



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Phoummasak, 2016 ONCA 46

DATE: 20160119

DOCKET: C59559

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vicith Phoummasak

Appellant

Timothy E. Breen, for the appellant

Chris de Sa, for the respondent

Heard: December 9, 2015

On appeal from the convictions entered by Justice Faye E.
    McWatt of the Superior Court of Justice at Toronto, Ontario on September 19,
    2014.

Doherty J.A.:


I



[1]

On March 15, 2012, the police, relying on the exigent circumstances
    exception in s. 11(7) of the
Controlled Drugs and Substances Act
, S.C.
    1996, c. 19 (
CDSA
), entered the appellants residence without a
    warrant and secured the residence pending the obtaining of a search warrant.  A
    warrant was obtained and a search conducted.  Drugs were found and charges
    laid.

[2]

At trial, the appellant argued that the search was unlawful and a
    violation of his rights under s. 8 of the
Charter
.  He submitted that
    the exigent circumstances exception to the warrant requirement could not apply
    when, as in this case, police operational decisions made in the course of an
    ongoing investigation had effectively created the exigent circumstances relied
    on by the police to justify the warrantless entry into the appellants
    residence.  The trial judge rejected this submission and convicted the
    appellant.

[3]

On appeal, the appellant advances essentially the same argument.  At the
    end of oral argument, the court dismissed the appeal with reasons to follow. 
    These are those reasons.


II



[4]

An undercover police officer purchased 4.53 grams of cocaine from a man
    named Mengitsu on February 14, 2012.  The purchase took place at Mengitsus apartment. 
    The undercover officer arranged a second purchase on February 24, 2012.  Mengitsu
    told the officer that he had to get the cocaine from his supplier.  Mengitsu
    was seen entering unit 428N at 1169 Queen Street.  He rejoined the officer in
    his vehicle a few moments later and completed the sale.  Mengitsu left the
    vehicle and returned to unit 428N.

[5]

After the second transaction on February 24, the police believed that
    Mengitsus supplier lived in, or was otherwise connected to, unit 428N.  The
    officer in charge of the investigation believed he had grounds after the second
    transaction to obtain the search warrant for unit 428N.  He did not apply for
    one, however, because he wanted to confirm a 100% that this was the back ends
    address.  In his experience, Mengitsus visit to the apartment on one of the
    two occasions when he sold drugs to the undercover officer did not confirm that
    his supplier was in that apartment.

[6]

The undercover officer arranged for a third purchase from Mengitsu on March
    15, 2012. The police had decided to arrest Mengitsu after this transaction
    along with anyone else they had reasonable and probable grounds to believe was involved
    in the transactions.   The police set up surveillance in the area of the
    apartment building at 1169 Queen Street.  If Mengitsu went to unit 428N in
    connection with the third purchase, the police intended to apply for a warrant
    to search the apartment.  One of the officers began working on the necessary
    paperwork before the March 15 transaction.

[7]

On March 15, the undercover officer drove Mengitsu to 1169 Queen Street. 
    Mengitsu went inside and returned to the vehicle about 10 minutes later.  He
    and the undercover officer drove a short distance away at which point Mengitsu
    produced 15.34 grams of cocaine.  The officer gave Mengitsu $800 and took the
    drugs.  Mengitsu left the vehicle.  The police intended to arrest Mengitsu
    immediately after he left the vehicle, however, he made his way back to 1169
    Queen Street before the surveillance officers were able to apprehend and arrest
    him.  The arrest took place in front of the apartment building.

[8]

Mengitsus cell phone began to ring repeatedly immediately after he was
    arrested.  The call display on the cell phone indicated that the calls were all
    coming from someone named Vic.  The police believed that these calls were from
    Mengitsus supplier who they thought was in unit 428N.  The police were worried
    that the supplier would become suspicious when Mengitsu did not answer his cell
    phone and would take steps to destroy any evidence relating to the drug
    transactions in the apartment.  The police decided to enter the apartment immediately
    and freeze the residence until a search warrant could be obtained.

[9]

The police entered the apartment building using a fob seized from
    Mengitsu.  They went to the door at unit 428N.  One of the officers knocked.  The
    occupant (the appellant) declined to open the door.  The officers heard noises
    coming from inside the apartment.  Using a key seized from Mengitsu, the
    officers entered the apartment.  As they entered, they saw the appellant coming
    back into the apartment from the balcony.  A police officer stationed outside of
    the building saw the appellant throw what turned out to be three baggies
    containing drugs off the balcony.

[10]

The
    officers secured unit 428N and arrested the appellant.  The police applied for
    and obtained a search warrant for the apartment.  They executed the warrant and
    found various drugs and over $5,000 in cash.


III



[11]

Generally
    speaking, the police cannot enter a residence to search for evidence without
    prior judicial authorizations.  There are a few exceptions to that rule. 
    Section 11(7) of the
CDSA
recognizes the common law exigent
    circumstances exception to the warrant requirement.  It provides:

A peace officer may exercise any of the powers described in
    subsection (1), (5) or (6) without a warrant if the conditions for obtaining a
    warrant exist but by reason of exigent circumstances it would be impracticable
    to obtain one.

[12]

Section
    11(7) of the
CDSA
, unlike other statutory provisions providing for
    exigent circumstances searches (e.g.
Criminal Code
s. 529.3), does not
    define exigent circumstances.  In my view, the phrase has the same meaning in
    s. 11(7) of the
CDSA
as it does in the
Criminal Code
provisions
    and at common law.  Exigent circumstances under s. 11(7) exist if (1) the
    police have grounds to obtain a search warrant under s. 11 of the
CDSA
(the probable cause requirement) and (2) the police believe, based on reasonable
    grounds, that there is imminent danger that evidence located in the premises
    will be destroyed or lost if the police do not enter and secure the premises
    without delay (the urgency requirement): See
R. v. Kelsy
, 2011 ONCA
    605,
280 C.C.C. (3d) 456,
at paras. 25-27;
R. v.
    McCormack
, 2000 BCCA 57,
143 C.C.C. (3d) 260,
at
    paras. 17-25;
R. v. Duong and Tran
, 2002 BCCA 43,
162
    C.C.C. (3d) 242,
leave to appeal to SCC refused, [2002] S.C.C.A. No. 112.
[1]

[13]

Counsel
    for the appellant accepts that both preconditions existed when the police
    entered the appellants apartment.  He submits, however, that the exigent
    circumstances exception, because it is an exception to the warrant requirement,
    must be strictly construed and that the police cannot manufacture exigent
    circumstances.  Counsel submits that the police had reasonable grounds to
    obtain a warrant for the appellants apartment before the third transaction
    took place on March 15, 2012, but instead chose to proceed with that
    transaction without a warrant.  He contends that the police knew that the implementation
    of their plan would eventually place the police outside of the apartment door
    with good reason to believe that the occupant would be suspicious because
    Mengitsu had not returned to the apartment and would take steps to destroy any
    evidence in the apartment.  Counsel contends that a scenario that is the
    inevitable result of police conduct cannot provide exigent circumstances which justify
    a warrantless entry into and search of a residence.

[14]

I
    accept that the police cannot orchestrate exigent circumstances by creating the
    requisite urgency through a preplanned course of conduct: see
R. v. Silveira
,
[1995] 2 S.C.R. 297
, per LaForest J. (in dissent), at paras.
    53, 74-85.  See also W. LaFave,
Search and Seizure
, 4
th
ed., Vol. 3, (West Publishing, 2004), at pp. 400-403.  I also agree with counsel,
    contrary to the trial judges holding, that the police had grounds to obtain a
    search warrant for the appellants apartment prior to the undercover officers
    third purchase of drugs from Mengitsu. Had the police obtained the warrant,
    they could have entered the appellants apartment immediately upon the arrest
    of Mengitsu under the authority of a warrant.

[15]

I
    do not, however, agree that the evidence in this case can reasonably support
    the claim that the police anticipated that the investigative steps they took
    would create the urgency relied on by the police to justify the entry into the
    apartment without a warrant.  I will deal first with the failure to obtain a
    warrant before the third transaction.  The existence of reasonable grounds to
    obtain a warrant does not preclude the existence of exigent circumstances.  To
    the contrary, probable cause is a prerequisite to the existence of exigent
    circumstances.  However, evidence that the police had grounds to obtain a
    search warrant, but did not obtain a warrant and instead proceeded with other
    investigative measures, can in some situations afford evidence that the police
    set out to create exigent circumstances to justify entry into a premise without
    a warrant.  If that inference is drawn, the circumstances are not exigent and
    cannot justify a warrantless search or entry.

[16]

The
    inference that the police set out to avoid the warrant requirement does not
    flow automatically from the fact that the police could have obtained a search
    warrant for the premises before the exigent circumstances arose.  The specific
    circumstances of each case must be examined.

[17]

In
    this case, the officer in charge explained his reasons for not applying for a
    warrant before the third drug transaction. That explanation was not
    unreasonable.  Mengitsu had made two sales to the undercover officer, one
    unconnected to unit 428N and the other connected to unit 428N.  The officer in
    charge reasonably believed that it was prudent to seek further confirmation of
    the connection of the apartment to the drug transactions before seeking a
    warrant.  The reasonableness of the officers approach is evident from the
    trial judges opinion that the police did not have reasonable grounds to obtain
    a search warrant before the third transaction.  Although I disagree with her assessment,
    this difference of judicial opinion suggests that the officers decision to seek
    further confirmation of the connection between unit 428N and the drug transactions
    before applying for a warrant was a reasonable one.

[18]

Counsels
    argument that the police created or fully anticipated the exigent circumstances
    relied on to permit their entry into the appellants apartment is further
    undermined by the actual facts relied on by the police to provide the requisite
    urgency to justify their entry.  The police relied on Mengitsus arrest in
    front of the apartment building, and the unanswered cell phone calls to
    Mengitsu immediately after his arrest.  Neither event was anticipated by the
    police.

[19]

The
    plan was to arrest Mengitsu as soon as he got out of the undercover officers
    car.  The police could not know the direction Mengitsu would go, or that he
    would make it back to the front of the apartment building before the members of
    the surveillance team were in a position to apprehend him.  The police could not
    have anticipated that the arrest would occur in plain view of the apartment
    building, thereby creating the risk that the occupant of the apartment could become
    aware of the arrest.

[20]

Nor,
    in my view, could the police reasonably anticipate the repeated calls to
    Mengitsu immediately after his arrest.  Those calls combined with the
    reasonable belief that they came from Mengitsus supplier, and that Mengitsus
    failure to answer the calls would make his supplier suspicious, provided the
    main ground for the police belief that there was an imminent danger of the
    destruction of evidence relating to the drug transactions.

[21]

This
    is not a case in which the police, through a planned and calculated procedure,
    created an artificial situation of urgency:
R. v. Silveira
, at para. 85. 
    The trial judge properly held that the police acted lawfully in entering and
    securing the appellants premises.

[22]

The appeal is dismissed.

Released: DD  JAN 19
    2016

Doherty J.A.

I agree S.E. Pepall
    J.A.

I
    agree M. Tulloch J.A.





[1]
The urgency requirement may also be satisfied based on safety concerns.  These
    reasons do not address that application of the exigent circumstances doctrine.


