Monthly Archives: April 2017

Godoy extended beyond its limited scope when police entered a man’s home to do a “protective sweep” of the home because of “child protection concerns.”

R. v. Davidson 2017 ONCA 257 – to reiterate R. v. Godoy, [1999] 1. S.C.R. 311, the Supreme Court of Canada held that the police can enter a home without a warrant if we have reasonable grounds to believe it is necessary to do so to protect a person’s life or safety. In essence, 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 (Godoy, at para. 22). Our authority for being on private property in response to a 911 call ends there; we do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.

In Davidson, one June morning, a four year old boy, clad only in a diaper, was seen standing alone at a busy intersection in Barrie, Ontario. A passing motorist called 911. By the time the police arrived, the boy was safely in his mother’s arms, wrapped in a blanket. Davidson, the boy’s father, arrived soon after. He explained to the police that his son is autistic and has a tendency to wander away from the family home, which was 50 metres away. Davidson said he had installed a special lock high up on the door to the house but that 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. They had no warrant but claimed 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 Davidson home. On first entering the house, the lead investigator smelled marihuana. He 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 marihuana 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 marihuana plants. He was arrested and charged with production of marihuana, possession of marihuana, and possession of marihuana for the purpose of trafficking.

At the beginning of the trial, Davidson brought an application to exclude the evidence of the marihuana because of numerous breaches of the Charter, namely: they failed to advise him of his right to counsel contrary to s. 10(b) of the Charter after they smelled the marihuana, even though by then Davidson was effectively detained; police again failed to advise him of his right to counsel before questioning him about the marihuana; police breached his right to be secure against unreasonable search, contrary to s. 8 of the Charter, by “discovering” the marihuana without a warrant. But the trial judge rejected Davidson’s main claim: that the police breached his s. 8 rights when they initially entered his home. The trial judge ruled that Godoy entitled the police to do a “protective sweep” of the house because of their “child protection concerns”. The trial judge then held that the evidence of the marihuana was admissible under s. 24(2) of the Charter. The Crown withdrew the possession of marihuana charge, and the trial judge convicted Davidson of production of marihuana and possession of marihuana for the purpose of trafficking and sentenced him to 18 months in custody.

One issue that the ONCA was tasked to decide was whether the trial judge misapplied Godoy. The s. 8 right to be secure against unreasonable searches protects a person’s expectation of privacy from state intrusion. Nowhere is that expectation of privacy higher than in one’s home. To enter a home, police ordinarily need previous authorization: a warrant. Warrantless entries of a home are presumed to be unreasonable and in breach of s. 8. But exceptions exist, both by statute (e.g under s. 529.3 of the Criminal Code) and at common law (e.g. 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 narrowly limits when the police can enter a person’s home 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. And once inside the home, our authority is limited to ascertaining the reason for the call and providing any needed assistance. We do not have any further authority to search the home or intrude on a resident’s privacy or property.

Here, by the time the police arrived at the intersection, any emergency that had existed had ended since the boy was safely in his mother’s arms. In Godoy, the victim was inside the home; here the boy was outside the home, 50 metres away. 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 Davidson home was at risk. They could see for themselves that the boy was safe and not in any immediate danger. Moreover, the police had ascertained the reason for the 911 call. The ONCA said 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.

Another issue was whether Davidson consented to the search. According to the ONCA, at most, the evidence showed Davidson acquiesced to the police’s inevitable intrusion into his home, but not that he consented.  First, an officer never told Davidson of his right to refuse the police’s entry into the home because the officer believed that Davidson did not have the right to do so. Second, during testimony, the officer acknowledged that Davidson did not expressly consent to the search of his home. And third, the officer agreed that his police force has a form they ask a homeowner to sign before doing a consent search of a home and that he never asked Davidson to sign this form. Overall, the ONCA ruled that the evidence showed that the police thought they had the right to enter Davidson’s home without his consent. The warrantless search of his home could not, therefore, be justified on the basis of his consent.

The Child and Family Services Act (the “CFSA”) also came into play, and although specific to Ontario, many provinces have similar legislation, so I believe it holds merit to discuss it in this post as a reference. Section 40(7) authorizes a child protection worker to enter a home without a warrant to bring a child to a place of safety, but only if two conditions are met: the child protection worker must believe on reasonable and probable grounds that – (1) the child is in need of protection; and (2) 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 on for a hearing. Sections 40(11) and 40(7) provides that if necessary, the child protection worker can enter a home by force to search for and remove a child; Section 40(13) provides that a police officer has the same powers as does a child protection worker under those provisions. The ONCA ruled that even if Davidson’s son was in need of protection, as the trial judge seemed to suggest, the second condition required for a warrantless entry did not exist. 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. Also, at trial, police conceded that no grounds existed to obtain a warrant, so the CFSA did not authorize the police’s warrantless entry into the Davidson home.

In the end, the ONCA allowed the appeal and set aside Davidson’s convictions. It excluded the evidence of the marihuana, so there was no longer any evidence against him to support the charges.

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