R. v. Nguyen Date:, 2017 BCPC 31

Citation: R. v. Nguyen Date: 20170206 2017 BCPC 31 File No: 233446-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. VAN DE NGUYEN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: S. Ross Counsel for the Defendant: D. Hartney Place of Hearing: Vancouver , B.C. Dates of Hearing: May 10, 11, July 25, 2016 Date of Judgment: February 6, 2017

INTRODUCTION [ 1 ] On July 12, 2015, at approximately 10:23 PM, Constable Hobbs and Constable Ward of the Vancouver Police Department (“VPD”) responded to a non-emergency call from a citizen who was concerned that a neighbour’s house alarm had been sounding for approximately 40 minutes. [ 2 ] The call out was characterized as a nonpriority call.

When the police officers arrived at 3309 Queens Avenue, Vancouver, BC (the “residence”), and commenced their investigation, they both could hear a high-pitched noise coming from the second level of the residence. [ 3 ] During the course of their investigation of the call out, they established a belief that there possibly had been a break and enter or a home invasion, and that it was possible that the suspects were still in the residence.

They additionally believed that if there were victims inside the residence, they would be incapacitated. [ 4 ] Relying on their common law duty to protect life, the police officers entered and conducted a clearing search of the second level of the residence, with negative results. During the course of the clearing search, the police officers heard the opening and closing of the garage door located on the first level of the residence. [ 5 ] They exited the residence and observed a male standing a foot or so outside the garage door with a remote control in his hand.

Constable Hobbs seized the remote control and re-opened the garage door. He then conducted a clearing search of the garage, including a room within the garage, in which he observed multiple packages of what he believed to be marijuana. [ 6 ] As a result of the police investigation, Van De Nguyen (the “accused”) has been charged with possession of cannabis marijuana in an amount exceeding 3 kg, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “ CDSA ”).

ISSUE [ 7 ] The accused has asserted that the warrantless search of the residence, in particular the attached garage, was contrary to s. 8 of the Canadian Charter of Rights and Freedoms (the “ Charter ”). [ 8 ] A voir dire has been declared to determine the issue. DETAILED BACKGROUND [ 9 ] On July 12, 2015, Constables Hobbs and Ward were partners. On that day they were in civilian clothes. Constable Ward was the driver of an unmarked police car.

Constable Hobbs was his passenger. [ 10 ] They noted that dispatch had an outstanding request for police officer assistance to respond to a high-pitched noise believed to be a home alarm. Both constables agreed that this request was not urgent and was not a priority call. [ 11 ] They volunteered to respond to the call as they were in civilian clothes.

Constable Ward explained that as they were in civilian clothes it would afford them the opportunity to see if anyone came in or out of the residence. [ 12 ] While the dispatch was in relation to an audible alarm call, Constable Ward understood from information relayed by dispatch that the citizen who made the call seemed more concerned about two vehicles that were parked at the rear of the subject residence than the alarm. [ 13 ] When they arrived, Constable Ward testified that he parked a short distance away from the front of the residence.

He exited the police car and went towards the front door of the residence. He recalled Constable Hobbs also exiting the police car and going to the rear of the residence. [ 14 ] It was Constable Ward’s stated intention to see if there was a sticker in the area of the front door that would provide contact information for an alarm company. He did not pursue this aspect of the investigation, however, as he testified that Constable Hobbs requested that he come to the rear of the residence. [ 15 ] Constable Hobbs recalled that they initially drove to the back of the residence.

At the back of the residence, he recalled that Constable Ward had dispatch run a history on the residence, which came back negative. Constable Hobbs then exited the police car and went to a rear gate that was partially open. He went through the rear gate into an enclosed driveway that contained two vehicles. [ 16 ] Constable Hobbs queried the vehicle licence plates which also came back negative. However, the registered owner associated with the licence plates was a person with the last name of the accused.

Constable Hobbs believed that this person was likely Vietnamese: Transcript, May 10, 2016, p. 41, ll. 33-46. [ 17 ] Constable Hobbs performed a quick perimeter check of the first level of the residence and saw nothing unusual. Throughout the perimeter search, he heard a high-pitched noise coming from the residence. In cross-examination, he agreed that it was possible the request by the neighbour for police assistance related to her concern that the noise was an annoying incessant noise and not a burglar alarm. [ 18 ] He also noted that there was a door accessing the first level of the residence.

The door was secure. He knocked on the door. There was no response. [ 19 ] He then went up the rear stairs to the second level of the residence, at which time he was joined by Constable Ward. At the top

of the stairs there was a reinforced metal gate that led to a patio. The gate was ajar. He also observed that there was a second door leading into the house that was also ajar. [ 20 ] Based on his life experience, including his police officer experience, as well as the fact that the reinforced metal gate and kitchen door were ajar, and that the high-pitched noise was continuing, he believed that it was “possible” that there had been a home invasion or break and enter.

He believed further that it was possible, though “unlikely”, that the suspects were still in the residence, and that if there were victims inside the residence, they would be “incapacitated”: Transcript, Ibid ., p. 6, ll. 3-47 and p. 7. l. 1. [ 21 ] Constable Hobbs then decided to enter the residence based upon his belief that it was his common law duty to protect life, as it was possible that someone was injured or tied up inside the residence. [ 22 ] Constable Ward testified that he was concerned that the registered owner of the two vehicles located at the rear of the residence could possibly be in some form of jeopardy inside the residence.

He testified that he was with Constable Hobbs at the foot of the stairs that led up to the second level patio. There was a mutual decision to go up the stairs to see if the back door to the residence was secure or not. Constable Ward recalled that the metal gate at the top of the stairs was partially closed so they pushed it open and announced “Vancouver Police”. [ 23 ] Constable Ward agreed with the decision of Constable Hobbs to enter the residence to check on any occupants who were possibly in distress or needed police assistance.

The facts that the high-pitched noise had been sounding for 40 minutes, lights were on in the residence, and two vehicles associated to the residence were present lead to his belief that there was a “high likelihood that somebody was in the residence and needed police assistance, or that somebody had broken into the residence and that we needed to make sure that there was nobody inside the house or residence that needed police assistance”: Transcript, May 11, 2016, p. 8, ll. 37-47; p. 9, ll. 1-6. [ 24 ] At 10:35 p.m., Constable Hobbs and Constable Ward, after identifying themselves as “Vancouver Police”, entered the residence.

They conducted a thorough clearing search of the second floor of the residence.

Constable Hobbs testified that there was nothing out of order, no suspects were located, there was no one who was incapacitated, there was nothing suspicious to suggest drug activity was taking place on the second floor of the residence, and there was nothing suspicious, at that time, to suggest drug activity was taking place in the garage of the residence. [ 25 ] He also testified that, from his general experience, where homes have aftermarket security features, such as the reinforced metal gate, the individuals who reside in such homes may be involved in criminal activity, though he also agreed that he has been to residences with aftermarket security features where no criminal activity is taking place. [ 26 ] After the clearing search, Constable Hobbs re-attended the family room to explore the entertainment centre as it appeared to be the source of the high-pitched noise.

He also noted that there was a deeper noise coming from a big bass speaker. He pulled the connection plug to that speaker and the deeper noise stopped. However, the high-pitched noise continued and he was unable to find the source of that noise in the entertainment centre. [ 27 ] A few seconds after Constable Hobbs disconnected the bass speaker, he heard the garage door opening. He testified that he immediately left the upstairs of the residence and went down the exterior patio stairs. As he went down the stairs, he observed the accused just outside of the garage. He announced “police” with his badge visible.

He saw the accused take a remote control from his pocket. The accused was observed pressing a button on the remote control and the garage doors started to close. Constable Hobbs then grabbed the remote control out of the hand of the accused and used it to open the garage door. [ 28 ] Constable Hobbs testified that the accused did not say anything. He appeared to be surprised by his presence. Though Constable Hobbs had cleared the upstairs of the residence, he believed that there may still have been people inside the garage in need of assistance.

He also found it suspicious that the accused had not made himself known earlier during the initial perimeter search when Constable Hobbs knocked on the door of the first level unit. [ 29 ] Constable Hobbs agreed with the suggestion of the accused that it would be a reasonable thing, upon first contact, to ask him what was going on and whether he was the victim of an incident.

Constable Hobbs was “fairly certain” that he did ask those questions, but agreed he had no notes of such a conversation. [ 30 ] Constable Hobbs testified that he had a strong suspicion that the accused was a suspect involved in some improper activity at the residence because he had the remote control in his hand.

It was his experience that when a suspect breaks into the upstairs of a residence and cannot find what he is looking for, he will find a remote control and use it to continue to look for whatever he is looking for: Transcript, Ibid, p. 61, ll. 13-25. [ 31 ] It was Constable Hobbs’s further belief that the accused’s actions in closing the garage door after the police identified themselves constituted an attempt to conceal something in the garage.

He did not believe that the accused was the homeowner; otherwise, he would not have gone into the garage: Transcript, Ibid , p. 62, ll. 36-41. [ 32 ] Constable Hobbs agreed that he did not initiate any conversation with the accused as to whether he was the homeowner: Transcript, Ibid , p. 63, ll. 2-21. [ 33 ] Constable Hobbs entered the garage and, in a storage room at the rear of the garage, he observed multiple packages of what he believed to be marijuana in a box. He advised Constable Ward that he had found what he believed to be drugs in the garage.

Constable Ward then arrested the accused. [ 34 ] Constable Ward testified that, within seconds of entering the second level of the residence, he received information from dispatch that the accused was subject to police conditions arising from a matter in Toronto. Similar to Constable Hobbs, Constable Ward also testified that no suspects were located in the residence, no victims were located and there was no evidence of a home invasion or a break and enter. He also noted that the garage could not be accessed from the second level of the residence.

[35] After he completed the clearing search he testified that he and Constable Hobbs exited the residence and started going down thestairs connected to the patio when he heard the noise of a garage door opening. Within a second of the garage door opening, the accusedexited the garage.

At that time, Constable Ward identified himself as “Vancouver Police.” It appeared to Constable Ward that theaccused was closing the garage door with the use of a remote control device. [36] Constable Ward testified that he was not sure if the accused was the homeowner, a resident of the residence, or a possiblesuspect who had unlawfully entered the residence. Constable Ward went up to the accused and told him they were investigating apossible break and enter. There was no response from the accused.

Constable Ward described the accused standing freely beside him,and said that he appeared to be initially surprised and subsequently shocked regarding the presence of the police. [37] Constable Ward agreed with the accused that, at this point in the investigation, he was aware of the following: • The homeowner was somebody named Van De Nguyen; • The homeowner was required by a Toronto Police release order to live at the residence; • He expected to find a Vietnamese man named “Van Nguyen” at the residence; • He did not ask if the accused was the homeowner, though he agreed it would have been prudent to do so; • If he had asked the accused if he was the homeowner, then the accused could have explained whether any crimes had taken placeinside the residence; • If the accused was the homeowner, then it was obvious that he would not be invading his own home or burglarizing his ownhome; • Constable Hobbs went immediately into the garage to conduct a search without any inquiry concerning why the accused had beenin the garage; • After being advised by Constable Hobbs that he found marijuana in the garage, that he then arrested and chartered the accused inEnglish.

In response to questions about who he was and where he lived, the accused gave his name and stated in English that he was thehomeowner of the residence; • Though he was not asked, the accused did not provide any explanation as to why the high-pitched noise, or alarm, had beensounding for 40 minutes; • It was incumbent upon him to fully investigate a matter before entering a residence without warrant, but in this case there wereexigent circumstances, as someone needing assistance could have been in the garage, and • Even if the accused identified himself as the homeowner, if he could not offer a reasonable explanation as to why the high-pitchednoise, or alarm, was sounding, he felt it was still necessary to conduct a search of the garage to ensure that nobody was in need of policeassistance. [38] After the discovery of the marijuana in the garage, Constable Hobbs recalled that he again knocked on the front door, locatedon the lower level of the residence.

Shortly after he knocked on the door, the residents of the lower level opened the door. ConstableHobbs testified that in his opinion this was an “unrelated basement suite” and everything was “okay.” It does not appear from hisevidence that a clearing search of that level was conducted. [39] Constable Hobbs then returned to the garage to recover the marijuana and to take photographs.

Following the taking ofphotographs, Constable Hobbs, Constable Ward and the accused went to the second level of the residence to investigate the cause of thehigh-pitched noise. [40] Constable Hobbs unplugged all of the connections to the entertainment system, which resulted in the high-pitched noisestopping. Constable Hobbs and Constable Ward then left the residence with the accused after locking the back door. POSITION OF THE PARTIES (

i) The Accused [41] The accused does not dispute that in situations in which the police receive a dropped 911 call, depending on each case and itsown context, that police may be justified in exercising their common law powers to interfere with a person’s liberty or property,including forcible entry onto private property, to determine if an individual is in distress or requires immediate assistance: R. v.

Godoy, (SCC), [1999] 1 SCR 311, at paras. 11, 12 and 16. [42] However, the accused submits that in this case the police responded to a non-emergency, low priority audible alarm call enteredinto the dispatch call board. The high-pitched noise was determined to be coming from the second level of the residence.

Lights were onin the second level, and both constables observed the reinforced gate at the top of the stairs as being open. [43] The accused submits that at the time Constable Hobbs elected to enter the residence, at best he believed it was merely“possible” that there had been a home invasion or break and enter, and it was “unlikely” that suspects were still in the residence or thatthere were victims “incapacitated” in the residence. [44] The accused submits that the Godoy tests are to be rigorously applied, including in situations where the 911 call does not meet atrue 911 scenario, so as not to permit the police to accomplish by the back door that which they cannot do by the front door.

In relationto the standard that must be met on the test of justifiability of police conduct, it must be established that Constable Hobbs, supported by

Constable Ward, in making the entry had a legitimate suspicion that there was a home invasion or break and enter and that victims may be incapacitated in the residence, and that this suspicion was objectively reasonable: R. v.

Brunskill , 2010 BCSC 187 , at paras. 34 - 38 (B.C.S.C.). [ 45 ] Even if the police entry into the second level of the residence could be subjectively and objectively justified as the proper exercise of common law power, once Constable Hobbs and Constable Ward had cleared the second level of the residence, including determining no criminal activity had taken place, their authority to be on private property ended, and would not extend to further permission to search the premises or otherwise intrude on a resident’s privacy or property: Godoy , Ibid. , at para. 22. [ 46 ] The accused submits that Constable Hobbs overstepped his authority when, in response to the garage door opening and closing, without any inquiry, he took the remote control from the accused and, without his consent, reopened the garage door to conduct a further search of the garage, also without his consent. [ 47 ] Both constables were certainly aware that the accused was associated with the vehicles located at the residence.

Constable Ward was aware that the accused was required by Toronto Police release conditions to reside at that residence. From their Report to Crown Counsel, and in their testimony, it crossed their minds that the accused might be the homeowner or, though unlikely, a suspect. [ 48 ] The accused submits that the police conduct in this case would not amount to the exercise of reasonable interference with the accused’s private property interests.

Had the police made some simple inquiries of the accused, including investigating who the accused was, whether he was the homeowner, whether anyone was in distress in the garage, whether he would consent to a search of the garage and what was the source of the high-pitched noise, then their concerns about a possible home invasion or break and enter and that incapacitated victims might be in the residence could have been alleviated without entering the garage without a warrant: see for example R. v.

Larson , [2011] BCCA 454. [ 49 ] The accused submits that in this case neither Constable Hobbs nor Constable Ward considered any alternatives to the warrantless entry into the residence of the accused, which was required even if they apprehended some threat to life or personal safety: Larson , Ibid , at para. 50. [ 50 ] Adopting language from R. v.

Brunskill , supra , the accused submits that Constable Hobbs and Constable Ward failed to exercise common sense before intruding into the home of the accused, at para. 44. (ii) The Crown [ 51 ] The Crown submits that at the time of dispatch Constable Hobbs and Constable Ward believed they were responding to an audible alarm call. The Crown characterized the dispatcher’s language as neutral. Constable Hobbs and Constable Ward both described the noise coming from the second floor of the residence on their arrival as incessant and high-pitched. [ 52 ] The residence was described as “unusual” by the Crown.

In particular, when Constable Hobbs and Constable Ward arrived and commenced their investigation, lights were on in the upstairs, an alarm was sounding, and the reinforced gate to the upper exterior deck was ajar. With their training, both police officers were aware that the reinforced gate was a security measure that may be taken by people who are involved in criminal activity. [ 53 ] The Crown described the accused’s action in closing the garage door as a quick action designed to prevent the constables from looking into the garage.

The actions, or inactions, of the accused would add to the factors being considered by the constables at the time that Constable Hobbs took possession of the remote control from the accused and reopened the garage door. [ 54 ] While conceding that there was no obligation on the accused to provide Constable Hobbs or Constable Ward with an explanation as to why he was there, nonetheless, it was the expectation of both police officers that the accused would provide an explanation for his presence, especially if the accused was an innocent homeowner.

His failure to do so heightened their concerns. [ 55 ] Though there was no indication of any criminal activity taking place in the upper portion of the residence, the Crown submitted that it was not necessary for the constables to secure a warrant to search the garage.

Additionally, the Crown submitted that it was not necessary for either Constable Hobbs or Constable Ward to make any further inquiries of the accused, or to seek his consent to search the garage, because in the context of this case, the need for the search was “reasonable because of the unknowns”: Transcript, July 25, 2016, p. 32, ll. 28 - 36. [ 56 ] The Crown agreed that up to the point that Constable Hobbs and Constable Ward heard the garage door opening and closing, they were in the process of leaving the residence without searching the garage.

However, the accused’s opening and closing of the garage door re-focused their attention. The accused’s behaviour in trying to close the garage door resulted in Constable Hobbs making a “split-second decision” to conduct a “limited intrusion” into the small room of the garage as a final clearing search to ensure that there was no one injured or victimized in the garage.

In the context of this case, the Crown submitted that the totality of the circumstances justify Constable Hobbs’s search of the garage: Transcript, Ibid , p. 34, ll. 28 - 46. [ 57 ] The Crown submitted that the cases relied upon by the accused can factually be distinguished from the circumstances in this case.

In this case Constable Hobbs and Constable Ward went no further than was necessary to exercise their common law jurisdiction to protect life. [ 58 ] The grounds would establish on a balance of probabilities that Constable Hobbs, in concert with Constable Ward, made a split- second decision to search the garage at the residence, and that this decision “falls close to Godoy being reasonable going in and checking”: Transcript, Ibid , p. 39, ll. 23 - 30. [ 59 ] Additionally, the Crown submitted there were reasonable and probable grounds to search the garage, which made good sense, based on the belief in the minds of both constables at that point that the investigation was not over and that there remained a risk of someone being inside the garage who may be suffering from an injury or otherwise incapacitated.

LEGAL FRAMEWORK (

i) General Principles [60]

Section 8 of the Charter reads: 8. Everyone has the right to be secure against unreasonable search or seizure. [61] The initial entry and search of the residence of the accused and the subsequent entry and search of the garage were performedwithout warrant and prima facie were unreasonable and a breach of s. 8. The onus rests with the Crown to establish on a balance ofprobabilities that the entries and searches were lawfully justified. [62] Indisputably, the accused in his capacity as the homeowner of the residence, including the garage, has standing to apply for a s.8 Charter remedy.

The principles that apply in connection with the s. 8 right to be secure against unreasonable search or seizure aresummarized in R. v. Edwards, (SCC), [1996] 1 S.C.R.128 at para. 45. [63] Edwards establishes that as a general rule there are two distinct inquiries to be made in relation to an alleged s. 8 breach. First,has the accused established a reasonable expectation of privacy and, second, if he has established such an expectation, was the searchconducted by the police reasonable.

A reasonable expectation of privacy is to be determined on the basis of the totality of thecircumstances, which may include, but are not restricted to, the following: • presence at the time of the search; • possession or control of the property or place searched; • ownership of the property or place; • historical use of the property or item; • the ability to regulate access, including the right to admit or exclude others from the place; • the existence of a subjective expectation of privacy; and • the objective reasonableness of the expectation. (ii) In the Context of Exigent Circumstances [64] Godoy establishes that police authorities can be justified in entering onto private property and entering into a private residencebased on their common law duty to protect life and to ensure public safety. [65] At para. 12, Lamer C.J.C. set out the test to be applied in determining the extent of those powers, adopting the test in R. v.Waterfield, [1964] 1 Q.B. 164 (Eng.

C.A.): 12 The accepted test for evaluating the common law powers and duties of the police was set out in Waterfield, supra (followed bythis Court in R. v. Stenning, (SCC), [1970] S.C.R. 631; Knowlton v. The Queen, (SCC), [1974] S.C.R.443, and Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2).

If police conduct constitutes a prima facie interference witha person's liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any dutyimposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involvean unjustifiable use of powers associated with the duty. [66] The Court in Godoy had no difficulty at para. 11 with the proposition that the police have a common law duty to respond todistress calls. [67] There are limits on the extent of the common law power to make a warrantless entry into a dwelling.

At para. 22, the Courtstated: 22 Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order toascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious andsignificant enough to merit some intrusion on a resident's privacy interest. However, I emphasize that the intrusion must be limited to theprotection of life and safety.

The police have authority to investigate the 911 call and, in particular, to locate the caller and determine hisor her reasons for making the call and provide such assistance as may be required. The police authority for being on private property inresponse to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident's privacy orproperty. In Dedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the policeduty and it must be reasonable.

A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each casewill be considered in its own context, keeping in mind all of the surrounding circumstances… (Emphasis in original) [68] The standard in determining whether life or safety is at risk is fairly relaxed. It may well be the case that in matters involvingthe protection of life and physical safety, the police will have no realistic choice but to err on the side of caution: R. v.

Larson, supra, atpara. 26. [69] That said, depending upon the surrounding circumstances, even in the context of a 911 call, it is important that police look toalternative investigative methods before embarking on an unauthorized search of a private premise in the exercise of their common law

duty to protect life and to ensure public safety: R. v. Jones, 2013 BCCA 345, at para. 37. (iii) In the Context of Non-Exigent Circumstances [70] Neither the Crown nor the accused in their oral submissions addressed the impact of R. v. Borecky, 2011 BCSC 1573. Uponbeing invited to make submissions on the Borecky ruling, both the Crown and the accused provided the court with further writtensubmissions. [71] Not surprisingly, the Crown and the accused took contrary positions in relation to the impact of the Borecky ruling on this case. [72] The Borecky ruling was summarized in R. v.

Rohani Moayed, 2013 BCPC 361, at paras. 96, 97 and 98, as follows: 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 womanscreaming, and dogs barking. The police were dispatched to the address given which was a residence in a rural area of Chilliwack. Theofficer who was dispatched saw two vehicles and radioed the licence plate numbers.

He received information that the two vehicles wereregistered to the accused who was known to the police as a person with an extensive criminal record including violence. The officerasked for additional officers to be sent to the scene. A little over an hour after the original officer had been dispatched, a group ofofficers approached the residence. Before they could knock on the front door, one of the officers saw a pair of legs behind a tree. Aman 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 wastold 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 tocome out of the residence and was handcuffed.

The police entered the residence to determine if anyone else was inside. The policecleared 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 thecircumstances of this case the police had a duty to take all reasonable steps to verify if there was an emergency and, if so, to giveassistance. The court noted that the accused's flight might not afford grounds for arrest.

However, the fact he had been seen hidingbehind the house where the police suspected a person may have been shot provided justification to enter the residence to see if anyonewas inside. Further, when the co-accused said she was the only one in the house and that everything was fine, the police were notobliged to accept her word. They had a duty to find out for themselves. [73] I adopt that

summary as an accurate reflection of the circumstances surrounding the Borecky ruling. [74] Borecky establishes that a police officer’s common law duty to protect life and to ensure public safety may, depending upon allof the surrounding circumstances, arise out of a non-911 call if there are nevertheless circumstances of distress. [75] The approach in responding to a non-911 call has been described as a contextual analysis. There may be situations where thepolice receive information outside the ambit of a 911 call.

In such a case, it does not follow that the information received cannotconstitute circumstances of distress: R. v. Norris, 2010 ONSC 2430, at para. 15. [76] Similarly, a police officer’s common law duty to protect life and to ensure public safety in the context of a non-911 call mayjustify the unauthorized entry into a private residence if they have reason to believe that a potentially serious criminal offence may haveoccurred: R. v.

Johnston, 2014 NSSC 131, at paras. 58-59. [77] In Johnston, ibid, police officers responded to a non-emergency call in response to information that there may have been a breakand enter at a residence.

The Court found that, while this was not a typical distress call, the police had reason to believe that a break andenter had occurred, which would justify the unauthorized entry into the residence. [78] The Court found that the initial entry was reasonable and an essential part of the police responsibility to preserve peace andprotect the public by investigating a crime: [para. 59]. [79] The Court concluded that once the police determined that no break and enter had occurred, they exceeded their authority, thuscreating a s. 8 Charter breach, by continuing to search the residence in case there was someone in distress.

Once the police determinedthere was no break and enter, the reason for the call had ended and they were obliged to leave: [paras. 61, 62 and 66]. [80] Even in response to a non-911 call in which the police have reason to believe there are circumstances of distress, the police stillought to consider alternatives to a warrantless entry that can be equally effective in safeguarding the public: Larson, supra, at para. 50,and Jones, supra, at para. 38. (iv) Privacy Interests Relating to the Garage [81] In addressing privacy interests with respect to a garage attached to a home, Cory J. in R. v.

Belnavis, (SCC),[1997] 3 S.C.R. 341, at para. 39, stated: 39 A person can expect that his home can and should be a safe castle of privacy. A person cannot possibly have the sameexpectation of a vehicle. Vehicular traffic must be regulated, with opportunities for inspection to protect public safety. A dangerous caris a threat to those on or near our roads. The reasonable expectation of privacy in a car must, from common experience and for the goodof all, be greatly reduced.

The high expectation of privacy attaching to the home may well extend to an attached garage, but it should notextend to the car within when it leaves the premises.

[82] Belnavis was considered in R. v. Noerenberg, (ON SC), [1997] O.J. No. 4628. In Noerenberg, Lally J.found that the police had breached the accused’s s. 8 Charter right in an impaired driving investigation when they entered her attachedgarage through an open door without a warrant to arrest the accused. The Court found that the garage was attached to the accused’shouse and as such formed an “integral part” of her home: para. 42. [83] Belnavis and Noerenberg were followed in R. v. Kaltsidis, 2005 ONCJ 388.

In Kaltsidis, Forsyth J. also found that the policehad breached the accused’s s. 8 Charter right also in an impaired driving investigation when they entered an attached carport without awarrant to arrest the accused. The Court found that the carport was attached to the accused’s house and as such formed an “integral part”of his home: para. 101. ANALYSIS [84] The accused’s garage was attached to his home. The accused lived in the second level of the residence. There appear to havebeen tenants residing in the lower level of the residence. The garage was accessed through a remote-controlled garage door.

Theaccused was in possession of the remote control for the garage door at the time it was seized by Constable Hobbs. [85] From photographs taken of the garage, it appears that personal effects were inside the garage including tools, a step ladder,what appeared to be some backpacks hanging on a wall hook, and various boxes with unknown contents. The marijuana seized byConstable Hobbs was located in a side room attached to the garage.

This side room appeared to be relatively neat and organized. [86] I find that at the time Constable Hobbs seized the remote control, the garage was being actively used by the accused for storagepurposes. [87] I find that the accused was in control of the garage at the time the search was conducted by Constable Hobbs.

The accused wasable to regulate access to the garage through the use of the remote control that was in his possession. [88] At the time Constable Hobbs seized the remote control, the garage door was closing and it was only through the intervention ofConstable Hobbs in seizing the remote control and pressing the button to open the garage door that it did not close fully. [89] In considering the totality of the circumstances, I am satisfied that the accused had a high expectation of privacy with respect tohis garage.

This privacy interest extended to his remote control that was unlawfully seized by Constable Hobbs. [90] I conclude that the accused’s s.8 Charter right to be secure against an unreasonable search and seizure has been violated. [91] Having found a breach of the accused’s s. 8 Charter right, the onus falls on the Crown to establish on a balance of probabilitiesthat the entry into the garage by Constable Hobbs amounted to conduct that would fall within the scope of his common law duty toprotect life and to ensure public safety. [92] Constable Hobbs and Constable Ward testified in direct examination that they entered the second level of the accused’sresidence by exercising their common law duty to check on any occupants who were possibly in distress or needed police assistance. [93] Constable Hobbs testified that it was his intention to enter the garage after the initial clearing search of the accused’s residenceby also exercising his common law duty to check on any occupants who were possibly in distress or needed police assistance. [94] Borecky establishes that in the context of a non-emergency inquiry by an individual, depending on the totality of thecircumstances, a police officer’s common law duty to protect life and to ensure public safety may justify a warrantless search of adwelling. [95] This common law duty arises out of the substance of the non-emergency inquiry and not from the form of the call.

However,there were substantial differences in the non-emergency inquiry in Borecky where there had been gunshots heard and the police wereaware of Borecky’s violent history, versus the case at bar where the complaint related to an annoying incessant loud noise coming fromthe second level of the accused’s residence. [96] While the subjective and objective grounds expressed by Constable Hobbs and Constable Ward to justify a warrantless entryinto the accused’s residence could not be described as strong, nevertheless, in matters involving the protection of life and physical safety,they were sufficient to justify an entry into the residence.

The comments of the Court of Appeal in Larson, at para. 26, are apt: policemust “err on the side of caution”. [97] It was noteworthy that there was nothing amiss and nothing to suggest that any criminal activity had taken place in theaccused’s residence. After clearing the residence, Constable Hobbs went back to the entertainment system where he unplugged aspeaker, which reduced the volume of noise. [98] Unlike the situation in Borecky where events were developing rapidly, after the clearing search of the accused residence, anysecurity concerns experienced by Constable Hobbs and Constable Ward were dissipating.

Indeed, it was only when they heard thegarage door opening that they focused their attention on the garage. But for the opening of the garage door, it would appear that bothconstable Hobbs and constable Ward were otherwise in the process of leaving the accused’s residence. [99] Constable Hobbs testified that when he came down the stairs from the upper portion of the residence and identified himself as apolice officer, it was his belief that the accused was closing the garage door to prevent him from looking into the garage.

ConstableHobbs testified that the accused had not said anything and appeared surprised by their presence. Similarly, Constable Ward describedthe accused as being initially surprised and then looking shocked about the presence of the police. [100] I find no reliable evidence that Constable Hobbs or Constable Ward made any effort to determine the name of the accused or hisrelationship to the garage prior to the search of the garage. There was certainly time to make some inquiries of the accused, as any belief

in the existence of exigent circumstances should have been greatly reduced after the clearing search of the accused’s residence. [ 101 ] Again, it should be kept in mind that the garage was not accessible from the second level of the accused’s residence.

The non- emergency complaint related solely to the annoying incessant noise coming from the accused’s residence and not the garage. [ 102 ] The suggestion by Constable Hobbs that perhaps the accused had broken into the second level of the residence to get the remote control was more speculative than reliable. [ 103 ] Constable Hobbs had testified that the accused failed to answer the door of the first level residence during his initial perimeter search, which heightened his concerns when he saw the accused with the remote control outside of the garage.

Constable Hobbs provided no basis for his belief that the accused would be living in the lower level residence. [ 104 ] Furthermore, after the search of the garage was conducted, Constable Hobbs again knocked on the door of the first level residence and the residents of that residence opened the door.

Constable Hobbs had time to make inquiries of those individuals and he determined that their residence was an “unrelated basement suite.” There was no evidence that a clearing search was conducted of that residence. [ 105 ] As stated in Jones , supra , at para. 37 , depending upon the surrounding circumstances, even in the context of a 911 call, it is important that police look to alternative investigative methods before embarking on an unauthorized search of a private premise in the exercise of their common law duty to protect life and to ensure public safety.

It would follow that this is even more important when the dispatch call was of a non-emergency nature. [ 106 ] Given the circumstances of this case, it is a reasonable assumption that there were other investigative alternatives that could have been taken instead of seizing the remote control from the accused and, without his consent, stopping the garage door from closing and then reopening it. [ 107 ] As suggested by the accused, Constable Hobbs and Constable Ward could have asked the accused who he was and inquired about the high-pitched incessant noise.

As both the Crown and the accused have made clear, the constables did not need to accept any response from the accused as truthful. [ 108 ] The Crown has submitted that it would be expected that someone in the position of the accused, upon being confronted by the police, would have offered some explanation for his presence instead of simply closing the garage door. I find the silence of the accused does not reasonably support Constable Hobbs’ belief that the accused was not the homeowner.

In the circumstances of this case, it was objectively reasonable that the accused was the homeowner and he was merely closing the garage door with the remote control. The silence of the accused is not an indicator of criminality. As noted earlier, both constables characterized the accused’s demeanour as surprised and shocked at the presence of the police. [ 109 ] The clearing search of the accused’s residence had wound down and was essentially over at the time the constables heard the garage door opening.

I do not find that it was reasonable for Constable Hobbs to take the remote control from the accused without his consent and then to open the garage door and conduct a clearing search, including looking into various boxes, without making some inquiries of the accused, as submitted by the accused at para. 48 of this ruling.

DISPOSITION [ 110 ] I find that there was not an objective basis to support Constable Hobbs’ belief that it was necessary for him to search the garage of the accused in the exercise of his common law duty to protect life and to ensure public safety. [ 111 ] His conduct amounted to an unjustifiable use of powers associated with that common law duty. [ 112 ] The Crown has failed to establish on a balance of probabilities that the entry and search of the accused’s garage was lawful. The Honourable Judge G. Rideout Provincial Court of British Columbia