Godoy – 20 years later – misunderstood or misapplied?

Uniformed officers in R. v. Pireh 2018 ABPC 291 responded to a complaint from a person who resided in a condo complex. The complainant heard what sounded like people were being thrown around and there was yelling, banging, and thrashing going on in the unit; it sounded like they were throwing each other around, but the complainant wasn’t sure if it was fighting or playing. Other information obtained was a smell of marihuana coming from the place. The complainant also believed that there were four people living in that suite. No children that they knew of lived there, and the occupants that lived there were adult males in their early 20’s.

On arrival, police had a conversation with the complainant, whom the police had to contact to gain access to the condo complex. At that time, the complainant indicated that it sounded like the males were fighting in the suite. It sounded like they were being thrown up against the walls. The complainant identified the exact suite where the sound was coming from.

As police approached the door to the suite, it was silent. There were no sounds coming from the suite. Contrary to the information provided by the complainant that there was a smell of marihuana coming from the suite, when the police arrived, they did not smell marihuana coming from the suite. Police knocked at the condo door, and it answered by Pireh, but he simply cracked the door open just enough for him to poke his head out. The officer wasn’t able to see inside the suite. He identified himself and advised Pireh that due to a concerned neighbour that heard what sounded like a physical confrontation in his suite, that they were there to check on the welfare of everyone in the suite.

Pireh was not forthcoming with information and didn’t want police to have access to the suite. Pireh stated that he was just playing around with his cousin, but didn’t want police to come in. The officer advised him that due to the complaint of sounds of people being thrown around into walls and thumping and banging, they were there to check on the welfare of everyone in the suite to ensure nobody was in any medical distress or injured. Again, Pireh didn’t want to let them into the suite. The officer then advised Pireh that they were coming into the suite based on their common law duty to ensure nobody in the suite was in any kind of medical distress or in need of any assistance. At that point, Pireh opened the door and officers entered the suite.

As soon as officers entered the suite, they identified a male as Pireh’s cousin, Eskandar, standing in the hallway. Pireh went into the living room area. An officer followed Pireh into the living room area to discuss what was going on, and to ensure no one was in any kind of need. Both Pireh and Eskandar “appeared sober, calm, no injuries.”

Pireh stood next to the couch and white coffee table in the living room area. Almost immediately, an officer noticed what appeared to be a black handgun on the white coffee table. At that time, the officer grabbed the gun to secure it and verify it was a real firearm. When he picked the gun up, he was able to verify it was a real firearm. He ejected the magazine and found 7 rounds of 9mm ammunition in the magazine. He then worked the action to eject any live round from the chamber. No live round was ejected. He then made the firearm “safe.” There was no trigger lock on the gun and it was not secured in any kind of container. The handgun was a 9mm Smith and Wesson. The serial number was defaced. After making the gun safe, he placed it on the kitchen counter.

After telling his partners that he had found a live handgun, officers arrested Pireh. After Pireh was arrested, and having been informed that 4 males lived in the suite, officers carried on searching the suite to ensure there were no other people that may be injured were there. Officers then searched the laundry room, and then entered a bedroom. No other people were found. The bedroom was messy with piles of clothes everywhere. On exiting the bedroom, an officer noticed a dresser against a wall with some of the dresser drawers partially opened. Inside one of the drawers he noticed a bundle of money wrapped in a rubber band and two clear plastic bags containing what appeared to be crack cocaine (one of the plastic bags was later determined to contain 24.3 grams of crack cocaine. The other bag contained 7 grams. The combined weight was 31.3 grams). Police applied for and later returned to the suite to execute a CDSA search warrant – less than 30 grams of marihuana was also found, and some documents in the name of the other tenants of the condo. Pireh was charged with 11 offences relating to the handgun, readily accessible ammunition, and drugs.

The judge examined that emergency calls can originate from a number of different sources. In many cases, there is evidence of a 911 call, or 911 hang-up call, that may relate to both domestic and non-domestic situations, originating from complainants both inside and outside a private residence. Absent there being a 911 call, the police agency in question had created a list of priority calls, categorized in terms of seriousness and immediacy, as priority # 1, # 2 and # 3 calls. Again, these calls may relate to both domestic and non-domestic situations, and originate from complainants both inside and outside a private residence. Finally, according to the evidence adduced in this case, the agency had created a list of codes to identify a particular situation (i.e., code 1014 – causing a disturbance) that may or may not be ongoing, and may relate to domestic and non-domestic situations, originating from complainants both inside and outside a private residence.

In terms of applicable legal principles, the trial judge drew no distinction between a 911 call and a priority # 1 dispatch call. In the circumstances of this case, the police treated them in the same way as requiring an immediate response to an emergency situation. As well, in terms of applicable legal principles, the judge drew no distinction between a call to the police originating from inside a private residence and a call originating from outside the residence. As the judge cited, an informed caller from outside the apartment describing the nature of the emergency is a more reliable justification for a concern about the health and safety of the occupant of the apartment than is a disconnected telephone call. In the judge’s view, the  analysis relating to 911 calls, and analogous 911 calls, was equally applicable to the police responding to an outside complaint of a code 1014 – causing a disturbance call. In determining if an immediate police response to an emergency situation was required, the court had to examine all the surrounding circumstances, including the context of the complaint, and the situation at the residence on arrival by police.

The judge found that the complaint received by the police in this case was not a 911 emergency call, or a priority # 1 complaint or a domestic situation. Police were not certain that it was, and when viewed along with the totality of the evidence, evidence in this regard was not reliable. The complaint in this case was a police response to an outside, code 1014 – causing a disturbance call, placed by a neighbour who lived in the same building as the accused. Based on the totality of the evidence, the judge accepted that the police had an honest belief that they were entitled to enter the accused’s suite to ensure the safety of everyone that may have been in the suite.

At paras. 136-137:

“The difficulty in this case is that the police only had limited information as to what an outside third party said she heard going on in the suite. The credibility and reliability of the complainant could not be tested because she did not testify in the voir dire. When the police attended at the building and approached the door to the accused’s suite, it was silent. There were no sounds coming from the accused’s suite. Contrary to the information provided by the complainant that there was a smell of marihuana coming from the suite, when the police arrived, they did not smell marihuana coming from the suite. When the accused answered the door, the police described both him and Eskandar… “appeared sober, calm, no injuries. Although the police could not see into the suite, there is no evidence that anything was going on in the suite at the time.”

“When viewed objectively, the limited information available to the police as to what may have been going on in the accused’s suite, what they saw at the scene, and their conversation with the accused at the door, did not give rise to an emergency situation that would entitle this Court to view the code 1014 – causing a disturbance call as analogous to a 911 call. This case boils down to a complaint made by a disgruntled neighbour about sounds… “people being thrown around, yelling, thumping and banging, isn’t sure if it’s fighting or playing…” coming from the suite occupied by the accused and three other males in their 20’s, no women or children or anyone being in distress mentioned.”

The judge ruled that the Crown had failed to satisfy the court on the balance of probabilities that the police had reasonable grounds to enter the accused’s suite pursuant to their common law duty to ensure the safety of everyone that may have been in the suite. Therefore, the entry by police into the accused’s suite and search was not authorized by law and violated section 8 of the Charter.

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