Mike Novakowski 2017-06-17 03:45:30
Exigent circumstances do not include parenting check-up Ontario’s top court has thrown out a marijuana grow-op that police found in a man’s home after they entered it to check on his parenting. In R. v. Davidson, 2017 ONCA 257, a motorist called 911 after seeing a four-year-old boy, clad only in a diaper, standing alone at a busy intersection at about 10 a.m. on a day in June. When police arrived, the boy was safely in his mother’s arms, wrapped in a blanket. Harley Davidson, the boy’s father, arrived soon after. He told police that his son was autistic and had a tendency to wander away from the family home, which was about 50 metres away. Davidson said he had installed a special lock high up on the door, but his son had managed to open it and get out. The police insisted on examining the lock, and Davidson agreed they could do so. Although satisfied with the lock, the police then insisted on looking inside the house, claiming they were entitled to look around the house to check on the boy’s well-being, to ensure he was safe and properly nourished. Three police officers entered the house and an odour of marijuana was detected. An officer conducted a brief search of the upstairs of the house, checking the kitchen cupboards and the refrigerator for food. He then went down to the basement, where the smell of marijuana became overwhelming. The smell came from behind a closed and locked door. When the police asked for the key, Davidson kicked the door open, revealing numerous marijuana plants. He was arrested and charged with marijuana production and possession for the purpose of trafficking. At trial in the Ontario Superior Court of Justice, a sergeant at the scene conceded he did not believe the life or safety of a child inside the home was in danger nor did he have grounds to obtain a warrant to search. The sergeant also admitted to conducting warrantless searches of homes to check on the well-being of children. Further evidence suggested that the police were not only concerned about the boy’s safety but were also looking for drugs. Despite this, the judge found the primary motivation for the initial police entry was child welfare and the secondary criminal law aspect for the entry never overtook this concern. The judge found the child protection concern entitled the police to do a “protective sweep” of the house to “assess the degree of risk” to the young boy and his siblings. However, the judge did find other Charter breaches. He held that the police violated Davidson’s rights under s. 10(b) of the Charter by failing to advise him of his right to counsel after he had been detained (when they smelled the marijuana) and before questioning him about the marijuana. As well, the judge held that the search for and discovery of the marijuana without a warrant violated s. 8. Nevertheless, the judge ruled the evidence admissible under s. 24(2) and Davidson was convicted of producing marijuana and possessing it for the purpose of trafficking. He was sentenced to 18 months in custody. Davidson challenged his convictions before the Ontario Court of Appeal, arguing, in part, that the judge erred in ruling that the initial entry by police did not breach s. 8 and that the evidence should have been excluded under s. 24(2). The Crown, on the other hand, submitted that the police entry was lawful as a protective measure and, even if it was not, the police had the authority to enter by virtue of Davidson’s consent or the provisions of Ontario’s Child and Family Services Act (CFSA). Initial Warrantless Entry Justice Laskin, speaking for the Court of Appeal, noted that warrantless entries into a home are presumptively unreasonable under s. 8 of the Charter. However, he also recognized there were exceptions to this presumption including “exigent circumstances” under statute (eg. 529.3 of the Criminal Code) or the common law exception recognized in R. v. Godoy,  1 S.C.R. 311. Godoy affirmed “the principle that the police have a common law duty to protect a person’s life or safety and that duty may, depending on the circumstances, justify a forced, warrantless entry into a home.” But Godoy has narrow limits when the police can enter without a warrant in response to a 911 call. “The police must reasonably believe that the life or safety of a person inside the home is in danger,” Laskin said. “And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a resident’s privacy or property.” Here, however, there were no exigent circumstances. Unlike Godoy where the emergency had not been resolved when the police arrived at the home and the victim was still inside, the boy in this case was safely in his mother’s arms when police arrived and was outside the home, 50 metres away. Laskin stated: “In summary, in the case before us, by the time the police arrived at the intersection, no exigent circumstances existed. There was no reason to believe the life or safety of any person inside the [accused’s] home was at risk. They could see for themselves that the boy was safe and not in any immediate danger. Moreover, after the police had ascertained the reason for the 911 call, they were not entitled to search the Davidson house. Godoy does not give the police sweeping authority to enter a home without a warrant to investigate whether a child’s mother and father are good parents. In the present case, at most the police were entitled to inspect the lock, which they could do without going inside the home. Godoy did not support their warrantless entry and the trial judge erred in holding that it did.” [paras. 29, 32] Consent Davidson did not consent to police entry. At most, he acquiesced to the police intrusion into his home. He was never told of his right to refuse the police entry nor did he expressly consent to the search. Furthermore, Davidson was never asked to sign a form that the police normally used before conducting a consent search of a home. Child and Family Services Act (CFSA) Under Ontario’s CFSA, a police officer may enter a home without a warrant to bring a child to a place of safety only if the officer believes on reasonable and probable grounds that the child is in need of protection and there would be a substantial risk to the child’s health or safety during the time needed to obtain a warrant or to bring the matter to a hearing. Laskin concluded that, even if the boy was in need of protection, “there was no evidence of any risk, let alone a substantial risk, to the boy’s health or safety if the police had taken the time to try and obtain a warrant.” Moreover, the on-scene sergeant conceded he had no grounds to obtain a warrant. Exclusion of Evidence Because of the trial judge’s error in finding the initial police entry reasonable, the Court of Appeal reassessed whether the marijuana was admissible under s. 24(2). In doing so, the Charter breaches were found to be on the high-end of the seriousness scale: • The police committed not one, but four separate breaches of Davidson’s Charter rights. • The police’s initial entry into the home was by itself especially serious. • The police not only entered Davidson’s home without a warrant; they conceded they had no grounds to get a warrant. Instead, they relied on their misguided belief they could enter the home to find out whether the boy’s parents were good parents. • Ignorance of the scope of police constitutional authority does not amount to good faith. • The police admitted to a systemic practice of warrantless searches of homes to check on the well-being of children. The impact of the breaches on Davidson’s Charter-protected interests was also significant. It involved a home, which attracts a high expectation of privacy, and the police conduct inside the home by searching his cupboard and refrigerator, and questioning him in front of his family infringed on his dignity. Despite the evidence being relevant, reliable and important to the Crown’s case, the marijuana was excluded as its admission would bring the administration of justice into disrepute. Davidson’s appeal was allowed, his convictions were set aside and acquittals were entered. Ontario appeal court awards $75K in charter & punitive damages A three-member panel of Ontario’s Divisional Court has found police conduct amounted to racial profiling and it nearly tripled the damages that had been awarded at trial. In Elmardy v. Toronto Police Services Board, 2017 ONSC 2074, two police officers were driving a police cruiser on a winter’s evening when they saw the plaintiff, Mutaz Elmardy, walking in the opposite direction and on the opposite side of the street. Elmardy is a black man and police had a hunch he might be violating bail. They were also concerned he might be carrying a weapon because he had his hands in his pockets. The police made a u-turn and pulled alongside Elmardy. They questioned him but he was somewhat hostile. When he declined to take his hands out of his pockets, an interaction ensued during which one of the officers punched Elmardy twice in the face. He was knocked to the ground, handcuffed and left lying on a wood deck covered with ice. His hands were exposed to the ice for 20 to 25 minutes as he was left handcuffed in the cold. All of his pockets were searched and emptied, as was his wallet. Elmardy was carded and a field information report was completed. He was identified as being “black” and born in “Sudan.” Elmardy brought an action against the Toronto Police Services Board and the officer, suing them for assault, battery, unlawful arrest, and for violating his Charter rights. An Ontario Superior Court judge concluded that the officer committed battery and awarded Elmardy $5,000. He had also been arbitrarily detained under s. 9 of the Charter and was awarded $2,000. The judge found the police had no reasonable suspicion of criminal activity, the stop was random and there was no right to detain Elmardy for carding alone. As for the unlawful search of Elmardy’s pockets, the judge awarded $1,000. A further $1,000 was awarded for breaches of ss. 10(a) and (b) because the police did not tell Elmardy why he was detained nor provided him with his rights to counsel upon detention. Finally, the judge awarded Elmardy $18,000 in punitive damages. Declarations that Elmardy’s rights were breached under ss. 8, 9 and 10 of the Charter were also made and he was awarded $60,000 for costs of the proceeding. As for a s. 15 Charter claim (equality rights), the judge declined to find that the conduct of the officers was racially motivated because Elmardy had not proven, on a balance of probabilities, that he was profiled. Elmardy brought an appeal before Ontario’s Superior Court of Justice Divisional Court arguing that the trial judge failed to make a finding that he was a victim of racial profiling. Racial Profiling Justice Sachs, speaking for the three-member panel of the Divisional Court, agreed there was no direct evidence of racial profiling. However, she found there was circumstantial evidence from which an inference could be made that it was more probable than not that the officers’ conduct towards Elmardy was motivated by the fact that he was black: “The only reasonable inference to be drawn from the fact that both officers, without any reasonable basis, suspected the [plaintiff ] of criminal behaviour, is that their views of the [plaintiff] were coloured by the fact that he was black and by their unconscious or conscious beliefs that black men have a propensity for criminal behaviour. This is the essence of racial profiling. In this case, the officers’ unreasonable beliefs about the [plaintiff ] caused them to assault the [plaintiff ], unreasonably search him and forcibly restrain him. In other words, instead of presuming his innocence, they assumed and acted as if he were guilty and dangerous. He must be violating his bail and he must be carrying a gun. These assumptions, for which there is no explanation other than the colour of the [plaintiff ’s] skin, caused them to blatantly and aggressively violate the [plaintiff ’s] constitutional rights. [paras. 19-21] The Divisional Court concluded that there was “no issue that the [plaintiff ’s] right to equal protection and equal benefit of the law without discrimination based on race under s. 15 of the Charter was also violated.” Damages The $5,000 general damage award for the battery was upheld. However, damages for the Charter breaches were increased from the total of $9,000 awarded at trial to $50,000 against the Toronto Services Board. “The driving force behind the Charter breaches – racial profiling – is a phenomenon that has been recognized as a problem in our police services for some time,” Sachs said. “Racial profiling has a serious impact on the credibility and effectiveness of our police services. It has led to distrust and injustice. It must stop.” As for punitive damages, the award was increased from the $18,000 at trial to $25,000 against the individual officer to punish and deter him for his misconduct. “The amount awarded should reflect the seriousness of that misconduct, but not be so large as to remove any realistic possibility that a police officer ... would be able to pay those damages,” Sachs said. “In my view, an award of $25,000 will accomplish these objectives. I appreciate that by reason of [the Police Services Act], the Toronto Police Services Board is also liable to pay this damage award. However, that fact is not determinative of the exercise I must perform in assessing damages, which is to determine the amount that the person who is directly responsible for those damages should pay.” Elmardy’s appeal was allowed; the trial judge’s award for Charter and punitive damages of $27,000 was set aside and replaced by an award of $75,000. The battery award of $5,000 remained unchanged. The Divisional Court also awarded Elmardy about $20,000 in costs. Mike Novakowski is Blue Line’s case law columnist. He can be contacted at email@example.com.
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