The Defence Toolkit – December 25, 2018

This week our top three summaries cover: Entrapment – Manufacturing of an Offence by the State, Sentencing with Gladue Factors, and Warrantless Emergency Entries with Result in s.8 Charter violations

R. v. Nuttall (BCCA)

[Dec 19/18] Entrapment – Manufacturing of Offence by the State – 2018 BCCA 479 [Bennett J.A. (Kirkpatrick, Harris JJ.A Concurring)]

AUTHOR’S NOTE: Although the Appeal Decision overturned many of the conclusions reached by the trial court, the core conclusion remains: the police manufactured a crime which would not have come to pass but for their involvement.  The bulk of the judgement reproduced the facts which can be summarized as: Nutall could never settle on a plan to do violent jihad, his various “plans” remained wildly unrealistic, the police forced Nutall to concentrate on an achievable plan and then provided all the ingredients (support, knowledge, and supplies) necessary for it.  All Mr. Nuttall and his co-accused had to provide was a willingness to execute the plan and then put it into action.  The BC Court of Appeal found that although the police did have a reasonable suspicion to engage the undercover operation to present an opportunity to commit a crime, and the average person would not have committed this offence, the police still entrapped the accused because they knew that Nuttall and Korody had little to no ability to commit an act of terrorism – they manufactured the crime. At various times undercover offices described Mr. Nuttal as “hare-brained”, “all over the map”, and “scatterbrained” with respect to his planning and execution efforts.

Pertinent Facts

“On Canada Day, July 1, 2013, John Nuttall and Amanda Korody placed pressure cooker bombs outside the Parliament Buildings in Victoria, B.C. The bombs were timed to explode 15 minutes apart to ensure that maximum damage would be done to first responders who attended the scene to aid those harmed by the first explosion. Had the bombs been real, many people would have died or been injured.” (Para 1)

“But the bombs were not real and they did not explode. The minute sliver of explosive substance in the bombs had been provided by the police, who had participated in the entire scheme. The trial judge concluded that the police manufactured the crimes and stayed the charges on the basis of entrapment, despite the jury’s verdict of guilty.” (Para 2)

“M.C. told the police that Mr. Nuttall claimed to have shot a Jewish woman, and asked M.C. to help him travel to Afghanistan to commit violent jihad and become a holy warrior. M.C. said Mr. Nuttall had been asked to leave a prayer room, a Muslim school, and a number of mosques in the Lower Mainland due to his interest in extremist jihad.” (Para 15[b])

“On February 7, 2013, INSET received a more detailed letter from CSIS, reporting that Mr. Nuttall had recently made attempts to purchase potassium nitrate—a chemical precursor that can be used to manufacture explosives—from pharmacies in the Lower Mainland.” (Para 15[c])

Nuttal had an extensive criminal history including offences of: robbery, assault, and had been charged with attempted murder in the past (Para 15[d])

“The police determined that Mr. Nuttall and Ms. Korody lived in a basement suite in Surrey with Mr. Nuttall’s grandmother. They observed that the two stayed inside their basement suite for long periods of time. When they left, it was on foot to go to a gas station store or the grocery store. They did not have a car and both were unemployed and receiving social assistance. They stayed close to home, rarely leaving a four-block radius.” (Para 16)

Pertinent Facts – The Undercover Operation

The police engaged an undercover operation posing as terrorists. During the operation and prior to giving the opportunity to commit the terrorism offence the accused were arrested for, the following important events occurred during the operation:

Police gave the accused 36 opportunities to withdraw from the operation (para 26)

In March of 2013, “Corporal M. voiced a concern with Sergeant K. about the possibility of entrapment. At trial, he testified that he was worried that INSET was giving Mr. Nuttall the capacity to carry out violent acts for which he otherwise lacked the resources.” (Para 31)

“Corporal A. testified that when he first met Mr. Nuttall, Mr. Nuttall was very indiscreet about his plans for extremist jihad. Corporal A. told him how things should be done and Mr. Nuttall then changed his behaviour.” (Para 62)

“The trial judge found that there “appeared to be a tension” between the investigative team, who wished to focus Mr. Nuttall on a single plan, and the undercover shop, who were concerned about Corporal A. wielding undue influence over Mr. Nuttall.” (Para 78)

“Corporal A. agreed in cross-examination that a recurring theme of Mr. Nuttall’s planning was that he would agree to a plan, come up with obstacles to executing the plan, and then the plan would fall apart.” (Para 136)

“Mr. Nuttall repeatedly expressed confusion as to what sort of planning he should be doing, and Corporal A. repeatedly chastised him for wasting his organization’s resources.” (Para 138)

June 18, 2013, “Mr. Nuttall and Ms. Korody went to the safe room. Mr. Nuttall ordered Ms. Korody to research whether C-4 could be ignited with a blasting cap and said that if they did not finish their plan, then they would be “dropped” or “deleted”. Corporal A. went to the safe room, and spent about an hour trying to focus them on a realistic plan. … Mr. Nuttall said they would go along with Constable F.’s suggestion about the pressure cooker bombs. He said that Constable F. had convinced him it was “the way to go”.” (Para 140)

“[They] went to Save-On-Foods, where Mr. Nuttall bought batteries. They went to Walmart, where Mr. Nuttall bought a pressure cooker. They went to other stores without buying anything. They made purchases at Value Village. At London Drugs, they took passport photos and bought another pressure cooker. At Home Depot, Mr. Nuttall bought nails, nuts and bolts, and other material for his pressure cooker bombs.” (Para 152)

June 27, 2013, “The group went shopping again to pick up prescription methadone for Ms. Korody and to buy the outstanding items on the shopping list, such as bleach, sponges, gloves, and alarm clocks. Throughout their shopping trip, Corporal A. had to repeatedly redirect the couple to what they still needed from their list. At one point, Mr. Nuttall returned from a store without purchasing nails, although buying nails was the reason that he entered the store.” (Para 155)

June 28, 2013, “Corporal A. took Mr. Nuttall to do some more shopping. He purchased a six-inchlong folding knife and some electrical tape after entering a store, forgetting what he went in to buy, and then making further attempts at two other stores. Corporal A. testified that it required extreme patience to supervise Mr. Nuttall’s “scatterbrained” shopping. Mr. Nuttall and Ms. Korody also attended mosque.” (Para 162)

“June 29, 2013, “He told Corporal A. about the plan to put all the C-4 in a truck rather than in the pressure cookers. Corporal A. said that the pressure cooker plan would be more effective, and Mr. Nuttall went along with that suggestion.” (Para 168)

Sergeant S.’s undercover role was to assess the viability of the couple’s plan and determine if they were going to do it of their own volition. (Para 171)

“Sergeant S. asked what was needed for that to happen, and Mr. Nuttall said he could do it with gunpowder. Corporal A. reminded him he could get “other stuff”. Sergeant S. again asked whose plan this was, and Mr. Nuttall said it was “sort of all of their plan”, and that Corporal A. had “sort of” given him the idea.” (Para 173)

“Sergeant S. also testified that Mr. Nuttall was very uncertain about how much C-4 was needed in each pressure cooker and that he deferred to Corporal A. on these matters. Throughout the interview, Mr. Nuttall mentioned his alternative plans (launching rockets, attacking a naval base, and hijacking a nuclear submarine), which Sergeant S. testified were hare-brained and “all over the map”.” (Para 174)

“Sergeant S. received a staged call that made him step out of the room. He told his cover person that Mr. Nuttall was noncommittal to any plan and that he was not going to spend all day with him. Sergeant S. told the cover person that Mr. Nuttall was not serious about the plan, and that his ideas were just “dreams”. In cross-examination, Sergeant S. agreed that he was very surprised by Mr. Nuttall’s behaviour and that the operation was “going sideways”.” (Para 175)

Sergeant S. and Corporal A. engaged in some role playing to get Mr. Nuttall re-engaged (Para 176)

June 30, 2013, “Corporal A. redirected Mr. Nuttall to finalize targets. Mr. Nuttall said he did not know and suggested, “Maybe a condominium”. Corporal A. grew frustrated and told Mr. Nuttall he needed to know the specific targets so he could drive them there, and that time was short. Mr. Nuttall got sidetracked, and asked if the car that Corporal A. was driving was clean.” (Para 193)

“In cross-examination, Corporal A. agreed that his cover person directed that he be more aggressive about advocating placement locations, but maintained that the placement decision was always up to Mr. Nuttall and Ms. Korody….They decided the devices should be planted in bushes nearer to the building than the bushes Corporal A. suggested.” (Para 196)

“The couple told Corporal A. that they only had enough methadone to last one more day and that they were both already drug sick and in withdrawal.” (Para 198)

July 1, 2013, “As depicted on RCMP surveillance footage, the couple placed the bags near concrete planters on the west and east sides of the Parliament Buildings.  Mr. Nuttall returned to the van a few minutes later, after planting the devices behind some bushes. Ms. Korody came back to the van shortly after, advising that she had planted the device in another bush.” (Para 204)

“Corporal A. called back and told them to leave everything behind in the hotel room except the clothes they were wearing, and that they were to be transported to an airport. When they stepped into the hallway at 1:50 p.m., they were arrested and the operation concluded.” (Para 210)

The Crown Appealed the rulings below.

Entrapment

“In Mack, Lamer J. identified the “ubiquitous nature of criminal activity in our society” (at 916) and acknowledged that many crimes are committed in secret and are of a consensual nature. He also identified where the dividing line is between acceptable and unacceptable police conduct. That distinction is between the police’s providing an opportunity to a person to commit an offence while acting on “reasonable suspicion” or in the “course of a bona fide inquiry”, and “the state actually creating a crime for the purpose of prosecution” (at 917).” (Para 283)

“The focus is on the objective conduct of the police, and whether the police acted improperly (at 954–55).” (Para 288)

“Justice Lamer concluded that entrapment will exist when: (a) the police provide an individual with the opportunity to commit an offence without reasonable suspicion or while acting mala fides, or (b) although they have a reasonable suspicion or are acting in the course of a bona fide inquiry, they go beyond providing an opportunity and actually induce the commission of an offence (at 959).” (Para 289)

“Justice Lamer said that in assessing whether the conduct of the police gave rise to the latter category of entrapment (at 959–60):

… it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused, i.e., a person with both strengths and weaknesses, into committing the crime. I believe such a test is useful not only as an analytical mechanism that is consistent with objective analysis, but also because it corresponds to one of the reasons why the defence is thought desirable. In other words, it may be inevitable that, when apprised of the factual context of an entrapment case, members of the community will put themselves in the position of the accused; if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety. The reasoning does not go so far as to imply that the accused is therefore less blameworthy; rather, it suggests that the state is involved in the manufacture as opposed to the detection of crime.” (Para 290)

“For the reasons that follow, I find that the vast majority of the trial judge’s factual findings are devoid of palpable and overriding error. The only exception is the final area: the trial judge’s finding that the respondents feared that they would be killed was inconsistent with an earlier finding she made in the course of the trial. Additionally, she applied a subjective test to those findings. For those reasons, that finding cannot stand.” (Para 303)

“Even if at some point Mr. Nuttall and Ms. Korody subjectively feared that they would be killed, the evidence is clear that they did not place the bombs because they feared for their lives; they placed the bombs because they wanted to do violent jihad. On the day of the attack, Mr. Nuttall told Corporal A. that he wanted to “do [terrorist acts] forever”.” (Para 412)

“In any event, as a matter of law, what is relevant in entrapment is not Mr. Nuttall’s and Ms. Korody’s subjective beliefs, but the conduct of the police, considered objectively. Recall that in Mack, the trial judge committed an extricable legal error that was reviewed by the Supreme Court of Canada on a correctness standard. In this case, the trial judge’s focus on the accused’s subjective beliefs was incorrect in law…. Objectively, the police could not have made it clearer that the respondents could withdraw from the plan.” (Para 415)

Entrapment – Reasonable Suspicion

“I agree with the Crown that the police had reasonable suspicion that Mr. Nuttall and Ms. Korody were involved in criminal activity at the time the C-4 was offered. ” (Para 419)

“On June 6, 2013, Corporal A. picked up Mr. Nuttall outside his residence. Mr. Nuttall had, on his own initiative, downloaded instructions onto his computer on how to build a homemade explosive device. Mr. Nuttall had also found information on how to build a pressure cooker bomb in Inspire and gave Corporal A. a drawing and math formulas. The instructions, according to Mr. Nuttall, were the same as the Tsarnaev brothers used. Mr. Nuttall said that if it worked for them, it could work for him. He also showed Corporal A. a one-page shopping list with the items he needed in order to build the pressure cooker bombs. Mr. Nuttall asked Corporal A. to buy gunpowder and suggested he could make C-4. Corporal A. said he was working on getting him C-4. Mr. Nuttall then spoke about building a model rocket that would explode. Mr. Nuttall talked about a big plan that would produce a body count like 9/11 to cause people to rethink sending troops overseas to kill Muslims. Corporal A. asked Mr. Nuttall what he would be doing if they had not met, and Mr. Nuttall said he would be making a kettle bomb. Mr. Nuttall wanted to shop for bomb-making parts right away, but Corporal A. stalled him.” (Para 423)

“In my view, this evidence alone provided sufficient basis for a finding of reasonable suspicion. ” (Para 424)

“The conduct of both offenders went beyond predisposition, but entered the realm of an objective suspicion that they may well participate in a terrorist act.” (Para 426)

Entrapment – Reasonable or Average Person

“As explained above, in my view, the trial judge erred in her conclusion that, objectively, the conduct of the police caused the defendants to plant the bombs in order to save their lives. If she was correct in that regard, her conclusion would clearly stand. However, in my respectful view, she erred…” (Para 431)

Entrapment – Manufacture of Crime

“the trial judge’s third conclusion is unassailable. This is one of the rare cases that falls outside of the average person test, but in which the conduct of the police amounts to an abuse of process in any event.” (Para 434)

“in this case, the police eventually knew Mr. Nuttall and Ms. Korody had little to no ability to commit an act of terrorism. Certainly, they were right to commence the investigation, and certainly they had reasonable suspicion that the two might commit a crime. However, as found by the trial judge, the police went far beyond investigating a crime. They pushed and pushed and pushed the two defendants to come up with a workable plan. The police did everything necessary to facilitate the plan. I can find no fault with the trial judge’s conclusion that the police manufactured the crime that was committed and were the primary actors in its commission. Although in some cases the police may have to be the primary actor, when all of the circumstances are considered, assessed, and weighed, the misconduct of the police in this case far outweighed their violation of the concepts of fairness and justice.” (Para 440)

“This is not to suggest that Mr. Nuttall and Ms. Korody are harmless. They may be very dangerous. However, that danger was not apparent in the investigation, which was confirmed by Sergeant K.’s continually telling his superiors that they presented no imminent danger or risk. There was no danger because Mr. Nuttall and Ms. Korody had neither the means nor the ability to carry out any of the plans without substantial aid from the police.” (Para 442)

Entrapment finding upheld and stay of proceedings confirmed (Para 502)

R. v. Martin (ONCA)

[Dec 13/18] Sentencing – Consideration of Gladue to Reduce Length of Sentence – 2018 ONCA 1029 [G. Pardu J.A. (C.W. Hourigan, Harvison Young JJ.A Concurring)]

AUTHOR’S NOTE: Although since 1999 in R v Gladue, the SCC has recognized that the residential school experience has had extensive damaging effects on many Indigenous communities and families in Canada, courts have consistently been hesitant to reduce sentences for Indigenous accused. Most often, courts refer to the decision, invoke some of the jargon and then it becomes nearly impossible to determine what, if any, effect that consideration has had on determining the quantum or type of sentence. Much of the time, courts explicitly say they are not giving any discount and refer to Gladue not suggesting there should be a “race based discount” on sentence. It has become increasingly difficult to discern whether the words invoked from R v Gladue have any meaning whatsoever.  In R v Martin, Justice Pardu provide a real and quantifiable discount for serious Gladue factors. Defence counsel can use this decision to suggest that should be the case more often.

Overview

“The appellant seeks leave to appeal from a global sentence of six years, before credit for presentence custody. He submits that the sentencing judge erred in her application of the sentencing principles mandated for aboriginal offenders by s. 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46. I agree and would reduce the sentence to a four-year global sentence before credit for presentence custody, as suggested by the appellant.” (Para 1)

Pertinent Facts – The Offence

“On June 10, 2014, the appellant was driving a stolen Silverado in an erratic manner in a mall parking lot. After a short pursuit by police at a speed of 60-70 kmph he went through a red light and collided with another vehicle (dangerous driving, possession of a stolen vehicle). The Silverado was now inoperable. He went to another vehicle, a black Jetta, stopped at the intersection. The occupant of that vehicle tried to roll up the window. The appellant ordered him to get out of the car, tried to reach in to unlock the door and, according to the account of one witness, grabbed the driver by the shirt to try to get him out of the driver’s seat (attempted robbery). The occupant slapped the appellant, applied the parking brake and removed the keys from the ignition.” (Para 2)

“The appellant went to another vehicle in the intersection, a Ford Explorer. He tried to open the driver’s side door for about 30 seconds (attempted theft).” (Para 3)

“After arrest, bolt cutters, pliers, a screwdriver, a hammer and a socket set were found in the stolen Silverado. These formed the basis for the conviction for possession of an instrument suitable for the purpose of breaking into some place.” (Para 4)

Pertinent Facts – The Gladue Factors

“The appellant is a Mohawk, registered with the Six Nations of the Grand River. All four of his grandparents and two of his great-grandparents attended residential schools. Without going into detail, the appellant’s family and relationship history is fraught with alcoholism, drug abuse, cultural dislocation, familial dysfunction, poverty and physical and sexual abuse.” (Para 9)

“The author of a 2015 Gladue report indicated:

There is little question that Cameron Martin’s life path has been shaped and informed not only by the larger historic traumas impacting Six Nations, but also by the constellation of intergenerational effects linked with Indian residential schools.” (Para 10)

Application of Gladue – Seriousness of the Offence “Exception”

“The sentencing judge referred to the appellant’s aboriginal background, but ultimately concluded that because of the seriousness of the offences and the appellant’s criminal record, his history of intergenerational trauma and abuse would have no impact on the sentence…” (Para 7)

“The sentencing judge cited para. 79 of R. v. Gladue, [1999] 1 S.C.R. 688: “Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.” She then referred to R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 75, to note that “[s]ection 718.2(e) does not create a race based discount on sentencing. [It] does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates.”” (Para 8)

“In my view the sentencing judge erred by failing to give tangible weight to the systemic and background factors present here which played a substantial part in bringing the appellant to court and which attenuate his moral blameworthiness. In Ipeelee, the court noted at para. 84 the problems caused by unwarranted emphasis to paragraph 79 in Gladue:

….The passage in Gladue that has received this unwarranted emphasis is the observation that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing” (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).” (Para 14)

“Further, consideration of Gladue principles is not equivalent to a race-based discount, but rather recognizes the reduced moral blameworthiness resulting from the effects of intergenerational dislocation and trauma, and recognizes that aboriginal persons are disproportionately represented in the prison population.” (Para 15)

“In any event, as noted at para. 86 of Ipeelee,

Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to “the relative ease with which a sentencing judge could deem any number of offences to be ‘serious'” (Pelletier, at p. 479).” (Para 18)

“It is common ground that a penitentiary sentence is required here, but consideration of the Gladue factors can also have a bearing on the effectiveness of the proposed sentence. Here there is no reason to believe that a six-year sentence would have a greater deterrent effect for the appellant specifically or for other offenders than a four-year sentence.” (Para 19)

“The longest prison term previously imposed on the appellant was for two years less a day. A “jump” to six years is too much, having regard to the nature of the offences and the Gladue factors. Section 718.1 of the Criminal Code mandates that a sentence must be proportionate both to the gravity of the offence and the degree of blameworthiness of the offender. In other words, a sentence must not “exceed what is appropriate, given the moral blameworthiness of the offender”: Ipeelee, at para. 37.” (Para 20)

R. v. Pireh (ABPC)

[Dec 14/18] Charter s.8 – R v Godoy – Emergency Warrantless Police Entry Powers – 2018 ABPC 291 [T.C. Semenuk Prov. J.]

AUTHOR’S NOTE: A 911 hang-up call or a neighbour call relating domestic violence sounds from an apartment usually results in lawful and warrantless police entry into a residence.  The question becomes more complicated when the nature of the call less clearly communicates a threat to life or safety.  Herein, Judge Semenuk outlines that where the evidence does not objectively support a concerns for life or safety, the police should not barge ahead as they risk losing all to evidence they gain once they enter the residence.  

Pertinent Facts

“Members of the Calgary Police Service (CPS) responding to a disturbance complaint, entered the condominium occupied by the accused, and found and seized a handgun with readily accessible ammunition, cannabis marihuana and cocaine.” (Para 2). The cocaine had a weight of 31.3 grams. (Para 27)

A number of police officers testified, but they all seems to share the following understanding of the call for police service:

  • Police received a call for police service.  It was classified as a 10-14 or disturbance call. (Para 89)
  • The complainant heard sounds – “it sounded like they were throwing each other around, isn’t sure if it’s fighting or….or playing. Could hear yelling, thumping, and banging. The complainant believed the tenants were fighting, sounded like someone being thrown up against a wall.” (Para 12). [similar description from another officer at para 60, and also at para 89]

Once they attended at the unit, they all agreed that:

  • the Accused opened the door (Para 62)
  • “The accused was not forthcoming with information and didn’t want them to have access to the suite. He stated that he was just playing around with his cousin, but didn’t want them to come in.” (Para 16) [similar description from another officer at para 62, and also at para 93]

The police entered the suite invoking their common law duty to ensure that nobody in the suite was in any kind of medical distress or in need of any assistance (Para 16)

Emergency Police Entry Powers

“I can do no better than to quote from the judgment of Ruddy Terr. Ct. J, in Gillingwater at paras 16 – 20 as follows: …

19 With respect to the first branch of the Waterfield test, the Court in Dedman (supra) noted “that at common law the principal duties of police officers are the preservation of the peace, the prevention of crime, and the protection of life and property” (p. 18). With respect to the second branch of the Waterfield test, the Court in Dedman (supra) noted that where the conduct in execution of a duty interferes with the liberty rights of an individual or the property of a private person, “[t]he interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.” (p. 19)

20 Subsequent cases have found police to have the legal authority to enter into a private dwelling without prior judicial authorization where such conduct is necessary to perform the duty to protect life. Many such cases have been in the context of 911 calls.” (Para 125)

“This Court in Al Jamail, dealt with the applicable legal principles relating to 911 calls and priority #1 calls at paras 36 – 40 as follows: …

39 The legal principles to be applied, in this case, are as stated by the SCC in R v Godoy (1998) 131 C.C.C. (3d) 129. Lamer CJC, delivering the judgment of the Court, at pp. 139-140 stated as follows:

In the case at bar, the forced entry into the appellant’s home was justifiable considering the totality of the circumstances. The police were responding to an unknown trouble call. They had no indication as to the nature of the 911 distress. They did not know whether the call was in response to a criminal action or not. They had the common law duty (statutorily codified in s. 42(d) of the Act) to act to protect life and safety. Therefore, the police had the duty to respond to the 911 call. Having arrived at the appellant’s apartment, there duty extended to ascertaining the reasons for the call. Acceptance of the appellant’s bald assertion that there was “no problem” would have been insufficient to satisfy that duty. The police had the power, derived as a matter of common law from this duty, to enter the apartment to verify that there was, in fact, no emergency. The fact that the appellant tried to shut the door on the police further contributes to the appropriateness of their response in forcing entry. As I have already discussed, the privacy interest of the person at the door must yield to the interests of any person inside the apartment. A threat to life and limb more directly engages the values of dignity, integrity and autonomy underlying the right to privacy than does the interest in being free from the minimal state intrusion of police entering an apartment to investigate a potential emergency. Once inside the apartment, the police heard the appellant’s wife crying. They had a duty to search the apartment and find her.” (Para 127)

“As I see it, by the very nature of the call, when the police are responding to a 911 or priority #1 call, an immediate response to and emergency situation can be inferred by the Court.” (Para 129)

“In my view, the above analysis relating to 911 calls, and analogous 911 calls, is 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 will have to examine all the surrounding circumstances, including the context of the complaint, and the situation at the residence on arrival by police.” (Para 130)

“I find the complaint received by the police in this case was not a 911 emergency call, or a priority #1 complaint or a domestic situation. I do not accept the evidence of Constable Hussey that it was a 911 call. He was not certain that it was, and when viewed along with the totality of the evidence, his evidence in this regard is not reliable.” (Para 133)

“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.” (Para 134)

“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.” (Para 137)

“The Crown has failed to satisfy me 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.” (Para 138)

Section 8 Charter violation found. (Para 139)

By |2018-12-25T21:58:59+00:00December 25th, 2018|Uncategorized|0 Comments

About the Author:

Pawel is a partner at Sitar & Milczarek. When he's not litigating he writes the Defence Toolkit blog.