


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davidson, 2017 ONCA 257

DATE: 20170329

DOCKET: C60117

Laskin, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harley Davidson

Appellant

R. Craig Bottomley and Sherif M. Foda, for the appellant

Vanita Goela, for the respondent

Heard: September 27, 2016

On appeal from the conviction entered by Justice John R.
    McIsaac of the Superior Court of Justice on December 20, 2014.

Laskin J.A.:

A.

Overview

[1]

In
R. v. Godoy
, [1999] 1. S.C.R. 311, the Supreme Court of
    Canada held that the police can enter a home without a warrant if they have
    reasonable grounds to believe it is necessary to do so to protect a persons
    life or safety. The principal question raised on this appeal is whether the
    trial judge wrongly extended
Godoy
beyond its limited scope.

[2]

At 10:00 am one June morning, a four year old boy, clad only in a
    diaper, was seen standing alone at a busy intersection in Barrie, Ontario. A
    passing motorist called 911. By the time the police arrived, the boy was safely
    in his mothers arms, wrapped in a blanket. The appellant, Harley Davidson, the
    boys father, arrived soon after. He explained to the police that his son is
    autistic and has a tendency to wander away from the family home, which was 50
    metres away. Davidson said he had installed a special lock high up on the door
    to the house but that his son had managed to open it and get out.

[3]

The police insisted on examining the lock, and Davidson agreed they
    could do so. Although satisfied with the lock, the police then insisted on
    looking inside the house. They had no warrant but claimed they were entitled to
    look around the house to check on the boys well-being  to ensure he was safe
    and properly nourished.

[4]

Three police officers entered the Davidson home. On first entering the
    house, the lead investigator smelled marijuana. He conducted a brief search of
    the upstairs of the house, checking the kitchen cupboards and the refrigerator
    for food. He then went down to the basement, where the smell of marijuana
    became overwhelming. The smell came from behind a closed and locked door. When
    the police asked for the key, Davidson kicked the door open, revealing numerous
    marijuana plants. He was arrested and charged with production of marijuana, possession
    of marijuana, and possession of marijuana for the purpose of trafficking.

[5]

At the beginning of the trial, Davidson brought an application to
    exclude the evidence of the marijuana because of numerous breaches of the
Canadian
    Charter of Rights and Freedoms
. The trial judge found that the police had
    committed three breaches of the
Charter
:

·

They failed to advise Davidson of his right to counsel contrary
    to s. 10(b) of the
Charter
after they smelled the marijuana, even
    though by then Davidson was effectively detained;

·

They again failed to advise Davidson of his right to counsel before
    questioning him about the marijuana;

·

They breached Davidsons right to be secure against unreasonable
    search, contrary to s. 8 of the
Charter
, by discovering the
    marijuana without a warrant.

[6]

But the trial judge rejected Davidsons main claim: that the police
    breached his s. 8 rights when they initially entered his home. The trial judge
    ruled that
Godoy
entitled the police to do a protective sweep of the
    house because of their child protection concerns.

[7]

The trial judge then held that the evidence of the marijuana was
    admissible under s. 24(2) of the
Charter
. The Crown withdrew the
    possession of marijuana charge, and the trial judge convicted Davidson of production
    of marijuana and possession of marijuana for the purpose of trafficking and
    sentenced him to 18 months in custody.

[8]

Davidson appeals his convictions. He argues three issues:

1.

Did the trial
    judge err by ruling that the polices initial entry into the Davidson home did not
    breach s. 8 of the
Charter
?

2.

Did the trial
    judge err by ruling that the evidence of the marijuana was admissible under s.
    24(2) of the
Charter
?

3.

In preferring
    the evidence of the police to that of Davidson, did the trial judge apply a
    stricter standard of scrutiny to his evidence?

[9]

I would answer yes on the first two issues. It is therefore
    unnecessary to address the third issue. I would allow the appeal, set aside
    Davidsons two convictions and enter acquittals.

B.

The Issues

(1)

Did the trial judge err by ruling that the polices initial entry to the
    Davidson home did not breach s. 8 of the
Charter
?

(a)

The trial judges finding on the purpose of the search of the home

[10]

Some of the evidence of the lead police investigator, Sergeant
    Henderson, suggests he was not just concerned about the boys safety; he was
    looking for drugs. For example, in his examination-in-chief, Henderson
    testified:

And I didnt know Mr. Davidson, I had never met him before,
    that I recollect, I wanted to ensure that the house was actually safe. Very
    often with drug users andchildren arent looked after because the parents are
    passed out, the parents are high, the parents are whatever the situation may
    be. Theyre more concerned about getting crack cocaine than they are about
    taking care of their children. I wanted to ensure that that wasnt the case
    here.

[11]

Henderson continued in the same vein:

I was concerned  I wasnt thinking grow-op at all. I was more
    thinking cocaine, crack cocaine, heroin, those kinds of things that the people
    that are involved with those heavier drugs quite often are very neglectful parents
    and I wanted to ensure that that wasnt the case here.

[12]

And:

Im looking for initially what he advised were there, the
    measures to keep the child in the house, and also that theres not needles,
    crack pipes, theres food in the house, that the children are coming from a
    house where its safe for them to be.

[13]

Despite this evidence, the trial judge found that the primary
    motivation of this police intervention was the welfare of this youngster. He
    rejected any suggestion that the police were using the opportunity of this
    apparently abandoned child as a ruse or pretext to insinuate themselves into a
    suspected drug operation. The trial judge did acknowledge that the polices
    initial intervention had a secondary criminal law aspect but found that this
    aspect of the polices entry never overcame [their] primary child protection
    concerns.

[14]

The trial judge then held that the principles underlying
Godoy
were sufficiently malleable to justify the polices entry into the Davidson
    home. They were lawfully entitled to go into the home to assess the degree of
    risk to the young boy and his two siblings. Thus the polices initial entry
    into the home did not amount to a breach of s. 8.

[15]

Although I have some concerns about the trial judges assessment of the
    evidence, for my analysis I will accept his finding on the polices purpose in searching
    the home.

(b)

The
    positions of the parties

[16]

Davidson submits that the trial judge erred in law by misapplying
Godoy
.
    He contends that the polices initial entry into the home without a warrant was
    unreasonable and breached s. 8 of the
Charter
. The Crown contends that
    the principles underlying
Godoy
are sufficiently flexible to support
    the trial judges ruling.

[17]

Alternatively, the Crown seeks to support the trial judges ruling on
    either of two other bases: Davidson consented to the search; or the provisions
    of the
Child and Family Services Act
(the CFSA), R.S.O. 1990, c. C.11
    justified the search of the home without a warrant. In response, Davidson
    argues he did not consent to the search and the trial judge did not find that
    he did; and the criteria under the CFSA for a warrantless entry into a home
    were not met.

[18]

Thus the first issue raises three specific questions:

1.

Did the trial judge misapply
Godoy
?

2.

Did Davidson consent to the search?

3.

Does the CFSA authorise the warrantless search?

[19]

My answer to these three questions are yes, no and no. I would
    hold that the polices initial entry into the home breached Davidsons s. 8
    rights.

(c)

Did
    the trial judge misapply
Godoy
?

[20]

The s. 8 right to be secure against unreasonable searches protects a
    persons expectation of privacy from state intrusion. Nowhere is that
    expectation of privacy higher than in ones home. To enter a home, police ordinarily
    need previous authorization: a warrant. Warrantless entries of a home are
    presumed to be unreasonable and in breach of s. 8. See
R. v. Silveira
,
    [1995] 2 S.C.R. 297, at para. 162.

[21]

But exceptions exist, both by statute and at common law. For example,
    under s. 529.3 of the
Criminal Code
,
    R.S.C. 1985, c. C-46,
the police may enter a home without a warrant
    to arrest or apprehend a person if the conditions for obtaining a warrant exist
    but exigent circumstances  that is, urgent or pressing circumstances  make
    it impractical to obtain one. The
Code
includes among exigent
    circumstances those where the police have reasonable grounds to suspect entry
    into the home is necessary to protect a persons imminent harm or death, or to
    prevent the imminent loss or destruction of evidence.

[22]

A common law exception to the presumed unreasonableness of warrantless
    entries into a home is at issue in this appeal.
Godoy
affirms the
    principle that the police have a common law duty to protect a persons life or
    safety and that duty may, depending on the circumstances, justify a forced,
    warrantless entry into a home.

[23]

Godoy
arose in the context of the polices response to a 911
    call from Mr. Godoys apartment. The line was disconnected before the caller
    spoke. The police went to the apartment and asked to investigate the call. Mr. Godoy,
    however, told them there was no problem, did not explain the call and tried
    to close the door. The police then forced their way inside and found a woman
    curled up and crying. She said Godoy had hit her. He was arrested and charged
    with assault, but eventually acquitted because the trial judge held the
    polices entry into the home was not authorised.

[24]

On summary conviction appeal, the acquittal was set aside and a new
    trial was ordered. This court upheld that result. The Supreme Court then
    ultimately upheld the polices warrantless entry into the home on the basis of
    their common law duty to protect a persons life or safety.

[25]

Chief Justice Lamer, writing for the court, held that when the police
    receive a 911 call they have authority to investigate the call. A 911 call is a
    call for help. The call may be triggered by criminal activity but it may not
    be. A person having a heart attack may call 911 for assistance but be unable to
    speak.
Godoy
confirms that the police have the duty, and thus the
    authority, to investigate all 911 calls.

[26]

But
Godoy
also narrowly limits when the police can enter a
    persons 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 residents privacy or
    property.

[27]

In
Godoy
itself, these limits were easily met. Much like what
    is now codified under s. 529.3 of the
Criminal Code
, the police were
    facing exigent circumstances, an unknown emergency. They had good reason to
    believe the life or safety of a person inside the home was at risk and their
    only course of action to immediately find out about the 911 callers health or
    safety was to force their way into the home. Thus the warrantless entry was
    justified.

[28]

In the case before us, as in
Godoy
, the police responded to a
    911 call. But there the similarity ends. In
Godoy
, when the police
    arrived at the apartment, the emergency was not resolved  the police did not
    know whether the 911 caller was still in danger. Here, by the time the police
    arrived at the intersection, any emergency that had existed had ended since the
    boy was safely in his mothers arms. In
Godoy
, the victim was inside
    the home; here the boy was outside the home, 50 metres away.

[29]

In summary, in the case before us by the time the police arrived at the
    intersection, no exigent circumstances existed. There was no reason to believe
    the life or safety of any person inside the Davidson home was at risk. They
    could see for themselves that the boy was safe and not in any immediate danger.
    Moreover, after the police had ascertained the reason for the 911 call, they
    were not entitled to search the Davidson house.

[30]

In his evidence, Sergeant Henderson conceded he did not believe the life
    or safety of a child inside the home was in danger:

I dont have a  I dont hear screaming or anything like that
    that leads me to believe that something is going on, aside from this child is
    clearly not supervised properly and there is other children in the house. I
    dont know whether they were being supervised properly. I dont have enough
    information yet. So, no, I dont have anything that says kick this door in,
    theres a kid in there who is bleeding and needs help. I dont  I dont have
    that.

[31]

And Henderson conceded he would have had no grounds to obtain a search
    warrant for the search he wanted to conduct:

No, because I couldnt get a search warrant  with a search
    warrant you need specific things that youre searching for. There was nothing
    specific I was searching for. I was going in to ensure that these children have
    food. You cant get a search warrant to go check somebodys cupboards to make
    sure that theres food in the cupboard, so no.

[32]

Godoy
does not give the police sweeping authority to enter a
    home without a warrant to investigate whether a childs mother and father are
    good parents. In the present case, at most the police were entitled to inspect
    the lock, which they could do without going inside the home.
Godoy
did
    not support their warrantless entry and the trial judge erred in holding that
    it did.

(d)

Did
    Davidson consent to the search?

[33]

The trial judge made no finding on whether Davidson consented to the
    search of his home. Indeed, the trial Crown had conceded a s. 8 breach, only to
    resile from that concession in closing argument when the trial judge urged the
    Crown to rely on
Godoy
.

[34]

I agree with counsel for Davidson that even accepting the polices
    evidence, at most it showed Davidson acquiesced to the polices inevitable
    intrusion into his home, but not that he consented. Three aspects of Sergeant
    Hendersons evidence bear on the question of consent.

[35]

First, Henderson never told Davidson of his right to refuse the polices
    entry into the home because Henderson believed that Davidson did not have the
    right to do so. Second, Henderson acknowledged that Davidson did not expressly
    consent to the search of his home:

Q:       Im going to suggest to you that Mr. Davidson did not
    ask you to come in and check the residence.

A:       He didnt. No, he didnt ask us to come in.

Q:      Okay. Mr. Davidson did not consent to you entering his
    residence?

A:       I dont believe he ever verbally said I consent, but
    he didnt object at all. He came into the house with us. He took us into the
    house.

[36]

And third, Henderson agreed that his police force has a form they ask a
    homeowner to sign before doing a consent search of a home and that he never
    asked Davidson to sign this form:

Q:      The Barrie Police Force has a consent form that they
    read to a person and have them sign before they perform a consent search of a
    residence?

A:       Yes.

Q:      Youre a Sergeant with the Barrie Police Force?

A:       Yes.

Q:      Youve been with this police force for 14 years?

A:       Yes.

Q:      You did not provide one of those consent forms to Mr.
    Davidson?

A:       No, those consent forms are if were going in to
    search for something, like stolen property, drugs, something offence related. I
    wasnt going in offence related at all. That wasnt on my mind even a little
    bit. I was going in to ensure that these kids were safe.

[37]

Overall the evidence shows that the police thought they had the right to
    enter Davidsons home without his consent. The warrantless search of his home
    cannot therefore be justified on the basis of his consent.

(e)

Does
    the CFSA authorize the warrantless search?

[38]

The provisions of the CFSA relevant to this question are ss. 40(2), (7),
    (11) and (13). Under s. 40(2), a child protection worker may obtain a warrant
    to seize a child from a home if reasonable and probable grounds exist to show
    the child is in need of protection and a less restrictive course of action will
    not protect the child adequately.

[39]

Section 40(7) authorizes a child protection worker to enter a home
    without a warrant to bring a child to a place of safety, but only if two
    conditions are met. The child protection worker must believe on reasonable and
    probable grounds that:

·

The child is in need of protection; and

·

There would be a substantial risk to the childs health or safety
    during the time needed to obtain a warrant or to bring the matter on for a hearing.

[40]

Section 40(11) supplements s. 40(7) and provides that if necessary the
    child protection worker can enter a home by force to search for and remove a
    child. Section 40(13) provides that a police officer has the same powers as
    does a child protection worker under s. 40(2), (7) and (11).

[41]

The Crown relies on s. 40(7) of the CFSA to justify the polices warrantless
    entry into the Davidson home. I do not agree with the Crowns position. Even if
    Davidsons son was in need of protection, as the trial judge seemed to suggest,
    the second condition required for a warrantless entry did not exist. There was
    no evidence of any risk, let alone a substantial risk, to the boys health or
    safety if the police had taken the time to try and obtain a warrant. Also, as I
    have already said, Sergeant Henderson conceded he had no grounds to obtain a
    warrant. Section 40(7) does not assist the Crown. It did not authorize the
    polices warrantless entry into the Davidson home.

[42]

I conclude that the trial judge erred in ruling that the polices
    initial entry into the home did not amount to a s. 8 breach. In my view it did.
    I now turn to whether the trial judge erred in his s. 24(2) ruling.

(2)

Did the trial judge err by ruling that the evidence of the marijuana was
    admissible under s. 24(2) of the
Charter
?

(a)

The trial judges
    ruling

[43]

Section 24(2) of the
Charter
provides that evidence obtained in
    breach of a
Charter
right or guarantee shall be excluded if its
    admission would bring the administration of justice into disrepute. Under the
    Supreme Court of Canadas decision in
R. v. Grant
, 2009 SCC 32, [2009]
    2 S.C.R. 353, to determine whether evidence should be excluded or admitted
    under s. 24(2) a court must balance three considerations: the seriousness of
    the
Charter
breach or breaches; the impact of the breach or breaches
    on the accuseds
Charter
-protected interests; and societys interest
    in an adjudication on the merits.

[44]

The trial judge found three
Charter
breaches and he assessed
    the three considerations mandated by
Grant
. On the seriousness of the
    breaches, the trial judge found that the first s. 10(b) breach (when Davidson
    was initially detained) was not wilful or flagrant; the second 10(b) breach
    (when Davidson was questioned) was disturbing tending to tip the scale towards
    exclusion of the evidence; and the s. 8 breach (when the police discovered
    the marijuana) was at the mid-range of seriousness.

[45]

The trial judge then found that the three
Charter
breaches were
    technical in nature and had a minimal impact on Davidsons interests.
    Finally, in light of the nature of this grow-op, the trial judge found that
    societys interest in an adjudication on the merits strongly favours
    admission of the evidence. He then balanced the three considerations and ruled
    that neither the seriousness of the breaches nor their impact on Davidson should
    foreclose the admission of the extremely cogent and reliable evidence of this grow-op.

(b)

Did the trial
    judge err in his s. 24(2) analysis?

[46]

A trial judges s. 24(2) ruling is entitled to deference from an
    appellate court. But an appellate court is entitled to intervene and reassess
    the s. 24(2) considerations afresh if the trial judges ruling is unreasonable
    or reflects an error in principle. See
Grant
, at paras. 86, 129;
Silveira
,
    at para. 144;
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at para.
    64.

[47]

Davidson submits that the trial judge made several errors in principle
    in his s. 24(2) ruling, justifying appellate intervention. It is unnecessary to
    consider these submissions. The trial judges error in failing to find that the
    polices initial entry amounted to a s. 8 breach  a serious
Charter
breach  entitles this court to reassess whether the evidence of the marijuana
    should have been admitted at trial.

(i)

Seriousness of the
Charter
breaches

[48]

In my opinion, the
Charter
breaches, cumulatively, are at the
    high end of seriousness because of the following:

·

The police committed not one, but four separate breaches of
    Davidsons
Charter
rights. Multiple
Charter
breaches tend to
    aggravate the overall seriousness of the violations. See
R. v. Calderon
(2004) 188 C.C.C. (3d) 481 (Ont. C.A.), at paras. 93-94.

·

The polices initial entry into the home was by itself especially
    serious. As Cory J. said in
Silveira
, at para. 148: The unauthorized
    presence of agents of the state in a home is the ultimate invasion of privacy.
    It is a denial of one of the fundamental rights of individuals living in a free
    and democratic society.

·

The police not only entered Davidsons home without a warrant,
    they conceded they had no grounds to get a warrant. Instead, they relied on
    their misguided belief they could enter the home to find out whether the boys
    parents were good parents.

·

The trial judge made no express finding that the police acted in
    good faith and no such finding can be made when the polices breach of s. 8 was
    committed in ignorance of the scope of their constitutional authority. See
R.
    v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59.

·

The police admitted to a systemic practice of warrantless
    searches of homes to check on the well-being of children. Sergeant Henderson
    admitted to conducting four or five of these searches every year  searches
    that the police could not justify by any constitutional authority.

[49]

This consideration therefore strongly favours excluding the evidence.

(ii)

Impact
    of the breaches on Davidsons Charter-protected interests

[50]

Contrary to the trial judges finding, I consider that the impact of the
    breaches on Davidsons
Charter
-protected interests was significant for
    two reasons. First, the police entered an area where Davidson had a high
    expectation of privacy: his home. Second, once inside the home, the police
    engaged in conduct that infringed on Davidsons dignity. They searched his
    cupboards and refrigerator, and then questioned him in front of his family. See
Grant
, at paras. 78, 113.

[51]

This consideration, too, favours exclusion of the evidence.

(iii)

Societys
    interest in an adjudication on the merits

[52]

The marijuana is relevant and reliable evidence, and is important to the
    Crowns case. The public interest in having a trial on the merits favours the
    admission of the evidence on this basis.

(iv)

Balancing

[53]

Balancing the three
Grant
considerations, I would hold that the
    trial judge erred in his s. 24(2) ruling. Although the marijuana evidence is
    reliable, the reliability of evidence should not be permitted to overwhelm the
    s. 24(2) analysis:
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494,
    at para. 40. Indeed, in
McGuffie
, Doherty J.A. recently held that
    where the first and second
Grant
criteria favour exclusion, the third
    factor will seldom, if ever, tip the balance in favour of admissibility: at
    para. 63. See also
R. v. Paterson
, 2017 SCC 15, at paras. 55-56.

[54]

Admitting the evidence of the marijuana would bring the administration
    of justice into disrepute. The seriousness of the breaches, especially the
    initial s. 8 breach, and the significant impact of the breaches on Davidsons
    expectation of privacy and dignity favour exclusion of the evidence, and
    outweigh societys interest in deciding the case on its merits. If there were
    any doubt, the polices utter disregard for constitutional standards would, if
    the evidence were admitted, bring the justice system into disrepute.

C.

Conclusion

[55]

I would allow the appeal and set aside Davidsons convictions. As I
    would exclude the evidence of the marijuana, there is no longer any evidence
    against him to support the charges. I would therefore enter an acquittal on
    each charge.

Released: March 29, 2017 (E.E.G.)

John Laskin J.A.

I agree. Eileen E. Gillese
    J.A.

I agree. David Watt J.A.


