



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stairs, 2020 ONCA 678

DATE: 20201027

DOCKET: C66012

Fairburn A.C.J.O., Nordheimer
    and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Stairs

Appellant

Erin Dann and Lisa Freeman, for the
    appellant

Diana Lumba, for the respondent

Heard: in writing

On appeal from the conviction entered on
    June 18, 2018, with reasons reported at 2018 ONSC 3783, and the sentence
    imposed on July 16, 2018 by Justice Kendra D. Coats of the Superior Court of
    Justice.

Fairburn A.C.J.O.
:


I.

Overview

[1]

A civilian was driving southbound when he saw a
    male driver of another vehicle striking his female passenger. About 15 minutes later,
    the civilian called 9-1-1 to report what he had seen.

[2]

Three police officers located what they believed
    to be the vehicle parked in the driveway of a residential address, close to
    where the 9-1-1 caller had made his observations. Despite repeatedly knocking
    at the front door of the residence, and announcing the police presence, no one came
    to the door. Concerned for the safety of the female passenger, the police entered
    the home, located a woman who appeared to have fresh facial injuries, and
    arrested the appellant. While in the home, they located methamphetamine.

[3]

At trial, the appellant brought a ss. 8, 9 and
    24(2)
Charter
application. He claimed that he was the subject of
    cascading
Charter

breaches, starting with an unlawful entry
    into the home and ending with an unlawful search. The
Charter

application
    was dismissed and the appellant was convicted of assault, breach of probation,
    and possession for the purpose of trafficking.

[4]

This is an appeal from the possession for the
    purpose of trafficking conviction only. The appeal rests on a challenge to the
Charter

ruling. Although the appellant challenged the warrantless home entry at
    trial, he is now prepared to accept the lawfulness of that entry. Even so, he
    maintains that the trial judge erred by concluding that:

(a)

the police had sufficient grounds to make the
    arrest;

(b)

a
Feeney
warrant was not required in order to make the arrest inside of the home; and

(c)

the discovery and seizure of the methamphetamine
    did not constitute a s. 8
Charter

breach.

[5]

In the reasons that follow, I will explain why I
    would dismiss the appeal.


II.

The Authority to Enter the Residence

[6]

While the appellant does not challenge the trial
    judges conclusion that there was a lawful basis upon which to enter the
    residence without prior judicial authorization, the legality of that entry sets
    the context for what followed. Accordingly, I will briefly address the legal basis
    for entering the home without a warrant.

[7]

The police received an emergency call from a civilian,
    claiming that he had seen a woman being attacked in a motor vehicle. The caller
    was able to describe the make, model and colour of the car, and its licence
    plate number. About eight minutes after being dispatched, three police officers
    located a similar car in a driveway, geographically proximate to where the
    9-1-1 caller had last seen the vehicle. Not only did the make and colour of the
    car match the callers description, but the licence plate was BEWN 840, strikingly
    close to the callers suggestion that the plate was either BEWN 480 or BEWN 483.
    Understandably, the police were satisfied they had the right car.

[8]

The 9-1-1 caller had identified the male driver
    as being white, between the ages of 25 to 35, with a buzz cut or shaved head.
    Although the car came back as registered to the appellants father, the
    appellant was listed as an additional driver. A quick record check showed that the
    appellant had police cautions registered for violence, family violence, and
    being a flight risk.

[9]

The most senior officer on the scene decided to make
    direct contact with the 9-1-1 caller to confirm the information that the police
    had received. The caller not only confirmed the information, but added to it,
    explaining the fact that the female had been struck multiple times  in a flurry
    of strikes  and that she had been placed in a headlock and was turtling
    from the strikes.

[10]

Armed with that information, the officers were
    seriously concerned about the females safety. They knocked loudly and
    repeatedly at the front door to the residence. They also called out police on
    multiple occasions. When no one answered, two of the officers decided to enter the
    residence through a side door that they found unlocked. All the while, they
    kept loudly announcing police.

[11]

One of the officers looked down the basement
    steps and saw a man run by, from the right to the left side of the basement, into
    what turned out to be a laundry room. The officer instructed all those present
    in the basement to come upstairs. Eventually, a woman came up the steps. She
    had what appeared to be fresh injuries to her face. Two officers then descended
    into the basement, found the man who had hidden in the laundry room and
    arrested him.

[12]

The trial judge concluded that the police
    entered the home because they were legitimately concerned with the safety of
    the female car occupant. According to the trial judge, that entry was justified
    under the common law ancillary powers doctrine. I agree with her conclusion in
    this regard.

[13]

When determining whether the ancillary powers
    doctrine has been properly invoked by the police as a justification for
    interfering with property and liberty, the court will look to a two-step test, often
    referred to as the 
Waterfield

test. That test was first used
    in the pre-
Charter

era and has since been refined and
    incrementally applied:
R. v. Waterfield

(1963), [1964] 1 Q.B.
    164 (Eng. C.A.);
R. v. Dedman
,
[1985] 2 S.C.R. 2;
R. v.
    Mann
,
2004 SCC 52, [2004] 3 S.C.R. 59, at para. 25;
R. v. Godoy
,
[1999] 1 S.C.R. 311;
R. v. MacDonald
,
2014 SCC 3, [2014]
    S.C.R. 37. The test involves a consideration of police duties and their
    relationship to police powers, which are not always correlative in nature:
Mann
,
at para. 35.

[14]

The first step involves considering whether the
    police were operating within the scope of a duty imposed by statute or by the common
    law. If so, the second step involves considering whether the actions taken in
    fulfillment of that duty constitute a justifiable use of power:
Godoy
,
at para. 12;
Mann
,
at paras. 24-25. In other words, the
    question is whether the exercise of power was reasonably necessary in the
    circumstances.

[15]

To a large extent, the common law duties of the
    police rest in sync with their statutory duties. For instance, at common law, the
    police have a duty to preserve the peace, prevent crime, and protect life and
    property:
Dedman
, at p. 32. Similarly, s. 42(1)(c) of the
Police
    Services Act
, R.S.O. 1990, c. P.15, requires that the police keep the
    peace, prevent crime, assist with crime prevention, apprehend criminals and
    other offenders, and assist victims of crime.

[16]

Any number of these common law and statutory
    duties were at play in this case. In particular, the duties to protect life and
    assist victims of crime were front and centre when the police entered the home.

[17]

Turning to the second step of the
Waterfield

analysis, whether the exercise of police powers was reasonably necessary in
    the circumstances, the trial judge also answered that question in the
    affirmative.

[18]

The officers on scene, whose evidence the trial
    judge accepted as credible and reliable, repeatedly knocked at the front door
    to the residence, yet were met with silence. That silence was concerning. At
    the time, all the police knew was that a female had been seriously assaulted in
    a motor vehicle that was now sitting in the driveway of the home. With the car
    present, it was reasonable to expect that the car occupants were in the home
    and to fear that the door was not being answered because the victim was
    suffering further violence.

[19]

It is against that backdrop that the police had
    to make a decision. The consequences of not responding quickly and decisively
    could have been grave. While the female in this case eventually walked out of
    the basement, in another case, she might not have. The luxury of time was not
    on offer. The police had a duty to ensure safety and their exercise of powers 
    entering the home without a warrant in order to locate the female occupant that
    had been seen by the 9-1-1 caller  was a justifiable exercise of power
    associated with that duty.

[20]

For purposes of this appeal, though, the
    appellant places in issue the trial judges findings about what came next.


III.

Valid Grounds for Arrest

[21]

The appellant maintains that the trial judge
    erred by concluding that there were reasonable grounds to make the arrest. In
    particular, the appellant claims that the trial judge failed to appreciate that
    there was an absence of objective grounds capable of supporting the officers
    subjective beliefs that it was the appellant whom the 9-1-1 caller had seen
    assaulting the female.

[22]

Although the appellant acknowledges that a car
    matching the description provided by the 9-1-1 caller was parked outside of the
    residence, the appellant claims that this fact must be weighed against others,
    including that: (a) there was no direct evidence that the male and female in
    the residence were the people observed by the 9-1-1 caller; (b) there was no
    evidence that the injuries on the females face were caused by an assault; (c)
    one of the officers acknowledged that some of the injuries may have been dated
    in nature; and (d) the officers did not ask the female any questions that would
    provide them with additional information.

[23]

I see no error in the trial judges approach. The
    trial judge accurately summarized the threshold test for arrest. She specifically
    referred to s. 495(1)(a) of the
Criminal Code
, setting out the
    statutory basis upon which a warrantless arrest may be made. She also quoted
    the classic test for a warrantless arrest from
R. v. Storrey
, [1990] 1
    S.C.R. 241, at pp. 250-51.

[24]

As set out in
Storrey
,
there is
    both a subjective and objective component to the test for a warrantless arrest
    on an indictable offence. The subjective component requires that the police hold
    an honest belief that the person committed the offence. The trial judge
    accepted that the officers in this case subjectively believed that they had
    reasonable grounds to arrest. The objective component requires that the
    officers belief be objectively reasonable in the circumstances known to the
    officer at the time of the arrest:
Storrey
,
at pp. 250-51;
R.
    v. Bush
,
2010 ONCA 554, 101 O.R. (3d) 641, at para. 38;
R. v. Canary
,
2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 21.

[25]

In my view, the circumstances of this case amply
    justified the arrest from both a subjective and objective perspective. I would
    not give effect to the appellants suggestion that the objective grounds were
    weakened by the fact that there was no direct evidence that the woman and man
    in the residence were the people from the car. The fact is that there is no requirement
    that an arrest rely upon direct, as opposed to circumstantial, evidence. In
    this case, there was very strong circumstantial evidence that the people
    located in the home were the ones seen by the 9-1-1 caller.

[26]

From the first floor, one of the officers saw a
    man matching the description given by the 9-1-1 caller (white, 25-35 and shaved
    head). The female had visible injuries to her face, described as cuts,
    scratches, bruising, markings and swelling, all consistent with the assault
    that the 9-1-1 caller had described. With a minor variation to the licence
    plate number, the car in the driveway matched the description given by the
    9-1-1 caller. The appellant was also associated to that vehicle through a
    police record check.

[27]

I see no error in the trial judges conclusion
    that a reasonable person in the position of the arresting officers would be
    able to conclude that there were objectively reasonable grounds to arrest:
Storrey
,
    at p. 251.


IV.

Feeney
Warrant
    Not Required

[28]

The appellant argues that, even if this court
    finds that the police had sufficient grounds to make the arrest, they were
    required to obtain what is colloquially referred to as a
Feeney

warrant
    before doing so:
R. v. Feeney
,
[1997] 2 S.C.R. 13.
Feeney

decided that it is necessary to obtain judicial authorization to effect an
    arrest inside of a residence, resulting in the enactment of a statutory scheme
    to accommodate these entries:
Criminal Code
, ss. 529(1), 529.1.

[29]

Given that the home entry in this case was
    predicated on concerns over safety, the appellant argues the police had to
    stick with that purpose for entry. Once the female had been isolated from the
    appellant, she was safe and the police were required to leave the residence to
    obtain the
Feeney

warrant to effect the arrest. The appellant
    further contends that if the female did not wish to go with them when they left
    to get the
Feeney

warrant, then an officer could have stayed
    with her in the kitchen and the appellant in the basement, while the other
    officers went to get the warrant.

[30]

I agree with the trial judge that this was not
    necessary. Although the police originally entered the home over safety concerns,
    once they found a female inside of the residence and concluded that she was the
    victim of the assault witnessed by the 9-1-1 caller, it was open to them to go
    into the basement to effect the arrest.

[31]

The officers were understandably concerned about
    what the appellant was doing in the basement when he refused to come upstairs
    in response to the police commands. As one of the officers explained, in
    evidence accepted by the trial judge: I dont know what hes doing, if hes
    grabbing a weapon in that room, so no,  shes not a hundred per cent safe at
    that point,  I dont know what hes doing in that room so shes, in my mind
    shes, shes not a hundred per cent safe. In that officers view, the best way
    to ensure the womans safety, and officer safety, was to effect the arrest: I
    didnt spend too much time talking to her. I didnt know what he was doing so
    my main focus was on him. If I stopped to talk to her and he came out with a
    weapon, Id be at a disadvantage.

[32]

In any event, as important as a
Feeney

warrant is for protecting the privacy of those inside of private dwellings
    when the police come to effect arrests, they authorize the police to enter a dwelling-house
    described in the warrant for the purpose of arresting or apprehending a
    person:
Criminal Code
, ss. 529(1), 529.1. The whole purpose of the
Feeney

warrant is to protect the elevated privacy interests in a home, requiring
    certain grounds to be met before entry can be made to effect an arrest. Yet, in
    this case, the police had already legitimately entered a dwelling-place under
    the ancillary powers doctrine. They were lawfully inside of the residence and
    it would make no sense to require them to leave to obtain an authorization to
    enter again, only to effect an arrest that they could clearly make without
    warrant if it was anywhere other than a private dwelling.

[33]

Moreover, it would be impractical in
    circumstances like this case to require the police to leave and obtain a home
    entry warrant to make an arrest in a home that they were already lawfully in. This
    is particularly true in this case, where the appellant acknowledges that, if
    the complainant had been unprepared to leave, an officer would have had to wait
    inside of the residence with her while other officers did the work to obtain a
Feeney

entry warrant. Any such approach would have the effect of potentially
    aggravating  not assuaging  privacy concerns.

[34]

The appellant leans on
Godoy
in support
    of the proposition that where the police enter a home in response to a 9-1-1
    call, they must limit their activity in the home to providing assistance to any
    possible victim:
Godoy
,
at para. 22.

[35]

I do not agree that
Godoy

would
    preclude the arrest here. Indeed, that is precisely what happened to Mr. Godoy.
    The police attended the Godoy residence in response to a 9-1-1 call that had
    been hung up. They eventually worked their way into the residence and found the
    injured victim lying in a bedroom. They then proceeded to arrest Mr. Godoy:
Godoy
,
at paras. 4, 27. There was no need for them to leave and obtain a
Feeney

warrant:
Godoy
,
at paras. 25-26. Since the police had
    entered in exigent circumstances, concerned for the safety of a person possibly
    in need of assistance, they were permitted to effect the arrest once those
    grounds for arrest crystalized. That is also what happened in this case.


V.

No Section 8 Breach

[36]

Finally, the appellant argues that, after he was
    arrested, the police conducted an unlawful search of a basement living room.
    There is no dispute that the methamphetamine was located in that room.

(i)

Factual Background

[37]

In the house where the search was conducted, one
    can go either right or left at the bottom of the stairs. To the immediate right
    is a living room area. To the immediate left is a laundry room. When the police
    first saw the appellant, he was running from the right (living room area) to
    the left (laundry room).

[38]

When the police descended the stairs to make the
    arrest, they looked briefly to the right, into the living room area, scanning
    it from the doorway. From that vantage point, they could not see anyone in the
    room. They then turned to the left, where they located the appellant inside of
    the laundry room close to the stairs. He was placed in handcuffs.

[39]

While one of the officers attended to the
    appellant, the other conducted what he described alternately as a sweep and a
    clearing search of the living room area. As reflected in the exhibits from
    trial, and as discussed by the officer in his testimony, the room was not a
    picture of order. It contained a good deal of furniture and significant clutter.
    Around the middle of the room, there was a sofa. Looking into the living room
    from the doorway, it was not possible to see what was on the floor behind the
    sofa. There was a large space back there, large enough to hold a desk, a chest
    of drawers and luggage.

[40]

The officer conducting the sweep was clear that
    he was not looking for evidence or conducting a search. Rather, the officer
    emphasized that his primary obligation was to the safety of those in the house
    and the police. As he had no idea how many people might have been hiding in the
    basement, or whether there may have been weapons lying about, he said that he felt
    that he needed to sweep the room because you never really know what kind of
    hazards could be down there. As the officer emphasized, You dont want to be
    in a basement where weapons or firearms are sitting out in [the] open.

[41]

During his brief, visual sweep of the living
    room, the officer saw a plastic container sitting out in the open on the floor 
    what he described as a Tupperware container  with a coloured, but somewhat transparent
    lid, and transparent sides. He said that he could see what looked like glass
    shards inside the container. He knew that these glass-looking shards were
    likely methamphetamine.

[42]

The officer recalled that at some point he
    removed the lid to the container but could not recall whether he did that while
    still at the residence or once he was back at the police station. The second
    officer in the basement was also unable to recall whether the lid was removed while
    still in the house.

[43]

As he was finishing his sweep of the room, the
    officer also saw a plastic Ziplock bag lying near a pizza box, containing what
    he also believed to be the same drug. Both items were seized.

(ii)

The Trial Judges Reasons for Rejecting the
    Section 8 Claim

[44]

The trial judge found that it was more likely
    than not that the lid was removed while in the basement. Even so, she concluded
    as a fact that the officer who conducted the sweep had identified the substance
    in the container prior to picking the container up. In other words, having
    removed the lid added nothing to the officers belief about what was inside
    of the container that he first saw sitting out in the open on the floor behind
    the sofa.

[45]

The trial judge accepted that the search was
    conducted for safety reasons. She concluded that this was a valid objective,
    making sure that no one else was there and that there were no other hazards. In
    these circumstances, the trial judge concluded that the items were simply
    located in plain view and could be seized.

[46]

I read the trial judges reasons as effectively
    combining two warrantless search doctrines. First, she employed the search
    incident to arrest doctrine to justify the officer having entered the living
    room after the arrest to ensure that there were no safety hazards. Second, the
    trial judge employed the plain view doctrine to justify the officer having seized
    the methamphetamine that was sitting out in the open when the officer did a
    brief sweep of the room for safety purposes.

(iii)

The Appellants Section 8 Argument

[47]

The appellant argues that the trial judge erred
    by finding that the entry into the living room under the search incident to
    arrest doctrine was justified. The appellant says that this doctrine is simply
    unavailable to the police when they have effected an arrest inside of a
    dwelling place, particularly without a
Feeney

warrant in place.

[48]

Instead, the appellant maintains that if the
    police wish to conduct a safety search in these circumstances, they must first have
    reasonable grounds to believe that officer safety is at stake and that a search
    is necessary to address the specific concern:
MacDonald
,
at
    para. 41. The appellant argues that the trial judges conclusion that the
    police were not satisfied that there were no more threats based on a quick
    look as they came down the stairs, provides an insufficient basis upon which
    to have conducted the search of the living room.

[49]

Finally, the appellant argues that the trial
    judge failed to appreciate the significance of the officers having lied about
    the fact that they could not recall whether the lid to the Tupperware container
    was removed while in the basement. According to the appellant, they were called
    out on that lie when the trial judge found that it was more likely than not
    that they had removed the lid while still in the basement. The appellant
    contends that the trial judge failed to provide any reasoning to explain why
    that critical lie did not undermine the officers evidence about why the
    basement living room had been entered and the circumstances surrounding the
    identification of the drugs.

(iv)

Search for Safety at the Location of an Arrest

[50]

Had the appellant been arrested outside of his
    home, there is no question that the well-known and often applied search
    incident to arrest doctrine would have been available to conduct a search:
Cloutier
    v. Langlois
,
[1990] 1 S.C.R. 158, at p. 186;
R. v. Caslake
,
[1998] 1 S.C.R. 51, at paras. 19, 25;
R. v. Nolet
,

2010 SCC
    24, [2010] 1 S.C.R. 851, at para. 49. A search incident to arrest must be truly
    incidental to the arrest, meaning that the police must have a reason related
    to the arrest for conducting the search at the time that it is carried out.
    The search must also be objectively reasonable in nature:
Caslake
,
at
    para. 25.

[51]

The purposes for a search incident to arrest include
    that the police are searching the immediate surroundings to the arrest to: (a)
    ensure the safety of the police, the public and the accused; (b) preserve
    evidence; and (c) discover evidence that may be used at trial:
Cloutier
,
at pp. 182, 186;
Caslake
,
at paras. 19-20. Therefore, when
    considering whether a search is lawful incident to arrest, the court must
    consider: (a) the purpose of the search; (b) whether that purpose was a valid
    law enforcement purpose that was connected to the arrest; and (c) whether the
    purpose identified for the search was objectively reasonable in the
    circumstances:
R. v. Santana
,
2020 ONCA 365, at paras. 25-26.

[52]

I do not accept the appellants core proposition
    that the only way that the police could enter the basement living room, and
    look behind the sofa located closer to the centre of the room, was if they had reasonable
    grounds to believe that their safety was at risk. If that were the test to be
    applied in circumstances such as these, the police would often be at grave
    risk.

[53]

While the appellant is right that the
MacDonald

decision speaks in terms of police safety searches being done on the basis
    of reasonable grounds to believe that safety is at risk, that decision arises
    from a completely separate context that is far afield from the circumstances of
    this case:
MacDonald
,
at para. 41.

[54]

The
MacDonald

decision arises
    out of a home entry that occurred in the wake of a police officer harbouring a
    concern about what was in Mr. MacDonalds hand as the officer stood outside of
    the residence door trying to speak with Mr. MacDonald about a noise complaint. It
    is in that factual context that the court drew on and interpreted a line of
    authority involving the grounds necessary to search incident to investigative
    detentions:
Mann
,
at paras. 38-40;
R. v. Clayton
,
2007
    SCC 32, [2007] 2 S.C.R. 725, at paras. 20-21.

None of those authorities,
    nor
MacDonald
,

suggest that in the context of an arrest, the
    police must hold back on safety searches unless they have reasonable grounds to
    believe that their safety is at risk.

[55]

The safety search doctrine arising from the
MacDonald

decision  and the majoritys interpretation of the investigative detention
    cases  does not transfer easily to the arrest context.

[56]

A person under arrest does not stand in the same
    constitutional position as a person who is only fleetingly, investigatively
    detained or a person who is merely interacting with the police prior to a
    detention (as Mr. MacDonald was). Indeed, as noted in
R. v. Fearon
,
2014 SCC 77, [2014] 3 S.C.R. 621, at para. 56, a person who is under lawful
    arrest has a lower reasonable expectation of privacy. In the context of an
    arrest, the key consideration is not whether there exist reasonable grounds to
    believe, but whether the objective of the search is connected to the arrest and
    whether it is reasonable in the circumstances. Therefore, when it comes to searching
    for safety concerns incident to a lawful arrest, Cromwell J. for the majority observed
    in
Fearon
,

at para. 68:

[R]equiring reasonable and probable grounds to
    search for the purpose of protecting the police, the accused, or the public
    overshoots the point at which the publics interest in being left alone by
    government must give way to intruding on an individuals privacy to advance law
    enforcement objectives.

[57]

Searching for safety at the scene of an arrest
    has long been understood to be of critical importance. The ability of the
    search incident to arrest doctrine to permit the police to respond to the
    dynamic and often dangerous nature of arrest scenes has remained a staple in s.
    8 jurisprudence. Doherty J.A. put it this way in
R. v. Golub
,
[1997]
    O.J. No. 3097, at para. 44:

In this case, I am concerned with the police
    interest in protecting the safety of those at the scene of the arrest. This
    interest is often the most compelling concern at an arrest scene and is one
    which must be addressed immediately. In deciding whether the police were justified
    in taking steps to ensure their safety, the realities of the arrest situation
    must be acknowledged. Often, and this case is a good example, the atmosphere at
    the scene of an arrest is a volatile one and
the police
    must expect the unexpected. The price paid if inadequate measures are taken to
    secure the scene of an arrest can be very high indeed. Just as it is wrong to
    engage in ex-post facto justifications of police conduct, it is equally wrong
    to ignore the realities of the situations in which police officers must make
    these decisions
. [Emphasis added.]

[58]

I accept the appellants suggestion that when the
    police enter a residential address in circumstances such as this, in
    fulfillment of their obligation to protect life, they are highly constrained in
    what they can do. The law must not develop in a way that allows the police to use
    a home entry in urgent circumstances to create the opportunity for a windfall
    search.

[59]

At the same time, the law must be practical. The
    police can be placed at serious risk when they enter a private residence. So
    too may civilians be placed at serious risk. In this case, the police were
    essentially in the basement of a home, with a man in handcuffs, and no way of
    knowing whether someone with access to a weapon was hiding behind the sofa in
    the room that they would have to pass in order to ascend the stairs with the
    handcuffed man and to exit the residence. This was a potentially dangerous situation.

[60]

In my view, when the police are present in a
    residence without judicial authorization, it may well be that the full panoply
    of police powers that are typically available under the search incident to
    arrest doctrine are not available with the same force as they would otherwise
    be. In particular, it may be that a search for evidence that may be permitted
    outside of the residence, would not be permitted in this situation:
Golub
,
    at para. 43
.

[61]

That is not this case, though. Here, the trial
    judge accepted as a fact  a fact to which we must show deference on appeal 
    that the police only swept the room looking for safety hazards. It is in the
    context of that sweep that she accepted that the officers found the
    methamphetamine in plain view.

[62]

Of course, the plain view doctrine is a seizure
    doctrine, not a search doctrine. As this court held in
R. v. Jones
,
2011 ONCA 632, 107 O.R. (3d) 241, at para. 56, there are four criteria to
    be applied in determining whether the doctrine is operative: (a) whether the
    police were lawfully positioned relative to where the item(s) were found; (b)
    whether the nature of the evidence was immediately apparent as constituting an
    offence; (c) whether it was discovered inadvertently; and (d) whether the
    item(s) were visible without any exploratory search.

[63]

The trial judge accepted the evidence of the
    officer who conducted the sweep, all of which supported the factors
    underpinning the plain view and search incident to arrest doctrines.

[64]

I do not agree with the appellants suggestion
    that we should find that the trial judge failed to appreciate the significance
    of the fact that the officers had misled the court about whether they had looked
    inside of the Tupperware container while still in the basement. The trial judge
    was well aware of the importance of this issue. In the end, though, she was entitled
    to believe the officers evidence that they could not recall whether they had looked
    into the container while still in the residence. The record supports that
    conclusion.

[65]

Indeed, both officers acknowledged that it was
    possible that they had looked inside of the container. The fact that the
    trial judge concluded that it was more likely than not that they had removed
    the lid does not mean that she concluded that they had lied.

[66]

What is important is her factual conclusion,
    based on all of the evidence, that the officer who found the Tupperware
    container was telling the truth about its location and that he was able to
    determine its contents by looking through the container. The trial judge is
    entitled to deference on this finding. She heard the officer testify and was in
    a position to look at the Tupperware container to determine its degree of transparency.

[67]

In the end, the police were able to articulate
    why they had safety concerns. That articulation made sense. They had descended
    into a basement where they had never been before, in a house they had never
    been in before. While the 9-1-1 caller said that there were two people in the
    car that he observed, that did not mean there were only two people in the home.
    Nor did it mean that there were no other safety concerns hiding around corners.

[68]

In particular, the police could not see behind
    the sofa from the doorway to the living room. It was not unreasonable to take a
    quick visual scan of the room in the circumstances. They had a person in
    handcuffs and needed to ascend the stairs, which were located right beside the
    living room, to safely get him out of the residence, all while the female
    remained on the first floor. The fact that the methamphetamine was sitting out
    in plain view meant that it could be seized.


VI.

Conclusion

[69]

I would dismiss the appeal.

Fairburn
    A.C.J.O.

I
    agree Harvison Young J.A.


Nordheimer J.A. (Dissenting):

[70]

I have read the reasons of my colleague. I agree
    with her analysis and conclusion regarding the police entry into the residence,
    that the police had valid grounds to arrest the appellant, and that the police
    did not require a
Feeney
warrant. I do not agree with her analysis and
    conclusion regarding the asserted breach of s. 8 of the
Charter of Rights
    and Freedoms
.

The s. 8 breach

[71]

In my view, my colleagues conclusion on this
    issue, in the context of this case, has the potential to provide the police
    with a broad licence to undertake warrantless searches, one that is
    inconsistent with the protections intended to be subsumed with s. 8 of the
Charter
.
It is also inconsistent with existing authorities from this court and from
    the Supreme Court of Canada on the issue.

(i)

The search was a safety search

[72]

It is well-established that warrantless searches
    are presumptively unreasonable:
R. v. Mann
, 2004 SCC 52, [2004] 3
    S.C.R. 59, at para. 36. There is no dispute that the officers safety search
    of the basement living area was a warrantless search. The respondent contends,
    and my colleague accepts, that the warrantless search was nonetheless
    reasonable because of safety concerns for the officers.

[73]

In order to utilize the safety exception as a
    justification for a warrantless search, the police must show objectively
    verifiable necessity:
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37
    at para. 31.

[74]

The trial judge appears to have accepted that
    the officer had a reasonable subjective belief that the search was necessary
    for safety purposes. At para. 282 of her reasons, she said:

[The officer] testified that he searched to
    make sure no one else was there and that there were no other hazards. This is
    reasonable.

[75]

The trial judge did not undertake the analysis
    mandated by
MacDonald
. In particular, the trial judge did not
    undertake any objective analysis of the reasonableness of the officers belief
    as to the need for the search. She simply accepted what the officer said on the
    point. This was an error. Indeed, the trial judge spends very little time
    scrutinizing the validity of the search, instead concentrating on whether the
    drugs in question were in plain view. The plain view doctrine only arises if
    the search itself is justified, in other words, if the police are otherwise
    engaged in a lawfully authorized search:
R. v. Jones
, 2011 ONCA 632,
    107 O.R. (3d) 241, at para. 56.

[76]

No one takes issue with the fact that the police
    have the authority to conduct safety searches under their common law duty to
    protect life and safety. The issue with such searches is whether the exercise
    of that authority is justified in the circumstances of a given case. In order
    to be justified, the search must be reasonably necessary in light of the
    prevailing circumstances:
MacDonald
, at para. 36. A search is
    reasonably necessary when police officers have reasonable grounds to believe
    that there is an imminent threat to their safety:
MacDonald
, at para.
    43.

[77]

The risk of too easily providing justification
    to the police for a warrantless safety search is that it runs roughshod over
    the individuals right to privacy, which is especially high in a persons home.
    While everyone might agree, in a theoretical context, that the police should do
    whatever they can to protect peoples lives and safety, utilizing that
    theoretical notion to justify all police conduct has serious ramifications. As
    Dickson J. aptly cautioned in his dissent in the
Wiretap Reference
,
    [1984] 2 S.C.R. 697, at pp. 718-719:

The fact that police officers could be
    described as acting within the general scope of their duties to investigate
    crime cannot empower them to violate the law whenever such conduct could be
    justified by the public interest in law enforcement. Any such principle would
    be nothing short of a fiat for illegality on the part of the police whenever
    the benefit of police action appeared to outweigh the infringement of an
    individual's rights.

[78]

In
MacDonald
, LeBel J. cited, at para.
    39, three factors that helped to define the limits of the police power to
    conduct a safety search. Those three factors are (i) the importance of the
    duty; (ii) the necessity of infringing rights to perform the duty; and (iii)
    the extent of the infringement. With respect to the second factor, LeBel J.
    noted, at para. 39, that when the police interact with a person who they have
    reasonable grounds to believe is armed and dangerous, an infringement may be
    necessary. LeBel J. also warned that, in considering whether a safety search is
    reasonable, one must start from the premise that a warrantless search is always
    presumed to be unreasonable.

[79]

In my view, a fair reading of the decision in
MacDonald
establishes that the police have a high hurdle to overcome in justifying safety
    searches, especially when those searches are conducted within a private
    residence. I draw that conclusion from the observations that LeBel J. made, at
    para. 41, in which he made the following clear:

·

The power to carry out safety searches is not
    unbridled;

·

The power may be exercised only when
    circumstances, viewed reasonably and objectively, show that the search is
    needed to address an imminent threat to the safety of the public;

·

Such searches will be authorized by law only if
    the officer believes that his or her safety is at stake;

·

A safety search cannot be justified based on a
    vague concern for safety.

[80]

I would note, in passing, that in addressing the
    nature of the circumstances that would justify a safety search, LeBel J.
    referred to the risk being imminent four times in the space of five
    paragraphs of his reasons.

[81]

The trial judge did not make any finding that
    the officers were facing an imminent threat while they were within the
    residence. Indeed, there is little, if any, analysis or discussion in her
    reasons about any safety risk to the officers. The few times that safety is
    mentioned in the trial judges lengthy reasons, it relates to the safety of the
    female victim. It is not directed at the officers. Even if the officers thought
    they were facing an imminent threat, which they do not appear to have
    expressed, the trial judge did not make any finding that their views were objectively
    and reasonably based.

(ii)

MacDonald
is
    not distinguishable

[82]

My colleague does not attempt to fill this gap
    in the trial judges reasoning by suggesting that any imminent threat existed.
    Rather, my colleague attempts to distinguish
MacDonald
on the basis
    that it did not involve a search incident to an arrest. Indeed, she says, at
    para. 53, that the
MacDonald
rule arises from a completely separate
    context that is far afield from the circumstances of this case.

[83]

Having thus attempted to distinguish
MacDonald
,
    my colleague advances the following proposition, at para. 52:

I do not accept the appellants core
    proposition that the only way that the police could enter the basement living
    room, and look behind the sofa located closer to the centre of the room, was if
    they had reasonable grounds to believe that their safety was at risk.

This proposition explains my
    colleagues need to distinguish
MacDonald
because that is precisely what the decision in
MacDonald
says the police must
    establish to justify a warrantless safety search. Indeed, it is the reasonable
    grounds to believe standard, as opposed to a reasonable grounds to suspect
    standard, that separates the majority from the minority in the decision.

[84]

I do not find the basis advanced by my colleague
    for distinguishing
MacDonald
compelling. There is nothing in
MacDonald
that suggests that the decision was being restricted to pre-arrest
    searches. To the contrary, the decision speaks to safety searches generally and
    the need to constrain those searches to those relatively rare circumstances
    where there is an imminent risk to public safety. Nor does my colleagues
    distinction make practical sense, as the facts of this case demonstrate. Why
    would a different standard apply to justify the safety search if the police had
    searched the living room area a minute before they arrested the appellant as
    opposed to a minute after? In fact, given the layout of the basement, if the
    police reasonably had concerns about a threat from the living room area, then
    one must wonder why they did not search that area before they spent the time
    standing at the laundry room door, conversing with the appellant, and then
    arresting him, all the time with their backs to that very area.

[85]

Even if one could accept that a distinction
    exists between pre-arrest and post-arrest safety searches, my colleague does
    not explain how that difference would serve to justify a warrantless search of
    a private residence in the one but not in the other. It is one thing to
    determine that warrantless searches of a person, or their belongings, are
    necessarily justified incident to arrest. It is an entirely different matter to
    determine that warrantless searches of private residences are so justified.
    Indeed, if my colleagues distinction is a true one, it would seem to be a very
    small step to use it, in this case, as a justification for the police officers
    to search the upstairs bedrooms of the home, if they had chosen to do so.

[86]

Further, to the extent that my colleague
    attempts to distinguish
MacDonald
on a factual basis, I would say that no two cases are going to have
    the same facts. Established principles must often be applied to different
    facts. And in this case, the difference in the facts between this case and
MacDonald
are revealing, but not in the
    way that my colleague would have them operate. In
MacDonald
, the officer reasonably believed that the accused had a gun (or
    perhaps a knife). The officer had seen what appeared to be a gun in the
    accuseds hand. At the same time, the accused had adamantly refused to show the
    officer what was in his hand. Similarly, in another case upon which my
    colleague relies,
R. v. Golub
(1997), 34 O.R. (3d) 743 (C.A.), there were reasonable grounds to
    suspect that an unknown person had a loaded submachine gun in the premises.

[87]

The facts, in this case, pale in comparison to
    the facts in both of those cases. As I shall explain, the officers did not have
    any basis for a reasonable ground to believe, or even a reasonable ground to
    suspect, that there was an imminent threat to them.

(iii)

The search was not objectively reasonable

[88]

I begin with the fact that the police did not
    have any reason to believe, or even suspect, that the appellant had a gun. They
    did not find any gun, or any other weapon, on the appellant when they arrested
    him nor had the appellant threatened the use of a weapon. The police had no
    knowledge of the appellant having access to guns; no knowledge of the appellant
    having a history of gun possession; nor any other basis for any belief or
    suspicion that there were guns present in the home. In fact, as recited by the
    trial judge, the officer who conducted the warrantless safety search merely
    said he was looking for any potentially unsafely stored firearm or weapon. He
    did not say that he was concerned that there was an armed person in the living
    room area ready to do harm to the officers. Indeed, none of the officers ever
    asked either the female or the appellant whether there was anyone else in the
    residence. Really, the only information that tilted in the officers favour, in
    any way on this point, was a reference from the police computer check to the
    appellants tendency to violence, and an unparticularized one at that.
    Consequently, any concerns that the police might have had regarding the
    possibility of guns amounted to no more than the type of vague safety concern
    that LeBel J. cautioned against using as a justification in
MacDonald
.

[89]

I contrast the situation here with the one in
Golub
where there was a reasonable suspicion that a person was behind a closed door
    with a loaded submachine gun. While Doherty J.A. understandably found that
    circumstance justified the warrantless search, he was also careful to delineate
    how rare a situation it will be that will afford that justification. He said,
    at para. 41:

In my opinion, searches of a home as an
    incident of an arrest, like entries of a home to effect an arrest, are now
    generally prohibited subject to
exceptional circumstances where the law
    enforcement interest is so compelling
that it overrides the individual's
    right to privacy within the home. [Emphasis added.]

[90]

Doherty J.A. also took care in
Golub
to
    observe that the officer involved did not order an entry into the residence
    just because it was a gun call situation nor was the officer acting on an
    unsubstantiated hunch or any other form of vague safety concern. The same
    cannot be said for the officer here.

[91]

What facts could then have justified the
    warrantless safety search in this case? The first rationale that my colleague
    advances, at para. 59, is the fact that the police would have had to pass by
    the basement living area to ascend the stairs with the accused once he was
    arrested. However, the facts are that the officers had been opposite the
    basement living area for the entire time that they were dealing with the
    appellant in the laundry room, including demanding his surrender and eventually
    taking control of him, arresting him, and handcuffing him. They were as exposed
    to the basement living area throughout all of that time as they would be when
    they started to ascend the stairs. Any risk to the officers did not increase
    from the former time to the latter.

[92]

The second rationale, in my colleagues view, at
    para. 67, is that the officers had descended into a basement where they had
    never been before, in a house they had never been in before. If those facts
    are enough to justify a warrantless search on safety grounds, then virtually
    every entry into a home will justify a warrantless safety search. It is will be
    a very rare situation where the same police officers would be going into a
    residence that they have been in before. That reality demonstrates that
    unfamiliarity with a residence can hardly be an adequate justification for
    engaging in a warrantless safety search. Again, one must remember that these
    safety searches are established as an exception to the general rule that
    warrantless searches are presumptively unreasonable.

[93]

Finally, on this point, my colleague says, at
    para. 58:

The law must not develop in a way that allows
    the police to use a home entry in urgent circumstances to create the
    opportunity for a windfall for search.

With respect, my colleagues
    reasoning and conclusion in this case provides the police with exactly that
    windfall.

[94]

In my view, the officers did not have sufficient
    objectively reasonable grounds to conduct a safety search of the basement
    living area. That warrantless search breached the s. 8 rights of the appellant.

The s. 24(2) analysis

[95]

Having concluded that a
Charter
breach
    occurred, I must consider whether the evidence of the drugs, which was found as
    a direct result of the breach, should be excluded from the evidence under s.
    24(2).

[96]

The trial judge did her own s. 24(2) analysis.
    Examining the three factors from
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353, she found that the officers had acted in good faith, but she also
    found the impact of the breach was significant. She further found that
    societys interest in an adjudication on the merits favoured admission of the
    evidence. Balancing those factors, the trial judge concluded that the evidence
    should not be excluded.

[97]

While a trial judges s. 24(2) analysis is
    normally entitled to deference, I find that the analysis in this case does not
    attract that deference because the trial judge failed to undertake the proper
    analysis in terms of the
Charter
breach. Having not properly
    understood and applied the
Charter
principles that were in play in
    deciding the s. 8 issue, she failed to understand the seriousness of the officers
    actions. As LeBel J. pointed out in
MacDonald
, at para. 38:

Moreover, safety searches can often give the
    police access to a considerable amount of very sensitive personal information.

[98]

This error infected her s. 24(2) analysis,
    especially respecting the gravity of the breach under the first
Grant
factor. It undermines her conclusion that there was no evidence of a blatant
    or callous disregard of the
Charter
rights by any of the three
    officers. In fact, the opposite is true regarding the one officer who
    conducted the warrantless search for claimed safety reasons.

[99]

In terms of the first factor, that is, the
    seriousness of the
Charter
-infringing state conduct, these officers
    knew, or ought to have known, that they were not entitled to conduct a search
    without judicial authorization, especially within the private residence of an
    individual. They had the situation that caused them to come to the home, and
    which had justified their entry into the home (also without judicial
    authorization), under control. They had to know that they were treading on
    dangerous ground by deciding to wander through another portion of the residence
    to look around, and yet that is what the one officer chose to do, and for no
    legally permissible reason. In my view, that is serious misconduct by the
    officer. It is difficult to accept that the officer acted in good faith when he
    proceeded to conduct a search, within a private residence, in violation of the
    well-established principles regarding such searches and the equally
    well-established high degree of privacy that exists in any persons private
    residence.

[100]

I will pause at this point to address another issue raised by the
    appellant which also tends to undermine the trial judges conclusion that the
    officers acted in good faith. Contrary to the evidence of the officer who
    conducted the warrantless search, the trial judge concluded that he had, in
    fact, opened the Tupperware container (with the drugs in it) while he was still
    in the basement living area. I note, on this point, that both of the officers
    involved were extremely reluctant to admit this fact in their evidence.
    Instead, they testified that they could not remember whether or not the officer
    conducting the search removed the lid at the scene. I would also note that the
    searching officer is the same officer who was unable to remember, and thus
    unable to mark it on a photograph of the basement living area, where he
    actually found the Tupperware container. These failings raise serious concerns
    regarding the officers conduct underlying this warrantless search. However,
    the trial judge fails to mention these salient facts in the course of her s.
    24(2) analysis, especially as it relates to her finding that the officers acted
    in good faith.

[101]

I do agree with the trial judge on the second factor. The high
    expectation of privacy in an individuals home is well-established. The breach
    of that expectation of privacy is significant.

[102]

Given that I view both the first and second
Grant
factors
    as pulling in favour of the exclusion of the evidence, the third factor is not
    sufficient to tilt the balance in the other direction:
R. v. McGuffie
,
    2016 ONCA 365, 131 O.R. (3d) 643, at para. 63.

[103]

I would exclude the evidence from the trial. There being no other
    evidence on the drug charge, an acquittal must be entered on that count.

Conclusion

[104]


I would grant the appeal, set
    aside the conviction on count #1, and enter an acquittal.

Released:
JMF OCT 27 2020

I.V.B.
    Nordheimer J.A.


