown observed the vehicle he felt there was a strong reason to believe the female was inside the residence.

[42] Brown said he called Mr. Berlingieri to confirm Mr. Berlingieri’s observations and to gain further information. Brown agreed that the description of the parties involved was basic. He did not agree that the description of the vehicle was basic. He said it was described as a Toyota Corolla, charcoal gray, with a similar marker to the car Vandervelde located. Brown called this a good description. Brown agreed that the police vehicle was dispatched to a given area but not directed to a specific address.

[43] Brown testified in cross-examination that before he spoke to Mr. Berlingieri he had a very strong reason to believe that the Toyota in the driveway was the vehicle referred to in the dispatch call and that the check revealed the car was connected to Matthew Stairs. He still wanted to speak to Mr. Berlingieri to clarify as the licence plate was not exact. He also wanted to clarify other things, including the description of the assault. When asked if before he called Mr. Berlingieri, Brown did not feel that there were exigent circumstances, Brown said if he was going to kick in the door he wants to be certain. He said he would not say that he did not feel there were exigent circumstances before the call, but wanted to clarify. He said he would have done the same thing, but that it always helps to clarify what the complainant has said to what was written down.

[44] Brown said he was concerned that the female was injured, could still be being assaulted, or was in imminent danger. Defence counsel asked Brown if he had not spoken to Mr. Berlingieri whether he still would have entered, to which Brown responded that even if there was a one percent chance someone was in harm’s way, he would have to act accordingly. He confirmed this meant enter and see if the person is safe.

[45] Brown confirmed he called Mr. Berlingieri around 1:25 p.m. and that the first door knock was around 1:31 p.m. and he didn’t know if the other officers had knocked before that.

[46] They were dispatched at 1:17 p.m. and his call to Mr. Berlingieri ended around 1:30 – 1:31 p.m.

[47] Brown testified that he had his belief that there were exigent circumstances confirmed after he spoke to Mr. Berlingieri and that these circumstances involved the safety of the female. Brown knew Mr. Berlingieri was not a party to the assault. Brown confirmed they did not speak to witnesses, as there was no one out on the street and that the officers did not knock on neighbourhood doors.

[48] Brown stated that after speaking to Mr. Berlingieri, the matter became even more time sensitive. He explained this was why he did not knock on other doors in the neighbourhood. He did not contact a senior officer before entering the residence as he was confident in his abilities. He was going to enter the residence based on exigent circumstances.

[49] Brown said they did not have time to get a warrant to enter the residence, and did not think about getting a warrant. He was focused on the exigent circumstances and did not discuss obtaining a warrant with the other officers at the scene. He acknowledged that they did not have a Feeney warrant.

[50] Brown confirmed that he thought exigent circumstances existed at the time, and that he formed this view without speaking to anyone involved in the assault, without observing evidence of the assault, and prior to observing any injuries. He stated that part of the exigent circumstances was the fear of the unknown – not knowing if someone is hurt or lying unconscious. He agreed that there were no observations from the scene that anyone was in danger.

[51] Brown said he was not with Vandervelde and Martin when they knocked on the front door. He walked to the side of the residence. He saw no signs that someone was at the residence and no signs of an ongoing assault and no signs of anyone injured or in imminent danger. There were no signs of people, of an injury, or of an assault and not any noise outside the side door. There were no lights on. He could not see people through the windows. Brown estimated it took 30 – 40 seconds from the time he left the front of the residence until he was at the side door. He went to the backyard first before going to the side door.

[52] When Brown and Vandervelde were both at the side door, Brown said they made the same decision to go in at the same time. There was some discussion of a general nature, but not a debate as to whether to enter. They loudly acknowledged police presence when they entered the house.

[53] Brown confirmed in cross-examination that once they entered the residence, he heard music and saw a light on in the basement. There was no indication of an ongoing assault in the kitchen area or as he walked to the front door. Brown said they did not immediately go downstairs, as he went to let Martin in the front door in case they needed another officer.

[54] Brown learned from Vandervelde that a male had ran from west to east across the bottom of the basement stairs. Vandervelde did not provide a description of the male that Brown could recall, and Brown did not see the male. He said he had a strong suspicion that the male in the basement was the male observed by Mr. Berlingieri assaulting the female, and that the male was Matthew Stairs, but he did not know for sure. This suspicion was informed based on the fact that the residence was the Applicant’s residence, the proximate timing, the similar description between the male and the Applicant, and the vehicle being associated with the Applicant.

[55] Brown confirmed that before going down the stairs, he did not have any conversation with the female about the assault. He could not recall if he asked her if she was okay. He did not ask her if she was injured or required medical attention. He saw her injuries. He did not ask her if she had been assaulted, and had no memory of asking her if she wanted to leave the residence. He asked Martin to stay with the female. He did not ask the female who was in the basement. He said he was more concerned with what the male was doing downstairs.

[56] Brown’s observations of the female were fairly brief. He observed her for 20 – 25 seconds in total. He said he was able to observe each injury. He acknowledged that he did not see the blood coming from her nose until later on, and did not observe the blood at the time she was coming out of the basement. He did not recall the exact nature or location of the bruising to the forehead. The injuries to her cheek looked fresh. There was no blood. They were scratches. At that point, the female was in the kitchen with three armed uniformed officers. He estimated this was for about three seconds before he and Vandervelde went to the basement. Brown was very satisfied that she was the female in question. He gave instructions to Martin to stay with the female.

[57] Brown confirmed that he went to the basement with Vandervelde to arrest the male for assault, and to see if anyone else there needed assistance. He stated that after he spoke to Mr. Berlingieri, he had established grounds to arrest the male, but not specifically Mr. Stairs. He entered the house looking for the victim of the alleged assault. He stated the description he had of the male – white, buzz cut, age 25 – 35 years – as being more detail than he usually has.

[58] In the basement, Brown’s focus was on the closed door to the laundry room. He looked for roughly two seconds into the living room to ascertain that no one was going to jump on his back. He did not see anyone. He was not satisfied that no one was hiding in the living room area, but no one popped out. He testified that he would not say he felt comfortable to turn to the door, but based on the information he had his focus was on the door.

[59] He ordered the male to come out of the laundry room and show his hands. He was going to arrest the male even if he did not come out. Brown acknowledged that he did not know, when he was outside the door, that the male inside the laundry room matched the description he had of the male. When the male came out and was arrested, it was the first time that day that Brown saw the male and identified him as Matthew Stairs.

[60] When Brown searched Matthew Stairs, he found cash and no weapons, drugs or paraphernalia. At some point, Vandervelde moved off to do a walk-through of the living room in the basement. Vandervelde approached Brown and showed Brown a Tupperware container. This occurred while they were still in the basement. Brown did not see the container in its original location. He did not recall if the container was open. At some point, he saw the container with the lid off, but said it could have been at the station or at the scene. He saw what looked to be methamphetamine inside. He saw the lid was clear and he could have seen inside whether the lid was on or off.

[61] Brown was referred in cross-examination to evidence he gave at the preliminary inquiry as to whether the lid was on or off when he saw the Tupperware container in the basement. He agreed that his answers at the preliminary inquiry suggested that the lid was off of the container at some point at the scene.

[62] Brown said it was roughly four minutes from the door knock to the arrest. He agreed it moved quickly. He described the situation as very dynamic. The male ran into the room. He was not sure what he might be grabbing. His concern increased when the male ran in the laundry room.

[63] Brown would not say the female was safe when she came upstairs as he did not know what the male was doing. He said she was safer with the officers. Brown did not hear any threats or yelling coming from the male. Brown said he had no indication as to whether the female had been threatened or not. He was still concerned with the female’s safety. He believed it was the best way to ensure her safety by going downstairs to arrest the male.

[64] Brown said he had a strong reason to believe the male in the basement was Mr. Stairs. He was associated with the vehicle. The description of the male included a shaved head which was similar to Mr. Stairs and he was known to drive the vehicle. As set out above, Brown had encountered Matthew Stairs previously at a traffic stop. The female did not say the male in the basement was Mr. Stairs. Brown agreed that there could have been other people in the basement.

[65] Between 1:31 p.m. and 1:35 p.m., Brown said he did not consider alternative action. He said because of the danger at hand he had to act quickly.

[66] Brown was questioned in cross-examination as to why he did not take the female out of the house. He answered that he could not force her to leave, and that he did not focus on her because of the concern raised by the male running across the basement stairs. He did not consider leaving the residence with the female, securing the property, and getting a warrant.

[67] Brown stated he believed he had the grounds to arrest the suspect before he entered the house based on the information from Mr. Berlingieri. This was without speaking to the victim or perpetrator. Brown confirmed that Mr. Berlingieri did not tell him how long he observed the Corolla for. Brown knew Mr. Berlingieri had made his observations from a moving vehicle. Brown formed his own estimate based on the travel time. Brown acknowledged Mr. Berlingieri did not tell him what part of the female was struck. Mr. Berlingieri had told him the female was in a headlock.

[68] In re-examination, Brown confirmed that he had assumed there would be phone numbers for Matthew Stairs in the police database, as the Applicant had dealt with the police before. He did not know for certain.

[69] Brown confirmed that Matthew Stairs being associated with the Toyota meant he was known to drive the vehicle. He said it would have been on the first screen. He said he does not always note in his notebook who the registered owner of a vehicle is.

[70] Brown also stated that he was not sure that he knew what priority number had been assigned to the call at the time, and may have assumed this from the nature of the call.

[71] Brown knew from the computer information that both Matthew Stairs and his father John Stairs lived at this residence. He did not know who owned the home.

[72] Brown estimated that he looked at the Tupperware container for five seconds.

PC Jesse Vandervelde

[73] Vandervelde joined the Halton Regional Police in December of 2014. On June 1, 2017 he was a constable on uniform duty in a marked cruiser and was by himself. He received a call from dispatch of an assault in progress. A female had been observed entering a motor vehicle described as a gray Toyota Corolla. The motor vehicle had last been seen going east on Devon Road. Within the motor vehicle, the male had been observed striking the female. The female was put in a headlock. The licence plate provided was BEWN 480. This is what he recalled. Vandervelde testified that the information had come from the complainant, Santo Berlingieri. The call from dispatch came over the radio and on the computer screen. He could both see and hear the call. He indicated that he received the call at 1:16 p.m. He did not recall where he was when he received the dispatch call, but recalls driving south on Ford Drive, so he must there have been in north Oakville. He was dispatched to Ford Drive/Lakeshore Road in the Town of Oakville to attempt to locate the vehicle. He got to the area in less than ten minutes.

[74] When he got to the area, he proceeded in the general direction of Devon Road, as the vehicle was last observed on Devon Road. He went east on Devon Road. He was looking for the vehicle. He located the vehicle at a residential house at 2273 Devon Road, Oakville. He said it was the vehicle described in the call. The licence plate was off – two digits had been switched. The plate was BEWN 840. The 4 and 8 had been switched. It was a gray Toyota Corolla.

[75] Vandervelde compared the vehicle to the description given. He testified that it was the same make, model, and colour. He described the licence plate as nearly identical with two numbers mixed up, which he said is common when a number is called in. He said he strongly believed that it was the same vehicle. He said the vehicle in the driveway had the driver’s side window half-way down and he saw a cell phone in the car.

[76] Vandervelde ran the plate number through dispatch and received the results over the radio and on the computer. The results were that the vehicle was registered to John Stairs who was born in 1947 and was registered to that address. It had “a pointer vehicle” to Matthew Stairs. Vandervelde testified that a pointer means an individual known to drive. Matthew Stairs, as an individual, came back with three police cautions; “e” for escape risk, “f” for family violence, and “v” for violence. He said he also received information that Matthew Stairs had previous domestic violence and was listed as a high risk offender. This information came both verbally and over the computer. He was given Matthew Stairs’ date of birth.

[77] Vandervelde testified that the complainant had not given too much of a physical description that Vandervelde was aware of. The description given by the complainant was male, white, with a shaved head.

[78] Vandervelde testified in-chief that he arrived at the same time as Brown, and that Brown had Martin with him. Vandervelde said Brown would have received the same information as he had, as they were both dispatched to the same call. Brown decided to confirm the grounds quickly with the complainant. Brown called the complainant to confirm that an assault had taken place. This happened simultaneously with their arrival. He said the call lasted an estimated couple of minutes.

[79] Vandervelde had a discussion with Brown. After the discussion he testified there were reasonable grounds to believe an assault had occurred in the motor vehicle that was located in the driveway.

[80] Vandervelde was concerned about the female party. He and Martin attended at the front door. Brown went to the rear of the residence to make sure no one would run, because there was an escape risk. Brown went to the rear to put a containment on the house.

[81] Vandervelde knocked to get someone to come to the door. He knocked five to ten times. He loudly announced police were present. There was no response. He described that he was concerned for the female who had been observed being assaulted. He looked in the front windows and could not see people or lights on.

[82] Vandervelde said he next went around the side. The front door was locked. He decided to make entry at the side door to check on the female. He was not sure if he or Brown opened the side door. It was unlocked. He does not recall who entered first.

[83] Vandervelde could hear music downstairs, that he described as not overly loud and it drew his attention to the basement. Once inside the side door, Vandervelde described that it almost leads to the kitchen area. No one was in the kitchen and he could not recall seeing lights or appliances on.

[84] Vandervelde looked downstairs. Brown proceeded to the living room. Vandervelde made police announcements multiple times and asked if anyone was home. He said he loudly made his presence known. He received no response.

[85] Vandervelde said he was at the top of the stairs making police announcements when he observed a male run past the bottom of the stairwell. Vandervelde identified Matthew Stairs in court and said he was the same person who ran past the stairs. He said he saw the person running for a brief period of two seconds. He said as he was looking down the stairs Matthew Stairs ran from right to left and Vandervelde estimated that there were 10 to 15 stairs. Vandervelde testified that he yelled “police”, “don’t move” and “show me your hands.” He said the male looked up at him and he recalled that they made eye contact. The male did not say anything. The male proceeded to run to the left, out of Vandervelde’s field of view. Vandervelde yelled “contact”, making the other officers aware he had seen someone. Brown came over. Vandervelde advised that he had observed a male.

[86] Vandervelde said the police call out continued – “come upstairs”, “hands up.” A female came into his view. The female was later determined to be Ms. Manriquez. She came from the right side of the basement, up the stairs, with her hands up. Vandervelde said he could see markings, which he described as bruising to her face and physical markings consistent with an assault. He testified there were markings and swelling around her forehead and eyes. He described red marks. He observed her for five to ten seconds as she came up the stairs. His focus was on the male downstairs. He had no idea where the male had gone. He was concerned that the male had seen him and had not followed his demands. He was wondering what the male was running to do. He considered the male to be arrest-able for assault.

[87] Once the female came upstairs, Vandervelde continued the calls for the male to come upstairs with his hands up. He advised Martin at some point to come and take possession of the female. Once Martin did, Vandervelde testified that he and Brown went to the basement. He said it was maybe one minute from the time they entered the residence until they went downstairs. He testified that it happened quickly.

[88] Vandervelde said as they went downstairs, he had his firearm drawn and Brown had his taser drawn. At the bottom of the stairs, Vandervelde described there was only one door to the left. Vandervelde came to the conclusion that the male had entered that door. Vandervelde demanded that the male open the door and show himself. He made a few demands. He was a few feet away from the door. Vandervelde testified that he thought Brown tried the handle and found it locked. Eventually the male said he was coming out. The male opened the door and quickly shut the door again. Brown tried the door again. The male opened the door again and complied with the demand to go on the ground. Brown handcuffed the male and Brown was the arresting officer.

[89] Once the male was in handcuffs and Vandervelde felt safe, Vandervelde proceeded through the basement. Vandervelde said he did so to ensure there were no other obvious threats and no other people. He testified that “you never know what you are looking for – a firearm sitting out or other people”.

[90] Vandervelde testified in chief that the laundry room/storage room where the male ran to was the only room to the left at the bottom of the stairs. To the right there was a living room/tv room. Vandervelde looked through the living room after the male was under arrest.

[91] Vandervelde testified that the living room contained a coffee table, couch, television and cabinets. Vandervelde said in chief that as he was going through the living room to clear it, he walked behind the couch and he saw a Tupperware container containing glass like shards which he believed was methamphetamines. He described the container as transparent with a lid that was also transparent. He said the lid was on. He said the container was on the ground behind the couch and that he was able to observe the container without picking it up. He said the container was a foot or so out from the couch, and that he did not have to move any items to see the container. Vandervelde said at first he did not pick up the container, but observed that it was half full or so. He proceeded through the basement to make sure there were no other hazards.

[92] Vandervelde testified that he observed, in plain view, a ziplock bag next to the coffee table, near the pizza box. He testified that the bag was transparent and that it looked like it contained a little bit of methamphetamines. He identified photographs of the zip lock bag and container as being what was seized. He did not take the photographs.

[93] . He advised Brown and showed Brown both items while they were both in the basement. He said the lid was on the container when he showed Brown. When Vandervelde was asked if he removed the lid, he said he did not recall whether he opened the lid or not to examine the contents. He seized the items, brought them upstairs, and put them in the car.

[94] Vandervelde testified that when he cleared the basement, the Applicant was still in the basement under arrest and handcuffed. Vandervelde said the purpose of clearing the basement was to ensure his own safety and the safety of the other officers. He was looking for another person or a potentially unsafely stored firearm or weapon.

[95] Vandervelde was shown a picture of the area behind the couch. Vandervelde did not take the picture. He was asked in chief to put an “x” where he had found the container. He said he could not say exactly where. He testified that all he could say was that it was in behind the couch sitting in an open area on the ground. He said the container was found approximately in the middle area of the photograph.

[96] Vandervelde said in chief that the plate number BEWN 480 had been run as the 911 call came in. He said it had come back and was not associated with a gray Toyota sedan. He received this information by dispatch and on the computer before he was in the area of the call.

[97] Vandervelde testified that before June 1, 2017, he did not recall that he had ever dealt with or encountered Matthew Stairs, and had no knowledge of other investigations involving Matthew Stairs.

[98] Vandervelde was cross-examined. I will highlight the relevant evidence from the cross-examination.

[99] Vandervelde said that eight minutes elapsed between the dispatch call and his arriving at the residence on Devon Road. He did not drive to Devon Road using lights or sirens or by driving aggressively. He said he was looking for a vehicle, and keeping an eye out. He did not know a location. He did not recall that a Priority 3 had been given to the 911 call. He said a domestic was in progress/active and therefore was high priority.

[100] Vandervelde said he knew the colour, make, and model of the vehicle, but had not been told whether the vehicle was an early or late model or if it had distinct marking. He said based on the call from dispatch it had a licence plate similar to BEWN 480. He knew that there was some uncertainty, and that it was unlikely the correct marker as the place number BEWN 480 had been checked and did not come back associated with a grey Toyota. He said from his previous experience people get many digits correct but make an error in one or two. He agreed that there was nothing in his notebook or witness statement to reflect that BEWN 480 came back not associated with a Toyota, or that an alternative 483 had been reported to dispatch. He had no recollection of receiving any information about a plate number BEWN 483.

[101] Vandervelde agreed that the only description was male and female in his notes. He had no other details. He said this did not necessarily mean he did not receive the description from dispatch, but may have forgotten to note it. He may have recalled the description at the scene, but not when he did his notes. He also acknowledged that he did not put a description of the parties in his witness statement. He said it did not occur to him to include this, because they were confident they were arresting the right party based on the evidence at the scene. To the best of his recollection the description he had was male, white, shaved head, and no information for the female. He did not have an independent memory of the description of the parties as he entered the house. Vandervelde confirmed dispatch had given no indication of weapons or drugs.

[102] Vandervelde was played the recording of the dispatch call and confirmed that dispatch had advised of a 15-minute delay. This was not in his notes or witness statement. He confirmed that he had testified at the preliminary inquiry that he could not recall being told of the 15-minute delay and the radio transmission indicated he was told.

[103] Vandervelde stated that he was aware that the complainant was not a party to the assault, was not in the vehicle where the assault occurred, that the assault happened in a moving vehicle. He confirmed that dispatch did not direct him to a specific location.

[104] Vandervelde stated that when he located the vehicle at 2273 Devon Road, he did not travel further along Devon Road and he did not ask Brown and Martin to do so. His search for the vehicle ended. It was the first vehicle he had found that matched the description on the call with a similar licence plate. He was very confident he had located the vehicle. He had been on Devon Road thirty seconds or so when he found the vehicle.

[105] The information he received by running the licence plate on the vehicle in the driveway on Devon Road was that Matthew Stairs was known to drive the vehicle. He did not receive a picture of Matthew Stairs.

[106] He believed Matthew Stairs was a possible suspect, as he was connected to the vehicle and Vandervelde believed he had found the right vehicle. He agreed there was no note of him having received a physical description of Matthew Stairs.

[107] Vandervelde agreed there were a number of searches he could do from a police vehicle. He said time was a factor, as someone had just been assaulted and he needed to find the victim if someone was in danger. He said the other searches take time. He checked on the licence plate and it came back immediately. Vandervelde was asked if he could have done checks while Brown was on the call to Mr. Berlingieri. He said the call was not long or extensive. Brown tried to make the call quick as there was concern for the victim. He believed it was more efficient to knock on the door. He acknowledged that he could have asked dispatch to do checks while he knocked on the door.

[108] Vandervelde observed the car in the driveway with the window down and a cell phone in the vehicle. When he was asked if he saw no indication of an assault having occurred in the vehicle, Vandervelde said other than the cell was left with the window down and people do not usually do this due to a fear of theft. He did not know why this had occurred and said it was just additional information. He did not check the vehicle to see if it had been driven recently and said he did not know how he would check. There could be heat on the engine but it was summer.

[109] Vandervelde said after Brown spoke to Mr. Berlingieri, Brown had told Vandervelde that Mr. Berlingieri had viewed the vehicle in his rear view mirror and this could have been why the digits had been mixed up. He had no further description of the vehicle. He had no further description of the parties.

[110] Vandervelde confirmed that the information on the I.C.A.D. printout (Exhibit 3) and from dispatch was that the male was white, with a buzz haircut, age 25-35 years. He recalls having some descriptors as he was proceeding to the scene. After hearing the audiotape and reviewing the I.C.A.D. printout, he was now aware of what he was provided with. His knowledge of the descriptors was the same after Brown called Mr. Berlingieri.

[111] Vandervelde acknowledged that at some point Mr. Berlingieri had lost sight of the vehicle. He did not have any information that the assault was continuing when Mr. Berlingieri lost sight of the vehicle.

[112] Vandervelde said he had concern for the safety of the female. He had developed a belief that she was likely in the house based on the location of the Corolla in the driveway and the passage of time between the call and the locating of the vehicle. He confirmed that dispatch advised of the 15-minute delay.

[113] Vandervelde acknowledged that it was about eight minutes from the time of the dispatch to the arrival at 2273 Devon Road, and the knock at the front door was at approximately 1:31 p.m. He agreed that with the 15-minute delay in the 911 call, eight minutes to travel to the location and seven minutes at the scene until the door knock, as much as 30 minutes approximately had gone by. He said he did not know how accurate the 15-minute delay in the 911 call was.

[114] Vandervelde said he knocked at the front door as part of his efforts to locate the parties inside who would have been in the vehicle. The female may be injured or need help. He said that he spoke to Brown after Brown’s call to Mr. Berlingieri. In his discussion with Brown, the exact term ‘exigent circumstances’ did not come up. They agreed they needed to check on the well-being of the female and assumed there would be injuries if the female was struck. He was not sure if an exigent circumstance entry came up then or after no one answered.

[115] Vandervelde said he and Brown took an equal role in decision-making. Vandervelde said that after the knocking at the front door, he decided he needed to go in to the residence. He believed there were exigent circumstances and the focus was in ensuring the safety of the female.

[116] Vandervelde confirmed he did not locate passersby or neighbours to speak to them and did not call a senior officer for support or guidance.

[117] Vandervelde said he and the other officers did not discuss the possibility of getting a warrant to enter the residence. He said it was not really an option. His duty was to protect the victim. They had information had she had been assaulted and their duty was to protect her safety. He gave no thought to the possibility of getting a warrant.

[118] When asked if Vandervelde thought there were grounds for arrest before he went in to the residence, he answered there were grounds to arrest the male if located.

[119] Vandervelde said he knocked for one to two minutes, maybe slightly longer. He saw no indication of anyone inside the residence – saw no people, no lights on, no noise. There was no response.

[120] Vandervelde testified in cross that he did not see signs of assault or injury inside the residence. He heard music coming from the basement and saw a light from the basement. Brown was sweeping the upstairs when Vandervelde saw a male run past the stairwell. The male looked at him, was startled and ran past him. Vandervelde did not enter the basement on his own as Matthew Stairs was known to be a violent offender. Prior to Vandervelde seeing the male run across the bottom of the stairs, no one had responded to the announcement of police presence. Vandervelde briefly saw the male. He said it was very distinct and he remember their making eye contact. The male looked upstairs. He stopped or slowed to look up at Vandervelde. He said it all occurred in one to three seconds. It happened quickly. He believed the male to be Matthew Stairs based on the CPIC check, that he knew Matthew Stairs lived there and based on the brief description he had. He believed that Matthew Stairs was at the residence at the time but did not know that he was. He did not know how many people were inside. He believed it was Matthew Stairs who ran by but did not 100 per cent identify him. There could have been another male in the residence but Vandervelde said the most likely option was that it was Matthew Stairs.

[121] Vandervelde said in cross that his conversation with the female when she came up the stairs, with her hands up, was limited. Vandervelde spoke to the female, identified by then as Ms. Manriquez, after Mr. Stairs was arrested. She denied that she had been assaulted. As the female came up the stairs, Vandervelde observed her just enough to see the markings on her face. Vandervelde confirmed that in his notebook he noted the injuries to Ms. Manriquez after Matthew Stairs’ arrest. The injuries were noted in his notebook after the activities following the drugs being seized. The female has been described as white on I.C.A.D. and by Mr. Berlingieri. Vandervelde described her as not pale white, but as having tanned skin/an olive complexion.

[122] Vandervelde said the female had markings. In his notes, he had written that she had bruised marks on her forehead. Vandervelde said the stairwell was small and the female had to walk directly past him. He said he had an independent recollection of the female coming out of the basement with markings on her face. She had obvious injuries.

[123] Vandervelde said the female was safely with him when she came upstairs. There were three officers. He said there was still a threat of the male in the basement. He said that it was still not fair to say she was safe or that the officers were safe. Vandervelde said the male had looked up the stairs, saw a police officer and run away. This was concerning. The male barricaded himself in the laundry room by locking the door.

[124] Vandervelde believed she was the female assaulted based on the markings on her face and the vehicle in the driveway. The vehicle in the driveway matched the description to an extent. She was a female, white, in the correct age range. He would have had the descriptors from dispatch. That would have been his knowledge at the time.

[125] Vandervelde said in cross that as soon as the female was upstairs, he and Brown went downstairs to arrest the male. He believed he had reasonable grounds to arrest for assault. He also had concern for safety.

[126] Vandervelde stated in cross that he believed that the male that ran across the basement was the male in the vehicle. He could not say for 100 per cent but he strongly believed there was a match in the description of the vehicle and there were injuries to the female. Vandervelde had not asked the female questions at that time and did not ask the male questions through the locked door. Vandervelde observed Brown arrest Matthew Stairs and Brown search the male incident to arrest. No drugs or drug paraphernalia were found.

[127] When asked if Vandervelde thought there were grounds for arrest before he went in to the residence, he answered there were grounds to arrest the male if located. Then he saw the male at the stairs run away and the female with injuries. He doesn’t recall if he or Brown said lets go to the basement to arrest the male. They went to the basement as Vandervelde said they were not going to give a person time to arm himself.

[128] Once the male was arrested Vandervelde began a clearing search incident to arrest of the basement. He said he had only done a quick scan to the right of the living room area of the basement as he came down the stairs. He did not do a thorough check as he came down. His focus had been to the left, to the laundry room door. He said if a person was standing at the bottom of the basement stairs there would be spots in the living room area to the right that the person would not be able to see. Vandervelde acknowledged that the authority to do a clearing search is limited. He acknowledged that if you seize anything it must be in plain view – out in the open for anyone to see. He seized the zip lock bag and the Tupperware container. He believed they contained methamphetamines. He said methamphetamines look like shards of glass, only they have a little more of a tint. He said it was pretty clear what he saw were drugs.

[129] Vandervelde said in cross that he first seized the container because he spotted it first during his visual search. He said he was at most ten feet away when he initially spotted the container in the area behind the blue couch and he walked closer to it. It was sitting on the ground with the lid on top. Both the lid and sides were transparent. The lid had a red tint and was not quite as see through but was semi-transparent. Vandervelde was referred to his evidence the preliminary inquiry where he referred to the lid as “somewhat see through as well.”

[130] Vandervelde said he believed that drugs were in the container. Vandervelde was again referred to his evidence at the preliminary inquiry regarding the container and when he picked up the container. He agreed that at the preliminary inquiry he had testified that he saw the container when he was ten feet away, walked toward it, and once he could see that the substance looked like methamphetamine, he picked it up. In cross-examination at the hearing of this application, Vandervelde said the substance looked like methamphetamines and that when he first saw it his impression was it was methamphetamines. He finished clearing the basement before he picked it up. Vandervelde confirmed in cross that he could not pinpoint in the pictures of the basement where the container was when he picked it up off the ground. He said it was a foot or so away from the couch. It was in an open area. He said it must have been a little more than a foot. He said it was open ground behind the couch and he cannot put an ‘X’ to mark the exact spot on a photograph. He did not measure where he found it. He said it did not occur to him to make an exact note of where he found the container. He had noted he found it behind the couch, on the floor.

[131] Vandervelde confirmed in cross that he did not pick up the container when he first saw it. He completed the sweep before he picked it up. He picked it up because he believed it contained methamphetamines and because it was in plain view.

[132] Vandervelde was asked further in cross about his testimony at the preliminary inquiry where he agreed he had said that he “pretty much as soon as I saw it suspected it contained drugs.” This was in reference to the container. He was asked if he used the word suspected because he was not certain. He answered that it was closer to concluded. There could be no absolute conclusion until it was tested. He believed it was methamphetamines. He said he saw it and suspected it was methamphetamine, and took a closer look when he walked past and picked up the container and it looked like drugs in the container. He did not believe that it was shards of glass in the container. He said there is a difference between methamphetamines and glass shards.

[133] Vandervelde said that he saw the baggie during his sweep. He then picked up the container and baggie.

[134] Vandervelde said he did not believe he removed the lid from the container in the basement. He said it was possible that he did.

[135] In re-examination, Vandervelde testified that he did not see any broken glass in the basement and no shards outside of the container and baggie. Vandervelde said there is a difference between glass and methamphetamines in terms of colour and transparency. Glass is completely transparent. Methamphetamines are a little less transparent.

[136] In re-examination, Vandervelde testified that he knew about a Feeney warrant and had a general idea of the timing. He said it would take at least a couple of hours. He said an ‘ITO’ would have to be prepared and typed out. He understood it would have to be brought to court, to a judicial officer. He did not consider it a viable option as it would have increased the amount of time to get in the residence to check on the female.

[137] Vandervelde clarified that he made the notes concerning the female’s injuries when he was speaking to her after Matthew Stairs was arrested. He said he did not have his notebook out when she passed him and he was not in a position to make notes at the time.

[138] Vandervelde also confirmed that if he had requested occurrence reports for Matthew Stairs, depending on the number of occurrences, it could take hours or days to go through them, based on the cautions on this male.

[139] In re-examination, Vandervelde confirmed that he did not see that the female had a black eye. She had bruising/marks on her forehead. He said bruising occurs a day or so after and red marks, which occur immediately after an injury.

PC Joshua Martin

[140] Martin was a constable in training with the Halton Regional Police on June 1, 2017. He had been in this position since April of 2017. His officer coach was Brown. On June 1, 2017 Martin was driving a police cruiser and was in uniform. Brown was in the passenger seat.

[141] At the time they received the call from dispatch Martin and Brown were on general patrol in the Trafalgar zone in Oakville. They received a call for service concerning a vehicle on Ford Drive which stated that a female entered a vehicle and was being assaulted by the male driver. The vehicle was last seen travelling east on Devon Road. The vehicle was a charcoal gray Toyota Corolla. Martin testified that the call came in around 1:15 p.m., and came first through the radio and then through the mobile patrol system (computer screen in car). They offered to take the call and were dispatched. The call included a possible plate number for the vehicle.

[142] They travelled south on Ford Drive then east on Devon Road. They had turned left on Devon Road when they heard Vandervelde on the radio indicate he has located a gray Toyota Corolla vehicle in the driveway at 2273 Devon Road. Vandervelde provided the address. They were a few seconds away from the residence and went to it. They arrived at 1:24 p.m.

[143] His observations at the residence were that Vandervelde was there, and a vehicle was in the driveway with licence plate BEWN 840. He said the plate was very similar to that provided by dispatch, except the 4 and 8 were switched. He said dispatch had done some checks including a check of the plate given by the complainant. He did not recall the details of the checks, although he would have been advised of them.

[144] Martin’s opinion was that this was the vehicle that Mr. Berlingieri saw. Mr. Berlingieri had quickly looked at the plate and said what he recalled. Martin said he believed that the plate number for the vehicle in the driveway was checked. He was not sure who did the check, but it came back to the address, registered to John Stairs, and associated with Matthew Stairs.

[145] Prior to going to the front door, he did not attempt to contact the witness and did not recall if other officers did. Martin testified that when the check revealed that the vehicle was associated with Matthew Stairs, Brown told Martin that he had dealt with Mathew Stairs before and that he was known to Halton Regional Police.

[146] Martin was unsure of who knocked on the front door, but he did not. The knocking occurred at approximately 1:30 to 1:31 p.m. Martin was looking in the front window to see if anything could be seen. He did not see anyone or anything.

[147] Martin continued to knock after Vandervelde and Brown left to look for another door. Brown instructed him to continue knocking on the front door and he did so. No one answered. Martin testified that when he walked by the vehicle, no one was in it, and no one was outside of the house at the front.

[148] At some point, Brown opened the front door and Brown advised him to enter. He saw a female in the kitchen who he subsequently identified as Ms. Manriquez. He asked her for her name, date of birth and where she lived. He made observations of her face. He testified that her forehead had bruising on it. She had swelling on her upper cheek bones below her eyes and she had a scratch mark on the right side of her mouth near her right cheek.

[149] Martin described the bruises on Ms. Manriquez’s forehead as small independent bruises. The bruises were the size of a quarter, one inch in diameter. It was not one giant bruise. It was three or four bruises. Martin described the scratch to her mouth, on her right cheek, as less than an inch long. He said it was a small red mark. He testified that later on, he noticed redness on Ms. Manriquez’s upper right arm near her tricep.

[150] Martin described Ms. Manriquez as startled and shaking as she spoke when he was first speaking to her.

[151] Brown told him to stay in the kitchen with the female. Martin said he thought Brown told him to do this to maintain the female’s safety, so that the two parties would not speak to one another and so there would not be an altercation.

[152] Martin said he was instructed to enter the residence by Brown. He also said Brown advised him that there were exigent circumstances due to the nature of the call – a male was assaulting a female in a vehicle. The vehicle had been located. No parties were outside the residence. They were going into the parties’ residence. He said the basis for his understanding that there was exigent circumstances was formed on his own and he had been advised of this by Brown as well.

[153] Martin stated Matthew Stairs was arrested at 1:35 p.m. and Ms. Manriquez was arrested by Vandervelde at 1:58 p.m. Ms. Manriquez requested that Martin get her purse for her with her identification. Her purse was located in the basement. She also asked him to get her methadone receipt from the right pocket of her sweater, located on the passenger seat of the vehicle. He retrieved both for her. The key for the vehicle was on the table downstairs.

[154] He located a cell phone on the passenger seat of the vehicle. He was not sure if the phone belonged to Ms. Manriquez or Matthew Stairs. He gave the phone to Vandervelde.

[155] Martin had no prior dealings with Matthew Stairs. He did not know him and had not encountered him before.

[156] Martin was cross-examined. I will highlight the relevant portions of his cross-examination.

[157] In cross, as in chief, Martin confirmed he paid more attention to the radio then the in-car computer because he was driving. He testified that his notes and his witness statement did not include any description of the parties other than male and female. He said he did not recall receiving information such as skin colour, weight, height, hair colour, or age. He said in the original call from dispatch there was no mention of weapons or drugs.

[158] Martin confirmed that there was no mention in his notebook or in his witness statement of a delay in the 911 call. He did not recall being advised of the delay. He was played the audio tape of the initial dispatch call. He confirmed that the caller had said there was a 15 minute delay between the observation and the 911 call. Having heard the tape, Martin said he would have been informed of the delay and been aware of it.

[159] Martin testified in cross-examination that at the time of the events on June 1, 2017 he was aware that the 911 caller was not actively involved in the events, that he was a third party witness, that the events did not occur at a specific location or address, and that the alleged assault occurred in a moving vehicle. Dispatch did not request Martin or Brown to attend at a specific address.

[160] Martin said in cross that before the knocking on the front door, he had a brief opportunity to observe the vehicle as he walked by. He did not see indicators of an assault in the vehicle. He did not check to see if the vehicle had been driven recently. He never spoke to the witness who had called 911. He said he did not recall, as he approached the front door, being aware of a description of the parties.

[161] He confirmed in cross he did receive a description of the male from the radio – male, short haircut. He said listening to the audio tape of the call from dispatch earlier in the cross-examination had refreshed his memory in this regard.

[162] Martin said at the front door someone knocked several times. He agreed the knocking was loud and they were calling out a police presence. There was no response. He did not recall any discussion of a forced entry while all three officers were at the front door.

[163] Martin testified in cross-examination that he independently believed that exigent circumstances existed and that in a conversation with Brown, Brown confirmed this. He understood that if exigent circumstances exist, police can force entry and he confirmed that he did not force entry. Martin was questioned about his testimony in this regard at the preliminary hearing. He acknowledged that at the preliminary he had said Brown had informed him exigent circumstances existed. He acknowledged that he did not say at the preliminary that he had formed his own belief. He said he was not specifically asked that at the preliminary, and did not say he had formed his own belief. He testified that there was only one discussion about exigent circumstances, wherein Brown confirmed exigent circumstances existed and that discussion took place inside the residence, not before Martin was in the home.

[164] Martin confirmed that the presence of the vehicle indicated that the occupants in the vehicle were in the house, and that part of belief was due to the passage of time. He acknowledged that it could have been approximately 30 minutes between when the witness saw the alleged assault and when they were knocking on the door. He was also aware of the short distance between where the alleged assault was witnessed and the residence.

[165] Martin testified that neither he nor Brown made efforts to locate the occupants of the vehicle. They did not check further down Ford Drive or on Devon Road, either in the cruiser or on foot. They did not call units to the scene to search the area.

[166] Martin saw no evidence of an assault as he went from the front door to the kitchen. He was instructed by Brown to watch over Ms. Manriquez. He was not instructed to question her about her safety. He did not ask her questions about her injuries, and did not hear other officers asking her about her injuries. He did not recall other officers asking her any questions. He did not know why Vandervelde and Brown were going downstairs. He did not hear any discussions about observing a male.

[167] Martin said in cross-examination that once Vandervelde and Brown went downstairs, he asked Ms. Manriquez about his observations of her face and arm. She did not provide answers. She did not say that the injuries were the result of an assault. She did not tell him she had been assaulted. She did not require medical attention. She did not tell him she was afraid for her safety or that she wanted to leave. She did not say why she was startled. Her being startled was his perception. Martin was not able to say if the marks on Ms. Manriquez were recent or older, or if they were caused by an assault or something else.

[168] Martin confirmed in cross-examination that Vandervelde pointed out to him that Ms. Manriquez had a bloody nose when Vandervelde was placing her under arrest. Martin had not noticed it himself. He had spent about 20 minutes with her close to her on the main floor, and he did not observe her bloody nose.

[169] Martin never saw the Tupperware container or baggie. He had a conversation with Vandervelde about these items but does not recall where the conversation occurred. Vandervelde did not describe the condition the items were in when he first located them.

[170] Martin did not recall if any photographs had been taken of Ms. Manriquez’ injuries.

[171] Martin said in cross-examination that he remained in the driver’s seat from when they arrived to the time of the door knocking. He didn’t think Vandervelde was in his cruiser the whole time. He could not recall what Vandervelde was doing. He believed Brown was with him in the cruiser most of the time.

[172] Martin said when he went to retrieve the items Ms. Manriquez requested from the car, he could not recall if the vehicle was locked. The cell phone was located on the passenger seat.

[173] In re-examination, Martin said he formed his own opinion on exigent circumstances based on the call itself and what was going on. He did not recall the exact time he formed this opinion. In regards to not speaking to passersby or neighbours, Martin said he did not see any.

Credibility of the Officers

[174] In submissions, the Applicant argued that there were credibility issues with all three officers’ testimony. Particularly, the Applicant points to contradictions between the officers testimony- for example, the Applicant’s position was that both Brown and Vandervelde testified that they checked the street area for any persons prior to phoning the complainant, whereas the Applicant claimed that Martin testified that that the officers did not get out of their cruisers. Further, the Applicant argues that the officers presented the circumstances to artificially support the conclusion that there were exigent circumstances. The Respondents argue that any inconsistencies were minor in nature, and can be reconciled by the fact that there were rapidly changing circumstances.

[175] I disagree with the Applicant. While I do accept that there were minor inconsistencies between the officers’ testimony, I do not find that these inconsistencies attract any credibility concerns with the officers or their ability to accurately recount the events that occurred on June 1, 2017.

[176] The Applicant raised four issues in respect to credibility. First, the Applicant argues that all three officers did not note the 15-minute delay in his notebook or witness statement. Applicant’s counsel suggested Brown had a strong reluctance to admit that notice of the 15-minute delay had been transmitted through dispatch and that Vandervelde reluctantly accepted that it had. Applicant’s counsel further submitted that each officer has a duty to keep accurate notes and that by not noting the 15-minute delay in the 911 call each officer breached his duty. The Applicant submitted this was important information because the timing was important in the officers reaching the conclusion that the people from the car were in the residence. None of the three officers testified about the 15-minute delay in chief.

[177] Brown in cross-examination was played the dispatch tape. He acknowledged that dispatch referenced a 15-minute delay in calling in relation to Mr. Berlingieri calling 911. Brown stated in cross that he did not remembering hearing anything about a 15-minute delay in the dispatch call.

[178] Vandervelde was played the recording of the dispatch call in cross-examination. After listening to the recording, he confirmed that dispatch had advised of the 15-minute delay in calling 911. This was not in his notes or witness statement. He confirmed in cross that he had testified at the preliminary inquiry that he could not recall being told of the 15-minute delay and that the radio transmission confirmed he was told.

[179] Martin in cross confirmed that there was no mention in his notebook or witness statement of a delay in the 911 call. He did not recall being advised of the delay. He was played the audio tape of the initial dispatch call. He confirmed that the caller had said there was a 15-minute delay. Having heard the tape, Martin testified in cross that he would have been informed of the delay and been aware of it.

[180] I do not accept the Applicant’s argument. I found that when each officer was played the audiotape, they readily admitted that the dispatch advised on a 15-minute delay in the 911 call. No officer “clung” to his belief that he was not advised. The Applicant has not established that it was a deliberate act of any of the three officers to omit this information from their notebooks or witness statements. The audiotape and ICAD printout record this information and were produced.

[181] The second issue on credibility that the Applicant raised was that while all three officers testified that they considered that there was exigent circumstances, the Applicant alleges that their conduct is inconsistent with his belief. The Applicant argues that they did not travel to the Ford Drive/Devon Road location with sirens and lights. Brown took time to call the complainant. They tried door knocking before entering.

[182] In my view, their actions were reasonable in the circumstances and were not inconsistent with their belief that exigent circumstances existed. Brown explained that they did not use sirens and lights as they had not been dispatched to a specific location, but rather a last seen intersection. They were looking for the vehicle as they travelled. Vandervelde also reasonably explained these actions in his cross-examination. Brown reasonably explained why he called Mr. Berlingieri, and Brown and Vandervelde explained why they knocked on the residence door. This will be discussed more below. It was a reasonable alternative measure to have taken. Their actions were explained and reasonable in the circumstances.

[183] The third area of credibility the Applicant raised was an inconsistency between Vandervelde and Brown’s evidence of their search at the scene, as compared to Martin’s evidence. In my view, there was no such inconsistency. I did not understand Vandervelde or Brown’s evidence to be that they got out of the car and walked up and down the street looking for the occupants of the vehicle, as compared to Martin, who said they did not get out of their respective cruisers until they knocked on the door. Brown said he looked in the car and one minute later called the complainant. Brown said in cross they did not speak to witnesses on the street as there was no one out on the street and the officers did not knock on neighbourhood doors. He did not testify as to conducting a search of the neighbourhood. I understood him to have visually looked around, but did not walk about. Vandervelde confirmed he did not locate passersby’s or neighbours to speak to them. Martin said in cross-examination that he remained in the driver’s seat from when they arrived to the time of the door knocking. He did not think Vandervelde was in his cruiser the whole time, but could not recall what Vandervelde was doing. He believed Brown was with him in the cruiser most of the time. I do not see inconsistencies. No officer testified as to an on foot search. A visual search would not necessarily be observed by the other officers. Martin said Brown was in the cruiser most of the time. This is not inconsistent with Brown’s evidence that he looked in the Corolla and then called Mr. Berlingieri. Martin did not testify that Brown was with him all of the time.

[184] The fourth area the Applicant pointed at was the discrepancies between the officers of their descriptions of Ms. Manriquez’s injuries. I did not find the discrepancies to be significant, given that they observed her from different vantage points and for different amounts of time. All three saw injuries to her face. It is understandable that Martin saw the injury to her arm, as he spent the most time with her.

[185] Overall, I found all three officers to be credible.

The Issues

[186] The following issues are relevant to determining whether there was a breach of the Applicant’s Charter rights:

1. Did the Applicant have a reasonable expectation of privacy in 2273 Devon Road?

2. Were the officers justified, by relying on the exigent circumstances doctrine, to enter the Applicant’s residence without a warrant?

3. Did the officers have reasonable and probable grounds to arrest the Applicant?

4. Was the search of the basement a lawful search incident to arrest, and were the items recovered found in plain view?

5. If the entry into the residence, the Applicant’s arrest, or the search of the residence were unlawful, should the evidence be excluded pursuant to s. 24(2) of the Charter?

Issue 1: Did the Applicant have a reasonable expectation of privacy in 2273 Devon Road?

[187] Section 8 of the Charter protects an individual’s reasonable expectation of privacy against unreasonable state action. The inquiry of a reasonable expectation of privacy is fact-specific, and must be determined by the totality of the circumstances: R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para. 37, and R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 45.

Applicant’s Position

[188] The Applicant argues that 2273 Devon Road is his dwelling place and residence. The Applicant relies on R. v. Davidson, 2017 ONCA 257, to argue that there is a de facto expectation of privacy in a home, and that there is no other place where his expectation of privacy could be greater. The Applicant also relies on R. v. Wilhelm, 2014 ONSC 1637 at para. 102, which confirms the sanctity of a private dwelling.

[189] The Applicant also relies on R. v. Jones, 2017 SCC 60, to argue that he can rely on the Crown’s theory to establish a subjective expectation of privacy. In Jones, the Supreme Court held that for the purposes of a voir dire on a s. 8 Charter claim, an accused is permitted to rely and request the Court to assume as true any fact that the Crown will allege against the accused. In this case, the Crown’s theory is that the drug containers that were found in the basement belonged to the Applicant, and that he occupied this area of the home. The Applicant submits that he can rely on the Crown’s theory to prove his subjective expectation of privacy in the 2273 Devon Road.

[190] As counsel have agreed that I can consider the transcripts from the preliminary hearing in this case, the Applicant relies on evidence from the Applicant’s father at the preliminary hearing to support his argument that he maintained a subjective expectation of privacy in 2273 Devon Road, especially in the basement. The Applicant’s father testified that the Applicant lived in the furnished basement, which was his primary living space. He testified that the Applicant spent most of the time in the basement, and this was the Applicant’s part of the house to live in. The Applicant also had a bedroom upstairs in the house. The Applicant had a girlfriend who occasionally stayed overnight. The Applicant had lived in the house continuously for eight months leading up to the incident on June, 2017. The Applicant’s father testified that he only came to the basement to use the laundry machine, but aside from that, the space was primarily the Applicant’s to use. The Applicant had his own keys and his father did not keep track of the Applicant’s whereabouts.

[191] In respect to objective reasonability of his privacy, the Applicant argues that the fact that he is not the owner of the home does not significantly diminish his expectation of privacy in it: see R. v. Ye, 2011 ONSC 2278, at para. 58. The Applicant’s position is that in Ye, the Edwards factors were not analyzed, and that Ye was decided before Jones. In the result, the Applicant’s position was that the conclusion in Ye that Mr. Ye had a relatively high expectation of privacy, but lightly diminished from the homeowner, should not be applied in this case. The Applicant argues that he exercised control over the area, and that exclusive use is not a part of the analysis set out in Edwards. Ownership is only one factor to consider in the Edwards analysis, and the Applicant argues that the totality of the circumstances, including his presence at the time of the warrantless entry, his control over the basement, and his historical use of the space, demonstrates that he had a reasonable expectation of privacy over the residence.

[192] The Applicant maintains that he had a high expectation of privacy in the residence and the basement. In regard to the residence, he had keys to the front and back doors, could regulate his own access to the residence, and could let others in and out. He had a bedroom upstairs. In terms of the basement, it was essentially his own space. He had no other address.

Respondents’ Position

[193] The Federal Respondent made submissions in respect to this issue. In his factum, the Federal Crown argued that the Applicant did not have a reasonable expectation of privacy in the house or in the motor vehicle found on the driveway, applying the Edwards test, and as such, the search of the house did not engage s. 8 Charter scrutiny. However, orally, the Federal Respondent conceded that the Applicant had a relatively high privacy interest in 2273 Devon Road, in accordance with Ye and Edwards. The Federal Respondent submits that the Applicant’s expectation of privacy is not as high as the Applicant’s father, who is the owner of 2273 Devon Road, but admits that the Applicant’s expectation of privacy was at the higher end of the spectrum.

Analysis and Finding on Issue 1:

[194] I find that the Applicant did have a high expectation of privacy in 2273 Devon Road, thus triggering the section 8 Charter issues discussed below. The facts of this case are similar to Ye, where Justice Quigley found that the accused had a relatively high privacy interest in his parents’ home. Based on the evidence adduced in this case, particularly, the transcript evidence of the Applicant’s father at the preliminary hearing, the Applicant’s use and treatment of 2273 Devon Road illustrates that he had a high expectation of privacy in the entirety of the home.

[195] In the circumstances of this case, it would not be reasonable to parse the basement from the remainder of the residence. The Applicant could come and go as he chose, not just the basement. He maintained a bedroom upstairs.

[196] In Edwards, the Supreme Court held that a reasonable expectation of privacy is to be determined in the totality of the circumstances. In doing so, the Court set out factors that may be considered in assessing the totality of the circumstances, including:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

If a reasonable expectation of privacy is found, then the Court must determine whether the police search was conducted reasonably: see Edwards at para. 45.

[197] In considering the Edwards factors, it is evident that the Applicant maintained a high expectation of privacy in the home. The Applicant was present at the time of the search, and was in control of the basement area, where he primarily resided. While the Applicant was not the owner of 2273 Devon Road, he had historical use of the home for eight months prior to the incident, and regularly accessed the property as well. The Applicant had his own key and could regulate access to the basement area.

[198] I agree with the Applicant that he is entitled to rely on the Crown’s theory of the case in establishing a subjective expectation of privacy. The Supreme Court was clear in Jones that the defence is permitted to rely on the Crown’s theory for the purposes of a voir dire. In this case, the Respondents suggest that the drug containers belonged to the Applicant, and that he occupied the basement. The Applicant is permitted to rely on the Crown’s theory that he was the main occupant of the basement to establish a subjective expectation of privacy. Further evidence of Matthew Stairs’ subjective expectation of privacy was the evidence that he could have his girlfriend stay over, and that he made the basement his own area.

[199] Lastly, the Applicant’s expectation of privacy is objectively reasonable. As outlined above, this was the Applicant’s residence where he had historically resided for eight months. Any rational observer would conclude in the circumstances of this case that Matthew Stairs had an objectively reasonable, high expectation of privacy, in the residence.

Issue 2: Were the officers justified, by relying on the exigent circumstances doctrine, to enter the Applicant’s residence without a warrant?

[200] Having found that Matthew Stairs had a high expectation of privacy, I will now proceed with the analysis under s. 8 of the Charter.

Applicant’s Position

[201] In accordance with R. v. Kelsy, 2011 ONCA 605, the Applicant argues that the facts of this case engage both the exigent circumstance doctrine, codified in s. 529.3 of the Criminal Code, and the common law “ancillary powers” doctrine, which governs warrantless entries into residences by police. The Applicant submits that the analysis for the statutory and common law doctrine must be conducted separately in determining whether the police’s conduct was justified: see para. 51 of Kelsy. Regardless of the analysis, the Applicant argues that exigency was not satisfied in this case, and the police’s actions in entering the house were a violation of his s. 8 Charter rights.

a) Exigent Circumstances Doctrine

[202] Section 529.3(1) of the Criminal Code sets out the exigent circumstances doctrine. This section states:

529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person… [Emphasis added]

[203] In Kelsy, the Ontario Court of Appeal considered a warrantless search of a bag under both the exigent circumstances doctrine and the common law doctrine. The Court held that “whether exigent circumstances are invoked to search for evidence or to protect the public or for officer safety, it is the nature of the exigent circumstances that makes some less intrusive investigatory procedure insufficient. By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only where necessary”: see para. 35. In R. v. Patterson, 2017 SCC 15, the term exigent circumstances was interpreted to denote urgency, and the circumstances must render it impractical to obtain a warrant: see paras. 33-34. In Patterson the court was considering s.11(7) of the C.D.S.A.

[204] The Applicant argues that the officers in this case did not consider getting a warrant. They never turned their minds to whether grounds for a warrant existed. Based on this testimony, the Applicant submits that there would be no way to determine whether a warrant was impractical, because the officers did not even turn their mind to it. As such, the police misapplied the exigent circumstances doctrine. If they had not established that grounds for a warrant existed, the doctrine cannot apply.

[205] The Applicant’s position is that even if the officers had established that grounds for a warrant existed, the circumstances were not exigent. The Applicant relies on para. 21 of Davidson to suggest that exigent circumstances must be urgent and pressing circumstances. The Applicant also relies on Kelsy at para. 35 that the circumstances must be extraordinary and immediate action is required.

[206] Further, the Applicant submits that the impracticality of obtaining a warrant does not substitute itself for exigent circumstances, and argues that the police made this mistake in entering the residence. The Applicant relies on the testimony of Brown, who stated that it would take too much time to obtain a warrant, to argue that the exigent circumstance doctrine was not met. The Applicant also submits that Brown misapplied the exigent doctrine test, as he stated in cross-examination that if there was a 1 per cent chance that someone was in harms’ way, he would have to act accordingly. He confirmed that he meant enter the residence and see if the person was safe. The Applicant stated this fell below the standard placed on officers under both the doctrines.

[207] Lastly, the Applicant argues that the police did not have reasonable grounds to enter the residence under the exigent circumstances doctrine. In Kelsy, the Ontario Court of Appeal stated that “something close to reasonable grounds appear to be a prerequisite to a valid search” when police are acting under the exigent circumstances doctrine where there is a concern for the safety of the public or police: see para. 32. While the Court later clarified that reasonable grounds may not be required in other circumstances where the exigent circumstances doctrine is invoked to justify a search for the purpose of protecting the public or police officers, and that a lower standard of reasonable suspicion may be appropriate, the Applicant in this case argues that there were no justifiable grounds for the police to rely on in entering the residence. The Applicant argues that the information the officers had was vague, and that they relied on speculation that they had located the suspect vehicle and that the involved parties would be inside the residence.

[208] To sum up, the Applicant argued that the officers, based on the facts of this case, did not have reasonable grounds to believe that the suspect was inside. The Applicant further argued that the officers did not have reasonable grounds to arrest a person without a warrant. The Applicant’s position was that subjectively the officers believed that they had grounds to arrest without a warrant but that their belief was not objectively reasonable. The Applicant also claims that the officers did not consider whether the conditions existed to obtain a warrant. The Applicant lastly argues that in the circumstances of this case, exigent circumstances did not exist. The officers did not have reasonable grounds to believe entry in to the residence was necessary to prevent imminent bodily harm.

b) The Common Law Doctrine

[209] The Applicant relies on Kelsey, Davidson, R. v. H.(K.), 2016 ONSC 5275, R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, Wilhelm, and R. v. Francis, 2018 ONSC 1082, to argue that the common law doctrine was not satisfied in this case. This common law doctrine, known as the 9-1-1 or Godoy exception, was informed by the approach in R. v. Waterfield, [1963] 3 All E.R. 659 (Eng. C.A.): see Wilhelm at para. 107.

[210] Godoy is the leading Supreme Court authority on searches where police are responding to a 911 call. In Godoy, Chief Justice Lamer (as he then was) confirmed that officers can enter a dwelling, however, the Court is required to consider two questions in evaluating the police’s conduct:

i) Does the police conduct fall within the general scope of any duty imposed by statute or recognized at common law; and

ii) Does the conduct involve an unjustifiable use of powers associated with that duty?

See Godoy at paras. 15 and 16.

[211] Chief Justice Lamer, in Godoy, also articulated that the “justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference”: Godoy at paras. 17-18. In Davidson, the Ontario Court of Appeal confirmed that the standard is a “reasonable grounds to believe”, in evaluating whether the police’s warrantless entry into a residence is justified where the police relied on the justification of the protection of life and safety. The law will justify the exercise of this power only where it is reasonably necessary, and once the police are inside the residence, “their authority is limited to ascertaining the reason for the call and providing any needed assistance”: see Davidson at para. 26.

[212] The Applicant’s argument in this case lies squarely in the fact that the 911 call did not generate from inside the residence, as was the case in Godoy, but actually originated from an independent witness who did not direct the police to a specific location where the trouble was occurring. The Applicant argues that the police in this case did not have sufficient information to believe that there was suspicious activity inside 2273 Devon Road, and there were no attempts at less-intrusive measures, such as calling the residence’s land line, before entering. There was simply no evidence for the officer’s to form reasonable grounds to believe that the life and safety of a person was at risk.

[213] In the alternative, the Applicant argues that the exigent circumstances ended once the police entered the residence and located Ms. Manriquez. In accordance with Davidson, the police do not have further permission to search the premises or intrude on the resident’s privacy once the safety concerns are dealt with. The Applicant relies on Francis, where the Court found that while the police were entitled to enter the apartment building after a 911 call about a domestic violence situation, the police were no longer able to search a closet nearby the accused in that case after the safety concerns were alleviated. The Applicant argues that the case here is similar to both Davidson and Francis, and that after Ms. Manriquez was safely in police custody, the officers should have obtained a warrant to search the remainder of the house and arrest the Applicant.

Respondents’ Position

[214] The Provincial Respondent made submissions on this issue. At the outset, the Provincial Respondent stated that the primary justification for the officer’s warrantless entry into the residence was pursuant to the common law 911 doctrine, and not the exigent circumstances doctrine. The Provincial Respondent relies on R. v. Lowes, 2016 ONCA 519, R. v. Berthelot, 2013 ONSC 1829, R. v. Nicholls, 1999 2750 (ON CA), [1999] O.J. No. 3660 (C.A.), R. v. Norris, 2010 ONSC 2430, and R. v. Purcell, 2012 ONSC 3396.

[215] The Provincial Respondent argues the facts in this case are similar to Lowes, where the Ontario Court of Appeal held that additional steps were not required by the police officers before entering the home without a warrant: see para. 11. The paramount concern in this case was the safety of the female victim, and the police had grounds to arrest the male suspect after Mr. Berlingieri’s call to the police. The Provincial Respondent also argues that the cautions registered to the Applicant, which came up during the licence plate search, provided additional grounds to arrest the Applicant. The Provincial Respondent concedes that their position on this issue relies heavily on the assumption that I find as a fact that the police had located the correct vehicle on the driveway of 2273 Devon Road which was described by the complainant, that the vehicle was located proximate to the location where the alleged assault was said to occur, and the issue with the mis-stated number on the licence plate could be reconciled by common sense.

[216] The Provincial Respondent argues that in Norris, the Court held that even where there is a call to police that is not a 9-1-1 call, police can enter a residence without a warrant if there is a concern for life or safety of an individual. Further, the Provincial Respondent submits that the fifteen minute delay in the reporting of the assault in this case is not of particular concern, given that none of the exigent circumstances cases turn on the timing of the report to the police versus the timing of the police’s warrantless entry. In Purcell, the call reporting the domestic violence assault was received at 2:03 a.m., and the dispatch of the police only occurred at 2:23 a.m. Entry into the residence was affected at 2:46 a.m. In determining that the warrantless entry was justified in the circumstances, Murray J. did not consider or find that the delay in the reporting of the call to the dispatch to cause a concern.

[217] The Provincial Respondent also relies on Berthalot, where a 9-1-1 call was received from a neighbour concerning a domestic violence incident. The Crown submits that Berthelot stands for the proposition that the fact that a 9-1-1 call does not originate from the dwelling house does not distinguish the call from that of a call originating from inside the residence: see para. 15.

[218] In respect to the grounds the police had to enter, the Provincial Respondent argues that the police’s belief was grounded in several aspects of reliable information, including a call from an independent third-party witness to the assault, the locating of a vehicle that matched the description provided by the complainant, the licence plate number being similar to that which was provided by the complainant, and the fact that the vehicle was located near the area of the alleged assault and appeared recently driven. The Provincial Respondent argues that once the police ran the licence plate and noted that the car was associated with the Applicant and the cautions registered to him, they formed reasonable grounds to believe that the person inside the residence could be facing imminent harm, thus justifying their warrantless entry into the house.

[219] The Provincial Respondent made brief submissions in respect to the officers’ authority to enter the residence pursuant to the statutory exigent circumstances doctrine. Briefly, the Provincial Respondent submits that the authority to enter stemmed from the concerns relating to the female, and that there was a concern of imminent risk of harm such that the entry was lawful.

[220] Lastly, the Provincial Respondent argues that the Applicant’s argument that exigent circumstances ended when Ms. Manriquez was located safely should fail for two reasons. First, the officers testified that they did not believe that Ms. Manriquez would accompany them outside the residence, and that they did not feel safe leaving her inside the home. Second, the Provincial Respondent submits that the officers had ongoing safety concerns for other people in the residence, and therefore had grounds to descend into the basement and affect the arrest of the suspect of the alleged assault.

Analysis and Finding on Issue 2

[221] The Crown relied on the common law doctrine and not the statutory doctrine for exigent circumstances. In my view, this is consistent with the evidence of all three officers. They did not testify that they entered the residence to arrest the suspect. Brown testified that he had reasonable and probable grounds to arrest the male after he spoke with Mr. Berlingieri. Brown, did not however, say that he entered the residence to arrest the male. He was clear that he formed the intention to arrest the male when he saw the female with injuries. Vandervelde testified that he believed there were grounds to arrest the male, prior to going in to the residence. He did not say that this was why he went in to the residence. He testified that then he saw the male run across the bottom of the stairs and the female with injuries. He then went downstairs to arrest the male. Martin did not refer to grounds for arrest at all in his evidence. All three officers testified that they entered the residence following the call to 911 by Mr. Berlingieri due to the concern for the safety and wellbeing of the female, who had allegedly been assaulted in the Corolla vehicle by a male.

[222] The Applicant argued that the officers testified as if they were using s. 529.3(1) of the Code as their justification for entering, and that the Crown was attempting, in submissions, to “back into” the common law doctrine when the officers had not testified in that manner. I disagree with the Applicant. All three officers testified that their reason for entering the residence was due to concerns for the safety of the female and not to arrest a suspect. As such, I will analyze the case using the common law doctrine and not under s. 529(3).

[223] The Applicant argues that Brown misapprehended the test for entry either under the statutory or common law doctrine, and that this is indicative of his overall approach to the incident, and the diminished concern and lower value he placed on Mr. Stairs’ expectation of privacy in his residence. The Applicant argued that this misunderstanding of the law by Brown casts doubt on whether the officers believed entry into the home was reasonably necessary to ensure the safety of the female.

[224] I find that Brown did misstate the law. In my view, however, this does not affect the outcome of this case. Brown was not saying that in this case there was only a one per cent chance someone was in harms’ way. In my opinion, he was speaking generically. Further, in other parts of his evidence, he articulated his real and reasonable concerns for the female’s safety. In addition, he was only one of three officers. I did not find that this one misstatement was reflective of his overall evidence, nor that his misunderstanding permeated his articulation of reasonable concerns for the safety of the female.

[225] In terms of the first question from Godoy, in my view, the officers in this case were acting within the general scope of their duties: see Davidson at para. 22. It is within their duties to respond to and investigate 911 calls.

[226] In terms of the second question, whether the conduct involved an unjustifiable use of powers associated with that duty, the Ontario Court of Appeal in Davidson, at para. 26, stated the following:

But Godoy also narrowly limits when the police can enter a person’s home without a warrant in response to a 911 call. The police must reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a resident’s privacy or property.

[227] The Godoy exception is also summarized in detail in Wilhelm, paras. 106-125. Hill J., in summarizing Godoy, provides that the extraordinary authority of forced entry to a dwelling house may be reasonably necessary to ascertain the safety of an individual whether the 911 caller was at the residence or from an outside caller’s report: see para. 106 (5).

[228] Paragraphs 111 to 125 of Wilhelm provide a framework for the analysis as follows:

[111] In Godoy, at para. 18 (and subsequently repeated in MacDonald, at paras. 37, 39), the court adopted the following approach of Doherty J.A. in R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at p. 499 as to what is meant by a “justifiable” use of police power:

…the justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

[112] The operational determination as to whether an exceptional intrusion by the police is reasonably necessary engages balance of these considerations all in the context of the available information, the existence of any less intrusive alternative, and the strength of the police belief relating to the exigency or danger said to justify an extraordinary intrusion and a necessitous departure from conventional investigative measures. Importantly, as noted in Godoy at para. 11, whether the police will be justified in a particular situation in entering a private dwelling in the course of an investigation “depends on the circumstances of each case”. The same point was made in Jones, at para. 42: “not every 9-1-1 call engages issues of public protection…it remains to analyze each situation on its own facts”. Entry to a dwelling is not justified in every case. No blanket institutional policy divorced from the factual context of the particular case can become a surrogate for the assessment of specific factual circumstances.

[113] A police officer is expected to act reasonably in the circumstances: Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 58. An officer’s conduct is governed by his or her evaluation of the totality of circumstances in an investigative situation. Where, in fluid circumstances, new information comes forward, it too must be assessed, not ignored, at times necessitating a re-examination of the situation. An officer must of course act on articulable, objective facts and not on profile characteristics which risk “undermining a careful individual assessment of the totality of the circumstances”: R. v. Chehil, 2013 SCC 49, at para. 40.

[114] While the police are “entitled to draw reasonable inferences” from facts (Cornell, at para. 35), to rely on investigative training and experience (MacKenzie, at paras. 15-6, 62-4), with some contextual latitude to be afforded the police exercising discretion and judgment in difficult and fluid circumstances (Cornell, at para. 24; Jones, at para. 42; R. v. Kelsy, 2011 ONCA 605, at paras. 56-7; Kephart, at para. 10), the exercise of police discretion in entering an occupied dwelling without warrant or consent is not unlimited as observed by McFarlane J.A. in Tunbridge, a domestic violence case, at para. 8:

I recognize that police officers who are called to deal with domestic quarrels are faced frequently with difficult decisions as to the extent to which their duty requires them to intervene. Actions prompted by feelings of humanity and goodwill may easily and understandably extend into an area outside the bounds of legal duty. This is what I think occurred in this case.

[115] In assessing the lawfulness of police conduct in a given situation, it is necessary to recall that the police are not entitled to rely on ex post facto justifications for their conduct. The lawfulness of their actions is dependent upon what they knew or “should reasonably have been known to them at the time”: Cornell, at para. 23; R. v. Burke, 2013 ONCA 424, at paras. 44-5.

[116] Although Godoy established that in appropriate, but not all, circumstances, warrantless non-consensual entry to a dwelling by the police might be justified in response to the legitimate emergency of a domestic violence victim in need of assistance, beyond speaking in terms of reasonable necessity, the case did not describe the strength of belief or confidence necessary for a police officer respecting a potential victim’s circumstances before the protection of the common law exception would attach – reasonable suspicion? reasonable and probable grounds?

[117] In the Kelsy case, Rosenberg J.A., in extensively reviewing the Waterfield criteria respecting the extenuating circumstances justification for warrantless police action in the context of a concern for public safety, left open the possibility of a standard less than reasonable grounds (“articulable cause or reasonable suspicion” (at paras. 32-4, 52, 54)).

[118] Section 529.3(2)(a) of the Code authorizes police entry of a dwelling to arrest without warrant where an officer has “reasonable grounds to suspect” that entry is necessary to prevent imminent bodily harm or death to any person.

[119] In R. v. Jamieson (2002), 2002 BCCA 411, 166 C.C.C. (3d) 501 (B.C.C.A.), involving a warrantless police entry of a dwelling in response to a 9-1-1 call in circumstances of an occupant found outside the house suffering acid burns apparently related to a clandestine lab, and a missing woman believed to have been in the house, the court stated at paras. 38-40:

What is justifiable depends on the circumstances.

... the justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

This case turns largely on the importance of the duty in the circumstances, and this, in my view, turns on the danger apprehended here by the police. The trial judge found that the suspicion of danger was legitimate. By this I take her to mean that the suspicion was honestly held and was objectively reasonable on the information known to the police. The level of the danger suspected was high and was associated to the various rooms of the residence so that examination of one room only was not a viable response to the concern. There was no practical way to determine whether a lab was cooking or others were in the house injured other than by entering. It was known that one person in the house had already suffered grievous injuries to his face and head through contact with a highly caustic substance. The duty pursued was the protection of others. The purpose of the first entry was to look for "bodies" and was of limited duration.

Notwithstanding the appellant's privacy interest in the residence, it is my view that the trial judge was correct to conclude that the law permitted the police to enter the home, provided the entry was no more extensive than required to ensure safety.

(emphasis added)

[120] In some instances, in analyzing the issue of reasonable necessity, and the need for objective justification, the courts do not articulate any specific standard in terms of degree of persuasion. So, for example, at paras. 32-3, 39-40 of the Jones decision, the British Columbia Court of Appeal stated:

The trial judge enumerated several "possibilities" in this scenario to justify Cst. Abram's search:

[80] It was possible that, notwithstanding the demeanour and response of Rachelle, and given her mental health issues, that there were other persons involved or that there was something untoward happening in the upstairs portion of the home where she had clearly been spending time. It is possible that she could have been making plans to harm herself, and had only been interrupted by Constable Abram entering the premises. It is equally possible that she had been in the process of creating a hazard, such as setting fire to the premises, which would have created a dangerous situation for both herself and anyone else who might have re-entered the premises.

[Emphasis added.] [by BCCA]

With respect, I am unable to find the necessary evidentiary support to transform these speculative concerns to an objective basis for the search. As to the spectre of others in the house, nothing in the 9-1-1 call suggested this was the case. Both Ms. Jones and Rachelle told him no one else was there. Cst. Abram observed nothing that suggested otherwise. Any possibility that Rachelle might harm herself in the house was clearly alleviated when she left it in a calm and obedient manner. Nor was there anything to provide an objective basis for believing there was an emergent hazard in the house.

It is notable that in each of the cases referred to by the trial judge, and provided to this Court, in which a search in the interests of public safety was upheld, there was some objective indicia of criminal activity or an identifiable threat to public safety in the 9-1-1 call or the circumstances that greeted the police on their arrival. These included the presence of a gun or other weapon (R. v. Borecky, 2011 BCSC 1573; R. v. Purchase, 2011 BCSC 154; R. v. Brown, 2003 BCCA 141; R. v. Hill, 2006 BCCA 530; and R. v. Gillingwater, 2006 YKTC 65), an indication of an assault or other injury (Godoy; Timmons; and R. v. Wu, 2008 BCCA 7), and an injury in the presence of an operating drug lab (R. v. Jamieson, 2002 BCCA 411).

The absence of similar concrete indicators of crime or threat to public safety in this case is telling, and distinguishes these cases from that before us. Here, the 9-1-1 call requested an ambulance. The arrival of police was unexpected. As earlier described, once Rachelle left the house, there remained no objective support for Cst. Abram's subjective belief that the "mental health episode" justified an immediate search to "make sure everything was all right".

(emphasis added)

[121] In R. v. Larson, 2011 BCCA 454, the court observed at paras. 48-9, 52:

The Crown does not suggest that there were grounds for entry into the dwelling other than concerns for life or safety of Mr. Larson or the public.

The police did not give evidence as to exactly what risk to safety they were worried about.

In the circumstances of this case, the trial judge erred in finding that there was objective support for the subjective belief of the police officers that it was necessary to enter the home in order to protect Mr. Larson or the general public. There was simply no evidence on which it could be found that some condition on the property posed an immediate threat to either Mr. Larson's safety or that of the general public.

(emphasis added)

[122] In the Kephart case, the Alberta Court of Appeal stated at paras. 9, 29, 31-2:

Forcible entry of residential premises by state authority without warrant, or under defective warrant, may be defensible. But the grounds for so doing are, and must be, exceptional. In these prosecutions where the execution of a peace officer of his lawful duty is questioned, the justification for doing so must be established by the invading police authority under an onus that has been described as displaceable but severe. If the justification is not established, the occupants of the dwelling may be absolved from their resort to force to repel the attempted police entry. Sections 40 and 41 of the Criminal Code. As the Supreme Court has noted in Eccles v. Bourque, post, our society's enthusiasm for the inviolability of residential dwellings is locked in everyday parlance. That an Englishman's home is his castle is recited by school boys. But the maxim is flexible at law. There are exceptions to the sanctity of dwellings which, if proven, excuse forcible police entry. Those exceptions may be found in statute or in circumstances recognized by the common law. Some of the latter are sharply defined in Canadian law. Some, perhaps wisely, are not.

In his judgment [in Swales v. Cox, [1981] All E.R. 1115] Donaldson, L.J. (as he then was), spoke of the "severe" burden of proof accompanying a plea of justified force employed in the entry of a dwelling house. It is clear that he was speaking only of the Crown's burden on this internal issue.

There were no grounds for belief that any indictable offence had been committed or that anyone who had committed such an offence was in Oliver's residence. The desire of the police to restore the authority of Acadia House by the recovery and return of the girl to it was commendable but it is surely not their office or duty to effect compliance with the statutory regimes of the Province of Alberta by the spontaneous and forcible entry of dwelling houses.

There was no indictable offence surrounding the girl's presence in Oliver's house. No offence, indictable or summary, had been witnessed by the police. No breach of the peace was ongoing. No crime was to be prevented and there was no life in danger. Nor was physical injury to the person or criminal damage to property to be feared. Hence neither by statute nor common law was the decision to enter the dwelling by force supportable. Accordingly, I do not see this case as one in which the Crown can successfully invoke the due execution of police duty as a justification either at common law or under legislation.

(emphasis added)

[123] Other jurisprudence promotes the prerequisite of reasonable and probable grounds in the reasonable necessity assessment. In Custer, at paras. 32, 34-5, the Saskatchewan Court of Appeal held that the common law power of a police officer to enter a dwelling “to prevent death or serious injury” must be based on reasonable and probable grounds:

What, then, are those limits? In the case of the right of forcible entry to prevent the commission of an offence which would cause immediate and serious injury to any person, the limits -- according to the authors of the "Ouimet Report" (P. 59) -- consist of a belief by the police officer on reasonable and probable, grounds that such an offence is about to be committed. In the case of the right of forcible entry to search for and arrest a fugitive, the limits are a belief by the police officer on reasonable and probable grounds that the person sought is within the premises and, in addition, a proper announcement prior to entry (see: Eccles, p. 774). The limits to a right of forcible entry to prevent death or serious injury are no different. Such an entry, in my view, can be made if the police officer has a belief based on reasonable and probable grounds that he is confronted with an emergent situation involving the preservation of life of some person within the dwelling house or the prevention of serious injury to that person and if a proper announcement is made prior to entry. Accordingly, whether Constable Haughn's conduct (from the standpoint of the second aspect) amounted to a justifiable use of power depended upon whether he had the requisite belief on reasonable and probable grounds and had made the requisite announcement. Two issues arise: What powers does this Court have under s. 771 of the Code to review any question involving the two requisites? What should the Court do in the present case?

What should this Court do in the present case? It is helpful to restate briefly the findings by the trial judge relevant to the point under consideration. The trial judge did not deal with the Constable's belief and, of course, did not deal with whether the belief was based on reasonable and probable grounds involving an emergent situation. He found only that the officers wanted "to ... determine the extent of the wife's injuries [and] give aid if necessary". I do not interpret this as a finding that Constable Haughn had a belief in an emergent situation involving the life of, or serious injury to, the wife who was inside the dwelling or that he had reasonable and probable grounds for the belief. The reason for the trial judge's failure to direct his mind to the officer's belief and to the reasonable and probable grounds for it and for his failure to make a finding in that respect is not known. Was it because he considered the issue irrelevant given the wording of the charge? Was it because the Crown deliberately cast its case so as not to require a finding in that respect? Was it because he made an error of law regarding the proper interpretation and effect of the decisions in Colet and Eccles? I will deal with these questions presently.

The appeal judge, too, did not deal with the issue of belief on reasonable and probable grounds. The matter appears not to have been raised before him.

(emphasis added)

[124] In Cornell, at paras. 22-3, 31, with a context in part relating to police safety, Cromwell J. stated:

The main question is whether the police had reasonable grounds for concern to justify use of an unannounced, forced entry while masked in this case. The trial judge is required to assess the decision of the police to act as they did and the appellate court is required to review the trial judge's conclusions. Three things must be kept in mind throughout these reviews.

First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed "through the 'lens of hindsight'": Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at

There is no such "blanket policy" in evidence here and the record shows that there were ample grounds for the police to be concerned about violence and destruction of evidence in this case.

(emphasis added)

[125] Most recently, in the MacDonald case, LeBel J. articulated the reasonable grounds standard for determining when “safety searches” are reasonably necessary, stating at paras. 32, 38, 40-1, 43-4:

A search that is reasonably necessary to eliminate threats to the safety of the public or the police -- which I will term a "safety search" -- will generally be conducted by the police as a reactionary measure. In other words, although such searches may arise in a wide variety of contexts, they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react "on the sudden". … safety searches will typically be warrantless, as the police will generally not have sufficient time to obtain prior judicial authorization for them. In a sense, such searches are driven by exigent circumstances. Even if exigent circumstances exist, however, "safety searches" must be authorized by law.

As can be seen, the Dedman-Mann line of cases does not stand for the proposition that all acts related to an officer's duties are authorized by law. Quite the opposite, only such acts as are reasonably necessary for the performance of an officer's duties can be considered, in the appropriate circumstances, to be so authorized. The English Court of Appeal was clear on this point in Waterfield…

On balancing these factors, I am convinced that the duty of police officers to protect life and safety may justify the power to conduct a safety search in certain circumstances. At the very least, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search.

But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45).The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41).

As for the second prong of the Collins test, it cannot be disputed that the lawful authority underlying safety searches outlined above is reasonable. Indeed, the execution of the police duty to protect life and safety lies at the very core of the existence of the police as a social entity.Further, the law will justify the exercise of this police power only if exercising it is reasonably necessary in order for the police to conduct the safety search in question (Clayton, at paras. 21, 26 and 31). As I explained above, it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search. This limit guarantees that the lawful police power is not excessively broad. In so doing, it ensures that the law itself is reasonable and can be reasonably delineated.

This common law power to conduct searches for safety purposes is the reasonable lawful authority for the search carried out by Sgt. Boyd. The power was engaged because Sgt. Boyd had reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat.

[Emphasis in original].

[229] In the circumstances of this case, I find that the police reasonably believed that the safety of the female inside the home was in danger.

[230] First, I do not accept that the manner in which the officers drove to the area demonstrated that they did not believe a female was in danger. The officers explained why they travelled in the manner in which they did. I do not accept that the absence of sirens and lights indicates that the officers were not concerned with the female’s safety. The dispatched officers drove directly to the general location. Further, more details were provided of the alleged assault by Mr. Berlingieri to Brown, which only occurred after the officers got to the scene.

[231] Second, the delay in reporting the incident does not occasion much concern in this case. In my analysis, I have factored in the 15-minute delay in the 911 call being made. Although the officers testified they did not recall being told this by dispatch, each admitted they would have been advised of this, after hearing the dispatch tape. Based on this delay, the officers took 29 – 30 minutes to enter the residence from the time Mr. Berlingieri had observed the incident. Only approximately seven minutes had elapsed from their dispatch to their entry in to the residence, and their actions in the intervening seven minutes are reasonably explained. This will be addressed further below. The delay in the reporting of the incident does not detract from the overall circumstances that they reasonably believed there was a concern for the female’s safety based on the information they had at the time.

[232] Third, I find that the police located the car described in Mr. Berlingieri’s 911 call at the Devon Road residence. The car was the same make, model, and colour. The four letters in the plate matched the plate information from Mr. Berlingieri. Brown called Mr. Berlingieri, in part to address the discrepancy in the numeric part of the plate. He was satisfied with Mr. Berlingieri’s explanation. His belief was reasonable. The vehicle was located very close to where Mr. Berlingieri had lost sight of the vehicle. The licence plate provided by Mr. Berlingieri had been checked, and did not match to a Toyota Corolla.

[233] Fourth, it was not unreasonable for the officers not to further search for the vehicle. As set out above, I find that Vandervelde reasonably believed that he had found the vehicle referred to by Mr. Berlingieri. There was no need to look further. I find that the details received from dispatch provided a good description of the vehicle and Vandervelde was able to locate it.

[234] Fifth, the officers had a reasonable belief that the occupants of the vehicle were inside the residence. Approximately 24 minutes had passed in total from Mr. Berlingieri observing the incident until Vandervelde observed the vehicle. The vehicle window was down. The vehicle was in the driveway at the residence. A cell phone was inside. The parties were not outside the home or in the backyard. The fact that there were no lights on in the home was not significant. It was in the middle of the day. Further, it would not necessarily be expected that sounds from inside a home could be heard outside of a home, and I draw no inference from the fact that there was no sound coming from the house that the officers observed.

[235] Sixth, based on all the information they had at the time, I find that the officers reasonably believed the female’s safety was at risk. An independent observer had reported seeing a male beating up a female. Brown had obtained further details from Mr. Berlingieri, who he believed was alert and was able to accurately provide information. After running the licence plate of the car located, the officers learned that Matthew Stairs was associated with the car, and that he had three serious cautions registered against him. Brown and Vandervelde also received some information about his prior involvement in domestic violence.

[236] Seventh, it was reasonable for Brown to take the time to call Mr. Berlingieri given the discrepancy in the plate number and to obtain additional details of the alleged assault. Brown testified he would have proceeded even if he had not made contact with Mr. Berlingieri. This does not detract from the reasonableness of Brown calling Mr. Berlingieri to gather quickly whatever information he could to explain the licence plate discrepancy and to confirm that Mr. Berlingieri had observed an assault.

[237] Further, it was reasonable for the officers not to go to neighbours’ homes. The alleged assault had not occurred at the residence. There were no passersby to speak to. I find that the officers did take reasonable investigative steps before entering the home. They knocked at the front door loudly and repeatedly and announced police presence. Brown looked around the side of the house and in the backyard. They looked in windows. An officer ran a search of the vehicle at the residence and reviewed the information. Brown spoke to the complainant.

[238] All three officers said there were no signs of an assault in the vehicle or outside of the residence. This was information that they had to balance with the information they had from dispatch and from Brown’s telephone conversation with Mr. Berlingieri.

[239] Lastly, in terms of the reasonable belief that the safety of the female was in danger, Brown received information from Mr. Berlingieri that the alleged assault was ongoing, both while the Corolla was stopped initially near the tracks and as the Corolla was behind Mr. Berlingieri’s vehicle. Brown understood from Mr. Berlingieri that the female had been struck several times by the male and that at one point the male had the female in a headlock and she was “turtling” to protect herself. Brown understood that the vehicle was swerving.

[240] The Applicant referred to the fact that the officers went into the home without speaking to the alleged victim and without speaking to anyone involved in the assault. The Applicant argued this affected the reasonableness of their beliefs. In my view, the officers reasonably relied on the information from dispatch, which had come from a third party observer. Brown confirmed the reliability of the information in his conversation with Mr. Berlingieri.

[241] The Applicant referred to the fact that none of the three officers asked for past occurrence reports for Matthew Stairs. This may have given them his phone number and they could have tried to call him. In my view, knocking at the door was a reasonable alternative given that Vandervelde had testified that it may have taken some time to search through the reports.

[242] In terms of alternate measures, the Applicant further suggested the officers should or could have called a senior officer. On the basis of their evidence, in my opinion, there was absolutely no reason why they should have called a senior officer. They were confident in their analysis of the situation.

[243] In the circumstances of this case, it was reasonable for the officers to be concerned with the female’s safety even when the 911 call originated outside of the residence. I find that the officers had strong concerns for the female’s safety and that the concerns were reasonable in the circumstances given the information they had from dispatch and the information Brown received from Mr. Berlingieri. Dissimilar to the Court of Appeal’s finding in Davidson, at the time the police arrived, there was no indication that the emergency had been resolved: see paras. 28-29.

[244] The Applicant submitted that how police conducted themselves once inside the residence was indicative that there concern was not for the safety of the female. The Applicant references the evidence of Brown and Vandervelde that they did not immediately go down the basement stairs when they saw a light in the basement and heard music coming from the basement. I disagree with the Applicant’s position. Brown explained in his testimony why he went to the front door to let Martin in. I accept his explanation that he thought a third officer could be required given the circumstances.

[245] The Applicant also argued that the evidence from Brown and Vandervelde that they did not question the female about her injuries when she came out of the basement or ask if she required medical attention was indicative that the officers were not primarily concerned for her safety. Again, I disagree. Vandervelde had, just before the female came upstairs, observed a male run across the bottom of the stairs and go into a room and shut the door. The situation was evolving. Vandervelde was concerned with the male’s conduct. Their focus properly became the male. Brown gave Martin instructions to stay with the female and ensure her safety, while he and Vandervelde proceeded to the basement. I find that the actions taken were reasonable given the dynamic situation.

[246] In summary, I find that the Godoy test has been satisfied and the officers lawfully entered the residence under the common law exigent circumstances doctrine. The officers were acting lawfully under their police duties to investigate a 9-1-1 call. Given the dynamic situation and the information known to the officers at the time, I find that the offices justifiably used their powers to enter the residence to ascertain the safety of the female.

Issue 3: Did the officers have reasonable and probable grounds to arrest the Applicant?

Applicant’s Position

[247] The Applicant argues that his s. 9 Charter right to be free from arbitrary detention was breached when the police arrested him without a warrant. Section 495(1) of the Code states:

495 (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; or

(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

[248] The Applicant relies on R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at para. 17, which provides as follows:

In summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.

[249] The Applicant relies on Storrey and R. v. MacKenzie, 2013 SCC 50, at para. 41 and 74, and R. v. Dhillon, 2016 ONCA 308 at para. 25, to argue that reasonable grounds must be founded on “objectively discernable facts”, and at the point where credibly-based probability replaces suspicion. The Applicant also relies on the extensive list of principles to consider in determining whether an arrest violates s. 9 of the Charter which was set out by Justice Hill in R. v. Amare, 2014 ONSC 4119.

[250] Based on these cases, the Applicant argues Brown did not have reasonable and probable grounds to affect the arrest of the Applicant. First, the Applicant argues that Brown was aware that Mr. Berlingieri was unable to provide a detailed description of the assault, the parties, or the vehicle involved. Brown and Vandervelde both testified that they did not have information that the assault was continuing when Mr. Berlingieri lost sight of the vehicle. Mr. Berlingieri’s information was not compelling as he viewed events in his side mirror. Further, upon arrival at the residence, there was no activity or evidence that suggested that an assault had occurred or was ongoing, such that there were no “objectively discernable facts” to form the grounds. The description of the male provided, which was “white male with buzz haircut aged 25-35 years old” was vague, and even upon locating the Applicant in the basement of the residence, was not enough to properly identify him as the perpetrator of the assault. Brown did not see the Applicant run across the basement, and therefore, he had no reason to even believe that the Applicant was the suspect he was looking for.

[251] The Applicant also submits that even if the officers had reasonable and probable grounds to arrest a male suspect, they did not have reasonable and probable grounds to arrest Matthew Stairs. The Applicant’s position is that Vandervelde testified that he was not aware of the description of the suspect when he went inside the residence, and he was the officer who saw the male run across the bottom of the stairs. The Applicant’s position is that neither Brown nor Vandervelde had reasonable grounds to believe that the person in the laundry room was the suspect in the assault.

[252] The Applicant submitted that neither officer could testify that the male who ran matched the very general description of the male provided by Mr. Berlingieri. There were any number of reasons why a person in Mr. Stairs’ position might be startled by police and run to the laundry room.

[253] The Applicant also challenges Brown’s testimony that he included the injuries he observed on the female as she came up the stairs in his consideration that he had reasonable and probable grounds to arrest the male in the basement. The Applicant states that Brown only had a brief opportunity to observe the female and that she was not his focus. His focus was down the stairs toward the laundry room. The Applicant also referred to the discrepancies between the officers evidence regarding the specific injuries they observed in the female. The Applicant argued that any injuries observed could not be said to corroborate the alleged assault, as Mr. Berlingieri had not told Brown where the female had been struck.

[254] In the alternative, the Applicant argues that the after Ms. Manriquez was located safety, the officers had to exit the residence and obtain a warrant to arrest him. The Applicant relies on R. v. Bailey, 2011 ONCJ 69, to support this argument. In Bailey, the police affected entry into an apartment to protect a female from an alleged assault. The Court held that while the entry was justified, the subsequent arrest of the Applicant was unlawful as the police had a duty to obtain a warrant after the safety concerns were alleviated. Similarly, the Applicant argues that after Ms. Manriquez was located, the police had an obligation to obtain a warrant before arresting him.

[255] The Applicant argues that the facts in the R. v. Golub, 1997 6316 (ON CA), 34 O.R. (3d) 743 (Ont. C.A.), the primary case relied on by the Crown, are different from the case before me. The Applicant argues that in this case the situation was not volatile and rapidly changing. The female was upstairs. A male was in the laundry room. The situation was stable and secure.

Respondents’ Position

[256] Based on the cumulative facts known to him at the time, primarily, the account of the situation from Mr. Berlingieri, as well the officers’ observations of Ms. Manriquez, the Provincial Respondent argued that Brown had reasonable and probable grounds to arrest the Applicant. The Provincial Respondent relies on Storrey and Golub to support their argument.

[257] In Storrey, at para. 17, the Supreme Court held that an officer must have both subjective and objective reasonable and probable grounds for an arrest, however, the officer need not demonstrate anything additional to reasonable and probable grounds. In Golub, the Ontario Court of Appeal instructed at para. 18 that in order to determine whether the reasonableness standard has been satisfied, the power exercised by the police, the context, and the dynamics at play in the arrest must be considered. The Court cautioned that the inquiry a justice makes when faced with an application for a warrant is different than the inquiry an officer undertakes when deciding whether to affect an arrest, and this must be considered by the trial judge in assessing an officer’s conduct.

[258] Based on these two cases, the Provincial Respondent argues that the officers were entitled to rely on the information that they received from dispatch, which was sourced to the information received by Mr. Berlingieri, as well as the additional information that was obtained from Mr. Berlingieri when Brown contacted him again after arriving at 2273 Devon Road. There was no indication that any of the information relied on was unreliable. Because the officers were lawfully in the residence, relying on the common law doctrine, and given the female victim had visible injuries after the officer’s entered the residence, it was reasonable for the officers to proceed to arrest the suspect they believed had committed assault.

[259] The Provincial Respondent relies on Brown’s testimony in chief, when he stated that he formed the grounds to arrest the male suspect at the time he encountered Ms. Manriquez in the house.

[260] The Provincial Respondent also submits that the police had ongoing safety concerns for other occupants, and it was this safety concern that drove the police to the basement to affect the Applicant’s arrest. These safety concerns were confirmed by Brown’s testimony, when he stated that he would not have left the female in the residence with a person that had assaulted her. Given the dynamics of the situation, and the fact that the officers believed that Ms. Manriquez would not accompany them outside the residence, the officers had to alleviate their safety concerns by arresting the Applicant.

[261] The Provincial Respondent argues that I do not need to find as a fact that the police had located the correct vehicle, but rather that the officers believed that they had, when they arrived at 2273 Devon Road. Similarly, while I do not need to make a credibility assessment on Mr. Berlingieri’s evidence, I am permitted to make a finding that the officer’s believed the information he conveyed about the incident, as received through dispatch and their conversation with him.

Analysis and Finding on Issue 3

[262] I accept the Crown’s submission in regard to Brown having reasonable and probable grounds to arrest the male in the laundry room. He testified in-chief that he subjectively had reasonable and probable grounds to arrest the male when he saw the female come up the stairs and observed her injuries. In my view, he objectively had reasonable and probable grounds for arrest for assault based on the following factors:

• The information he had received from dispatch concerning the incident together with the details he received from Mr. Berlingieri during Brown’s phone call with him. Mr. Berlingieri was an independent observer. He provided dispatch and Brown with a lot of detail regarding the vehicle and its route of travel. He provided details of what he had observed. He provided a general description of the male. He had identified himself. Brown had a first-hand opportunity to assess Mr. Berlingieri’s reliability during his telephone call with Mr. Berlingieri. He had no reason to discount Mr. Berlingieri’s information.

• As set out above, I find that the officers located the vehicle described by Mr. Berlingieri.

• Brown knew Matthew Stairs was known to drive the vehicle. He knew this was Matthew Stairs’ address. He knew Matthew Stairs had three cautions associated with him, including for family violence and being a flight risk. He knew he had a history of domestic violence.

• Brown and the other two officers observed injuries to the female.

• The male in the basement had run into the laundry room when Vandervelde was shouting police presence and had shut the laundry room door.

[263] As the Crown summarized, Brown said in chief that he formed the grounds to arrest the male as the female was ascending the basement stairs. Brown said in cross that he went to the basement to arrest the male. He also said in cross that after he spoke to Mr. Berlingieri, he established grounds to arrest the male described by Mr. Berlingieri, not specific to Matthew Stairs. As I have found above, the officers, including Brown, entered the home to ensure the safety of the female, not to arrest the male or a suspect. Brown formed reasonable and probable grounds to arrest the male as he indicated in cross, but this was not why he entered the residence. He did not form the grounds to arrest the male in the basement until he saw the female come up the stairs with injuries. He was aware that Vandervelde had observed a male.

[264] In terms of the Applicant’s argument that Brown did not form reasonable and probable grounds to arrest Matthew Stairs, even if he had reasonable and probable grounds to arrest a male suspect, I disagree. The officers were only informed of two people involved in the incident, one female and one male. Brown reasonably strongly believed they had located the female. She had come up from the basement. It was reasonable to believe that the male Vandervelde observed run across the bottom of the stairs right before the female came upstairs was the male involved in the incident.

[265] The Applicant argued that the male may have had other reasons to run. The Applicant suggested a possible scenario that a person in his position might have been startled by the police, their attendance being a surprise to them. The officers knew he was on probation and had a history with police. This, the Applicant’s counsel argued, should affect the weight I give to the evidence of his running into the laundry room. I disagree. This is pure speculation. It was reasonable in the circumstances for the officers to believe that the male who ran into the laundry room and made eye contact with Vandervelde, who saw and heard police presence, was the suspect.

[266] At the time of the arrest, the situation was volatile and changing. It was not safe and secure. The female was not safe. Once the officers were inside the home, the situation developed quickly. The officers went inside around 1:31 p.m. Mr. Stairs was arrested at 1:35 p.m. Brown let Martin in. Vandervelde saw the male run. The female came upstairs. All this happened within a few minutes. Brown formed an opinion that the female would not leave the residence with them. He had to form this opinion quickly. The male had just run before the female emerged. He believed she had been assaulted. He did not want to leave her with the male who he had reasonable grounds to believe had assaulted her.

[267] I find that the case at bar differs from Bailey, which the Applicant relies on. In Bailey, Justice Blouin found as a fact that that the police seemed “surprisingly unconcerned for the safety of any female once they were inside. The police did not ask the female if she was okay. They did not ask her if anything was wrong. They did not ask any questions regarding who resided in the apartment.” Further, Justice Blouin found that “it appeared that the other articulated concern (the identity of the suspect of the security guard assault) was the only concern… Once the police verified there were no safety concerns regarding the female, the investigation and arrest of the defendant for assault was ‘…beyond the radius of the power that justified the police entry into the apartment.’

[268] Contrary to Justice Blouin’s findings, I do not find that the police had alleviated safety concerns once the female had appeared, or disregarded her safety. Brown directed Martin to stay with the female, and the officers articulated safety concerns for themselves and the female if they left her inside the residence, given that they believed she would not accompany them outside the residence. I find that the safety concerns were not alleviated, and given the dynamic situation, including the Applicant running in the basement, the officers had to act quickly. Brown knew the Applicant had a history of violence and flight risk, and had just observed the female with injuries whom he reasonably believed to be the female involved in the reported assault. Given these facts, the police were justified in descending to the basement and affect the Applicant’s arrest.

Issue 4: Was the search of the basement a lawful search incident to arrest and were the items recovered found in plain view?

Applicant’s Position

[269] The plain view doctrine is codified in s. 489(2)(a) of the Code, and allows officers to seize anything that is related to an offence where the officer is lawfully present in the place pursuant to a warrant or otherwise in execution of police duties that the officer believes on reasonable grounds will afford evidence in respect of an offence. The common law plain view doctrine was similarly clarified in R. v. Jones, 2011 ONCA 632 at para. 56, and requires that the officers be lawfully in the place where the search is conducted, the nature of the evidence is immediately apparent as constituting a criminal offence, the evidence was discovered inadvertently, and the police only seize, and not search, the evidence.

[270] The Applicant’s argument relates to three sub points: First that the officers were not lawfully in the basement, second, that the items seized were not in plain view, particularly the Tupperware container, and third, and alternatively, that the seizure of the Tupperware container constituted an unauthorized search.

[271] The Applicant further argues that the search went beyond the immediate surroundings (Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at para. 50). The Applicant also relies on paras. 65 – 68 of R. v. Bacchus, 2012 ONSC 5082, and states that the search conducted by Vandervelde did not have a valid objective in pursuant of the ends of criminal justice (para. 65), was not truly incidental to arrest (para. 66) and was not related to the purpose of the arrest (para. 67). The purpose must be connected to the arrest (para. 68).

[272] The Applicant maintains the search done by Vandervelde did not a valid purpose. The Applicant states that both Brown and Vandervelde had done a quick sweep of the living room as they came down the stairs. There was no need for a further sweep. Further, the arrest was for assault and breach of probation. The officers had no information that a weapon or drugs had been involved. Mr. Stairs was not in the living room. He was arrested, face down, hand cuffed to the back. When Mr. Stairs was searched by Brown, only cash was found. Vandervelde only moved on when it was safe to do so. At that point in time, the Applicant argues there was no justifiable reason for Vandervelde to search the living room part of the basement. There was nothing related to the arrest the officers were searching for.

[273] It is the Applicant’s position that both the statutory provision and common law doctrine apply in this case, and refers to para. 38 of R. v. Ricciardi, 2017 ONSC 2788, and, in particular, that “while there are differences between the common law and plain view seizure powers, both require that the police believe on reasonable and probable grounds that the item they want to seize will afford