R. v. Rohani Moayed Date:, 2013 BCPC 361

Citation: R. v. Rohani Moayed Date: 20131205 2013 BCPC 0361 File No: 202494-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAHBAR ROHANI MOAYED RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: A. Chan; M. Wiancko Counsel for the Defendant: M. Nathanson Place of Hearing: Vancouver , B.C.

Dates of Hearing: Feb 19 - 22; Mar 17; June 14; Aug 12-14, 28; Sept. 16, 2013 Date of Judgment: December 5, 2013 A Corrigendum was released by the Court on January 29, 2014. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] Rahbar Rohani Moayed (“Rohani Moayed”) is charged with unlawfully possessing cocaine for the purpose of trafficking on December 10, 2010, contrary to s. 5 (2) of the Controlled Drugs and Substances Act . Rohani Moayed pled not guilty and elected to be tried by a provincial court judge.

At trial Rohani Moayed raised a number of Charter challenges and consequently sought to exclude evidence garnered by the police. [ 2 ] On the evening of December 10, 2010, Vancouver police officers responded to a general broadcast on the police radio that a 911 call had been made by a man from a suite at 1277 Melville Street in downtown Vancouver. The caller reported that a number of men were banging on his suite door and trying to get in. The general radio broadcast was made to all police officers in the city; consequently, a number of police officers went to the apartment building at 1277 Melville Street.

Some police officers were involved in dealing with a group of men who were found outside the apartment building while others entered the apartment building and went up to Suite 2402 which was on the 24 th floor. [ 3 ] Two men came out of Suite 2402, one of whom was the caller, Rohani Moayed. Shortly after, they were taken into custody by police. At that point, those two men were not suspects. However, the police did not know what was going on or have a full picture of the situation, therefore the two men were detained for officer safety reasons.

The police officers who initially arrived on the 24 th floor took control of the area. Later, the emergency response team (ERT) arrived and entered and "cleared" the suite. In the process of clearing the suite two officers saw 10 to 20 "flaps" – that is folded pieces paper - which they believed contained drugs. As a result of this discovery the police applied for a search warrant for Suite 2402 which was granted by a judicial justice of the peace early the next morning.

When that search warrant was executed the police found drug paraphernalia and drugs, which included five bricks of cocaine each weighing slightly over 1 kilo. That discovery led to the criminal charge now before the court. CHARTER ISSUES [ 4 ] The defence alleges the following Charter breaches occurred and submits the evidence obtained by the police as a consequence of the entry into the suite and the subsequent execution of the search warrant should be excluded:

Section 8: • The initial entry by members of the ERT was a warrantless entry for which there was no basis and hence unlawful. • In the alternative, if the initial entry by ERT was not unlawful, the ERT exceeded the scope of the initial entry which was to check if there was anyone else inside the suite in need of assistance. • The warrantless entry and search of the suite by Constable Roycombough was unlawful as there was no basis for that entry. • The ITO was flawed on a facial and sub facial basis and, once the information gathered in the course of the warrantless searches is excised, the warrant would not have issued.

Section 9: • The initial detention of Rohani Moayed was unlawful. • The manner and duration of the detention of Rohani Moayed amounted to a de facto arrest and was unlawful. • The detention and arrest of Mr. Dourandish was unlawful and should be taken into consideration when evaluating the police conduct in the course of the investigation.

Section 10: • The failure to advise Rohani Moayed he was under arrest and/or the reasons for his arrest was a breach of s. 10 (a). • The failure to advise Rohani Moayed of his right to counsel upon arrest was a breach of s. 10 (b). • The attempt to elicit information from Rohani Moayed while he was detained and prior to being advised of his right to counsel was a breach of s. 10 (b). • The failure to implement his request for counsel when he was finally advised of that right was a breach of s. 10 (b).

BACKGROUND FACTS The radio broadcast [ 5 ] On the evening of December 10, 2010, at approximately 8:55 p.m., a Vancouver police emergency call taker received a 911 call from a man who identified himself as Rohani Moayed. The man reported that he lived at 2402-1277 Melville Street and there were some men banging at his suite door and trying to get in. He was in the suite with a friend.

Rohani Moayed continued talking to the 911 call taker and described what he saw and heard until the police arrived at the suite. [ 6 ] A general broadcast was made over the police radio to police officers in Vancouver that a 911 call had been received from a suite at 1277 Melville Street. The original radio broadcast and subsequent updates provided information to the police officers who were on their way to the scene.

That information included the following: a 911 call was made by Rohani Moayed, he told the 911 call taker that several men were banging on his door trying to get access, he thought one of the men may have a knife or a gun, he was inside the suite with a male friend, the men at his door had not gained access and, later in the call, he said the men had left the building. Details of the 911 call [ 7 ] During the 911 call Rohani Moayed spoke to a civilian Vancouver police emergency call taker. He provided the following information to the call taker. Rohani Moayed said he lived at 2402-1277 Melville Street.

Three guys were at his door trying to open it. Rohani Moayed was inside the suite with a friend. When he was asked by the call taker to check through the door peephole, Rohani Moayed said he could not see anybody, but he did not know if the men had left. Early in the call the call taker confirmed with Rohani Moayed that he was inside the suite, the door was locked, and he was safe. Rohani Moayed answered he was totally safe but told the call taker the men were back knocking on the door. The call taker asked if the men were banging on the door or trying to kick it open.

Rohani Moayed said they were banging on the door. [ 8 ] The call taker attempted to confirm whether the door was still closed. Rohani Moayed reported the men were back knocking / banging on his door. He also confirmed his door was still closed but he could see 4 or 5 guys. Rohani Moayed reported the guys had guns but when questioned about this he said he saw a gun or a knife. He was not sure but reiterated several times that he saw something in their hand. At one point Rohani Moayed and his friend, Mr. Dourandish, were both speaking to the call taker. They confirmed the door to the suite was closed.

At several points during the call Rohani Moayed asked for help. Rohani Moayed said he did not know who the men at his door were. [ 9 ] The call taker asked Rohani Moayed to give his buzzer number. Central dispatch was also on the line from time-to-time and asked if there were still three men. Rohani Moayed responded he thought the men had left after he told them he was calling 911. He said there were four men. It appears that Rohani Moayed may have hung up and the call taker called back. Rohani Moayed told the call taker he thought the men had gone. He said he did not want to open his door.

Rohani Moayed was asked to provide a description of the men who had been at his door. He recalled one white male and one black male. He said they were wearing dark hoodies. The call taker told Rohani Moayed that the police were in the area. He asked him to stay on the line. Someone from central dispatch also asked him to stay on the line and said they would let Rohani Moayed know when the police were coming up. [ 10 ] Central dispatch asked Rohani Moayed if he could hear the men at the door. He said “no”.

The call taker also asked Rohani Moayed to stay on the line and to keep talking so he could ensure Rohani Moayed was safe. Rohani Moayed told the call taker he was safe, totally safe, with his friend there with him. Several times during the call Rohani Moayed provided his full name and his date of birth when requested to do so by the call taker. He also provided his cell number. The call taker asked how many people were in the suite. Rohani Moayed said he was in the suite with one other person and his two small dogs. Rohani Moayed told the call taker he could go outside.

He said "I don't want you guys coming in". [ 11 ] It appears Rohani Moayed ended that call when central dispatch told him they were going to buzz him in two seconds. There was either a new call or continuation of the earlier call during which the call taker checked to see if the police had arrived. He asked Rohani Moayed to stay on the phone until he knew he was speaking with the police directly. Central dispatch commented they were going up and would be up in a second. After waiting a short while, Rohani Moayed, said the police had not come up and he wondered why as he had buzzed them up.

The call taker told Rohani Moayed to stay on the phone in case they had trouble getting into the building. He told Rohani Moayed they were inside the building but could not get up the elevator. The call ended with the dispatcher saying there may have been a problem with the buzzer and they would try again. En route to Melville Street [ 12 ] A number of police officers with the Vancouver Police Department responded to the radio broadcast. ERT officers also responded but they were not the first to arrive at the Melville Street apartment building.

In addition to the initial broadcast about the 911 call, other radio broadcasts (which included broadcasts from fellow officers on their way to or who were already at the scene), and transmissions via police computer were made which provided updates on the incident while officers were en route to the scene. [ 13 ] Constable Jaswal and his partner Constable Southworth initially received information about the 911 call at approximately 8:56 p.m. They arrived at the Melville Street apartment building at approximately 9:06 p.m. Constable Jaswal said the dispatch he received was for a break and enter in progress.

It was his understanding the victim was Rohani Moayed and he had made the 911 call from inside the suite. By the time Constable Jaswal and his partner arrived at the Melville Street apartment building, he understood that the men who had tried to break in had left the building. They were in police custody and other officers had found a firearm outside the building. [ 14 ] Constable Southworth recalled that the 911 call related to suspicious circumstances. He received information that several people were banging on the suite door and the caller thought one of them had a gun or a knife.

Constable Southworth said before he and Constable Jaswal arrived at the scene they received a radio update that other police officers, who had arrived outside the Melville Street apartment building before them, had taken several suspects into custody and found a "live firearm" on one of the suspects. Constable Southworth also recalled that Constable Jaswal told him he thought the 911 caller was Rohani Moayed. Further Constable Jaswal told him Rohani Moayed may be linked to gang crime.

[ 15 ] Constable Hatchman was on patrol that evening with a narcotic detecting dog. He went to the Melville Street apartment for a home invasion/gun call. Constable Hatchman arrived at the scene between 9:00 p.m. and 9:10 p.m. He had information that the occupant of the suite had called 911 and reported men trying to get into the suite, one of whom may have had a gun. He also heard that: four men had been observed leaving the building, a gun had been recovered and the men had been taken into custody.

From the radio broadcast he also learned that two individuals associated to the suite were in custody. [ 16 ] Constable Gregoriou was working with Constable Roycombough that evening. At 8:56 p.m. he heard a radio call that four men were fleeing from an apartment complex and a gun had been recovered. He and his partner headed to the Melville Street apartment building. Constable Gregoriou said he received a dispatch while en route to the effect that Rohani Moayed lived at that apartment and he was a gang member and considered to be armed and dangerous. At approximately 9:12 p.m.

Constable Roycombough and Constable Gregoriou arrived at the scene. [ 17 ] Constable Ramirez was the acting road sergeant that evening. As such he was in charge. He too recalled that the call came over the police radio at approximately 8:55 p.m. Other information he obtained via radio broadcasts was that at 8:58 p.m. the caller told the 911 operator he heard the doorknob to his suite turning and the men were banging on the door to his suite. At 8:59 p.m. the caller told the 911 operator he saw something in one male's hand, either a gun or knife. The caller did not recognize any of the four males at his door.

The caller also reported to the 911 call taker that he saw the men leaving the floor. Constable Ramirez acknowledged that the information provided to him and other officers via radio broadcast was that four people were banging on the suite door and then they left. [ 18 ] Before Constable Ramirez received that information, he had already set up police containment outside the apartment building on Melville Street. At the time he heard the radio transmission that the people at the door were leaving, police officers were already in place to take whatever action was necessary.

Constable Ramirez acknowledged he received information from officers doing the containment on Melville Street that four men matching the description provided by the 911 caller were walking out of the building and were starting to walk eastbound on Melville Street. Constable Ramirez then instructed the officers doing the containment on Melville Street to arrest those four men. [ 19 ] Constable Ramirez said when the four men outside the apartment building were taken into custody officers recovered a gun, zap straps, clubs, and a ballistic vest.

He received that information via a radio broadcast from the officers who arrested the four suspects on the street. That information together with other information he received from officers on the 24 th floor; namely, that there was blood on the wall, heightened his concern that someone was either hurt or held inside the suite. However, in cross-examination Constable Ramirez agreed that the police had heard nothing to suggest the intruders had gained entry into the suite. He also agreed that the information the police had from the caller was to the contrary, that is, that the men had not gained entry. [ 20 ] In

summary, the information available to police officers via radio broadcasts was that four men had been taken into custody outside the Melville Street apartment building and a firearm had been recovered from one of them. This information was known to Constable Ramirez who was the acting road sergeant in charge and by other police officers, including; for example, Constable Jaswal, Constable Hatchman, Constable Southworth, Constable Chapman, and Constable Gregoriou, before they went to the 24 th floor.

Entry to lobby and 24 th floor [ 21 ] As already noted, a number of officers arrived at the Melville Street apartment building in response to the 911 call but they remained outside the building for a period of time because they could not gain entry to the building lobby. One officer estimated the wait was approximately 5 to 10 minutes, whereas another officer estimated they waited about 10 to 15 minutes. During that time officers made repeated attempts to gain entry to the apartment building.

They eventually gained entry to the lobby of the apartment building but again had to wait for approximately 5 minutes or so for an elevator access fob that would allow them to go up to the 24 th floor. [ 22 ] Constables Jaswal, Southworth, Birnbaum, Roycombough and Gregoriou all rode up the elevator to the 24 th floor. As they were travelling up to the 24 th floor Constable Jaswal had a discussion with the other officers. He told them he understood Rohani Moayed was associated to Persian organized crime. He told them that earlier that day, (i.e. 4:00 a.m.

December 10, 2010) associates of Rohani Moayed had been targeted in a shooting in Coquitlam. Constable Jaswal said due to the ongoing gang war in Vancouver at that time Rohani Moayed was to be considered armed and dangerous in accordance with police and intelligence files. [ 23 ] When the officers got out of the elevator at the 24 th floor two men were standing outside Suite 2402. Constable Jaswal immediately recognized one of the men as Rohani Moayed because he had dealt with him before. Constable Jaswal acknowledged he knew it was Rohani Moayed who had made the 911 call to the police.

Rohani Moayed was standing just outside the door of the suite and his friend Mr. Dourandish was standing behind him. The door to the suite was open or at least ajar. There was a minor discrepancy in the recollection of the various officers about whether the suite door was open or closed. Constable Jaswal said the door was open. Constable Southworth initially said it was "partially open". However, he later said he did not recall whether the door was closed all the way or whether it rested against the door jamb.

He said: "but certainly the door was facing me and it seemed to be closed to me". [ 24 ] According to Constable Jaswal the two men were in the hallway just outside the door to the suite; the two men were standing in the doorway of the suite. Rohani Moayed was on his cell phone looking at some broken glass outside the door to the suite and Mr. Dourandish was holding a can of beer. Constable Gregoriou also saw two men in the hallway. They were quite frantic: one was holding a Blackberry and the other a can of beer. He noticed markings all over the suite door which was partially open.

According to Constable Roycombough, when the elevator door opened he saw the door to the suite begin to open and two men begin to exit through the door. According to Constable Hatchman, he arrived on the 24 th floor at about 9:19 p.m. An officer was standing by the suite door. The door was slightly ajar. [ 25 ] Constable Southworth noted a large amount of white plastic on the floor in the hallway. The cover to a light in the hallway was missing and the welcome mat in front of the door to the suite was askew. This gave him the impression there had been a violent struggle at that door.

[ 26 ] Constable Ramirez said he was advised that Rohani Moayed and his friend had walked out of the suite into the hallway. He directed the officers who were on the 24 th floor to arrest both of them. He acknowledged that when he did so he was still dealing with the 911 call. He was not having them arrested for an offence at that time. [ 27 ] Several officers ordered Rohani Moayed and Mr. Dourandish to get down on the floor. Constable Jaswal ordered Rohani Moayed to spread out on the floor and another officer placed handcuffs on Rohani Moayed and Mr. Dourandish. Constable Jaswal did this for officer safety.

He was not aware of the circumstances of the incident, therefore the two men were "put in custody". He took this step based on the information he had about what had occurred at the scene and the knowledge he had about Rohani Moayed. Constable Jaswal was concerned there might be more firearms or other weapons in the suite and that Rohani Moayed and Mr. Dourandish might possess weapons. He was also concerned because he did not know if there were other occupants, victims, or suspects in the suite at the time. Constable Gregoriou also said he ordered both men to the ground.

He did not have any physical contact with them and did not know what happened to them after that. [ 28 ] Constable Jaswal said Rohani Moayed and Mr. Dourandish were being detained for officer safety reasons only. They were not being charged. Although there was an ongoing investigation about what had occurred outside the apartment building and at the suite door, he did not suspect Rohani Moayed or Mr. Dourandish of any specific offence.

Constable Jaswal acknowledged he believed Rohani Moayed's role in the incident being investigated was that Rohani Moayed was the victim of a break and enter/home invasion. [ 29 ] Constable Southworth assisted in putting handcuffs on Rohani Moayed. He did so because there was evidence of a violent act at the front door and a firearm had been found outside the building along with a number of suspects. Until the police could figure out who these people were, how they were involved, and what sort of safety risk there might be, Constable Southworth felt it was best to have them in handcuffs.

In cross- examination he acknowledged that at one point, after he arrived on the 24 th floor, he was going to go into the suite to clear it. However, he did not do so because he heard a radio broadcast advising they should wait for ERT. He agreed with defence counsel’s suggestion that even before he had any conversations with Rohani Moayed on the 24 th floor (and later on the 25 th floor) the decision had already been made to go into the suite. [ 30 ] Constable Southworth conducted a pat down search on Rohani Moayed. He was looking for weapons but found none.

Nevertheless, Constable Southworth kept Rohani Moayed in handcuffs because there was still the possibility of danger from the suite, and the possibility there were other suspects somewhere in the apartment building. He did not know who Rohani Moayed was or how he played into the situation. Constable Southworth acknowledged Rohani Moayed was not being detained for a criminal investigation but because the police were trying to figure out exactly who he was, how he was involved, and for their safety while they figured that out.

At that point Constable Southworth had a conversation with Rohani Moayed who wanted to know why the handcuffs have been put on. Constable Southworth told him it was for officer safety while they tried to figure out what was going on. [ 31 ] Constable Southworth took Rohani Moayed away from the entry door of the suite, down the hallway and around the corner from the suite. He thought that location was much safer than standing in front of the suite door. Mr. Dourandish was moved there as well but it is not clear which officer took him there. Constable Southworth stayed with Rohani Moayed and Mr.

Dourandish in the area down the hallway from the suite for approximately 10 to 15 minutes. Constable Southworth identified Rohani Moayed through a driver’s licence he found in Rohani Moayed's pants pocket. However, the address on the driver’s licence was different than the Melville Street apartment address. Rohani Moayed told Constable Southworth that apartment 2402-1277 Melville Street was his new apartment.

Constable Southworth was satisfied the man he was dealing with was Rohani Moayed and that he was the person who had called 911. [ 32 ] While he was waiting for ERT to arrive, Constable Southworth wanted to get information. He said he was not able to get a lot of details from Rohani Moayed. Their conversation was not very extensive. He was trying to get information from Rohani Moayed so he could determine what situation the police were dealing with and how Rohani Moayed played into it.

At that point Constable Southworth believed Rohani Moayed was the complainant who had called the police and he likely lived at that suite, however, he was not going to just take Rohani Moayed’s word for it. Constable Southworth kept Rohani Moayed in handcuffs because the police were still dealing with dangers from the suite and other dangers beyond the suite itself. The scene still needed to be controlled.

Until there was some control of the scene he wanted to have control over Rohani Moayed for officer safety. [ 33 ] During the conversation with Rohani Moayed, Constable Southworth tried to get basic information such as what happened, a description of the people who had been there, and so on. However, in his view, Rohani Moayed provided very little information. Rohani Moayed could not describe the persons who had been at the door, and could not provide information as to how or why they tried to get into the suite.

Constable Southworth felt Rohani Moayed was not being forthcoming with information or entirely cooperative. He did not believe Rohani Moayed was trying to give all the information he could. Constable Southworth did not provide Rohani Moayed his Charter rights because he was not under arrest for any crime. [ 34 ] Constable Southworth was with Rohani Moayed and Mr. Dourandish on the 24 th floor, down the hall from the suite, for about 10 or 15 minutes. When the ERT arrived they told Constable Southworth to move to the 25 th floor so that he and the detainees would be in an even greater place of safety.

Constable Southworth said ERT asked pretty much everyone, including other officers, to move up to the 25 th floor. [ 35 ] Once they were on the 25 th floor, Constable Southworth again tried to explain to Rohani Moayed why he was in handcuffs and why the police had to search the suite. Constable Southworth said, although Rohani Moayed told him there was no one inside the suite, given the violent circumstances he believed the police still had a duty to go and make certain there was no one injured inside. Constable Southworth kept Rohani Moayed handcuffed because of officer safety reasons.

The police were still dealing with the suite and he felt he needed to have some control over Rohani Moayed. Further, he did not feel Rohani Moayed was giving very good answers or being cooperative. Constable Southworth estimated they were on the 25 th floor between 10 to 20 minutes. [ 36 ] At approximately 8:55 p.m. Constable Chapman, who was acting sergeant for the ERT team that evening, heard the radio broadcast regarding a report of a home invasion and/or a weapons call in progress at the Melville Street apartment building. He received

information that three or four men had entered the apartment building on Melville Street and had gone to the 24 th floor. He also received information that a caller from Suite 2402 had called 911 and reported a crime in progress. While en route to Melville Street he received information via police radio that three men had been taken into custody and a gun had been recovered from one of those men.

Additionally, he received information that other officers had gone up to the 24 th floor of the apartment building and had subsequently "taken into custody" two individuals who were somehow associated to Suite 2402. [ 37 ] Constable Chapman, along with other members of the ERT, arrived on the scene at 9:25 p.m. Constable Chapman and other ERT members went to the 24 th floor. After the ERT arrived on the 24 th floor, Constable Chapman assumed control of that immediate area. He saw several other officers on that floor but did not see the people who had been taken into custody on the 24 th floor.

He did not deal with those men directly. Instead he asked Constable Proust to interview one of the men who had been taken into custody on the 24 th floor. The purpose of that interview was to elicit any information about what had happened, to determine if there were any other occupants inside Suite 2402, and to determine if there were pets and/or any injured parties in the suite requiring immediate police and/or medical assistance. Constable Proust left and was gone approximately 3 to 4 minutes.

When he returned he told Constable Chapman he had no real information about what had transpired on the 24 th floor or inside the suite. [ 38 ] Constable Chapman decided to do “a knock and announce”. This occurred over a period of 3 to 4 minutes. He did not believe the suite door was locked, in fact, it may have been ajar. During that time Constable Chapman heard no sounds coming from the suite. He was not able to see any movement or shadows under the closed door. Constable Chapman and other members of the ERT entered the suite and conducted a search.

After the initial search was concluded Constable Chapman directed the ERT members to conduct a secondary search. The entire search process, both primary and secondary, lasted approximately 15 to 18 minutes. At 10:01 p.m. the ERT members left the suite. Constable Chapman directed Constable Jaswal to lock down and guard the suite. Details about Constable Chapman’s decision to enter suit [ 39 ] After the “knock and announce” Constable Chapman made the decision to enter Suite 2402. He did so because he believed he had a common law duty to protect the public and property.

At least five people were in custody and he had no idea how they related to Suite 2402. He also knew one weapon had been recovered. He had no idea what had transpired on the 24 th floor. He felt it was his duty to enter the suite to determine if there were any other parties in the suite in need of immediate medical attention. Secondly, given the significance of the reported crime; namely, a home invasion, the parties in custody, and the weapons recovered, an immediate follow-up investigation would be conducted. He was aware of this from his past experience.

Constable Chapman therefore believed it was his duty to also make sure the suite was safe for them and ensure there were no other parties lying in wait when police entered at a later time to conduct their business. Constable Chapman believed there were exigent circumstances to enter the suite to look for any additional persons. [ 40 ] In cross-examination Constable Chapman said he believed he had discussions with some police officers when he arrived on the 24 th floor. He asked them what had happened but he did not receive any relevant information from any of them.

He could not remember specifically what they told him. He had no notes about those conversations in his notebook. He made no direct efforts to speak to the two men in custody but asked Constable Proust to do that. Aside from speaking with Constable Proust, he also spoke to other officers to try to determine any connection the two persons in custody may have had to the suite. He did not recall who those officers were or the nature of the conversations. [ 41 ] Constable Chapman did not know that one of the two people in custody was the occupant of the suite and the person who had called 911.

He did not recall if he asked anyone else about the relationship the two people in custody might have had to the 911 caller. He did not have a conversation with the 911 caller and did not know where that individual was. He was aware however that the 911 call was made by the occupant of the suite and that the caller reported people were trying to get into his place. He agreed the caller would be the best person to tell him who had been in the suite or who was in the suite. However, he did not know where that person was. He had no conversation with other officers at the scene about what they had seen or heard.

He acknowledged that the two people in custody had "an association" to the suite. Other than that, he did not know what their relationship to the suite was or if one of them was the person who called 911. He did not know if the two people in custody had been in the suite. It was possible he may have been told they had come out of the suite but he did not recall if he was told that or not. He agreed that, if he had been told, that he or one of the team members would want to have discussions with the people who had been inside the suite.

Constable Chapman agreed it is common practice and procedure for other officers on the scene to provide as much information to him as they could so he could do his job effectively. That is probably what happened in this case but he did not recall who told him what or when at the scene that evening. [ 42 ] Constable Chapman estimated there was a 6 to 10 minute wait between the time the ERT arrived on the 24 th floor and the time they entered the suite. During that entire time he did not hear any sounds inside the suite. He did not see any movement within the suite.

He did not hear any cries for help or moans or groans or anything like that. He did not have any indication whatsoever that there was anyone in the suite. He agreed he had not received any information either personally or from others that indicated there was anyone in the suite. [ 43 ] During that waiting period Constable Chapman took no steps to contact police dispatch to find out more details about the 911 call. He did not recall if any of the ERT members did so. He agreed such information would be an important piece of the puzzle.

He did not directly interview the two persons taken into custody but did he speak to other officers to ascertain whether they had been seen coming out of the suite. He knew they were associated to the suite but that was all. He did not ask the officers who had dealt with the two persons taken into custody inside the apartment building or the persons taken into custody outside the apartment building to find out how they had come in contact with them and what the officers’ beliefs were about who these people were. [ 44 ] Constable Friesen also testified about the entry into the suite.

He and his partner Constable Proust were members of the ERT. They met the rest of the team at 1277 Melville Street. The information he had when he arrived at the scene at 9:22 p.m. was that their

attendance had been requested because of a home invasion and a gun was involved. At least two males had been arrested and "the believed victim targets" had been identified. He arrived on the 24 th floor and at some point, he did not recall when, saw a man in handcuffs on that floor. He was directed by Constable Chapman to clear the suite for people who might be hiding or for injured victims. The ERT made numerous announcements and when no one came out they entered the suite.

They were in the suite approximately 20 minutes. [ 45 ] Both Constable Chapman and Constable Friesen testified they each separately searched a storage closet just off the main hallway in the suite. Both of them testified they saw a safe on a bookshelf in the storage closet. The safe door was open. Inside the safe they saw what they believed to be 10 to 20 flaps of drugs. Constable Chapman and Constable Friesen each believed that he was the first person to search the storage closet and to see blue flaps that may have contained drugs.

The discovery of the drugs was broadcast over the police radio while the ERT members were still doing their search. On leaving the suite both Constable Chapman and Constable Friesen told Constable Jaswal about what they had seen. [ 46 ] While the ERT officers were in the suite Constable Hatchman heard a radio broadcast. He recognized the voice on the radio as that of Constable Kempton. The broadcast was to the effect that "there was dope in plain view".

After hearing that drugs had been observed in the suite, Constable Hatchman went to the 25 th floor and told Constable Southworth that Rohani Moayed was to be arrested for possession of narcotics. At 10:08 p.m. Constable Southworth arrested Rohani Moayed for possession of narcotics. A few minutes later at 10:10 p.m. Constable Southworth arrested Rohani Moayed for possession for the purpose of trafficking.

Rohani Moayed was then taken to the Vancouver police detachment. [ 47 ] After the flaps were found in the storage room of the suite, Constable Ramirez, the acting road sergeant that evening, asked Constable Roycombough to be the affiant and to prepare an ITO for a search warrant for the suite. Constable Roycombough had not applied for a search warrant before so he sought advice from Constable Ramirez. Constable Ramirez told Constable Roycombough to enter the suite to see for himself what Constable Friesen had observed. Constable Roycombough entered the suite to make that observation.

He did not recall what room he went to but recalled seeing flaps inside a safe. He did not go through the whole suite. He was only in the suite well under a minute – as long as it took him to walk to the room, observe the flaps, and leave. [ 48 ] In cross-examination Constable Roycombough said he was assigned the task of being the affiant for the search warrant by Constable Ramirez. This was before he went into the suite. Constable Roycombough told Constable Ramirez he had never been an affiant for a search warrant and was not familiar with the process. He asked for Constable Ramirez’s direction and guidance.

He was told to go inside the suite and observe what Constable Friesen had seen in plain view. Constable Roycombough said he was not told why he should do that. [ 49 ] Constable Roycombough was closely questioned by defence counsel about why he went into the suite and whether it was his intention to gather evidence that could be used in his search warrant application. He denied this was his intention because the grounds already existed based on Constable Friesen's observations. He repeated several times that he did not know why he was told to go and observe. He was still unsure why he was given that direction.

He had no idea why he was going in there. He implied that when a senior officer advises you to go in, you do it. Constable Roycombough knew this was a private residence and that the owners or occupiers had expectations of privacy. He also knew that police officers need a warrant to go into a private residence except in very limited circumstances. He acknowledged he entered the suite without a warrant.

He did not know what authority he had for going inside the suite. [ 50 ] Later in cross-examination Constable Roycombough acknowledged he knew he was going into the suite to look at evidence that was to be the subject matter of the application for a warrant. He acknowledged he was going into the suite to attempt to gain evidence; namely, to look at what Constable Friesen had already observed. After further questioning he said he did not believe he went into the suite to gather evidence because he already had the evidence from Constable Friesen.

He went into the suite pursuant to a direction to confirm and observe what Constable Friesen had observed. He did not believe that constituted gathering evidence for the ITO as the evidence already existed. He acknowledged, based on what he now knows, that his actions constituted gathering evidence. [ 51 ] Constable Roycombough agreed he knew of no law, either statute or common law, that allowed him to go into the suite. However, he went in regardless because his concern at the time was how he was going to compile a warrant.

He had asked a senior officer for direction and felt the officer would not have given any sort of direction that would create an issue. It did not occur to him, at the time, to ask anyone about the legal basis for his entry into the suite. He did not know any better at the time. He did not pay attention to the issue of the legal basis for his entry at the time. [ 52 ] Constable Ramirez acknowledged that he asked Constable Roycombough to be the affiant and to prepare an ITO to obtain a search warrant for the suite. He recalled having a conversation with Constable Roycombough in the lobby of the apartment building.

He did not recall Constable Roycombough asking him any questions about what he was supposed to do. He did not believe Constable Roycombough expressed concerns that he was not qualified. Constable Roycombough did not raise any concerns or reservations but was ready, willing and able to take on the preparation of the ITO. However, Constable Ramirez knew that Constable Roycombough had not prepared a search warrant before. [ 53 ] Constable Ramirez confirmed he did ask Constable Roycombough to go into Suite 2402 and look at the flaps so that he could better describe them.

Constable Roycombough knew about drugs and would know what a flap looked like and what it may have contained. Constable Ramirez wanted Constable Roycombough to paint a better picture. Constable Ramirez was pressed by defence counsel who suggested the reason he asked Constable Roycombough to go into the suite was because he wanted to strengthen the grounds for the issuance of the search warrant. Constable Ramirez denied that was the reason. When pressed on this point, he said: “a flap is a flap”.

He wanted Constable Roycombough to look at them and describe them to the judge instead of having to write more information in the ITO. [ 54 ] Constable Ramirez acknowledged that Constable Roycombough had no authority to enter the suite. Constable Ramirez knew this at the time he gave him the direction to do so. Constable Ramirez also acknowledged there was no lawful authority for Constable Roycombough's entry and what he directed Constable Roycombough to do was contrary to the law. He acknowledged, given his training

and experience as a police officer, that he knew he is not allowed to go into a private residence without a warrant except in certainspecified circumstances such as emergency or exigent circumstances. Constable Ramirez said he made a mistake. He realized thatsometime after the fact but did not draw that point to anyone's attention. POSITION OF PARTIES ON ENTRY INTO SUITE The Crown’s position on ERT entry [55] The Crown acknowledges it has the burden of establishing the initial warrantless entry and any subsequent warrantless entrieswere lawful. It argues that these types of cases are very fact driven.

Accordingly, in determining whether the entry was lawful, the courtmust consider the actions of the police in context. In order to do so the Crown urges the court to consider what the police knew about thecall and the caller as they made their way to Melville Street and what the officers learned once they arrived at the scene. In particular, Iam urged to consider the following information that was known to the police through the radio broadcast. This was a 911 call of a seriouscrime in progress. It was broadcast over the police radio at 8:56 p.m.

The call was described by officers as: a break and enter, a possiblehome invasion, a weapons call in progress possibly involving a gun. There were a number of men banging at the suite door trying to get in. The police knew a number of men were on the 24th floor and that one of them had a gun or a knife. This call related to a crime inprogress and not to a crime that had already happened. [56] The Crown submits the type of call that led to the police going to Melville Street is also an important factor. Therefore the courtshould consider the following circumstances.

This was designated as a “priority one” call which means the police must respond as soonas possible. The call was broadcast over every police radio channel in the city. The significance of a priority one call is that it shows theincident was considered to be serious. Many police units arrived on the scene within minutes of the radio transmission. They arrivedoutside the apartment building at approximately 9:06 p.m.

Resources were diverted from other calls as this call was the highest priority. [57] The Crown further submits that the information available to police officers before they arrived on scene is significant. Before police arrived on the 24th floor, other officers had seized a gun from a group of four men who had been seen leaving the building. Thosemen were seen in the rear lane of the apartment building and one of the four men attempted to get rid of a gun. The gun was a "live gun".Once the gun was recovered this became a very high risk priority one call.

The potential for violence was known to the police even before they went to the 24th floor. [58] The Crown further submits that the information the police had about the caller is also very relevant in assessing the decision toenter the suite. The caller was suspected to be a gang member who was considered armed and dangerous. Earlier that day the gang withwhich the police believed he was associated had been the subject of a targeted shooting. Constable Jaswal had searched Rohani Moayed'sname in the police system via computer and learned that Rohani Moayed was involved in Persian organized crime.

Constable Jaswal gave that information about the caller to the officers who were with him in the elevator travelling to the 24th floor. Constable Gregorioualso testified that while he was en route to the scene he heard that Rohani Moayed lived at that suite, he was considered to be a gangmember and armed and dangerous. [59] Last not least, the Crown urges the court to consider what the officers learned when they arrived on the scene. On arriving atthe building the police learned it was a high-security building. They also learned a fob and key had been found on one of the four men outside the building.

It was likely that the men apprehended outside had been on the 24th floor and possibly had entered Suite 2402 as they had a fob and a key to that apartment. On arriving at the 24th floor police officers encountered two men, one of whom was describedas quite frantic. Rohani Moayed was on his cell phone and Mr. Dourandish was standing behind him. The police officers saw signs of arecent struggle at the entry door to the suite (e.g. jagged pieces of glass on the ground right outside the door and welcome mat askew).There were also "markings" on the suite door.

All officers described the situation a dynamic situation – chaotic and high stress. Theidentification produced by Rohani Moayed showed a different address, not the one on Melville Street. When the ERT arrived, ConstableChapman sent Constable Proust to get more information. Constable Proust came back and told Constable Chapman he had no realinformation. He did not know if anyone else was in the suite. Constable Southworth said Rohani Moayed was not forthcoming withdetails about the assailants. All officers said their concern was whether there was someone in the suite who needed assistance.

They wereconcerned about protection of life and public safety. [60] The Crown relies on R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, and submits that the principles set out inGodoy apply to the instant case and support the appropriateness of the warrantless entry into Rohani Moayed's suite.

The Crown relieson Godoy for the following propositions: • Police have the authority to fully investigate 911 calls. • Even without the indicia of criminal activity, the court in Godoy held it was imperative for the police to investigate. • In the instant case there was clear evidence of criminal activity; namely, a home invasion. • Even if a person at a residence tells the police there is no problem, the police are still entitled to investigate. • The police are not obliged to simply accept a person's assertion that all is “okay”. [61] The Crown submits that in cases decided since Godoy the courts have dealt with different situations and have tried to balanceprivacy interests with the ability of police to fulfil their duty to protect the public.

The courts have pulled back from applying Godoy incases where there was no underlying criminal activity; for example, where there was no mention of firearms or weapons and where thesituation did not involve a serious crime in progress. In the instant case the Crown submits there was a serious crime in progress. Thatcrime involved a firearm and therefore the police had a duty to enter the suite to ensure no one was injured inside and in need ofassistance.

[ 62 ] In

summary, the Crown argues the court must consider the particular facts of this case. This was a serious case involving a possible home invasion. Men were found outside the apartment building and one of them had a firearm. There were signs of a struggle outside the suite door and police officers were concerned about whether someone was inside the suite in need of assistance.

The Crown notes that Constable Chapman gave several reasons for the entry; namely, to see if anyone needed medical assistance, because of the seriousness of the circumstances there would be a further investigation , to make the suite safe, and because there were exigent circumstances. The Crown argues that the first point mentioned by Constable Chapman; that is, to see if there was anyone inside the suite who needed medical assistance, is sufficient to justify the entry.

The fact he may have had other reasons for the entry is not material. [ 63 ] The Crown also argues that the decision to enter the suite must not to be assessed ex post facto with the benefit of hindsight and a 911 call transcript. The Crown argues the court needs to consider that this was a dynamic, fast-moving, high stress, and high danger environment. In these circumstances the police could not have taken other steps. The cases where the courts have found police should not have entered without a warrant are distinguishable on their facts.

They are cases where the court did not accept that there was a concern for injured parties, or cases where the court did not find an objective basis for the officers’ belief that there was someone potentially injured inside a residence. [ 64 ] Anticipating arguments that would likely be made by the defence, the Crown notes the evidence that there were only two people inside the apartment came from Rohani Moayed and not from any other source. There was no evidence that Mr. Dourandish offered that information. In the circumstances the responsibility on the police was to err on the side of caution.

Further, although the police treated Rohani Moayed as the victim or the complainant, they were not obliged to take his word that there was no one else in the suite. In this regard it was significant that his driver’s licence did not have the Melville Street address. The Crown argues that the fact four men had been taken into custody outside the building was not determinative. The police would be irresponsible if they themselves did not verify that no one else was inside the suite.

Given that a fob and key had been found on the suspects outside, it was important for the police to verify that no one had gained access. Moreover, there was no way for the police to know whether the gun seized from the men outside was the only gun. [ 65 ] The Crown also argues that, in reaching a decision on this matter, the court should focus on what the police officers knew and not simply on the information that was contained in the transcript of the 911 call.

The Crown argues that the court should not consider what was in the transcript of the 911 call unless there was also evidence that the police knew the same information. However, the Crown says, even if the details of the 911 call as recorded in the transcript were accepted, there was still sufficient reason for the police to enter the suite.

The evidence to support entry included, but was not limited to: the fact that the caller initially was not sure if the men had left, the fact that the caller was not clear about how many men were at his door, the absence of reasonable investigative alternatives, the fast- moving situation which raised concerns for public safety, and the fact a firearm was recovered which suggested it was possible someone inside could be injured. The Crown notes that police must err on the side of caution in situations where public safety is involved.

It submits a finding that the police should not have entered the suite in the circumstances of this case will have a chilling effect on the power of the police to respond to serious crimes in progress. The defence’s position on ERT entry [ 66 ] The defence agrees that cases such as this, where s. 8 Charter breaches are raised, depend on their specific facts. Not surprisingly, the defence perspective of the facts is different from that advocated by the Crown. The defence position is that 911 calls do not grant carte blanche to the police to conduct warrantless searches.

A search pursuant to a 911 call must be shown to be reasonably necessary in light of the circumstances. The defence acknowledges the police must have a subjective belief but, more importantly, an officer's subjective belief must be based on objective evidence.

Moreover, the defence argues, before undertaking a warrantless search in the context of a 911 call the police have a responsibility to consider alternate avenues of investigation. [ 67 ] The defence submits that once the police found Rohani Moayed outside his suite and confirmed he was the 911 caller, that he no longer needed assistance, and that there was no one else inside the suite, the police should have ended their investigation. They should not have searched the suite without a warrant.

The defence argues the police had sufficient information available to them to conclude that a search of the suite was not necessary. That information included the following facts. The police knew from the 911 call that Rohani Moayed was the caller. The police knew that people were outside the door trying to get in but they did not gain access. The police knew that Rohani Moayed was inside the suite with a male friend. Rohani Moayed told them he was safe. He also told them, when they announced they were in the building, that he did not want them coming into the suite.

The police knew that four men had been taken into custody outside the apartment building. A gun was recovered from one of those men as well as a key fob which gave access to the 24 th floor. It was believed those four men were the ones who had been trying to get access to Rohani Moayed's suite. Rohani Moayed remained on the line with the 911 call taker continuously until the police arrived on the 24 th floor. He came out of the suite door with his cell phone in his hand. Mr. Dourandish was with him holding a can of beer. The suite door remained open, albeit it might have been ajar.

At least one of the officers recognized Rohani Moayed because he had dealt with him before. Rohani Moayed complied with police directions when they ordered him to the ground. [ 68 ] Both Rohani Moayed and Mr. Dourandish were handcuffed and subjected to a pat down search. Rohani Moayed's identity was confirmed through his driver’s license. Rohani Moayed provided some information to police. There were no reports or any indication whatsoever from the caller that any shots had been fired. The scene was secured within minutes of the police officers’ arrival on the 24 th floor.

While waiting outside the suite, none of the officers heard any noises, cries, screams or other indications that anyone was inside the suite. [ 69 ] The defence argues that the initial warrantless entry by ERT is a flagrant breach of Rohani Moayed's s. 8 Charter rights. This breach alone is sufficient to lead to the exclusion of the evidence under s. 24 (2) of the Charter . The defence argues there was no reason for police to enter Rohani Moayed's suite without a warrant. The police rushed to judgment and their subjective beliefs about the situation were not objectively reasonable.

The defence acknowledges that Godoy identifies a narrow exception for a warrantless entry in certain circumstances when police are responding to a 911 call. However, that exception is narrow and a 911 call does not give police a carte blanche to enter a private residence. The defence relies on R. v. Jones , 2013 BCCA 345 , a case recently decided by our Court of

Appeal, which the defence asserts is dispositive of the issue in the matter before me. The defence urges the court to consider 911 casesdecided post-Godoy in light of Jones and the comments made therein by our Court of Appeal. [70] The defence argues that the information available to the police at the time, considered objectively, should have led them toconclude that Rohani Moayed and Mr. Dourandish were not in immediate danger, that there was no one else (either a victim or a suspect)inside the suite and that there was no reason to search the suite.

The defence further argues that Constable Chapman, who was leadingthe ERT, assumed the worst case scenario and made a decision to enter the suite without: having meaningful discussions with otherofficers already on the scene, making inquiries about the nature of the 911 call, inquiring about the relationship between Rohani Moayedand Mr. Dourandish and the suite in question, speaking to Rohani Moayed and Mr. Dourandish and taking other reasonable investigativesteps that were available. [71] In

summary, the defence argues the standard to be applied in cases such as this is objective. Therefore, the evidence must reveala reasonable basis for a police officer’s subjective belief regarding the need to enter a private residence without a warrant. In this casethere was no objective basis on which the police could conclude that something was amiss inside Suite 2402 at the time ERT made theinitial entry.

The entry by Constable Roycombough [72] I next turn to the parties’ position on another warrantless entry made by Constable Roycombough after the ERT had cleared thesuite. [73] The Crown acknowledges that the entry into the suite by Constable Roycombough was unfortunate and ill advised. However,the entry was very brief and Constable Roycombough made the same observations of the drugs that were made by members of the ERT.In this regard the Crown points out that Constable Roycombough heard Constable Friesen say he had seen flaps of drugs.

Based on thatinformation Constable Roycombough thought he had grounds to apply for an ITO. He sought direction from Constable Ramirez becausehe had never done an ITO before. He was told to enter the suite. He went to the storage room, observed the flaps and left. He did not gointo any other room in the suite. [74] In these circumstances, the Crown argues, the seriousness of his warrantless entry is diminished. Constable Roycombough’sonly purpose was to observe what Constable Freisen had already seen. He only went into the storage closet and did not rummage throughanything.

He only wanted to confirm what another officer had already seen. Further the Crown argues he already had grounds. Goinginto the suite did not give him additional grounds. If the court finds the initial entry by ERT was permissible, Constable Roycombough’sentry should not lead to a breach. [75] The defence argues it is an elementary proposition that a police officer cannot go into a private residence and just look around.However, that is exactly what Constable Roycombough did. More importantly, he did so at the request of a senior, more experiencedofficer, Constable Ramirez.

Additionally, the defence argues, it is clear another officer must have allowed him to go into the suite tohave a look around when it was obvious the ERT search was over and the suite was supposed to be locked down and secure. [76] Given the totality of the circumstances of Constable Roycombough's entry into the suite, the defence submits the flagrantunconstitutional conduct cannot be limited to Constable Roycombough alone but must also be visited on Constable Ramirez and otherofficers. Moreover, it affects the entire conduct of the police investigation.

Constable Roycombough went on to obtain a warrant withoutdisclosing his entry into the suite. The defence argues Constable Roycombough knew he had no authority to enter the suite without awarrant yet did so anyway. His purpose in doing so was to gather evidence to assist him in compiling a search warrant. APPLICABLE LAW General principles regarding warrantless searches [77] In R. v. N.N.M., (ON SC), [2007] O. J. No. 3022, Mr. Justice Hill of the Ontario Superior Court of Justiceundertook a detailed review of the case law and Charter principles that apply to warrantless entry on private property.

The N.N.M. casedid not involve a 911 call but was based on a complaint of spousal assault against N.N.M., who was a police officer. However, thesummary of the overarching principles that set the backdrop for the s. 8 analysis in that case is nevertheless instructive. [78] Those principles, which are set out at paragraph 201, in the main, apply to the issue to be decided in this case and aresummarized below, minus the case citations: 1. Individual privacy is the essential value protected by s. 8 of the Charter. However, to be afforded constitutional protection anyexpectation of privacy must be reasonable.

A reasonable expectation of privacy is a personal right the existence of which is determinedon the totality of the circumstances in each case. The purpose behind the right is to protect the privacy of individuals from unjustifiedstate intrusion. Therefore, the purpose of s. 8 is to protect against unreasonable searches. 2. Police conduct which interferes with a reasonable expectation of privacy is said to constitute a “search” within the meaning of s. 8. 3.

In order to justify police actions which interfere with a reasonable expectation of privacy, the state must be able to point to a specificstatute or common law rule that authorizes the search. 4. Although the scope of the constitutional guarantee under s. 8 of the Charter must vary with the context, prior judicial authorization,where feasible, is a precondition for a constitutionally valid search and seizure. 5. Warrantless searches are presumptively unreasonable unless the Crown demonstrates their reasonableness in the context of s. 8principles, on a balance of probabilities. 6.

A warrantless search may be found to be reasonable where it meets the test in

R. v. Collins (1987), (SCC), 33 C.C.C. (3d) 1; namely, (

a) the search is authorized by law, (

b) the law itself isreasonable, and (

c) the manner in which the search was carried out was also reasonable. That said, any exception to the priorauthorization model must remain exceedingly rare in the face of a strong common law rule against warrantless intrusions onto privateproperty. 7. Common law authorization may emanate from conditions of urgency making it impracticable to obtain a warrant. In R. v. Tessling(2004), 2004 SCC 67 , 189 C.C.C. (3d) 129, the Supreme Court of Canada noted that warrantless searches arepresumptively unreasonable, absent exigent circumstances. 8.

The Crown cannot rely on ex-post facto justifications of searches by their results. 9. A search, unlawful from the beginning, cannot be converted into a reasonable search because it is carried out in a reasonablemanner. 10. The police may act only to the extent empowered to do so by law. Where the authority to act does not emanate from statute, thecommon law may provide legal authority. [79] In the case before me the general principle that a person has a very high expectation of privacy in his home is not contested.

Review of some recent 911 cases [80] Both counsel presented me with a number of 911 related cases for consideration; I have reviewed all of them but have onlysummarized the ones set out below. [81] R. v. Godoy is the seminal case on the scope of police powers in situations involving 911 emergency calls. In the early morninghours two police officers received a radio dispatch regarding an "unknown trouble call"; namely, a 911 call in which the line wasdisconnected before the caller spoke.

While all 911 trouble calls were treated as requests for assistance, “unknown trouble calls” carriedthe additional element of the unknown. The police procedure was to respond with backup. At approximately 1:30 a.m. four policeofficers arrived at Mr. Godoy's apartment and knocked. Mr. Godoy partially opened the door and, in response to a police questionwhether things were all right, responded there was no problem. One of the officers asked if they could go into the apartment toinvestigate if there was a problem but Mr. Godoy tried to close the door. The four officers entered the apartment.

They heard a womancrying and found Mr. Godoy's common-law wife in the bedroom curled in the fetal position and sobbing. The police observedconsiderable swelling about her left eye. She told the police that Mr. Godoy had hit her. [82] Mr. Godoy was eventually charged with assaulting his common-law wife and with assaulting a police officer. The trial judgedismissed the assault charge against Mr. Godoy and held that the police officers’ entry into the apartment was unauthorized, therefore alltheir subsequent actions, including the arrest Mr. Godoy, were illegal.

In reaching that conclusion the trial judge found the policeofficers’ entry into the apartment was unlawful. The matter eventually proceeded to the Supreme Court of Canada. Lamer C.J., writingfor the court, noted that this case raised for the first time the scope of police powers in responding to emergency 911 calls.

The SupremeCourt of Canada upheld the decision of the Ontario Court of Appeal which found that the 911 call gave the police reasonable andprobable grounds to believe there was an emergency in the apartment and that the caller was in distress. [83] In reaching its decision the Supreme Court of Canada noted the following:

a) Public policy clearly requires that the police ab initio have the authority to investigate 911 calls. However, whether they may enter adwelling house in the course of such an investigation depends on the circumstances of each case.

b) There is no doubt that the forcible entry by police into a private dwelling home constitutes a prima facie interference with theperson's liberty and property.

c) A 911 call is a distress call – a cry for help. In the context of a disconnected 911 call, the nature of the distress is unknown, thereforeit is reasonable that the police assume the caller is in some distress and requires immediate assistance. The police duty to protect life istherefore engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call isdisconnected before the nature of the emergency can be determined.

d) The importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the healthand safety of a 911 caller. The public interest in maintaining an effective emergency response system is significant enough to merit someintrusion on a resident’s privacy interest. However, the intrusion must be limited to the protection of life and safety.

e) The police have authority to investigate 911 calls and, in particular, to locate the caller and determine his or her reasons for makingthe call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call endsthere. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property. (Emphasis added). [84] In R. v. Brown, 2003 BCCA 14, the court dealt with a case where the police received a 911 call from a pay phone.

The callerreported a man had been stabbed and there was a man with a gun in either room 201 or 202 at a local hotel. The police determined whichof the two rooms was occupied and knocked on the door of room 201. They took the accused into custody when he answered the door.The police then entered the room to see if anyone was injured. Once in the room an officer saw a plastic bag containing flaps which herecognized as drugs.

The police subsequently found a quantity of flaps of heroin and flaps cocaine as well as cash. [85] The issue on appeal was the extent to which the exigencies created by the 911 call justified the police actions. The court noted

the dispatch call suggested that something had happened either in room 201 or 202. Accordingly, in the circumstances, it could not be said that the police officers had completed their general duty to protect life until they had satisfied themselves there was no potentially dangerous assailant nor any injured victim in either of the rooms or in any place nearby to which their investigation of the two rooms might have led them.

The court found the evidence supported the trial judge's conclusion that the officers were justified in entering the room for the purposes they described in their testimony; namely, to check for potential assailants, to look for possible victims, as well as to look for weapons or other evidence of an offence. [ 86 ] In R. v. Gillingwater , 2006 YKTC, the court dealt with a case were police received a 911 call from the staff of a mini mart who reported that a woman had been in the mini mart distraught and crying. She had told them the accused had held a gun to her head.

The woman was not at the mini mart when the police arrived. Staff told the police she did not want police involvement. Staff of the mini mart also told the police they thought she had gone to the accused’s trailer. The police observed the trailer for approximately 15 or 20 minutes. When they saw the accused, they asked him whether the woman was inside the trailer. They did not ask him any questions relating to the allegation of pointing a firearm. The police searched the trailer without a warrant.

They testified they were concerned because they did not know if there were other victims in the trailer or the status of the firearm. Upon searching the trailer they found a rifle and cocaine. [ 87 ] The court noted that whether it was a third-party call or a call from a specific individual seeking assistance, the police had a duty to respond to protect the public. The court found the police officers’ belief that there was potential risk to the woman, to the police and to members of the public was objectively reasonable.

The court took into account the fact the police did not have any knowledge about the whereabouts or condition of the woman. The police did not know if the woman or others were inside the trailer injured and unable to call for assistance. The police had reason to believe there was a firearm in the trailer but they did not know who might have access to it and whether it posed a threat to the police or the persons in the trailer or in the general vicinity.

The court acknowledged that, in the normal course, police officers are expected to exhaust every avenue in an investigation but such a standard cannot be expected of the police in situations where there is potential danger. The judge also noted it made no sense to place a positive obligation on the police to question the accused, who was a suspect, before investigating further and taking steps to ensure their own safety and that of others. On the facts before it, the court concluded the law permitted the police to enter the trailer to ensure safety. [ 88 ] In R. v.

Hill , 2006 BCCA 530 , a 911 call was made by one of the accused’s neighbours who stated she heard a sound she believed to be a gunshot coming from property which was owned by the accused. The neighbour and the accused each lived on 5 acre parcels of land. When the police arrived near the accused’s residence they were approached by the caller's husband who said he too had heard the shot and believed it originated from the accused's house.

Shortly thereafter two of the officers present heard two gunshots which they believed originated from the vicinity of the accused’s residence. [ 89 ] The ERT became involved and initial attempts were made to contact the accused using the intercom at the gate. Eventually the police used a siren and the accused appeared at the door of the residence and came outside. When the police told him why they were there, he suggested the shots may have come from a neighbouring property. He also suggested the source of the noise might have been a yellow plastic container near the house with a firecracker device in it.

The police did not accept his explanations and proceeded to clear the house and search it for any possible victims of a gunshot. The accused consented to the police searching his house for that limited purpose. As a result of the search the police found 105 pounds of marijuana in a small room in the accused's basement. [ 90 ] The court concluded there was no basis for interfering with the findings of fact of the trial judge or with the inferences she drew from those facts. The court noted these cases are essentially fact driven.

It was not for the Court of Appeal to review the evidence and substitute its own view of the evidence for that of the trial judge in the absence of clear error.

The trial judge found the police had an honest belief about the legitimacy of the 911 call, the belief was supported by objective criteria including other reports of shots fired from the vicinity of the accused's residence, the neighbour had no ulterior purpose in reporting what she thought were gunshots coming from the accused's residence, there was nothing to suggest the shots come from anywhere else other than near the accused’s residence, the accused gave inconsistent explanations for the gunshot sounds that added to the police concerns, and the purpose in entering the residence was to secure the life and safety of anyone who might have been in harm’s way. [ 91 ] In R. v.

Wu , 2008 BCCA, a person called police headquarters to report there was an injured person at a residence owned by the accused. The call came from a pay phone at a Burnaby mall. The police went to the mall to investigate whether the call was a hoax but did not learn anything useful at the mall. Two police officers then went to the house indicated by the caller. The first examined the perimeter of the house. What he saw led him to believe it might possibly contain a marijuana grow operation. The police knocked on the front door but got no answer. One of the officers heard someone leaving from the back of the house.

When they went to the back, they discovered the accused standing near the bottom of a staircase. The accused was detained, searched, and questioned by the police officers. The accused was asked on more than one occasion whether there was someone injured at the house. He eventually responded there was. The police asked the accused to request the occupant of the house to let them in. The door was opened by the girlfriend of the accused who was inside the house at the time. The police entered and checked the rooms of the main floor of the house.

They also forced open the door to the basement suite and found a marijuana grow operation. [ 92 ] The trial judge concluded that during the initial entry into the house the police were not motivated by their suspicion of a marijuana grow operation but rather were acting to ascertain whether someone in the house needed assistance. The Court of Appeal concluded there was a sufficient evidentiary basis for the trial judge's finding that the police were motivated by safety concerns at the time they made their warrantless entry into the house.

The Court of Appeal said it would not disturb the trial judge’s factual finding on that issue. [ 93 ] In R. v. Brunskill , 2010 BCSC 187 , the police received a 911 call from a woman who reported she had received a call from an unknown male who said he had been paid $100 to call her to say he had someone tied up at a certain address near Hundred Mile House. The police officer who was dispatched to the call was very suspicious because the caller was not forthcoming with any information. Nevertheless she considered it her duty to look into the matter as it was an allegation of someone being tied up.

The address the police had been given was in a rural area. When the police arrived the gate was locked. Eventually the police made contact with a man inside the residence and told him about the call they had received. The man told police there was no one tied up at the house. The man and his girlfriend, the co- accused, did not object to meeting the police at the head of the driveway.

[ 94 ] An officer met the two accused, explained the call, and was told again there was no one tied up on the property. The officer told them she had to check it out. The police entered the residence. They checked all the rooms in the residence but found no one tied up and no evidence of anyone having been tied up. The police then went to three outbuildings where they found a marijuana grow operation. At that point, the two accused were arrested. [ 95 ] The court concluded the police had an honestly held suspicion that someone might be tied up in the residence and that their safety was in danger.

However, the court concluded there was no objective reasonableness to this suspicion based on the limited information the police had at the time. The court said this was not a true 911 call. It was nothing more than an unreliable tip from an unidentified informant passing on second hand information. The court said when the two officers went to the address and spoke to the accused at the front gate and were told there was no one tied up at that residence they should have accepted that explanation and left.

The presumption of the unreasonableness of a warrantless search was not rebutted and the evidence was excluded. [ 96 ] In R. v. Borecky , 2011 BCSC 1573 , a man called the general inquiry number of the Chilliwack RCMP detachment in the mid- afternoon. He said he had been jogging past a house in Chilliwack that morning and had heard four or five gunshots, a woman screaming, and dogs barking . The police were dispatched to the address given which was a residence in a rural area of Chilliwack. The officer who was dispatched saw two vehicles and radioed the licence plate numbers.

He received information that the two vehicles were registered to the accused who was known to the police as a person with an extensive criminal record including violence. The officer asked for additional officers to be sent to the scene. A little over an hour after the original officer had been dispatched, a group of officers approached the residence. Before they could knock on the front door, one of the officers saw a pair of legs behind a tree. A man stood up and began to run up a steep slope. That man was the accused. The police found him and took him into custody.

He was told he was being detained for suspicious circumstances concerning a firearms case. The police used a police dog to track the accused. Later the police dog searched the area covered by the accused when he had tried to leave the property. The dog found a bag under a log. The bag contained rifles and ammunition. Another bag was also found near the place where the first bag was located. [ 97 ] While the accused was fleeing from outside the residence the police saw a woman inside the house. The woman was ordered to come out of the residence and was handcuffed.

The police entered the residence to determine if anyone else was inside. The police cleared the residence. While clearing the residence they observed certain items in the basement that led them to apply for a warrant. [ 98 ] The court concluded that the common law duty of police officers to protect life and preserve public safety is a heavy one. In the circumstances of this case the police had a duty to take all reasonable steps to verify if there was an emergency and, if so, to give assistance. The court noted that the accused’s flight might not afford grounds for arrest.

However, the fact he had been seen hiding behind the house where the police suspected a person may have been shot provided justification to enter the residence to see if anyone was inside. Further, when the co-accused said she

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