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R. v. Timmons, 2011 NSCA 39  NSCA


[1]              The main issue on this appeal concerns the police entry and search of a home, without a warrant.  In the particular facts of the case, did their actions amount to a breach of the Charter right to be secure against unreasonable search and seizure?   


....

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

. . .

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[21]         An individual is entitled to privacy in his or her own home.  The unauthorized presence of state agents such as the police constitutes an invasion of that privacy.  As stated by Cory J. at ¶ 141 of R. v. Silveira, [1995] 2 S.C.R. 297:


141      ...It must be the final refuge and safe haven for all Canadians.  It is there that the expectation of privacy is at its highest and where there should be freedom from external forces, particularly the actions of agents of the state, unless those actions are duly authorized.  This principle is fundamental to a democratic society as Canadians understand that term. ...

[22]         However, the principle is not without exceptions.  In her decision in Silveira, L’Heureux-Dubé J. referred to R. v. Landry, [1986] 1 S.C.R. 145 where the majority concluded that a warrantless entry in hot pursuit circumstances was permitted, and stated at p. 744:

[108] ... In concurring reasons, Estey J. added in Landry (Beetz and McIntyre JJ. concurring), at p. 166, that the ancient principle of the inviolability of the home "must yield to the legitimate requirements of law enforcement" and went on to cite the following passage from the case of Lyons v. The Queen, [1984] 2 S.C.R. 633, where for the majority he wrote (at p. 657):

The home is not a castle in isolation; it is a castle in a community and draws its support and security of existence from the community.  The law has long recognized many compromises and outright intrusions on the literal sense of this concept. . . .   (Emphasis in original)

 

[23]         Once it has been demonstrated that a search is a warrantless one, the burden is on the Crown to show, on a balance of probabilities, that the search was a reasonable one.  A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was conducted is reasonable:   R. v. Collins, [1987] 1 S.C.R. 265 at ¶ 23.

...

(a)      Not a 911 or Distress Call

. . .

11     In my view, public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case.

. . .

20        . . . I see no other use for an emergency response system if those persons who are dispatched to the scene cannot actually respond to the individual caller. I certainly cannot accept that the police should simply take the word of the person who answers the door that there is "no problem" inside.

. . .


 

At the Door

[36]         Although Nadine Shaw had told the police at the door that she was fine, her statements could have been involuntary and made pursuant to threats of violence.  At this point, she was still inside with the person reported to have abused her, and possibly under his control.  

[37]         At ¶ 20 of Godoy, Lamer, C.J. could not accept that the police should simply take the word of the person who answers the door that there is no problem inside.  While he was referring to someone other than the alleged victim, the same concerns can arise when that person is the alleged victim.  Here it was reasonable for the police to stand their ground.  Their alternative was to accept what Nadine said at the door at face value and simply leave.  If they had done so, the officers could have been abandoning an alleged victim of abuse in the company of her alleged abuser and in a remote and secluded location, without ever seeing or speaking with her alone.

Police Entry

...


[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.


[42]         If she had been in any danger, Nadine then could have simply left with the five officers.  She had been located and was safe with them.  There would have been no reason or need to enter the residence.

[43]         The police had no information that there was anyone in the house other than Mr. Timmons and Nadine Shaw.  However if, because of the perceived scream or otherwise, they were concerned that there might be anyone else in the house who was in trouble, they could have obtained that information from Nadine Shaw, outside the house.   They could also have asked whether there were any firearms or weapons there.  If she said that there was someone who needed assistance, the officers would have reasonable grounds to believe that that person’s safety was a risk.  They then would have been justified in entering the house to locate and protect him or her.

[44]         If Nadine refused to step outside the house when asked, the police might have suspected that Mr. Timmons was threatening her from behind the door or farther away, and that he was armed.  In that case, they would have had to decide how next to proceed.  Depending on the circumstances, one reasonable option might well be a warrantless entry with the object of protecting Nadine’s safety.

[45]         But the police did not ask Nadine to step outside the house.  Instead three officers entered.  Nadine Shaw told them that she was fine.  There was no one nearby or who was interfering with their conversation.  The only person in view was a man lying on a bed in a bedroom.   There was no evidence that he either moved or reached for something suddenly, or indeed at all.  Nevertheless the police went straight into the bedroom, had him get up, did a pat-down search to which the man cooperated, and then proceeded to search his house.

...


[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.

...

[49]         As to the pat-down search, in R. v. Mann, 2004 SCC 52 the Supreme Court of Canada considered searches incidental to the police power of investigative detention.  Such searches are warrantless and presumed to be unreasonable unless they can be justified and found reasonable pursuant to the test in Collins, described earlier.  Iacobucci, J, writing for the majority, noted the importance of maintaining a distinction between search incidental to arrest (such as in R. v. Golden, 2001 SCC 83) and search incidental to an investigative detention.  He stated:

37 . . . The latter does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible.” ...

 40       The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention.  Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. . . .  The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.  It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.


 

Oland, J.A.

Jim O'Neil, LL.B.

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