This week’s top three summaries: R v Williams, 2020 SKCA 108: #sentencing; need for facts, R v Pawar, 2020 BCCA 251: #warrantless entry into home, and R v Fava, 2020 ONSC 5520: #emergency entry into home; alternatives.
R v Williams, 2020 SKCA 108
[September 19, 2020] Sentencing: Contested Facts Cannot be Determined by Reference to Counsel Submissions - Overturning Sentence on Appeal [Majority Reasons by Madam Justice Schwann with Whitmore and Barrington-Foote JJ.A. concurring]
AUTHOR’S NOTE: Much of a guilty plea sentencing process occurs by reliance on counsel submissions for the facts of the underlying offence. Typically, counsel agree on the facts and present a set of facts to the judge which can be relied upon. Occasionally, there is disagreement on aggravating factors. This disagreement cannot be resolved by Crown counsel presenting their opinion as to facts the Court should find. The only choices are agreement by the Defence or a factual hearing to determine all aggravating facts beyond a reasonable doubt. A different standard of proof attaches to the Defence proof of mitigating factors, but otherwise the process is the same (it requires consent or an evidentiary hearing). Here the trial judge and Crown attempted to take a shortcut to this process. It was overturned on appeal.
Overview
[2] Mr. Williams was sentenced to three years imprisonment less 108 days credit for time spent in pre-sentence custody. On appeal to this Court, Mr. Williams submits the sentencing judge erred by failing to hold a sentencing hearing as required by s. 724(3) of the Criminal Code to resolve conflicting facts pertinent to his role in the drug offence. This fundamental error, he argues, led the sentencing judge to make three findings of fact not grounded in the evidence that, taken together, had an impact on the sentence he imposed.
[3] For the reasons expressed below, I would grant leave to appeal, allow the appeal and impose a sentence of two years.
Facts of the Offence & Court Process
[4] Mr. Williams was the passenger in a vehicle that was pulled over by the police. The police officers who searched the vehicle found 26.55 grams of methamphetamine and several cell phones. Mr. Williams was charged with possession of methamphetamine for the purposes of trafficking contrary to s. 5(2) of the CDSA.
[5] Mr. Williams tendered a guilty plea on June 24, 2019. In the course of the plea comprehension inquiry, the Provincial Court judge who took his plea specifically asked the following of Mr. Williams: “And you possessed that methamphetamine for the purpose of selling it to other people, or of giving it, or in other words --”. Mr. Williams responded to that query by stating, “Distributing it, yes. Yes”. In the pre-sentence report, Mr. Williams is said to have denied trafficking in the drug. He then applied to expunge his guilty plea; but, after changing legal counsel, he abandoned that application.
[6] ... Crown drew specific attention to the following excerpt from that statement:
The bag that I had getting out of the car I had acquired outside of Avi’s (phonetic) house. I took a walk earlier, prior to getting into the car with Avi. I know there was some illicit drugs in the bag, that sort of thing. The purpose to have the bag was to distribute the drugs. Let’s not beat around the bush. I’m responsible for distributing the containers that were there. The fourth package is not cocaine, it is meth as well. It was remnants of an ounce package just put into a corner and tied off. It is 100 percent meth, and whatever is put into it. He does not buff his product.
[7] Based on this admission, the Crown asserted Mr. Williams was a mid-level drug dealer: “The accused has admitted he got the drugs to distribute. They were paid for, and he is -- as a distributor, he would be in the mid-level of the drug trafficking world”.
[9] In contrast to Crown counsel’s assertion, defence counsel characterized Mr. Williams’s role differently. He emphasized that Mr. Williams was not selling the drugs for profit and went on to explain his role in this way: ...
But the point of that, Your Honour, is we’re not dealing with a -- a for profit drug trafficker. We’re not dealing with someone who’s high on the -- on the chain of command here. We’re dealing with someone for economics, or the economy of scale purposes, would purchase in the manner that he did. And when you look at the amounts, Your Honour, they’re not particularly significant. So the suggestion that this should attract a penitentiary term of three to four years, I -- with the greatest of respect to my learned friend -- am not able to accede to that.
[10] In spite of the conflicting positions taken by Crown and defence about Mr. Williams’s role, the sentencing judge did not conduct a sentencing hearing. The sentencing judge delivered an oral decision on November 18, 2019. He began by stating that denunciation and general and specific deterrence are paramount considerations “particularly where the trafficking is for profit and a commercial enterprise”....
[11] The sentencing judge appeared to understand that the parties took different positions on the facts: “The Crown argues this puts Mr. Williams into the mid-level role of the drug industry. The defence argues that the amount [is] really a joint venture between three people who pooled their money to buy the meth”.
[12] In spite of the different way the parties had characterized what Mr. Williams did, and his role vis-à-vis the drugs, the sentencing judge nonetheless found him to be a mid-level drug dealer and that the offence was motivated by profit. On this point, he said as follows:
Being addicted to drugs himself, he was fully aware of the harm that drugs have on people, including youth and the resulting damage to their lives.
The offence is -- is motivated by profit. Meth drug use and trafficking is a significant problem in Swift Current and Saskatchewan generally. There is not a court docket that does not involve a drug-related offence, in particular, the use of meth. Mr. Williams’s lack of insight has lack -- lacks insight into this offence. The pre-sentence report indicates he minimizes his responsibility for his offence and believes that he does not need addiction counselling.
…
With the facts that Mr. Williams is distributing methamphetamine and his criminal record, the goals of denunciation and deterrence apply. [Emphasis Added]
[13] After referring to this Court’s decision in R v Pankewich, 2002 SKCA 7, [2002] 4 WWR 648 [Pankewich], the sentencing judge identified the range for trafficking in hard drugs to be 18 months to 4 years of incarceration. Adopting the language in R v Lichtenwald, 2018 SKQB 174 [Lichtenwald], he said deterrence is paramount where trafficking is for profit because it is simply a “risk calculation”. He then canvassed the following sentencing jurisprudence – R v Goy (1993), 1992 CanLII 8299 (SK CA), 105 Sask R 131 (CA) [Goy]; R v Patryluk, 2002 SKCA 33, 217 Sask R 309 [Patryluk]; R v Bear, 2016 SKCA 140 [Bear]; and R v Bellerose, 2019 SKPC 13 [Bellerose] – and sentenced Mr. Williams to 3 years of incarceration on the CDSA offence and 1 day concurrent for the breach. After 108 days credit for pre-sentence time, the global sentence imposed on Mr. Williams was 2 years and 257 days.
Analysis - Error In Principle
[16] Where an accused is found guilty – either following trial or after a guilty plea – it falls to the sentencing judge to determine a fit sentence (s. 720 Criminal Code). Section 723 of the Criminal Code codifies the procedural aspects of a sentencing hearing. Pursuant to s. 723(1), the Crown and defence are given an opportunity to make submissions “with respect to any facts relevant to the sentence to be imposed”. As this Court recently observed in Thomas v Quinlan 2020 SKCA 82 [Thomas], while “sentencing judges are entitled to accept non-contentious facts” put to the court in sentencing submissions, “factual assertions made by counsel during the course of sentencing are not evidence” (emphasis in original, at para 81). Thomas cited R v Pahl, 2016 BCCA 234, 336 CCC (3d) 221, which stated the following sentencing hearing propositions:
[55] Counsel’s podium is not the equivalent of the witness box. In speaking to sentence counsel make submissions, they do not give “evidence”: R. v. Cousins (1981), 22 C.R. (3d) 298 at 301 (Nfld. C.A.); R. v. Gobin (1993), 1993 CanLII 14652 (MB CA), 85 C.C.C. (3d) 481 at 484 (Man. C.A.). However, this does not mean that sentencing judges can never accept information provided through submissions as factually accurate.[56] Sentencing judges routinely accept and act on information counsel provide to them through submissions. I agree with Mr. Pahl that it would unduly burden the courts to require proof of every factual assertion counsel make at a sentencing hearing. However, it is not open to a judge to accept as fact an assertion made by counsel that is disputed and unsupported by any admissible evidence. Put otherwise, a judge is entitled to accept a fact advanced solely through submissions only if that fact is non-contentious: R. v. Asp, 2011 BCCA 433 at para. 34, 278 C.C.C. (3d) 391; Cousins at 301.(Emphasis in original)
[17 ] This brings me to aggravating facts. As pointed out in Clayton Ruby, et. al, Sentencing, 9th ed (Toronto: Lexis Nexis, 2017) (QL) [Ruby], in spite of a more lenient and forgiving approach to matters of evidence taken at the time of sentencing, when it comes to aggravating facts, “the Crown is still required to prove any fact upon which it intends to rely as an aggravating factor for the purpose of sentencing beyond a reasonable doubt, and the offender is entitled to object to material offered by the Crown” (footnotes omitted, at para §3.8).
[18] In this case, Mr. Williams pled guilty and there were no agreed facts for sentencing purposes. The Crown must prove any aggravating facts beyond a reasonable doubt. In R v Gardiner, 1982 CanLII 30 (SCC), [1982] 2 SCR 368 at 414–415 [Gardiner], the Supreme Court stated the following:
It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.
[21] Respectfully, the positions taken by the Crown and the defence during sentencing are irreconcilable. In my view, the sentencing judge committed an error in principle by not holding an evidentiary hearing as required by s. 724(3)(a) and further erred in concluding that Mr. Williams was a mid-level drug dealer without the Crown having proven that fact beyond a reasonable doubt.
[22] Mr. Williams goes on to argue that the failure to hold a sentencing hearing to establish if he was a mid-level drug dealer coloured the sentencing judge’s perception of his role in relation to the drug charge, which in turn drove him to make two additional findings of fact that were not grounded in the evidence: that the drugs would be “sold by the point for $10” and that distribution could potentially reach 270 people.
[24] Furthermore, not only did defence counsel deny that Mr. Williams was in it for profit, but he made specific submissions about Mr. Williams’s addiction:
He was homeless at times. He has tried in-patient treatment. And I think Mr. Neufeld is absolutely right when he talks about the scourge of meth, because no one has lived that more than my client, someone who otherwise would likely have had a productive life. He’s had opportunities, he’s had spouses, he’s had children. He had a lot of things going for him, but -- but he did fall under the influence of the ravages of -- of this horrible drug, and -- and that is clear. So that has to be tailored in on your sentence, Your Honour.
[25] Respectfully, the sentencing judge’s acceptance of an unproven, disputed fact as an aggravating circumstance for purposes of sentencing amounts to an error in principle. This error led to him to make two further findings of fact that were either unsupported by the evidence or hinged on a finding that Mr. Williams was a mid-level dealer. The next question is whether those errors had an impact on sentence. I turn now to that issue.
Analysis: Did the Error Have an Impact on Sentence?
[27] Not every error in principle is material. As the Supreme Court confirmed in Friesen, an “appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence” (at para 26). Similarly, as the Court stated in Lacasse, “an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence” (at para 44).
[29] Lacasse describes the phrase impact on sentence in various ways, relying, in large measure, on the approach taken by the Quebec Court of Appeal in R v Gavin, 2009 QCCA 1 [Gavin], and R v Sidhu, 2009 QCCA 2441 [Sidhu], specifically endorsing the following passage from Gavin: “unless the Court finds that the sentence imposed was harsher because of [the alleged error] … this error in principle had no real effect on the sentence” (at para 35). Adopting the language in Sidhu, the Court in Lacasse also observed as follows:
[46] The Quebec Court of Appeal also adopted this reasoning in R. v. Sidhu, 2009 QCCA 2441. As in Gavin, the trial judge had considered lack of remorse as an aggravating factor (para. 23 (CanLII)), but the Court of Appeal found that this error was not determinative and had had no effect on the sentence (para. 24). Since the sentence the judge imposed would not have been different had there been no mistake in that respect (para. 26), the error was not reviewable (para. 55). Thus, rather than simply substituting its opinion for that of the trial judge because he had made an error in principle, the Court of Appeal limited itself to considering whether, independently of that error, the sentence was unreasonable or demonstrably unfit. On finding that that was not the case, it decided not to intervene (para. 55).
[33] Returning to the matter under appeal, I am persuaded that the error identified above had a direct bearing on the sentence imposed on Mr. Williams. It is apparent from his reasons that the sentencing judge had classified Mr. Williams as a mid-level distributer for profit and had used those findings as aggravating facts for purposes of sentencing. The following extracts from the oral reasons, considered in light of counsel’s submissions on sentence, support this conclusion:
(a) “Where trafficking is for profit and commercial enterprise, deterrence is … aptly remarked by … Lichtenwald … ‘All business people, either consciously or unconsciously engage in a risk–reward analysis. For drug traffickers, it is the same. Is the risk of prison time worth the reward of tax-free sales”.
...
(c) “The amount of drugs that Mr. Williams was found transporting would be about 270 doses. That is significant in how many times a person or persons would be damaged by those doses”.
[34] In my view, acceptance of the mid-level dealer narrative permeated the entirety of the sentencing judge’s reasoning, beginning with the statement that Mr. Williams was “trafficking for profit and a commercial enterprise”. While the sentencing judge went on to find that Mr. Williams was “not selling it per se to users but providing it to others who will sell it to users”, he made clear findings that the total amount of drugs equated to “about 270 doses”, that the offence was “motivated by profit” and, most importantly, that Mr. Williams was a mid-level drug dealer. The frequency with which mid-level dealing or analogous statements appear in the decision makes it almost impossible for the sentence not to have been impacted by this error.
Conclusion
[59] In summary, I am persuaded the sentencing judge erred in his approach to crafting a fit sentence in the circumstances and that error had an impact on sentence.
[60] For the reasons given, I would, therefore, grant Mr. Williams leave to appeal against sentence, set aside the lower court sentence and impose a sentence of 24 months of incarceration, less time spent in pre-sentence custody. The sentencing judge’s orders remain unchanged in all other respects.
R v Pawar, 2020 BCCA 251
[September 15, 2020] S.8/24(2) Charter: Lack of Exigent Circumstances for Warrantless Entry and Resultant Seriousness of the Charter Violation [Reasons by Mr. Justice Fitch with Butler and Abrioux JJ.A. concurring]
AUTHOR’S NOTE: Exigent circumstances for entry have to based in factors connected to the actual matter with which police are dealing - considerations based on past experience with other matters are insufficiently connected to the case and risk use of stereotypical assumptions about human behaviour to justify Charter violations. Here police simply assumed that because they had arrested a man kilometres from his home for drug offences and they knew he had family at home, they had a legitimate concern about the destruction of evidence that justified entry to secure the home. They were clearly mistaken. The trial judge compounded their error by considering such considerations to be a "good faith" violation of the Charter rights of the accused. A good faith finding is not available for police acting in violation of well-established legal principles. Here, the officer's assumptions were not enough - the Court of Appeal found no evidence to support a reasonable belief in exigent circumstances - a significant amount of disclosure was excluded as this was a serious violation of the privacy protected by s.8 in the contents of a home.
Overview
[2] Briefly, the appellant was arrested on the drug charges two or three kilometers away from the home he shared with his family. Shortly thereafter, the police entered the appellant’s home without a warrant, removed the appellant’s mother and brother, and secured the residence. The Crown did not dispute at trial or on appeal that the warrantless entry was a form of search not authorized by law. A similar concession was noted to be properly made in R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297 at para. 140; see also R. v. Hunter, 2015 BCCA 428.
[3] The officer‑in‑charge subjectively believed that exigent circumstances, arising from the need to preserve evidence, justified the warrantless entry.
[4] Later that evening, the police obtained and executed a search warrant on the residence. A substantial quantity of drugs, with a street value in excess of $120,000, was seized.
[6] In conducting the s. 24(2) analysis set out in R. v. Grant, 2009 SCC 32, the judge found the breach to be serious but noted that the officers entered the residence for the limited purpose of clearing the premises of its occupants in order to preserve evidence. She concluded that the warrantless entry did not involve a search for evidence. Although exigent circumstances did not exist, she found that the officer who authorized the warrantless entry subjectively believed they did. She concluded, therefore, that the officer “acted in good faith.” Despite finding the absence of an objective basis for the officer’s belief in the existence of exigent circumstances, the judge found that the presence of the appellant’s mother and brother in the residence gave rise “to a reasonable concern that evidence might be moved or destroyed.”
Background to the Entry
[11] In August 2016, the police received a tip from a confidential informant that someone who matched the appellant’s description was trafficking in cocaine and heroin in Williams Lake, British Columbia. Following the tip, the police conducted surveillance of the appellant and observed transactions and behaviours they believed to be consistent with a dial‑a‑dope operation.
[12] The appellant was arrested shortly before 10:00 p.m. on October 13, 2016, in a bank parking lot in the downtown core of Williams Lake. The arrest was made after the police witnessed what they believed to be another drug transaction. On this occasion, the police observed a female person speak to the appellant through the passenger‑side window of his vehicle, run to the vestibule of the bank where she accessed an ATM, and then return to the appellant’s vehicle as a front‑seat passenger. She was arrested at the same time as the appellant. A small quantity of cocaine was found on the appellant during a search conducted incidental to his arrest. The appellant’s cellphone was seized on arrest.
[13] Following the arrests, the police applied for a search warrant in relation to the appellant’s residence—a home they knew the appellant shared with his parents and his brother. After the appellant’s arrest but before they had obtained the warrant, the police attended at the residence. Corporal Daines—the officer‑in‑charge at the time of the arrest—was aware, from previous surveillance of the house, that the appellant’s mother was home at the time. He was unsure if there were other occupants inside the residence. Fearing that evidence could be destroyed or moved before the search warrant was obtained, Cpl. Daines decided to authorize entry into the residence without a warrant, to clear the home of its occupants and secure the scene.
[14] Corporal Daines relied on s. 11(7) of the CDSA in authorizing and conducting the warrantless entry. This provision authorizes a peace officer to search for and seize evidence “without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.”
[16] Corporal Daines offered three grounds in support of his belief that exigent circumstances justified the warrantless entry. First, he was aware that at least one other person—the appellant’s mother—was in the residence at the time of the arrest. Second, the arrest took place in a public area of the downtown core. He testified that if someone had witnessed the arrest, they could potentially alert the occupants of the house and direct them to move or destroy evidence. Third, Cpl. Daines was concerned that the appellant was trying to contact his mother to instruct her to move or destroy evidence. Corporal Daines formed this suspicion because he had been advised by another officer (who was not called to testify on the voir dire) that the appellant said his mother was not at home—which Cpl. Daines knew or believed to be untrue. In addition, Cpl. Daines had been advised by the same officer that the appellant had asked to contact his mother or brother to get the name of a lawyer. This information appears to have been the source of Cpl. Daines’ concern that the appellant might have been seeking to make contact with family members to instruct them to dispose of evidence.
[17] In cross-examination, Cpl. Daines conceded there was no evidence that any members of the appellant’s family were aware of his drug-dealing activities. He also conceded that he could not recall if there were any pedestrians or vehicles that passed by the scene of the arrest. Finally, there was no evidence that the appellant had been given permission to call his family after he had been taken into police custody. He acknowledged in cross-examination on the voir dire that his decision to authorize the warrantless entry was based, in part, on his experience in past cases:
Q So really what we’re talking about is the -- you cleared the residence because of the possibility that evidence could get tampered with, is that correct?
A Given what’s happened in the past, absolutely.
[19] Corporal Daines testified that following the appellant’s arrest, he took up a position outside the appellant’s residence at approximately 10:35 p.m. He remained there for approximately eight minutes waiting for other police officers to arrive. He then approached the door of the residence in the company of three other officers and knocked. Corporal Daines testified that, “then the lights came on, and … Mrs. Pawar came to the door.” While the judge made no specific finding on the issue, I infer from Cpl. Daines’ evidence that the house was in darkness and that no observable movement was occurring inside at the time of the warrantless entry.
[21] Corporal Daines testified that the residence was cleared and secured in approximately eight minutes. To his knowledge, nothing was opened or examined during the warrantless entry. Corporal Chapman, the only other officer involved in the initial warrantless search who was called by the Crown on the voir dire, testified to the same effect. The judge found that the only purpose of entering the residence was to look for occupants and remove them. Once this was accomplished, the officers immediately left the residence and waited outside until the search warrant arrived. She found that the warrantless entry did not involve a search for evidence.
[22] The officers did not re-enter the house again until they executed the search warrant at 3:43 a.m. on October 14, 2016. The appellant’s mother and brother were permitted to re-enter their home at 6:28 a.m., about eight hours after their removal.
The Section 8 and 24(2) Rulings - Absence of Exigent Circumstances
[24] The trial judge cited R. v. Paterson, 2017 SCC 15, in which Justice Brown, writing for the majority of the Court, noted that:
[37] … [I]n order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.
[26] Having found there were no exigent circumstances to justify the conduct of the police, the judge concluded that the warrantless entry of the dwelling-house infringed the appellant’s rights under s. 8 of the Charter.
Seriousness of the Violation
[28] The trial judge characterized the warrantless entry into the appellant’s home as “a serious breach of his privacy interest.” She noted that the breach was committed in relation to a private dwelling-house which has long been recognized in law as a personal sanctuary where the right to be left alone attracts the highest degree of privacy protection.
[31] In the case at bar, the judge also held that Cpl. Daines “acted in good faith” in relying on the doctrine of exigent circumstances. On this point, she said:
[81] Although I found that exigent circumstances did not exist objectively, I am satisfied that Corporal Daines had a subjective belief that they did and that he honestly believed that he was acting lawfully in directing officers to enter the residence. In doing so, he acted in good faith.[Emphasis added.]
[33] Noting that the police could have taken steps to confine the appellant’s mother and brother to certain areas of the house, as was done in Silveira, she wrote:
[84] … [I]n my view it was not unreasonable for officers to take steps to remove Mr. Pawar’s mother and brother from the residence in order to limit the officers’ intrusion into the residence pending receipt of the search warrant.
[Emphasis added.]
Impact of the Violation
[34] The trial judge found that the impact of the breach on the appellant’s Charter-protected interests “was serious.” However, she found the impact to be “attenuated somewhat by the relative brevity of the warrantless entry … and the relatively non-intrusive nature of the search of the premises.”
Analysis: Standard of Review
[42] The standard of review to be applied to a determination under s. 24(2) that the admission or exclusion of unconstitutionally obtained evidence would bring the administration of justice into disrepute is well‑settled. Where the proper factors have been considered and where no unreasonable findings have been made, the conclusion of a trial judge is owed considerable deference on appeal: Grant at para. 86; R. v. Beaulieu, 2010 SCC 7 at para. 5; R. v. Côté, 2011 SCC 46 at para. 44; R. v. Mian, 2014 SCC 54 at para. 88. In addition, the factual findings of the judge on which the determination is based must be respected absent palpable and overriding error: Grant at para. 129; Beaulieu at para. 5.
Analysis: Error in the Good Faith Finding
[51] The appellant says it was not open to the judge to find that Cpl. Daines acted “in good faith” because he subjectively and honestly believed exigent circumstances authorized the warrantless entry in circumstances where she found no objective basis for that belief. The Crown concedes this point, noting that the judge equated good faith with the honesty of Cpl. Daines’ subjective belief in exigent circumstances when more was required—specifically, that his subjective belief be objectively reasonable. The Crown argues, however, that the error was not material to the judge’s assessment of the seriousness of the breach or her ultimate conclusion that the evidence should be admitted under s. 24(2).
[52] I agree that the judge erred in principle by finding that Cpl. Daines acted in good faith when he authorized the warrantless entry of the appellant’s residence. Having concluded that Cpl. Daines’ reliance on exigent circumstances to justify the warrantless entry was not objectively reasonable, it was not open to the judge to then rely on the officer’s “good faith” as an extenuating circumstance that mitigated the seriousness of the breach.
[53] A finding of “good faith”—a term of art when used in this context—requires that an officer’s belief in the lawfulness of their conduct must be both honestly and reasonably held. In Paterson, Brown J. succinctly summarized the law in this area in the following passage:
[44] … While “‘[g]ood faith’ on the part of the police will . . . reduce the need for the court to disassociate itself from the police conduct” (Grant 2009, at para. 75), good faith errors must be reasonable (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59). This Court has cautioned that negligence in meeting Charter standards cannot be equated to good faith (Grant 2009, at para. 75). Even where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well‑established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24‑25).[Italic emphasis in original; underline emphasis added.]
[54] A similar point was made in Fan, where Justice Dickson explained that a finding of good faith cannot be sourced in negligent police conduct:
[70] Where the police act in good faith, it may attenuate the seriousness of a Charter breach and reduce the court’s need to disassociate itself from the conduct. However, ignorance of Charter standards will not be rewarded or encouraged, and good faith will not be found where police conduct is negligent or wilfully blind. For example, while police are not expected to have an immediate understanding of judicial decisions affecting their powers, they do not act in good faith when they know or should know that their actions are unlawful. Deliberate conduct in knowing violation of established Charter standards amounts to bad faith and tends to support exclusion: Grant at para. 75; Caron [2011 BCCA 56] at para. 41.
[71] “Good faith” and “bad faith” are terms of art which connote mental states at the opposite poles of a spectrum. As Frankel J.A. stated in Caron, a finding that a police officer acted in good or bad faith is not a factual finding per se but, rather, a legal characterization of the facts: para. 33. Importantly, the absence of bad faith does not equate to good faith, nor does the absence of good faith equate to bad faith: Caron at para. 38. In R. v. Smith, 2005 BCCA 334, Ryan J.A. explained:
[61] ... good faith connotes an honest and reasonably held belief. If the belief is honest, but not reasonably held, it cannot be said to constitute good faith. But it does not follow that it is therefore bad faith. To constitute bad faith the actions must be knowingly or intentionally wrong.[Emphasis added.]
[55] In the result, for state misconduct to be characterized as a “good faith” error indicative of a less serious infringement of Charter rights, the state must show that the police “conducted themselves in [a] manner … consistent with what they subjectively, reasonably, and non‑negligently believe[d] to be the law”: R. v. Le, 2019 SCC 34 at para. 147, citing R. v. Washington, 2007 BCCA 540 at para. 78. In my view, the judge’s factual finding that Cpl. Daines’ subjective belief in exigent circumstances was not reasonably held precluded a finding by her that he was acting in good faith.
[56] I am unable to agree with the Crown that this error in principle did not taint the judge’s s. 24(2) analysis. I can only read the judge’s reasons as including among the “extenuating circumstances” that mitigated the seriousness of the breach, her conclusion that Cpl. Daines acted in good faith. The case at bar is, in this respect, distinguishable from Fan, where this Court (at para. 81) concluded that a similarly improper characterization of police conduct as having been undertaken in good faith was not used by the judge to attenuate the seriousness of the breach. It follows that the judge’s assessment of the first Grant factor was tainted by this error in principle.
A Fresh 24(2) Analysis
Seriousness of the Violation
[61] An assessment of the seriousness of the Charter‑infringing state conduct requires that I situate the conduct of the police along a scale of culpability that ranges from inadvertent or minor infringements, to negligent conduct that gives rise to more serious infringements, to conduct that reflects a wilful or reckless disregard of Charter rights: R. v. Harrison, 2009 SCC 34 at para. 23, where Chief Justice McLachlin, writing for the majority, cited with approval Justice Doherty’s reasons in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 at para. 41 (Ont. C.A.); Paterson at para. 43. Admitting evidence obtained through inadvertent constitutional violations may minimally undermine public confidence in the rule of law. On the other hand, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on public confidence in the rule of law and will risk bringing the administration of justice into disrepute: Grant at para. 74.
[62] That individuals have a strong expectation of privacy in their homes is a fundamental principle of s. 8 jurisprudence. In Silveira, Justice Cory, writing for the majority of the Court, observed that “[i]t is hard to imagine a more serious infringement of an individual’s right to privacy”: at para. 148. He emphasized that “[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling‑house’”: at para. 140. Justice La Forest (in dissent, but not on this point) echoed this principle, writing that security of the home from state intrusion is “a bulwark for the protection of the individual against the state” which “affords the individual a measure of privacy and tranquillity against the overwhelming power of the state”: at para. 41. And, as Brown J. noted in Paterson:
[46] … The presumptive unreasonableness of warrantless searches, and the high privacy interest attaching to a person’s residence have long been fundamental to our understanding of the proper relationship between citizen and state.
[65] I can identify no evidence specific to this case capable of supporting an objectively reasonable belief that exigent circumstances required the warrantless entry of the appellant’s private dwelling-house. There was no evidence that anyone witnessed the arrests. There was no evidence that the appellant was being assisted by anyone else in running the drug line. There was no evidence that the appellant’s mother or brother were aware of his drug-dealing activities. There was no evidence that the appellant had the ability to contact any family member following his arrest. His cellphone had been seized and the appellant was, throughout the relevant period of time, in the custody and control of the police. The female person suspected of purchasing drugs from the appellant in the bank parking lot was also in police custody. There was no evidence of any movement within the appellant’s home after the arrest. There was no evidence that anyone attempted to enter the appellant’s residence after the appellant’s arrest. Indeed, the residence appears to have been in total darkness before the warrantless entry occurred.
[66] Theoretically speaking, there will always be a risk when the police make a public arrest in a case of this kind that drugs being kept by the arrestee at a “stash house” may be moved or destroyed. There is nothing about this case that raised this risk from the general to the particular. If exigent circumstances existed in this case, they would exist in every case of this kind and warrantless entries into private dwelling-houses to preserve the scene would become the rule, not the exception.
[69] Indeed, the jurisprudence of this and other appellate courts provides considerable guidance on the kind of information that may give rise to exigent circumstances justifying the warrantless entry of a private dwelling-house to preserve evidence.
[70] In R. v. McCormack, 2000 BCCA 57, leave to appeal ref’d [2000] S.C.C.A. No. 111, there was evidence that the arrest had been witnessed by the appellant’s girlfriend—a person known to be supportive of his involvement in the drug trade and in possession of a key to his apartment. A woman believed to be the girlfriend was seen leaving the scene of the appellant’s arrest and heading in the direction of his apartment building. In addition, the appellant was known to have associates in the drug trade: at paras. 4, 25. In R. v. Webster, 2015 BCCA 286, leave to appeal ref’d [2015] S.C.C.A. No. 376, there was evidence that the appellant was only expected to be gone for a short period of time, and the long absence caused by his arrest would raise suspicions: at para. 89. In R. v. Hunter, 2015 BCCA 428, there was evidence that the house in question was used by members of a criminal organization, giving rise to a reasonable concern that the appellant’s confederates might learn of the public arrest and take steps to destroy evidence: at para. 21. In R. v. Phoummasak, 2016 ONCA 46, the arrest occurred in plain view of the apartment building in question and the arrestee received repeated phone calls immediately following his arrest from an individual believed to be his supplier: at paras. 19–20. In Silveira, the trial judge found that the public arrest of several accused jointly engaged in drug trafficking in close proximity to the residence they were suspected of using as a stash house gave rise to a serious risk that others would become aware of the arrest and take steps to remove evidence: per Cory J. at paras. 150–151, 166. In this case, the appellant was arrested several kilometres from his home and there was no evidence that anyone other than the appellant was involved in the drug line.
[71] These cases also demonstrate that the risk evidence might be moved or destroyed must be grounded in the evidence. Vague and speculative concerns regarding the destruction of evidence do not rise to the required level. The point was emphasized in Crocker which was decided seven years before the warrantless entry in the case at bar. In Crocker, Justice D. Smith, writing for the Court, stressed the point that:
[94] … [A] vague and speculative basis for a warrantless entry by the police into a private residence cannot be lawful. While Cst. Johnson may have subjectively believed in the potential loss of evidence from the penthouse there was no objective basis for that belief. The officer’s concerns could not be said to have risen to the level of “imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed” or to a situation where “immediate action is required ... to secure and protect evidence of a crime”.[Emphasis added.]
[74] With respect, I do not see this case as being close to the line. In my view, this is a case, like Paterson, where the circumstances “did not remotely approach s. 11(7)’s threshold of exigency”: at para. 39. Further, on the state of law that existed at the time of the warrantless entry, the police ought to have known they could not rely on vague and speculative concerns about the preservation of evidence to enter a private dwelling‑house without a warrant. They ought to have known that the investigative information available to them did not justify the warrantless entry of residential premises.
[75] The seriousness of the breach was, as the judge found, attenuated to some extent by the brevity of the warrantless entry. I do not regard the fact that the warrantless entry did not involve a search for evidence as mitigating per se. While I accept that it is a circumstance relevant to the calibration of the seriousness of the breach, it is more properly characterized as the absence of an aggravating circumstance. Had the police purported to use the exigent circumstances doctrine to search for evidence in the absence of a warrant, their conduct would have reflected a flagrant disregard for Charter rights—a factor that would almost certainly have led to the exclusion of the evidence.
[76] The unjustified intrusion into the appellant’s home also had a serious impact on the appellant’s mother and brother who were removed from their home late in the evening and not permitted to return until the following morning. While the point was not argued by counsel on appeal, except in response to a question from the bench during oral argument, I am inclined to the view that this aggravates the seriousness of the breach and is properly considered at the first stage of the Grant inquiry.
[79] I accept, of course, the judge’s conclusion that Cpl. Daines honestly believed the exigent circumstances doctrine justified the warrantless entry of the appellant’s residence. However, his belief was not objectively grounded in any evidence specific to this investigation. His decision to authorize the warrantless entry reflects a serious misunderstanding of a well-established body of law. Although the breach was not committed in bad faith and did not reflect a flagrant disregard for constitutional norms, it engaged the appellant’s elevated expectation of privacy in his home and, in my view, is properly placed towards the more serious end of the culpability spectrum.
Impact of the Breach
[81] Application of the second Grant factor calls for an evaluation of the impact of the breach on the Charter‑protected interests of the accused. As the majority noted in Grant:
... [113] … The jurisprudence offers guidance in evaluating the extent to which the accused’s reasonable expectation of privacy was infringed. For example, a dwelling house attracts a higher expectation of privacy than a place of business or an automobile. An illegal search of a house will therefore be seen as more serious at this stage of the analysis.[Emphasis added.][82] It is sufficient for the purposes of this appeal to simply note that the greater the expectation of privacy, the more intrusive the unauthorized search will have been: Côté at para. 73.
[83] In the case at bar, the judge found that the breach had a serious impact on the appellant’s Charter‑protected privacy interest in his home, “attenuated somewhat by the relative brevity of the warrantless entry … and the relatively non‑intrusive nature of the search.” The Crown does not dispute this finding on appeal. I have come to the same conclusion.
[85] Discoverability may be a relevant factor under the first and second branches of the Grant test. In the case at bar, the Crown relies on the fact that the evidence would inevitably have been discovered as a circumstance relevant to the second Grant factor.
[86] As Justice Cromwell (for the majority of the Court) explained in Côté:
[72] … [T]he fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused’s privacy and dignity interests protected by the Charter.
[87] At the same time, Cromwell J. was careful in Côté to note that a finding of discoverability should not invariably lead to the admission of unconstitutionally obtained evidence: at para. 70. Giving the discoverability doctrine a long leash in cases of this kind risks judicial condonation of serious privacy breaches resulting from unacceptable conduct by investigatory agencies: see Le at para. 158, quoting from R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at 281. If no remedy is available for unjustified warrantless entries of private dwelling‑houses in cases where grounds to obtain a warrant existed at the time of the unlawful entry, there will be little incentive for the police to adoptCharter‑compliant behaviour. More importantly, the administration of justice may fall into disrepute in the long term if remedies are not granted for the violation of well‑established constitutional precepts.
[88] While I agree that discoverability is a relevant and available analytical tool in assessing the second prong of the Grant test, I would not accord it significant weight in the circumstances of this case. In any event, the Crown does not challenge the judge’s conclusion that the initial warrantless search had a serious impact on the appellant’s Charter‑protected interests.
Balancing
[94] Where both the breach and its impact are serious, and the violation is inexplicable in the sense that it occurs against the background of well‑established constitutional rules prohibiting the impugned conduct, courts may more readily conclude that it is necessary to disassociate the administration of justice from the conduct to preserve the repute of the justice system. In such a case, exclusion of the evidence also serves to reinforce the point that courts take violations of individual rights and freedoms seriously: Le at para. 140.
[97] It is also important to note that s. 24(2) jurisprudence has developed significantly in the decade since Crocker was decided. The interplay between the Grant factors has received more probing judicial consideration. In R. v. McGuffie, 2016 ONCA 365 at para. 63, Doherty J.A., writing for a unanimous court, expressed the view that if the first and second Grant factors make a strong case for exclusion, the third inquiry will rarely tip the balance in favour of admissibility. The proposition was endorsed in Paterson at para. 56 and, more recently, in Le:
[142] The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction — that is, towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown’s case (see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33‑34), we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown’s case at this stage. The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility (Paterson, at para. 56). Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence.[Italic emphasis in original; underline emphasis added.]
[98] Weighing the relevant factors in the context of an inquiry under s. 24(2) is not an exercise that involves mathematical precision: Grant at para. 86. I do not understand the Court in Le to suggest otherwise. Section 24(2) requires a nuanced, case‑specific assessment of whether the admission of unconstitutionally obtained evidence would bring the administration of justice into disrepute. I agree with the view expressed by Brown J.A. in Omar CA that McGuffie did not purport to establish an inflexible “two‑strikes‑and‑the‑evidence‑is‑out” rule: at paras. 119, 121. Nevertheless, the predictive observation endorsed by the Supreme Court of Canada in Paterson and in Le is useful if regarded as a general analytical tool or rule of thumb.
[99] Having weighed the Grant factors, I conclude that the admission of the evidence, rather than its exclusion, would bring the administration of justice into disrepute. The violation reflects a serious breach of established constitutional principles. It resulted in the unjustified warrantless entry of the appellant’s private dwelling‑house and, as a result, undermined a privacy interest that attracts the highest degree of Charter protection. There is a concern, rooted in Cpl. Daines’ approach, that indiscriminate use of the exigent circumstances doctrine will give rise to unconstitutional privacy breaches in like cases in the future. To admit the evidence would, in my respectful view, be using s. 24(2) to excuse conduct which has in the past been found to be unlawful: see Crocker, and the remarks of Cory J. in Silveira at para. 162. In my view, this is a case where it is necessary for the Court to disassociate itself from the breach to preserve the repute of the administration of justice in the long term.
Disposition
[100] I would allow the appeal and quash the convictions. For the foregoing reasons, I have determined that the evidence obtained during the warranted search of the appellant’s home should have been excluded. Following this determination, the Crown concedes there is no evidence that could support a conviction on any of the counts. Accordingly, I would direct that acquittals be entered on all four counts.
R v Fava, 2020 ONSC 5520
[September 14, 2020] – Assault Police - Officer in Lawful Execution of Duty - Limits on a Godoy Entry into a Home: Requirement to Consider Alternatives to Entry [Conlan J.]
AUTHOR’S NOTE: There are significant limits on the police power to arrest or detain someone in their home without a warrant. Here, the police attempted to do so and the accused lawfully resisted their attempts. The ability to resist an unlawful arrest is a long-cherished power of citizens in a free and democratic society. Unfortunately, the police rarely recognize or admit fault in this respect. It takes a judiciary, enforcing this right, to give legal recognition to this power of the citizenry. Here Justice Conlan provides an excellent example of the limits of police powers to interfere with the liberty of a person in their home. Police must consider reasonable alternatives to entry.
Overview
[2] In the Ontario Court of Justice sitting in Burlington, over four days – December 10, 11, 12 and 17, 2018, Fava was tried on two counts, namely, that he assaulted a peace officer contrary to section 270(1)(a) of the Criminal Code, and further that he attempted to disarm a peace officer contrary to section 270.1(1) of the Criminal Code.
The Facts
[5] Very succinctly put, the undisputed facts at trial were that, on the date in question, Fava, Tilley and three others who were there to support Tilley all attended at the Oakville residence. The purpose of the encounter was for T illey to retrieve and remove her personal belongings, as the relationship between her and Fava had ended, and Tilley was no longer living at or staying over at the said residence. Things escalated and resulted in at least a verbal altercation between Fava and Tilley. Tilley’s friend telephoned the police. Three officers attended and ended up inside the home, contrary to the expressed protestations of Fava. A fourth officer, Sergeant Dick, later arrived on scene and also entered the home. Fava was ultim ately arrested for the two offences that he was tried on, having allegedly touched Dick without consent and attempted to take his taser during a confrontation that occurred inside the home.
Analysis
[16] ... I prefer to say that Fava could not have been found guilty of either offence if the police, at the time, were unlawfully interfering with Fava’s liberty or property. R. v. Stenning, 1970 CanLII 12 (SCC), [1970] S.C.R. 631.
[21] With much respect for the trial judge, I find that she erred in law in coming to the conclusion expressed at paragraph 139 of the Reasons. Specifically, either the trial judge applied the wrong legal principle, or she misapplied the correct legal test as expressed by the Supreme Court of Canada in Godoy, supra.
[22] Why is this Court confident in that determination? For two reasons, first, there is no indication that the trial judge gave due consideration to the severity of the test for the police to forcibly, without a warrant, enter a private dwelling in response to a 911 call. Second, nor is there any indication that the trial judge gave due consideration to whether a reasonable alternative was available to the police that would have obviated the need to enter the home with force and without a warrant. Both of these principles are set out nicely at paragraph 22 of the decision in Godoy, supra, reproduced below.
22 Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident’s privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property. In Dedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances. (I specifically refrain from pronouncing on whether an entry in response to a 911 call affects the applicability of the “plain view” doctrine as it is not at issue on the facts of the case at bar.)
[23] The legal principle emanating from Godoy, supra with regard to the obligation on the part of the police to consider, even fleetingly, reasonable alternatives before forcibly entering a home without a warrant has been reiterated by various appellate Courts across Canada countless times since, a mere sampling of which is found below.
[24] In R. v. Timmons, 2011 NSCA 39, the Nova Scotia Court of Appeal said the following at paragraphs 38 through 48 of its decision.
[38] In his voir dire decision, the trial judge stated that in the circumstances, including the perceived scream, the police had a responsibility to enter the residence, whether invited or not, and that their warrantless entry, search of Mr. Timmons’ person, and search of his house did not breach his s. 8 Charter right against unreasonable search and seizure.
[39] With respect, I disagree with the judge’s analysis of the police entry.
[40 Four R.C.M.P. officers, with their firearms or Taser out of their holsters and at the low ready position, were at the scene. So was an unarmed auxiliary constable. They had positioned themselves at two entrances to the house. When the police demanded, Nadine came and opened the door. She was the person who had been reported as having been abused by Mr. Timmons.
[41] If the police were concerned that her assurances that all was well might not be genuine or made of her own free will, they could have asked Nadine to step outside the house. The police could then have questioned her face to face and away from any possible influence by Mr. Timmons.
[46] In my view, the trial judge erred in principle by failing to consider alternatives to the warrantless entry of Mr. Timmons’ home and bedroom, and the search of his home.
[47] In fulfilling their duties to prevent death and serious injury, the police are often required to make rapid assessments and decisions in potentially dangerous situations. However, they must always include in their considerations the rights set out in the Charter. Chief Justice Lamer’s statements in ¶ 22 of Godoy, where he emphasized that the intrusion into a dwelling to ascertain the safety of a caller was limited to the protection of life and safety, are instructive and clear. I repeat:
The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.
[48] In his submissions to the trial judge, counsel for Mr. Timmons emphasized and quoted this passage from Godoy. While the judge referred to Godoy in his reasons, he made no mention of this principle. It does not appear that he considered it in deciding that the police entry without a warrant was justified.
[26] In our case, there was no evidence adduced at trial that any of the police officers considered any reasonable alternative to forcibly entering the home without a warrant and in the face of Fava’s expressed protestations, for example simply asking Tilley (who was at the open door) to step outside.
[27] In addition, in our case, there is no mention anywhere in the trial judge’s Reasons of the reasonable alternatives principle.
[28 In R. v. Jones, 2013 BCCA 345, at paragraphs 28 through 31, the British Columbia Court of Appeal stated the following (particular attention should be paid to paragraph 29, on the issue of reasonable alternatives).
[28] At paras. 87 and 88 of her reasons for judgment the trial judge found the sole purpose of Cst. Abram’s search was to protect life and prevent injury in a manifestly grave and “potentially volatile mental health situation” about which he had only vague information. She was satisfied he entered the residence “with the subjective and reasonably-held belief” that he was required to investigate the mental health issues, ensure no one else was involved, and determine if there were any public safety concerns regarding Ms. Jones, Rachelle, or anyone else
[29] For the following reasons, I am unable to agree. In my view, the facts as found by the trial judge do not provide the required objective basis to support her conclusion that Cst. Abram’s search was reasonable. Further, I am persuaded the trial judge erred in principle by failing to consider the alternatives that were available to Cst. Abrams before he decided a search was necessary.
[30] It is common ground there was no suggestion of criminal activity in the 9-1-1 call, which requested an ambulance rather than police. Nor did the call reveal any precise safety threat or risk. The information provided ‒ that this was a “mental health issue” and Rachelle was “freaking out” ‒ was nebulous....
[30] In R. v. Wilhelm, 2014 ONSC 1637, Justice Hill, sitting as a summary conviction appeal Court, at paragraphs 143 through 145 of his decision, stated the following (once again, on the issue of reasonable alternatives, note in particular the comments of Justice Hill at paragraph 145).
[143] On the totality of the evidence, the actions of the police in remaining on the Appellant’s property, including at his front door, exceeded the bounds of any implied invitation to communicate with the Appellant and were not justified in furtherance of investigating a Godoy-like emergency. Accordingly, Const. Boshold, though undoubtedly well-intentioned, was not in the lawful execution of his duty and, in turn, the Appellant was justified in using reasonable force to attempt to remove him from his dwelling. In these circumstances, he could not be found guilty of the s. 129(a) and s. 270(1)(a) crimes.
[144] While these conclusions are determinative of the result in this appeal, a final observation is warranted in light of a second submission advanced by the Appellant.
[145] There is a consistent line of authority discussing the availability of reasonable alternatives as an aspect of the reasonable necessity analysis in the context of the constitutionality, and in turn the lawfulness, of exceptional police conduct to exercise warrantless powers respecting real and personal property: Godoy, at para. 18; MacDonald, at para. 48; Kelsy, at paras. 36-7, 42; R. v. Timmons (2011), 2011 NSCA 39 (CanLII), 275 C.C.C. (3d) 59 (N.S.C.A.), at paras. 41-6, 50; Jones, at paras. 29, 37-8, 41; Larson, at paras. 50, 53.
[31] Remember, in our case, despite the fact that the trial judge described it as worse than what confronted the police in Godoy, supra (paragraph 136 of the Reasons), which comment I find perplexing, the police acknowledged at trial that the 911 call pertained to a “verbal argument in the house” (see the Appellant’s Compendium, tab 1, an excerpt from the in-chief testimony of officer Froom).
[32] Further, in our case, the police could plainly see the suspected person in danger (Tilley), just inside the open door, and presumably within earshot of a potential request by the police to simply step outside for a moment, all of this before Fava tried to shut the door (see the Appellant’s Compendium, tab 3, an excerpt from the in-chief testimony of officer Froom).
[35] Having said that, this Court cannot ignore that, on the totality of the evidence adduced at trial, the police undoubtedly could have spoken to Tilley at the open door and/or asked her to step outside, before Fava attempted to close the door on them, but the police failed to turn their minds, however so briefly, to those reasonable alternatives before they forced the door open and entered the home without a warrant, and then remained there for several minutes, with zero indication of any emergency situation but rather an upset and frustrated lady who simply wanted to get her stuff and leave.
[36] This Court cannot ignore, further, that the trial judge appears to have applied a grossly watered-down test, ostensibly from Godoy, supra, without any regard at all for the reasonable alternatives principle, to ground her conclusion that the police acted lawfully in entering the home (and, presumably, although the trial judge in her Reasons does not deal with this issue at all, in remaining inside the home for a significant period of time thereafter).
[37] Respectfully, the trial judge’s conclusion cannot stand as it is tainted by errors of law.
[38] There is no point ordering a new trial. Like the situation in Justice Hill’s Wilhelm, supra case, the findings of guilt must be quashed and acquittals entered on both counts.
Conclusion
[69] For all of the foregoing reasons, the appeal is allowed, the findings of guilt are quashed, and acquittals are entered on both counts.
