





CITATION: R. v. Kelsy, 2011 ONCA 605



DATE:  20110922



DOCKET: C49873



COURT OF APPEAL FOR ONTARIO



Laskin, Rosenberg and Feldman JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Marsha Kelsy



Appellant



Michael Dineen, for the appellant



Dena Bonnet, for the respondent



Heard: May 5, 2011



On appeal from conviction entered by Justice Gary Trotter of
          the Superior Court of Justice, dated May 27, 2008.



Rosenberg J.A.:



[1]

The appellant appeals from her conviction by a court composed of Trotter
    J. and a jury on several charges arising from her possession of a loaded
    prohibited firearm and a quantity of heroin.  The only issues raised concern
    the decision of the trial judge dismissing the appellants motion to exclude
    the prosecution evidence pursuant to s. 24(2) of the
Charter of Rights
    and Freedoms.
The firearm and the heroin were found during a search of the
    appellants knapsack in the course of an investigation sparked by a 911 call to
    the police.  The trial judge found that the warrantless search of the knapsack
    was reasonable because it was authorized by exigent circumstances or was a
    justifiable use of police powers.  There was therefore no violation of the
    protection against unreasonable search and seizure as guaranteed by s. 8 of the
Charter
.  In any event, even if there was a violation of the appellants
    rights, the evidence should not be excluded.

[2]

For the following reasons, I would dismiss the appeal.  In my view, the
    appellants s. 8 rights were violated, but I agree with the trial judge that
    the evidence should not be excluded under s. 24(2) of the
Charter
.

THE FACTS

[3]

On January 19, 2004, the appellant and her two-year-old daughter spent
    the night at the apartment of the childs father, DAngelo Christie.  Mr.
    Christie was a drug dealer.  While the appellant did not often stay with Mr.
    Christie, the appellant was to start a new job the following day and Mr.
    Christies apartment was near her daughters new daycare.

[4]

The following morning, Mr. Christie left his sixth-floor apartment at
    approximately 7:00 a.m. and was immediately set upon by two armed men who
    pistol-whipped him and wrapped him with duct tape.  The appellant heard the
    struggle. She went out on the apartment balcony and asked the next-door
    neighbour to telephone the police.  The neighbour called 911.

[5]

The appellant testified that the previous evening, while she was alone
    with her daughter, she discovered a handgun in a dresser drawer.  When she
    heard someone trying to get into the apartment she wrapped the handgun in a
    sweater and concealed it in a knapsack.  At that point a man with a gun entered
    the apartment and told the appellant to remain with her daughter on the bed
    while he searched the apartment.  He soon left.

[6]

In response to the 911 call, uniformed police officers, including
    members of the Emergency Task Force (ETF), arrived on the scene and made their
    way to the sixth floor.  Among the uniformed officers who came to the sixth
    floor was Constable Mansoor Ahmad.  It was Constable Ahmad who would later open
    the appellants knapsack and discover the contraband.

[7]

To appreciate the s. 8 issue it is important to understand what the
    police and especially Constable Ahmad knew prior to the opening of the knapsack.
    Constable Ahmad testified that the initial information he received over the
    police radio was that there was some shouting and screaming at 640 Sheppard
    Avenue.  It was unknown how many people were involved and there was a female on
    the balcony of apartment 607 screaming for help.  A second radio call advised
    that another police unit was on the scene and that it was a hostage situation
    and guns were involved.  A minute later another call came with information that
    one of the suspects went into the sixth floor laundry room.  Constable Ahmad
    then received information that the police had the hostage; that he had been
    pistol-whipped and one of the suspects had gone down the garbage chute and one
    had gone into apartment 607.

[8]

When the first police officers arrived, one of the assailants was still
    on the sixth floor holding Mr. Christie near the garbage room.  That man fled
    down the garbage chute.  Mr. Christie told the police that two men had attacked
    him, one had gone in the garbage room and the other into his apartment where
    his girlfriend and daughter were present.

[9]

When Constable Ahmad arrived on the sixth floor he found several other
    officers.  A short time later the ETF arrived and began their preparations to
    clear the apartment.  By this time Constable Ahmad had also learned that a
    female and a child were possibly in apartment 607.  An ETF officer knocked on
    the door to Mr. Christies apartment.  After the knock, the appellant came out
    with her daughter.  She was carrying the knapsack and two shopping bags.  The
    police told her to drop the bags, which she did.  Constable Ahmad described the
    appellant as seeming to be surprised and not knowing what was going on.  After
    dropping the bags, the appellant stood beside Constable Ahmad and asked what
    was going on and why there were so many police officers.  When asked if there
    was anyone else in the apartment, the appellant said there was not.  She asked Constable
    Ahmad if she could just get her knapsack.  She said that it had her daughters
    belongings and she had to take her daughter to daycare.  Constable Ahmad told
    her that she would get the knapsack as soon as ETF clears that apartment,
    because there were two males who had guns.  The appellant and her daughter were
    escorted downstairs by another police officer.  The appellant was not searched
    at that time.  The ETF went into the apartment and confirmed that no one was
    present.

[10]

Once the appellant and her daughter were gone, Constable Ahmad unzipped
    the knapsack and looked through it.  He found the loaded handgun and a magazine
    wrapped in a shirt.  As well, he found a scale, a pocket telephone book and a
    plastic bag containing heroin.  The knapsack also contained some papers
    belonging to the appellant, a purse and a passport in the name of a man, not
    Mr. Christie.  The shopping bags were clear and Constable Ahmad could see that
    they contained childs things.  Another officer looked through the shopping
    bags.

[11]

Constable Ahmad testified about why he looked in the appellants
    knapsack.  The trial judge accepted his evidence on this issue, which he
    described as follows:

In his testimony, he testified that he searched it
    because the information that he had at the time was very confusing. He did not
    have a description of any of the suspects. He testified that he "didn't know
    who [was] who." Out of concern for the safety of everyone concerned,
    including the many people who lived in the building, he wanted to ensure that
    there was nothing in the bag that could harm anyone.

[12]

Constable Ahmad also testified that he had told the appellant that he
    would return her bags.  He said:  I wanted to give her the knapsack back, I
    wanted to make sure that theres nothing in there that could hurt another
    officer or another person.  He had not asked the appellant what was in the
    bags and did not seek her permission to search the bags.

[13]

The appellant testified on the
voir dire
.  The trial judge
    referred to some of her testimony as follows:

In cross-examination, Ms. Kelsy testified that she
    put the gun in the backpack in order to protect herself and her daughter. She
    was "happy and relieved" to see the police when she got outside of
    the apartment. Indeed, while she was in the apartment, she wondered what was
    taking the police so long to get there. At one point during questioning, Ms.
    Kelsy said she was happy to get away from the backpack and she was happy the
    police were able to take the gun so that nobody else would be threatened by it.
Importantly, she said it would have been her plan to give the gun to the
    police
.  [Emphasis added.]

[14]

The police later obtained a search warrant for Mr. Christies
    apartment.  No further drugs were found in the apartment, but Mr. Christie was
    found in possession of a quantity of cocaine.  He later pleaded guilty to
    offences involving possession of the gun and the heroin found in the knapsack. 
    It was the Crowns position at the appellants trial that Mr. Christie was the
    principal offender and the appellant was a party.  After the trial judge gave
    his ruling that the gun and heroin were admissible, the appellants trial
    continued before the jury.

THE REASONS OF THE TRIAL JUDGE

[15]

As I have said, the trial judge accepted Constable Ahmads evidence as
    to why he opened the backpack.  In deciding whether the search of the backpack
    was authorized by law, the trial judge turned first to the law of exigent
    circumstances.  He made these important findings about exigent circumstances:

In the case before me, there was no evidence that
    the police had reasonable grounds to believe that the backpack contained
    contraband, evidence or dangerous items.
P.C. Ahmad was acting on a hunch,
    his attention being drawn to the bag after Ms. Kelsy requested its return. This
    is not a case where the exigent circumstances made obtaining a warrant
    impractical.
Instead, the issue in this case is whether a search without
    reasonable grounds can be authorized by exigent circumstances.  [Emphasis
    added.]

[16]

Later in his reasons, the trial judge returned to the evidence of
    Constable Ahmad and characterized that evidence somewhat differently:

I find that while P.C. Ahmad had well founded
    concerns, they had not yet crystallized into reasonable grounds to believe the
    backpack contained evidence of criminal offences or something that might
    compromise officer or public safety.
Out of an abundance of caution, in a
    dynamic and fast-moving situation, Officer Ahmad decided to take a look. This
    was not for the purposes of investigating Ms. Kelsy. Instead, he wanted to ensure
    that the bag did not contain anything that could be harmful to any of the
    officers on the scene, or to the many people who would be in circulation in the
    building, emerging from their apartments to begin their day.  [Emphasis added.]

[17]

The trial judge found that Constable Ahmad did not violate the
    appellants s. 8 rights based on a combination of doctrine derived from the
    exigent circumstances cases and the justifiable use of police powers cases
    found in
R. v. Waterfield
, [1963] 3 All E.R. 659 (C.C.A.).

[18]

The trial judge went on to consider the application of s. 24(2) of the
Charter
,
    in case he was wrong in finding that there had not been any s. 8 violation. The
    case was heard before
R. v. Grant
, [2009] 2 S.C.R. 353, and so the trial
    judge applied the framework from
R. v. Collins
, [1987] 1 S.C.R. 265 and
R.
    v. Stillman
, [1997] 1 S.C.R. 607.  Since the evidence sought to be excluded
    was real evidence, the factors relating to trial fairness were not engaged.  As
    to the seriousness of the breach, this was a close call for the officer and
    if the officers actions were unlawful, they were barely so.

[19]

The trial judge accepted that the appellant had a privacy interest in
    the knapsack.  However, he found that, in the context, her expectation of
    privacy was significantly diminished.  The trial judge referred to a
    combination of unique circumstances:  it was the appellant who had initiated
    the 911 call requesting emergency assistance; she had testified that she was
    anxious to get away from the gun; and, it was her plan to give the gun to the
    police.  He found that the police acted in good faith and that there was no
    blatant or callous disregard of
Charter
rights by any of the officers
    who dealt with the appellant.  Specifically as to Constable Ahmad, the trial
    judge found that he acted with the best of intentions, in very difficult
    circumstances.  If his actions involved the unjustifiable use of police powers,
    it barely crossed the line of what the law permitted.

ANALYSIS

Unreasonable search and seizure

Introduction

[20]

For the reasons that I will develop, it is my view that the search of
    the appellants bag could not be justified either on the basis of exigent
    circumstances or the
Waterfield
doctrine or by combining the two
    concepts.  On the trial judges findings of fact there were no exigent
    circumstances that could justify a search of the bag.  While
Waterfield
has been used by Canadian courts to justify some police conduct not previously
    justified under statute or existing common law, it could not justify the state
    action in this case.

[21]

In my view, the police only had the power to seize the appellants bag
    until the situation was no longer in the chaotic state Constable Ahmad found
    it.  At that point, if there were no grounds to obtain a warrant to search the
    bag, it had to be returned to the appellant, unless she gave a valid consent to
    search it.

[22]

In
Collins
at p. 278, Lamer J. held that while the burden of
    proof of a
Charter
violation is ordinarily on the accused, once the
    accused has demonstrated that the search was a warrantless one, the Crown has
    the burden of showing that the search was, on a balance of probabilities,
    reasonable within the meaning of s. 8.  A search will be reasonable if it is
    authorized by law, if the law itself is reasonable and if the manner in which
    the search was carried out is reasonable.  In this case, the only issue was
    whether the search of the appellants knapsack was authorized by law.  As there
    was no statutory authorization for the search, any justification had to be found
    in the common law.

[23]

I will consider the two bases upon which the trial judge rested his
    conclusion:  exigent circumstances and the police powers or
Waterfield
doctrine.

Exigent Circumstances

[24]

Exigent circumstances have been recognized at common law as a basis for searching
    property without a warrant.  Cases that have addressed the issue of exigent
    circumstance appear to rest on two bases.  The first basis relates to the risk
    of imminent loss or destruction of the evidence or contraband before judicial
    authorization could be obtained.  The second basis emerges where there is a
    concern for public or police safety.

(1)       Imminent risk of loss or destruction of evidence

[25]

In my view, the premise underlying the exigent circumstances doctrine
    where there is an imminent risk of loss or destruction of evidence is that, if
    time permitted, the police could have obtained prior authorization, usually in
    the form of a search warrant.  Ordinarily, this means that the police would
    have had reasonable grounds.  Therefore, in this context, exigent circumstances
    do not justify a warrantless search for evidence or contraband on less than
    grounds for obtaining a warrant.  Warrantless searches on less than reasonable
    grounds may be recognized in other circumstances where there is a lower
    expectation of privacy, such as border searches, but those circumstances did
    not apply here.

[26]

The Supreme Court of Canada has dealt with exigent circumstances in a
    number of situations involving the imminent risk of loss or destruction of
    evidence.  In
R. v. Grant,
[1993] 3 S.C.R. 223, the court considered the
    constitutionality of s. 10 of the former
Narcotic Control Act
, which
    authorized a warrantless search of a place other than a dwelling house on the
    basis of reasonable grounds to believe that the place contained narcotics.  The
    court held that s. 10 was valid only insofar as it authorized a search in
    exigent circumstances, which Sopinka J. defined in these terms at pp. 241-42:

This exception to the general rule which proscribes
    warrantless searches must be narrowly construed. In general, the test will only
    be satisfied where there exists an imminent danger of the loss, removal,
    destruction or disappearance of the evidence sought in a narcotics
    investigation if the search or seizure is delayed in order to obtain a warrant.

[27]

The common law power to search for evidence in exigent circumstances has
    largely been codified since the enactment of the
Charter
.  As the trial
    judge noted, s. 487.11 of the
Criminal Code
authorizes a warrantless
    search by a peace officer if the conditions for obtaining a warrant under s.
    487(1) (the normal search warrant provision) or s. 492.1(1) (the tracking
    warrant provision) exist  but by reason of exigent circumstances it would be impracticable
    to obtain a warrant.  Similar provisions exist in s. 117.02 for search and
    seizure of weapons and in s. 11(7) of the
Controlled Drugs and Substances
    Act
.

[28]

As the trial judge noted, while these provisions do not define exigent
    circumstances, s. 529.3(2) of the
Criminal Code
does contain a
    definition of exigent circumstances.  Section 529.3 is part of a package of
    amendments enacted in the wake of the Supreme Court of Canada decision in
R.
    v. Feeney,
[1997] 2 S.C.R. 13, where the court held that an arrest warrant
    did not authorize entry into a dwelling-house to effect the arrest.  Section
    529.1 provides for the issuing of a warrant to enter a dwelling-house to arrest
    or apprehend a person where the conditions set out in that section are met.  Section
    529.3 allows an officer to enter a dwelling-house without a warrant where the
    conditions for issuing the warrant exist but by reason of exigent circumstances
    it would be impracticable to obtain a warrant.  The definition of exigent
    circumstances in s. 529.3(2) refers to  (a) danger to people and (b) loss
    of evidence and provides as follows:

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; or

(b) has reasonable
    grounds to believe that evidence relating to the commission of an indictable
    offence is present in the dwelling-house and that entry into the dwelling-house
    is necessary to prevent the imminent loss or imminent destruction of the
    evidence.

[29]

Section 529.3(2)(b), like s. 487.11, is premised on the existence of
    grounds to obtain a warrant.  The urgency of the situation relieves against the
    necessity to obtain the warrant, not the necessity for the grounds to obtain
    the warrant.  Cases since the enactment of the
Charter
that have
    considered exigent circumstances as a basis for searching for evidence or
    contraband appear to have assumed that grounds to obtain a warrant were
    required.  See
R. v. Rao
(1984), 46 O.R. (2d) 80 (C.A.), leave to appeal
    to S.C.C. refused, [1984] S.C.C.A. No. 107;
R. v. Silveira,
[1995] 2
    S.C.R. 297;
R. v. Feeney
.

[30]

A distinct line of cases has developed using the
Waterfield
test,
    which I will discuss below.  However, it seems to me that at least when
    considering the loss or destruction of evidence, the exigent circumstances
    doctrine should be confined to cases where the officer had grounds to obtain
    the prior judicial authorization but could not do so because of the risk of
    imminent loss or destruction of the evidence.  In my view, this conclusion is
    also consistent with this courts decision in
R. v. Belnavis
(1996), 29
    O.R. (3d) 321, affd [1997] 3 S.C.R. 341, a case concerning search of a motor
    vehicle.  Speaking for the court at p. 339, Doherty J.A. held that in exigent
    circumstances, where it is not feasible to obtain a warrant, a police officer
    may search a lawfully detained motor vehicle if the officer has reasonable and probable
    grounds to believe that the search will disclose evidence.  He went on to
    state that: [t]his exception to the general warrant requirement must, however,
    be narrowly construed where the search is conducted as part of a criminal
    investigation.

[31]

I point out that the need for this common law power may have largely
    disappeared in light of the statutory amendments.

(2)       Public and police safety

[32]

The second set of exigent circumstances that appears to have been
    recognized is where there is a concern for the safety of the public or the
    police.  The parameters of the power to search without warrant in such
    circumstances appear somewhat vague except where they have been codified as in
    s. 529.3(2)(a) and this common law power has largely been overtaken by the
Waterfield
doctrine.  In any event, even in this context, something close to reasonable
    grounds appear to be a prerequisite to a valid search.

[33]

Thus, in a somewhat different context where exigent circumstances were
    invoked, in
R. v. Golden
, [2001] 3 S.C.R. 679, the court required
    reasonable grounds as a precondition to a field strip search said to be
    required for officer safety.  Iacobucci and Arbour JJ. wrote as follows, at
    para. 102:

Strip searches should generally only be conducted
    at the police station except where there are
exigent circumstances
requiring that the
    detainee be searched prior to being transported to the police station.
Such
exigent circumstances
will only be established where the police have reasonable and probable grounds
    to believe that it is necessary to conduct the search in the field rather than
    at the police station
. Strip searches conducted in the field could only be
    justified where there is a demonstrated necessity and urgency to search for
    weapons or objects that could be used to threaten the safety of the accused,
    the arresting officers or other individuals. The police would also have to show
    why it would have been unsafe to wait and conduct the strip search at the
    police station rather than in the field. Strip searches conducted in the field
    represent a much greater invasion of privacy and pose a greater threat to the
    detainee's bodily integrity and, for this reason, field strip searches can only
    be justified in
exigent circumstances.  [Emphasis
    added.]

[34]

I should not be taken as having held that reasonable grounds are 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.  It may be that a lesser standard, such as articulable cause or reasonable suspicion, as codified in s. 529.3(2)(a), will be appropriate in some circumstances.  Thus, see
R. v. Golub
(1997), 34 O.R. (3d) 743 (C.A.) at p. 759.

(3)       General comments re: exigent circumstances

[35]

However, 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.  Sopinka J. made that point in
R. v. Feeney
at para. 52:

According to James A. Fontana (The Law of Search
    and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances
    arise usually where immediate action is required for the safety of the police
    or to secure and protect evidence of a crime. With respect to safety concerns,
    in my view, it was not apparent that the safety of the police or the community
    was in such jeopardy that there were exigent circumstances in the present case.
    The situation was the same as in any case after a serious crime has been committed
    and the perpetrator has not been apprehended.
In any event, even if they
    existed, safety concerns could not justify the warrantless entry into the
    trailer in the present case. A simple watch of the trailer in which the police
    were told the appellant was sleeping, not a warrantless entry, would have
    sufficiently addressed any safety concerns involving the appellant
. 
    [Emphasis added.]

(4)       Application to this case

[36]

On the findings of fact by the trial judge, the doctrine of exigent
    circumstances could not justify the search of the appellants knapsack.  The
    police did not have any grounds, let alone reasonable grounds, to believe that
    the knapsack contained evidence or contraband and the trial judge did not base
    his decision on the first branch of exigent circumstances.  As the trial judge
    put it, Constable Ahmad was acting on a hunch.  Further, again as the trial
    judge said, this was not a case where it was impractical to obtain a warrant. 
    The police could have seized the bag until they obtained a warrant.  The
    appellant had been removed from the scene; there was no imminent risk of loss
    or destruction of evidence.

[37]

Similar considerations apply to the safety branch of exigent
    circumstances.  There were no grounds to believe that the knapsack contained
    anything that threatened the safety of the public or the police officers.  And,
    in any event, the less intrusive procedure of simply seizing the bag until the
    situation had stabilized was available. Just as in
Feeney
, the police
    could simply have kept watch on the bags.

[38]

A very recent decision from this court,
R. v. Stevens
, 2011 ONCA
    504 makes a similar point.  In that case, sheriffs officers acting to enforce
    an eviction order found what appeared to be two gun cases in the accuseds
    empty apartment.  They called the police.  The police arrived and opened the
    gun cases finding firearms that were improperly stored.  The superintendent
    then changed the lock on the apartment.  In finding that there was no s. 8
    violation, the trial judge in
Stevens
found that there were exigent
    circumstances.  This court disagreed.  At the time the police entered the
    apartment and opened the gun cases there was no serious safety issue.  Once the
    locks had been changed the accused could not gain access to the firearms.  The
    safety concern was sufficient to explain why the police were called, but not
    why they opened the gun cases.

The Waterfield Doctrine

[39]

Despite the many statutory investigatory powers that Parliament has
    provided since the enactment of the
Charter
, it is well-established that
    the courts will continue to recognize the exercise of police powers that comply
    with the common law
Waterfield
test:  see
R. v. Kang-Brown,
[2008] 1 S.C.R. 456 per Binnie J. at paras. 49-51.  Where, as here, the police
    conduct constitutes a
prima facie
interference with a persons property,
    the court will consider two questions:

(1)

Does the conduct fall within the general scope of any duty imposed by
    statute or recognized at common law?

(2)

Does the conduct involve a justifiable use of powers associated with the
    duty?

[40]

The Supreme Court of Canada has considered the application of this test
    in several different contexts.  The trial judge referred extensively to
R.
    v. Godoy
, [1999] 1 S.C.R. 311, which concerned the exercise of police
    powers in the context of investigating a 911 call.  I agree that
Godoy
provides a very helpful analogy to this case, which also began with a 911
    call.  When the police, including Constable Ahmad, attended at Mr. Christies
    apartment in response to the 911 call initiated by the appellant, they were
    acting within the general scope of their duties to provide whatever assistance
    was required and to protect life:
Godoy
at paras. 15 and 16.  In my
    view the first part of the
Waterfield
test was satisfied in this case.

[41]

I do not agree that the search of the appellants knapsack was a
    justifiable use of powers associated with this duty.  In
Godoy
, at para.
    18, Lamer C.J. adopted the explanation of justifiable use of police powers
    provided by Doherty J.A. in
R. v. Simpson
(1993), 79 C.C.C. (3d) 482
    (Ont. C.A.) at p. 499:

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.

[42]

In that same paragraph, Lamer C.J. found that it was necessary for the
    police in that case to forcibly enter the accuseds apartment and that there
    was no other reasonable alternative to ensure that the 911 caller received
    the necessary assistance.  In this case, a search of knapsack was not necessary
    and there were other reasonable alternatives by which the police could carry
    out their duties in response to the 911 call.  Specifically, the police could
    have seized the bag until they had assisted Mr. Christie and ensured that the
    appellant and her daughter and anyone else in the building were no longer in
    danger from the assailants.  At that time, as I have said earlier, the police
    could have returned the bag to the appellant and let her go on her way, sought her
    consent to search the bag, or obtained a search warrant if they had the
    requisite grounds.  The appellant had been removed from the immediate area and
    the knapsack had been left where she had been told to drop it.  There was
    nothing in the circumstances known to Constable Ahmad that necessitated
    searching the knapsack.  The legitimacy of the police conduct cannot be
    measured by the fact that, as it turned out, the bag contained a loaded firearm
    and a quantity of a dangerous narcotic.

[43]

The courts decision in
Godoy
justifies significant intrusions
    into privacy to investigate a 911 call, in that case, a forced entry into a
    dwelling-house.  But there are limits to the police power, as made clear at
    para. 22 of the reasons:

The public interest in maintaining an effective
    emergency response system is obvious and significant enough to merit some
    intrusion on a resident's privacy interest. However, I emphasize that the
    intrusion must be limited to the protection of life and safety.
The police
    have authority to investigate the 911 call and, in particular, to locate the
    caller and determine his or her reasons for making the call and provide such
    assistance as may be required. The police authority for being on private
    property in response to a 911 call ends there. They do not have further
    permission to search premises
or otherwise intrude on a resident's privacy
    or property.  [Emphasis added.]

[44]

In this case, the police had power to forcibly enter Mr. Christies
    apartment to investigate the 911 call and to locate the assailants.  The police
    authority did not extend to opening the appellants bags and backpack.

[45]

The concept of necessity can be found throughout Supreme Court of Canada
    cases applying the
Waterfield
test.  In one of the foundation cases,
Dedman
    v. The Queen
, [1985] 2 S.C.R. 2 at p. 35, Le Dain J. described the test in
    these terms:

The interference with liberty must be necessary for
    the carrying out of the particular police duty and it must be reasonable,
    having regard to the nature of the liberty interfered with and the importance
    of the public purpose served by the interference.

[46]

In a more recent case,
R. v. Clayton
, [2007] 2 S.C.R. 725 at
    para. 26, Abella J. described this branch of the test as one of reasonable
    necessity:

In determining the boundaries of police powers,
    caution is required to ensure the proper balance between preventing excessive
    intrusions on an individuals liberty and privacy, and enabling the police to
    do what is reasonably necessary to perform their duties in protecting the
    public.

[47]

In
R. v. Mann
, [2004] 3 S.C.R. 59, where the court dealt with the
    legality of investigative detention, Iacobucci J. wrote in similar terms at
    para. 34:

The evolution of the
Waterfield
test, along
    with the
Simpson
articulable cause requirement, calls for investigative
    detentions to be premised upon reasonable grounds.
The detention must be
    viewed as reasonably necessary on an objective view of the totality of the
    circumstances, informing the officers suspicion that there is a clear nexus
    between the individual to be detained and a recent or on-going criminal
    offence.
Reasonable grounds figures at the front-end of such an assessment,
    underlying the officers reasonable suspicion that the particular individual is
    implicated in the criminal activity under investigation. The overall
    reasonableness of the decision to detain, however, must further be assessed
    against all of the circumstances, most notably the extent to which the
    interference with individual liberty is necessary to perform the officers
    duty, the liberty interfered with, and the nature and extent of that
    interference, in order to meet the second prong of the
Waterfield
test.
    [Emphasis added.]

[48]

Mann
is helpful in resolving this case because it demonstrates
    that the reasonable necessity test must be applied at all stages of the
    exercise of the police power.  In
Mann
, it was necessary to measure the
    police conduct not only at the initial detention stage but as the investigation
    progressed.  At paras. 39 - 40 of
Mann
Iacobucci J. returned to the
Waterfield
test again when considering whether a search of the detainee could be
    justified.  He specifically held that a search incident to an investigative
    detention could not be based merely on a hunch or a vague concern about officer
    safety:

To continue in the
Waterfield
analysis, the
    conduct giving rise to the interference must involve a justified use of a
    police power associated with a general duty to search in relation to the
    protection of life and property.
Put differently, the search must be
    reasonably necessary
.
The relevant considerations here include the duty
    being performed, the extent to which some interference with individual liberty
    is necessary in the performance of that duty, the importance of the performance
    of the duty to the public good, the nature of the liberty being interfered
    with, and the nature and extent of the interference
:
Dedman
,
supra
,

at pp. 35-36.

The general duty of officers to protect life may,
    in some circumstances, give rise to the power to conduct a pat-down search
    incident to an investigative detention.
Such a search power does not exist
    as a matter of course; the officer must believe on reasonable grounds that his
    or her own safety, or the safety of others, is at risk.
I disagree with the
    suggestion that the power to detain for investigative searches endorses an
    incidental search in all circumstances: see S. Coughlan, Search Based on
    Articulable Cause: Proceed with Caution or Full Stop?
(2002), 2 C.R. (6th) 49, at p. 63.
The
    officers decision to search must also be reasonably necessary in light of the
    totality of the circumstance
s.
It cannot be justified on the basis of a
    vague or non-existent concern for safety, nor can the search be premised upon
    hunches or mere intuition.
[Emphasis added.]

[49]

On the trial judges findings of fact that Constable Ahmad acted on a
    hunch, this search could not be justified on the
Waterfield
test.  Vague
    concerns because of the confusing situation could not be used to justify an
    intrusion into the appellants privacy interest in her bags.  Later in his
    reasons, in the passage quoted above at para. 16, the trial judge referred to
    well-founded concerns and the officers desire to ensure that the bag did not
    contain anything harmful. However, he made no finding that these concerns
    reached the level of reasonable necessity.

[50]

Thus, the search in this case fails to meet the
Waterfield
tests
    on two grounds.  It was not reasonable, since there were was no basis for
    believing that the safety of the public or the police was at risk.  Second, the
    search was not reasonably necessary since there were other less intrusive
    measures that could have been used.

Combining the Two Doctrines

[51]

It will be recalled that the trial judge found that the search was
    reasonable by drawing on both doctrines of exigent circumstances and the
Waterfield
test.  While the two doctrines can, in some circumstances, be related and may
    even overlap, in my view, it is preferable to keep them distinct in determining
    whether police conduct is justified.  I say that primarily because of my
    concern that by combining the two there is a risk that the reasonableness
    requirement that lies at the heart of the s. 8 analysis may be weakened.

[52]

The two doctrines are meant to address different concerns and are
    context-specific.  Reasonableness in the exigent circumstances doctrine rests primarily
    on the fact that the officer did have grounds to obtain prior judicial
    authorization.  The fact that it is not feasible to obtain a warrant merely
    sets the scene for possibly engaging the exigent circumstances doctrine, it
    does not justify the search.  While there is a vague and ill-defined basis for
    search in exigent circumstances involving officer or public safety, even then
    there must be some reasonable basis for the search. Reasonableness in the
Waterfield
context rests on the reasonable necessity of the police action.  Again, the
    fact that officers were acting generally in the course of their duties merely
    sets the scene; but is only one half of the test that must be met. By combining
    the two doctrines and taking only certain elements from each, the core
    safeguard of reasonableness may be lost.

[53]

In concluding that the search in this case did not violate s. 8, the
    trial judge said the following:

In this case, I accept that P.C. Ahmad faced
    exigent circumstances when he searched Ms. Kelsy's backpack. I also find that
    the police were obviously acting in the course of their duties when they
    responded to the 911 call and that the search of the backpack did not involve
    an unjustifiable use of powers in the circumstances. On the contrary, the
    non-invasive search was prudently undertaken to ensure the safety of all
    concerned, civilians and police officers alike. Consequently, I find that the
    search was authorized by law. Section 8 of the
Charter
was not
    infringed.

[54]

The trial judge found that Constable Ahmad faced exigent circumstances,
    but since there were no grounds to obtain judicial authorization, the core
    reasonableness requirement on the first strand of the exigent
    circumstances doctrine was missing.  It may be, as the trial judge
    suggested, that something less than reasonable grounds to obtain a warrant may
    justify a search on the second aspect of the exigent circumstances
    doctrine, where there is concern for the safety of the police or the public. 
    But, even on this aspect, the reasonableness safeguard at least requires
    something in the nature of reasonable suspicion or articuable cause to search,
    which was also missing in this case.

[55]

The trial judge also found that the officer was acting in the course of
    his duties and that the search was prudently undertaken, an analysis having
    elements of the
Waterfield
doctrine.  However, where, as the trial judge found, the officer was
    acting on a hunch and the search, however non-invasive, was not reasonably
    necessary, the second branch of the
Waterfield
test was not met.

[56]

I entirely agree with the trial judge that the volatile circumstances in
    which Constable Ahmad and the other officers found themselves had to be taken
    into account.  They were responding to a 911 call and such cases rightly give
    the police considerable latitude.  Justice Doherty articulated that point very
    well in
R. v. Golub
in speaking of the circumstances of an arrest.  As
    he said at p. 757 the scene of an arrest is a volatile one where the police
    must expect the unexpected and where the price paid if inadequate measures are
    taken to secure the scene of an arrest can be very high indeed.  The
    circumstances in which these officers found themselves was very similar and
    similar considerations apply.  Again, the point made by Doherty J.A. in
Golub
on the same page is apposite:

In my opinion, one cannot ask the police to place
    themselves in potentially dangerous situations in order to effect an arrest
    without, at the same time, acknowledging their authority to take reasonable
    steps to protect themselves from the dangers to which they are exposed. If the
    police cannot act to protect themselves and others when making an arrest, they
    will not make arrests where any danger exists and law enforcement will be
    significantly compromised.

[57]

Thus, if the police cannot act to protect themselves and others when
    responding to a 911 call and if they feel that they will be unreasonably
    second-guessed at every stage of a fast-moving, quickly-evolving and chaotic
    situation, the safety of the public will be compromised.  However, this reality
    does not place police action beyond review.  The
Waterfield
test as
    applied by the courts of this country is not a particularly exacting one, but
    it does rest on reasonable necessity and that core element was lacking here.

[58]

To summarize my view of the application of s. 8 of the
Charter
to
    this case:

·

Exigent circumstances should be primarily reserved for cases
    involving imminent destruction of evidence or contrabrand and has largely been
    codified.

·

As the trial judge recognized, the first branch of exigent
    circumstances, based on imminent destruction of evidence had no application,
    since the officer had no grounds to obtain a warrant.

·

The second branch of exigent circumstances, based on police and
    officer safety could not apply since there was no finding of, at the very
    least, articulable cause; this branch has largely been overtaken by the
Waterfield
doctrine.

·

The search in this case should have been analyzed through the
Waterfield
doctrine.

·

While the 911 call and the chaotic circumstances gave the police
    grounds to temporarily seize the appellants bag, a search of the bags was not
    reasonably necessary within the meaning of the
Waterfield
doctrine.

[59]

Since, in my view, the appellants s. 8 right to protection against
    unreasonable search and seizure was violated it becomes necessary to consider
    whether the evidence should be excluded under s. 24(2) of the
Charter.
I will now turn to that issue.

Section 24(2) of the
Charter

[60]

Although he found that there was no
Charter
violation,
    fortunately, the trial judge went on to consider the application of s. 24(2). 
    As the trial judge recognized, his decision to admit the evidence assuming
    there was a violation would not be entitled to deference on appeal.  However,
    his findings of fact are entitled to deference and based on those findings, I
    would admit the evidence.

[61]

The trial judge found that any breach of the appellants rights was not
    serious and that the police acted in good faith.  As he said:

On the other side of the equation, I find that the
    conduct of the police was undertaken in good faith. There was no evidence of a
    blatant or callous disregard of
Charter
rights by any of the officers
    who dealt with Ms. Kelsy. I find that the searching officer, P.C. Ahmad, acted
    with the best of intentions, in very difficult circumstances. If P.C. Ahmad's
    actions did involve an unjustifiable use of police powers, it barely crossed
    the line of what the law permitted.

[62]

It may be that Constable Ahmad had a hunch that something was wrong with
    the appellants backpack, but he was also motivated by the need to return the
    appellants property to her so that she could be on her way with her daughter. 
    He acted in haste in the confusion of the 911 call.

[63]

The majority of the court in
Grant
(2009), discussed the concept
    of good faith at para. 75:

Extenuating circumstances
, such as the need
    to prevent the disappearance of evidence, may attenuate the seriousness of
    police conduct that results in a
Charter
breach:
R. v. Silveira,
[1995]
    2 S.C.R. 297,
per
Cory J.
Good faith on the part of the police will
    also reduce the need for the court to disassociate itself
from the police
    conduct. However, ignorance of
Charter
standards must not be rewarded or
    encouraged and negligence or wilful blindness cannot be equated with good faith
Wilful or flagrant disregard of the Charter
by those very persons who
    are charged with upholding the right in question
may require that the court
    dissociate itself from such conduct
.  [Emphasis added.]

[64]

In a sense, the facts of this case resemble
Grant
.  An important
    consideration favouring admissibility of the evidence in that case was that the
    law respecting investigative detention was uncertain.  The court explained this
    aspect of the case at para. 133:

The officers went too far in detaining the accused
    and asking him questions. However, the point at which an encounter becomes a
    detention is not always clear, and is something with which courts have
    struggled. Though we have concluded that the police were in error in detaining
    the appellant when they did, the mistake is an understandable one.

[65]

Similarly, in this case, on the findings of fact made by the trial
    judge, the mistake made by Constable Ahmad was an understandable one.  He went
    too far in opening the bag, but he was entitled to seize the bag until the
    scene had stabilized.  This case is one of first impression and the limits of
    permissible investigative procedures in the course of responding to a 911 call
    were not entirely clear.

[66]

There were also extenuating circumstances; Constable Ahmad was dealing
    with a chaotic situation in which the primary concern was for the welfare of
    the public and the police.  This was not a case of flagrant disregard for
Charter
rights.

[67]

The second inquiry requires the court to consider the impact of the
Charter
breach on the appellants
Charter
-protected interests.  This was a
    serious intrusion into the appellants privacy; the backpack contained the
    appellants personal papers and her purse.  On the trial judges findings of
    fact, however, the impact on the appellants privacy rights was mitigated.  The
    circumstances were unique given the appellants own testimony that she had
    intended to give the gun to the police in any event.  I accept that the impact
    of the
Charter
breach on the appellants privacy interest was somewhat
    diminished.

[68]

The third
Grant
inquiry looks to societys interest in an
    adjudication on the merits.  The most significant factor in this inquiry tends
    to be the reliability of the evidence.  In this case, the firearm, ammunition
    and drugs were reliable evidence, a factor favouring admission of the
    evidence.  In an interesting submission, Mr. Dineen, counsel for the appellant,
    submitted that the societal interest in an adjudication on the merits was
    attenuated because the principal offender, Mr. Christie, had been convicted and
    received a significant prison sentence.  At para. 80, the
Grant
court
    noted that s. 24(2) mandates a broad inquiry into all the circumstances not
    just the reliability of the evidence.  Thus, I think the disposition of the
    case against Mr. Christie was a matter to consider.  That said, I would not
    give it undue weight.  Society still had a significant interest in correctly
    disposing of the charges against the appellant.  As the court said in
Grant
at
    para. 81:  exclusion of relevant and reliable evidence may undermine the
    truth-seeking function of the justice system and render the trial unfair from
    the public perspective, thus bringing the administration of justice into
    disrepute.

[69]

Finally, the court is required to balance the three inquiries to
    determine whether admission of the evidence would bring the administration of
    justice into disrepute.  The factors relating to the seriousness of the breach
    and the reliability of the evidence favour admissibility.  While the impact on
    the appellants
Charter
-protected interests was mitigated because of the
    unique circumstances that the appellant wanted to hand over the gun to the
    police anyway, the intrusion was still a serious one.  The appellants
    professed desire to distance herself from the firearm and hand it over to
    police did not in any significant way diminish her privacy interests in the
    other contents of the backpack and the bags containing her daughters
    belongings.  The second line of inquiry favours exclusion of the evidence.

[70]

On balance, I would resolve this case in the same way as did the court
    in
Grant.
There, as here, the most important consideration was the
    context of legal uncertainty in which the police were operating: see para. 140
    of
Grant
.  In my view, the repute of the justice system would not suffer
    from allowing the firearm and the drugs to be admitted in evidence against the
    appellant.

DISPOSITION

[71]

Accordingly, I would dismiss the appellants appeal from conviction.

Signed:           M. Rosenberg J.A.

I agree John Laskin
    J.A.

I agree K. Feldman
    J.A.

RELEASED:  JL September 22, 2011


