R. v. Meerholz et al. Date:, 2013 BCPC 41

Citation: R. v. Meerholz et al. Date: 20130214 2013 BCPC 0041 File No: 35882-3-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FRANCOIS CHRISTIAAN MEERHOLZ DILLAN MEERHOLZ CRAIG ANTHONY NIEDERMAYER MICHAEL ANDREW JOSEPH FITZGERALD RULING ON VOIR DIRE RE WARRANTLESS SEARCH OF THE HONOURABLE JUDGE D. J. O'BYRNE BAN ON PUBLICATION 486.5(1) CCC Crown Counsel: T. Lawrence (as Agent for T. Bauman) Counsel for the Accused Francois Christiann Meerholz: R. Climie Counsel for the Accused Dillan Meerholz: B. Gilson, Q.C. Counsel for Accused Craig Anthony Niedermayer: B.

Gilson, Q.C. (as Agent for T. Zipp) Counsel for Accused Michael Andrew Joseph Fitzgerald: J. LeBlond Place of Hearing: Prince George , B.C. Date of Judgment: February 14, 2013

[1] THE COURT: Now, the second ruling on Voir Dire #1 is as follows. [2] This is my ruling on Voir Dire #1 which involves the warrantless search of the residence of Mike Fitzgerald, one of the fouraccused on trial on Information 35882-3-C which charges these accused with offences including unlawful confinement and assault withweapons. [3] The residence searched was located at 3665 Upper Fraser Road in a rural area east of Prince George.

In paragraphs 15 and 16of a 96 paragraph written argument, the Crown concedes that the police entry into this residence was a warrantless search and, as such,was presumptively unreasonable.

Therefore, the Crown accepts that it bears the onus on a balance of probabilities to rebut thatpresumption on the basis of reasonableness on the following grounds: 1. the search was authorized by law; 2. the authorizing law was reasonable; 3. the search was conducted in a reasonable manner. [4] The Crown also seeks to justify the warrantless entry of the dwelling house under the "exigent circumstances" exception suchas those contained in ss. 487.11, 529.3, and 11(7) of the Controlled Drugs and Substances Act, that is, in circumstances "whereimmediate action is required for the safety of the police or to secure and protect evidence of crime": per Mr.

Justice Sopinka in R. v.Feeney at page 53. [5] Exigent circumstances also engage when the police are responding to a 9-1-1 call. As was noted by Justice Doherty in R. v.Golub (1997), (ON CA), 34 O.R. (3d) 743 at page 757: when police are responding to a 9-1-1 call, they are given considerable latitude. If the scene is a volatile one, "the police must expectthe unexpected" as the price paid, if inadequate measures are taken to secure the scene, can be very high indeed. [6] Mr. Justice Doherty went on to comment:

(45) In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without,at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they areexposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any dangerexists and law enforcement will be significantly compromised. [7] The Ontario Court of Appeal, in Kelsy, 2011 ONCA 605 , 280 C.C.C. (3d) 456, per Mr.

Justice Rosenberg,commented at paragraph 57: Thus, if the police cannot act to protect themselves and others when responding to a 911 call and if they feel that they will beunreasonably second-guessed at every stage of a fast-moving, quickly-evolving and chaotic situation, the safety of the public will becompromised. However, this reality does not place police action beyond review.

The Waterfield test as applied by the courts of thiscountry is not a particularly exacting one, but it does rest on reasonable necessity and that core element was lacking here. [8] Therefore, the issue for me to decide is whether there were exigent circumstances that justified this warrantless search of adwelling house. Facts [9] On April 16, 2012, the RCMP dispatch in Prince George received a 9-1-1 call from the Ferndale Community Hall. The 9-1-1caller advised that a male, D.

G., had just ran into the hall claiming that he had just escaped by jumping from the second storey of ahouse next door where he had been held for seven days. The caller also advised that the victim thought his ribs were broken and stated,"There are 10 men in the house where they had beat him for the last seven days": (see Exhibit YYY and Exhibit CCCC). [10] While police were en route to the 9-1-1 call, they received further information that the victim was very paranoid and was askingfor a knife to protect himself.

The victim was also afraid that the people who had held him were trying to get in the windows of the hallto get at him. [11] In addition to broken ribs, the victim complained of broken toes from the actions of his captors. [12] Cst. Belak was the first officer to arrive at the Ferndale Community Hall at approximately 8:27 p.m. From his evidence, thecourt learned that Cst. Belak travelled to the community centre at the speed limit without lights and sirens. Upon arrival, he went intothe community centre kitchen and observed D. G. talking on the phone. He observed that D.

G., the victim, had no shoes on, had driedblood on both of his ears, had a scratch across his forehead with dried blood on it, had bruising under his right eye, had dried blood on hishands, appeared to be in pain, and was hyped up, panicky, breathing in a laboured fashion.

[ 13 ] Inside the ambulance, Cst. Belak asked D. G. what had happened to him, and was told that D. G. was taken from a residence on Victoria Street because people thought he had ratted about a grow operation in Salmon Valley. He had been held for six days. The man who rented the house where he was held was Mr. Mike Fitzgerald who was in his thirties. He was beaten in the basement and tied to a chair. [ 14 ] He further advised that he was picked up in town in a blue Dodge truck that was stolen. A man named Frankie or nicknamed Foot was there. The men at the house told him they were going to kill him.

He was struck with a tack hammer, a length of wood, and his hands were cut with a machete. [ 15 ] Cst. Belak, when he exited the ambulance, noticed a male standing with two black dogs in the driveway next door wearing a red T-shirt. Cst. Belak informed Cst. Martin, who was now on the scene at the community centre, what was going on and asked Cst. Martin to update Staff Sergeant McArthur, the Watch Commander. Cst. Belak then instructed the ambulance to take Mr. D.

G. about 10 kms to the Ferndale Volunteer Firehall to await the ambulance that was coming from Bear Lake because he felt the situation was not safe at the community hall due to the proximity to the residence where he observed the male and D. G. said he had been held. [ 16 ] Cst. Belak spoke with D. G. briefly at the fire hall and was further advised there were two shotguns and a rifle inside the Fitzgerald residence and there would be his blood in the basement as well. [ 17 ] The decision to sweep the Fitzgerald residence was made by Staff Sergeant McArthur, and all the officers agreed with it.

Staff Sergeant McArthur wanted to sweep the residence for officer safety. The Staff Sergeant's main concern was the preservation of evidence, and by evidence, he meant evidence in general. Staff Sergeant McArthur said he could not set up a perimeter without first securing the property as he did not know who might be inside, and this would not be safe for officers doing security outside. [ 18 ] At 10:10 p.m., Staff Sergeant McArthur, Cst. Belak, Cst. Butler, Cst. Charron, and Cst. Martin arrived back at the community centre and parked facing the Fitzgerald house. Cst.

Belak observed a male standing on the porch at the south entrance. Cst. Belak addressed the male on a loud-hailer from his police vehicle. Cst. Belak called out the name Mike Fitzgerald, and then directed the male to walk towards the officers. The male complied, and Cst. Martin took control of the male, handcuffed him, and placed him inside a police vehicle. [ 19 ] Four police officers entered the residence after the detention of Mr. Fitzgerald to make sure there was no one else in the house. Cst. Belak located a marihuana grow operation in the basement during the sweep of the Fitzgerald residence. Cst.

Belak also located a rifle with the bolt closed hidden inside a bulkhead in the basement of the residence. [ 20 ] At approximately 10:31 p.m., the officers exited the house once they determined there was no one inside. [ 21 ] The court next heard from Staff Sergeant McArthur, the Watch Commander, and from his evidence, we learned the facts behind his decision to enter the house without a warrant. Staff Sergeant McArthur testified that he had 25 years' experience as a police officer serving in Vancouver, Surrey, Stewart, Mackenzie, and Prince George.

He had been involved in approximately 100 exigent searches of residences and buildings. In his experience, it was not unusual to find people hiding in residences and buildings during exigent searches. [ 22 ] Earlier, Staff Sergeant McArthur had been briefed over the phone by Cst.

Belak about an incident where a male showed up at the community centre claiming to have been forcibly confined and beaten in a house next door to the community centre, escaping by jumping from a second-storey window and running to the community centre. [ 23 ] Staff Sergeant McArthur drove Code 3 with lights and sirens to the volunteer fire hall on Giscome Road arriving at approximately 9 p.m. Upon his arrival, Staff Sergeant McArthur immediately took command. [ 24 ] Staff Sergeant McArthur interviewed D. G., and D.

G. told him that he had been taken from the residence on Victoria Street at gunpoint by several men to a residence near the community centre. One of the males who took him was Mike Fitzgerald, the male who lived in the house by the community centre. He was held for seven days and beaten. He was tied to a chair in the basement, over the last couple of days had been given more freedom and was able to escape. There was a “grow op” in the basement. [ 25 ] Staff Sergeant McArthur observed D.

G.'s injuries, including blood on his face and hands, bruising including large welts on his forearms, and a gash on one of his fingers. [ 26 ] D. G. advised Staff Sergeant McArthur that he believed there was only one person, Mike Fitzgerald, at the 3665 residence. D. G. never mentioned to Staff Sergeant McArthur anyone else being inside 3665 Upper Fraser Road. [ 27 ] Staff Sergeant McArthur does not specifically recall asking D. G. if there was another victim inside the residence, but in the Staff Sergeant's opinion, it was reasonable to assume there could have been.

However, there was also reason to assume that D. G. would not necessarily have known if there were any other victims in the house. Staff Sergeant McArthur felt there was a possibility that there was someone else in the 3665 residence. [ 28 ] In Staff Sergeant McArthur's opinion, it would take at least two hours to get a regular search warrant in a situation like this, and Staff Sergeant McArthur testified it was important in his mind to get in there as quickly as possible.

Staff Sergeant McArthur told me "he was not in a position to get a warrant before going in." [ 29 ] In Staff Sergeant McArthur's opinion, he did have reasonable and probable grounds to get a search warrant at the time of his entry into 3665 residence, and his grounds were (

a) he had a victim who alleged that he had been kidnapped and held against his will and he believed that victim's story to be true, (

b) he believed there would be physical evidence inside the residence as well as a grow operation, (

c) he had corroborative evidence in terms of his victim being found right beside the residence, and (

d) the victim had told his story consistently a number of times.

[ 30 ] Staff Sergeant McArthur was concerned about the number of officers he had. It was his opinion that five officers was the bare minimum required for the type of situation he was dealing with. Staff Sergeant McArthur was not prepared to spare an officer to apply for a warrant before the house was secured. [ 31 ] Shortly after 10 p.m., Staff Sergeant McArthur did a drive-by of the 3665 residence with Cst. Butler. They drove by it once driving north and once south, with a brief stop to view the residence from down the road.

When they attended to the 3665 location, Staff Sergeant McArthur confirmed that he directed Cst. Belak to use the loud-hailer to call out to a male. He also confirmed that a male approached the officers as a result of the call and was handcuffed and placed in the police vehicle. [ 32 ] Staff Sergeant McArthur then went on to confirm that the police went inside the residence, and in his estimate, they were in the residence for approximately 10 minutes to sweep it to determine if there were any persons in it.

The search ended when Staff Sergeant McArthur was outside the 3665 residence and he called the officers back from the rear portion of the property. [ 33 ] Staff Sergeant McArthur told me the primary objective was to secure 3665 residence, including any evidence and weapons that might be inside. In his mind, the preservation of evidence was of paramount concern, but he was also concerned with other people being present inside the residence, although D. G. only indicated there was one person inside.

With respect to the preservation of evidence, Staff Sergeant McArthur was particularly concerned with perishable evidence.

Staff Sergeant McArthur told me he believed there was at least one person there at the 3665 residence who was aware of the police presence, and he did not know for sure if that person was a victim or a suspect, but if they were a suspect, he believed that one of their first orders of business would be to destroy evidence, especially with the police circling around. [ 34 ] While his primary concern was the preservation of evidence, Staff Sergeant McArthur also was concerned about who might still be in the residence as well as the safety of the community generally.

Staff Sergeant McArthur testified he was concerned for members of the community in the area, including people on the road, and felt that it was important to secure the residence. [ 35 ] After the scene was secured, Staff Sergeant McArthur called in two other members of the RCMP for scene security while the search team returned to the detachment in Prince George to apply for a warrant. [ 36 ] Cst. Martin was the second officer to attend to back up Cst. Belak. He arrived before Staff Sergeant McArthur. Cst.

Martin met with the actual 9-1-1 caller, who advised that he heard screaming in the parking lot and met with a male, subsequently determined to be D. G., who said he had been held hostage next door to the hall and needed police. [ 37 ] Cst. Martin saw a male in a red T-shirt at the suspect house next door watching the police at the community hall. When asked to explain the repositioning to the fire hall, Cst. Martin advised his primary concerns were the safety of the victim, the firefighters and emergency health staff, as well as police.

The male associated to the suspect house had been seen observing police presence and activities. Cst. Martin also indicated that the number of suspects in the house was unknown, but it could be as many as 10, and he, Cst. Martin, was concerned that it was getting dark and the police did not know the threat level at the scene. [ 38 ] Cst. Martin confirmed he placed handcuffs on Mike Fitzgerald and placed him in a police car. Also, Cst. Martin testified that he remained outside of the 3665 residence while the other four officers entered and searched. [ 39 ] Cst.

Martin gave evidence about the exterior lighting, that is was a poorly lit rural area, that he was nervous and considered "transitioning" from his drawn pistol to a shotgun. Further describing the situation, Cst. Martin said that he believed there could be up to 10 people inside the 3665 residence where there were guns and dogs as well. [ 40 ] Cst. Martin did record a vehicle identification number/serial number from a skid steer related to him by Cst. Butler from inside the garage after the residence had been cleared. [ 41 ] Csts.

Charron and Butler also testified as to their involvement in these events, but their evidence mainly repeated what had already been testified to. However, Cst. Butler did confirm he did stop to examine and record a skid steer serial number in the garage as he was clearing that outbuilding. Position of the Crown [ 42 ] The Crown submits that the search of the 3665 residence was authorized by law, specifically 487.11 and 529.3 of the Criminal Code .

Section 529.3 , permitting entry into a residence to effect an arrest in exigent circumstances, is relevant to the analysis in that the

section describes exigent circumstances. While Mr.

Fitzgerald was not arrested in his home and was not actually under arrest at the time of the exigent search in this case, 529.3 is relevant to the analysis because the premise for this section, like 487.11, is the existence of grounds for a warrant in circumstances that would make obtaining one impractical. [ 43 ] The Crown submits that this is not a Feeney situation because no one was arrested inside the residence and it was the evidence of Staff Sergeant McArthur that the primary purpose of going in was to prevent the destruction of evidence and to conduct a search to clear the residence for safety reasons.

Thus argues the Crown, the authorizing

section is 487.11 which authorizes a warrantless entry into a residence for the purposes of a search as opposed to an arrest in a Feeney situation. [ 44 ] The reasonableness of these sections in the Crown's submission is not at issue in this case, so the question is whether or not the conditions for those statutory provisions were met and whether the search itself was performed in a reasonable manner.

The Crown relies on s. 487.11 which provides: A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

[45] In addition, the Crown submits that exigent circumstances existed which authorized the officers to make a warrantless entry andsearch of the residence, particularly given the rural nature of the property and the amount of time that would have been required to obtaina search warrant, as well as ongoing safety concerns for police and members of the public. Position of the Defence [46] The defence, and in this case only counsel for Mr.

Mike Fitzgerald had standing, pointed to the absence of urgency in thissituation, that if there were a number of people at the house earlier, there was certainly no evidence almost two hours after policeattended that they were still at the 3665 residence. [47] In the submissions of the defence, any suggestion of exigent circumstances to justify the warrantless entry is an attempt atretroactive justification of the search.

Further, the defence argues that any subjective belief in urgent exigent circumstances has to beobjectively assessed given the effluxion of time between police arrival at approximately 8:27 p.m. and the search at approximately 10:15p.m. [48] The defence submits that there was more than enough time to apply for a warrant. Further, to paraphrase the defence, and hereI am quoting from paragraph 232 in R. v. N.N.M. (2007), (ON SC), 223 C.C.C. (3d) 417: As a general rule, the existence of exigent circumstances cannot be justified on the basis of the police operationally causing anemergency.

In other words, as observed in R. v. Burlingham . . . exigency cannot be justified where "the police created an artificialsituation of urgency". Similarly, in Silveira . . . La Forest (in dissent) noted that but for the way in which the police "chose to sequencetheir actions" leading to "police-created exigencies" the urgency would not have arisen and, in acting as they did, the officers "createdtheir own exigent circumstances and should not be permitted to use them as a justification for circumventing the law".

Otherwise,observed La Forest J. . . . this approach to exigent circumstances "would give the police little incentive to acquire a warrant in advance". Other authorities too recognize that circumstances described as exigent, and therefore purportedly supportive of exceptional warrantlesspolice activity, ought not to be contrived or unreasonably the product of police actions: [see] R. v.

Greffe [where there was] (no"immediate necessity" to conduct [a] search to prevent loss of evidence); Caslake . . . ( . . . the "police motives" for the timing of thesearch [must be considered]); Bohn . . . ("The reason to hurry the search along was created by the decision of the police to go ahead thatnight . . . ") . . . [49] Neither counsel made submissions on the 9-1-1 cases in exigent circumstances until the court raised the issue. The Crown didprovide further cases and submissions but did not rely upon the 9-1-1 exigent circumstance cases as the primary grounds to support thewarrantless search.

The defence, as well, did not view the 9-1-1 exigent search cases as of primary importance, pointing to the passageof time as removing any 9-1-1 urgency from the situation at the 3665 residence before the search. Analysis [50] I find that the case at bar is a true 9-1-1 case, and accordingly, the appropriate starting point is R. v. Godoy, [1999] 11 S.C.R.311 as set out in R. v. Larson, 2011 BCCA 454 at paragraph 19 as follows (all of the following is directly from R. v. Larson): [19] In this case, the Crown contended that the search was lawful under the principles set out in R. v.

Godoy . . . which establishedthat the police may enter a dwelling without a warrant where there is reason to believe that such entry might be necessary to protect thelives or safety of the occupants or the public, and where no effective alternative to a warrantless entry is available. [20] In Godoy, police officers were dispatched to the accused's apartment to investigate an "unknown trouble call" – a 911 call thathad been disconnected before the caller had had an opportunity to speak. When the police attended, the appellant answered the door.

One of the officers asked whether everything was all right inside the apartment, and the accused responded that there was no problem. The police then asked whether they could enter the apartment, and the accused attempted to close the door. The officers entered theapartment without the accused's consent, and located the accused's common-law wife in the bedroom of the apartment. She was curledup in a fetal position, sobbing, and had a black eye.

The accused was charged with assaulting her. [21] The Supreme Court of Canada considered the extent to which the common law powers of police supported the legality of theentry in the apartment. At para. 12, Lamer C.J.C., speaking for a unanimous court, set out the considerations that applied: [12] The accepted test for evaluating the common law powers and duties of the police was set out in R. v. Waterfield . . .

If policeconduct constitutes a prima facie interference with a person's liberty or property, the court must consider two questions: first, does theconduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeitwithin the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. [22] The Court had no difficulty with the idea that police entry into a dwelling constituted a prima facie interference with a person'sliberty and property, or with the proposition that the police had a common law duty to respond to distress calls.

The more difficult issuewas whether the entry into the accused's apartment involved an "unjustifiable use of police powers".

[23] In determining whether the use of police powers was a justifiable one, the Court adopted (at para. 18) the considerations put forward by Doherty J.A. in R. v.

Simpson . . . : [T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. [24] Continuing on in para. 18, the Court found that the entry was justifiable: In the case at bar, it was necessary for the police to enter the appellant's apartment in order to determine the nature of the distress call.

There was no other reasonable alternative to ensure that the disconnected caller received the necessary assistance in a timely manner. While the appellant suggested that the police could knock on the neighbours' doors and question them, or wait in the apartment corridor for further signs of distress, in my view these suggestions are not only impractical but dangerous.

If a 911 caller is in serious danger and is unable either to communicate with the 911 dispatcher or answer the door upon police arrival, the caller's only hope is that the police physically locate him or her within the apartment and come to his or her aid. [25] At para. 22, the Court noted the limited ambit of the common law power to make a warrantless entry into a dwelling: [22] ... [T]he importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller.

The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident's privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there.

They do not have further permission to search premises or otherwise intrude on a resident's privacy . . . In Dedman v. The Queen . . . Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated.

Each case will be considered in its own context, keeping in mind all of the surrounding circumstances. [26] The standards applied by the courts in determining whether life or safety is at risk are fairly relaxed ones. It is recognized that in matters involving the protection of life and physical safety, the police have no realistic choice but to err on the side of caution. The Crown cites a series of judgments of this Court that illustrate this point. [ 51 ] First is R. v. Jamieson , which involved a drug lab. There was no way of knowing whether or not there was active cooking going on.

The officers entered – (this is my

summary) - and the officers' search was legally justified. [ 52 ] Next is R. v. Brown where the police received a report of a man being stabbed in a hotel room, another man being present with a gun. The police attended at the room, entered, and the defence argued that the entry was in violation of the occupant's s. 8 rights.

The Court of Appeal of British Columbia stated in para. 10 as follows: I do not think that it can reasonably [be] said in the circumstances that the officers had completed the execution of their general duty to protect life until they had satisfied themselves that 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. In my view, the evidence supports the trial judge's conclusion that the officers were justified in entering Room 201 for the purposes that they described in their testimony.

Those purposes were within the scope of their general duty to protect life and their actions were, accordingly, authorized by law. [ 53 ] In Larson , the Court of Appeal went on to consider R. v. Hill where there was a report of gunshots and a 9-1-1 call coming from the accused's home. The police attempted to contact the accused using a phone and intercom but were unsuccessful. They tried a siren. They eventually went in and located a significant amount of marihuana.

The trial judge's findings in Hill were summarized by the Court of Appeal in para 12 of Lawson as follows: [T]he trial judge found that: [1] The police had an honest belief regarding the legitimacy of the 911 call reporting a gunshot from the Hill residence. [2] The belief was supported by objective criteria, including three independent reports of shots fired from the vicinity of the Hill residence. [3] Ms. Mandziuk had no ulterior purpose in reporting what she thought were gunshots coming from the Hill residence.

[4] There was nothing to suggest that the shots had come from anywhere other than at or around the Hill residence, and the police had a reasonable belief that the shots had come from the residence. [5] All of the officers involved in the decision to enter collectively shared the view that it was necessary to enter and clear the residence. [6] Mr. Hill's mutually inconsistent explanations for the sounds only added to the police concern. [7] The "purpose in entering the residence was to secure the life and safety of anyone who might have been in harm's way".

The entry was "not conducted for any ulterior motive to investigate a crime." [ 54 ] At paragraph 31 in Larson , the Court of Appeal goes on to comment: This Court [that is, the B.C. Court of Appeal] upheld the trial judge, concluding that there was no basis to interfere with the trial judge's findings, and holding that they justified entry into the home. [ 55 ] In R. v. Wu , the police received an anonymous call from a payphone in a shopping mall reporting an injured person in the accused's home. The police knocked at the front door, and the police thought they heard somebody exiting out the back.

They went around the back and they found the accused at the bottom of a set of stairs. He was asked, was anyone injured? He said he was not sure. The police entered the house and they located a grow op. As a result of that, the police entry was challenged. The trial court went on to find "no fault with the trial judge's reasoning, and upheld the judge's determination that the search was lawful." [ 56 ] In paragraph 33 of Larson the Court goes on: [33] In Hill . . . [the] Court [of Appeal] noted that cases applying the Godoy principle are "essentially fact driven".

It made the point that "[i]t is not for this Court to review the evidence and substitute its own view of the evidence for that of the trial judge in the absence of clear error". [34] In all of the cases cited by the Crown, it is easy to identify the threat to life or public safety that the police were concerned about. In Jamieson , there was a suspicion that an injured person was in the house, as well as a suspicion that an active drug lab posed an immediate threat to the surrounding community.

In Brown , the police were investigating a report that a stabbing had occurred in a hotel room, and the whereabouts of the victim had not been established – there was a real possibility that the victim remained in the room. In Hill , there were unexplained gunshots heard in a house. Investigation was required in order to ensure that no shooting victim remained in the residence. In Wu , there was a report of an injured person . . . ... [39] The real question in this case, it seems to me, is whether it was reasonable, in all the circumstances, for the police to conduct a search of Mr.

Larson's home, keeping in mind that a search could only be justified on the basis that it was [necessary] to protect life and safety. As this Court pointed out in Jamieson at para. 28, a search that is conducted for the purpose of investigating crime requires a warrant. Only where there are concerns of a threat to life or personal safety will a warrantless entry and search be justified. [ 57 ] Carrying on at paragraph 44, the B.C. Court of Appeal comments: [44] It is difficult to understand how the search could have been based on such considerations.

There does not appear to be any objective basis for their belief that people might remain in the premises. Some two hours had passed between the latest possible time for the home invasion and the moment the police entered the house. Mr. Larson had not suggested that the home invaders had expressed an intent to become an occupying force in his home. Rather, he claimed that they were after him personally. [45] The police did have a suspicion that Mr. Larson had a marihuana grow operation at his home, and this might have been a plausible motive for people to invade his home.

It is entirely unlikely, however, that any invaders would have remained in the home for two hours, particularly given that Mr. Larson would have had knowledge of their entry into the premises, and would have had escaped them. ... [47] It is also difficult to articulate what "public safety concerns" or "concerns that related to the safety of Mr. Larson" were present. Even if there was some remote possibility that invaders were in the house, the police did not, in their testimony, suggest any mechanism by which the purported home invaders endangered life or personal safety. Mr.

Larson had, by the time police entered his home, been admitted to hospital, some considerable distance away. There was no possibility that he would be returning home imminently, so there was no immediate risk to his personal security. Police had attended at the house, and could easily observe the absence of any immediate threat to persons outside of the home. [48] The Crown does not suggest that there were grounds for entry into the dwelling other than concerns for life or safety of Mr. Larson or the public.

There is no suggestion that "exigent circumstances" connected with the preservation of evidence or to the need to

apprehend criminals were present, such that a warrantless entry under ss. 529.3(1) or 529.3(2)(b) . . . [would] have been [justified]. [58] The court went on, then, to find "there was no basis for the trial judge's holding that the warrantless search of Mr. Larson'shome was lawful," and they went on to consider the exclusion of evidence. [59] Another example of exigent circumstances is set out in R. v. Golub, (Ont. C.A.), this time in the context of awarrantless search as an incident of arrest.

The facts in that case are that the accused was drinking, using cocaine, and was holed up in abasement suite armed with an Uzi-type machine pistol with multiple clips. Mr. Justice Doherty in Golub went on to say as follows atparagraph 41: [41] In my opinion, searches of a home as an incident of an arrest, like entries of a home to effect an arrest, are now generallyprohibited subject to exceptional circumstances where the law enforcement interest is so compelling that it overrides the individual'sright to privacy within the home.

After Feeney, the general principles governing the scope of searches as an incident of arrest set down inCloutier do not control where the place to be searched is a residence. Those principles are still helpful in that they identify relevantconsiderations.

However, those considerations must be looked to, not to balance competing interests, but to determine whether thecircumstances are sufficiently exceptional to justify overriding the general prohibition against warrantless searches of the home. [42] What will amount to exceptional circumstances justifying a warrantless search of a residence as an incident of an arrest? I willnot attempt an exhaustive answer.

Exceptional circumstances do not, however, refer to circumstances which rarely arise, but rather tocircumstances where a state interest is so compelling that it must override a person's right to privacy within the home. [43] Broadly stated, the state interest upon arrest is the effective administration of justice. There are various components to thatinterest including the need to secure the arrested person, protect those at the scene of the arrest, and preserve evidence. In determiningwhether exceptional circumstances exist justifying a warrantless search, the nature of the state interest must be identified.

The stateinterest in collecting evidence may not justify a warrantless search, but the interest in protecting the safety of those at the scene mayjustify that same search. [44] In this case [Mr. Justice Doherty went on to comment], I am concerned with the police interest in protecting the safety of those atthe scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressedimmediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation mustbe acknowledged.

Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police mustexpect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as itis wrong to engage in ex-post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in whichpolice officers must make these decisions. [60] Mr.

Justice Doherty, at paragraph 45 in Golub, went on to comment: [45] In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrestwithout, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which theyare exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where anydanger exists and law enforcement will be significantly compromised.

The frustration of the effective enforcement of the criminal law isthe hallmark of the exceptional circumstances [described] in Feeney. [61] At paragraph 46, Mr. Justice Doherty went on to say: [46] I would hold that where immediate action is required to secure the safety of those at the scene of an arrest, a search conducted ina manner which is consistent with the preservation of the safety of those at the scene is justified.

If, in order to secure the safety of thoseat the scene, entry into and search of a residence is necessary, I would hold that the risk of physical harm to those at the scene of thearrest constitutes exceptional circumstances justifying the warrantless entry and search of the residence. The search must be conductedfor the purpose of protecting those at the scene and must be conducted in a reasonable manner which is consistent with that purpose. [62] Further, at paragraph 48, Mr. Justice Doherty commented: [48] . . .

If the circumstances of an arrest give rise to a legitimate cause for concern with respect to the safety of those at the scene,reasonable steps to allay that concern may be taken. The nature of the apprehended risk, the potential consequences of not takingprotective measures, the availability of alternative measures, and the likelihood of the contemplated danger actually existing, must all beconsidered. The officers making this assessment must, of course, do so on the spot with no time for careful reflection.

In my opinion, areasonable suspicion, based on the particular circumstances of the arrest, that someone is on the other side of a closed door with a . . .gun, or that someone is lying injured on the other side of that door, creates a legitimate cause for concern justifying entry and search ofthe apartment for persons. [63] From the case law I have just read, I glean the following. [64] The Waterfield test is one of reasonable necessity: (Golub.)

[ 65 ] The subjective belief of the existence of exigent circumstances must be objectively assessed as being reasonable on the information known to the police: (see Justice Saunders in Jamieson , quoting Godoy .) [ 66 ] The existence of exigent circumstances cannot be justified if the police created an artificial situation of urgency: ( Burlingham ) [ 67 ] The police actions must fall within the general scope of their duties and the conduct must not involve an unjustifiable use of the powers associated with those duties: ( Waterfield) [ 68 ] The justifiability of the police conduct depends on the duty being performed, the extent to which some interference with individual liberties is necessary in order to perform that duty, and the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference: (Mr.

Justice Doherty in Simpson ) [ 69 ] The standards in determining whether life or safety is at risk are fairly relaxed ones.

In matters involving the protection of life and physical safety, the police have no realistic choice but to err on the side of caution: ( Larson) [ 70 ] Entry in exigent circumstances must be of limited duration and no more extensive than required to ensure safety: ( Jamieson) [ 71 ] If a search is legally justified in the circumstances, it is not an unreasonable search within the meaning of s. 8 of the Charter : ( Jamieson) [ 72 ] Cases applying the Godoy principle are essentially fact-driven: ( Larson citing Hill at paragraph 28) [ 73 ] A warrantless search of a dwelling house could only be justified on the basis that it was conducted to protected lives and safety: ( Larson) [ 74 ] A search that is conducted for the purpose of investigating crime requires a warrant: ( Jamieson , paragraph 28) [ 75 ] Exceptional circumstances exist where a state interest is so compelling that it must override a person's right to privacy within the home: ( Golub , paragraph 42 ) [ 76 ] Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make the decision: ( Golub , paragraph 44 ) [ 77 ] If in order to secure the safety of those at the scene (and here I would include police officers), entry into and search of a residence is necessary "if the risk of physical harm to those at the scene constitutes exceptional circumstances and those circumstances justify the warrantless entry and search of the residence": ( Golub) [ 78 ] A reasonable suspicion based on the particular circumstances that someone is lying injured creates a legitimate concern justifying entry and search of the premises for those persons. (Golub) [ 79 ] Staff Sergeant McArthur attended to the Ferndale Fire Hall at Code 3; that is with full emergency equipment employed.

He was briefed by his officers and advised that for safety concerns, Csts. Belak and Martin had repositioned away from the scene at the hall and next to the house where the unlawful confinement was alleged to have taken place. [ 80 ] The Staff Sergeant personally interviewed the complainant, D. G., and satisfied himself that his story was credible, especially given the visible physical injuries and laboured breathing of D. G. Additional information presented to the Staff Sergeant included: there had been a kidnapping and unlawful confinement of D.

G.; one of the people who did this was Mike Fitzgerald who lived in the house next to the community centre were D. G. had been confined; up to as many as 10 persons could be in the residence; there were firearms, including shotguns, in the residence; the residence was in a poorly lit rural area and darkness had fallen; one occupant of the residence next door had been seen watching the police. [ 81 ] Staff Sergeant McArthur had 25 years of experience as a peace officer and had been involved in approximately 100 exigent circumstance searches of residences.

Based on the information available to him and his experience as a police officer, he felt it was reasonable to assume that there may be more victims than D. G. that were being held in the 3665 residence. The Staff Sergeant felt there was a possibility there was someone else in that residence.

In the mind of Staff Sergeant McArthur, he believed that it was important that the residence be entered and searched as quickly as possible to preserve evidence and determine if there was any other persons present. [ 82 ] In regard to obtaining a search warrant, Staff Sergeant McArthur did not think it was feasible to obtain one quickly given it would require up to two hours to obtain. He only had five officers, including himself, the bare minimum required to enter the residence, and therefore he could not spare one officer to leave and obtain the warrant.

Further, he could not establish a perimeter without first securing the property by entering and searching it because he did not know who might be inside and this would not be a safe situation for officers doing exterior security. [ 83 ] Staff Sergeant McArthur did believe that he had reasonable grounds to obtain a warrant given the information provided by D.

G., including the presence of a marihuana grow operation. [ 84 ] In addition to securing the residence to preserve evidence, a paramount concern of the Staff Sergeant, there was also a concern about the safety of the community generally, including persons travelling on Upper Fraser Road and using the community hall next door. As well, Staff Sergeant McArthur testified his focus was on tactics and officer safety, that he was "a little bit uneasy doing this residence search with only five officers." The police did not know if the one person seen at the residence was a victim or one of the perpetrators.

In essence, Staff Sergeant McArthur described a volatile situation with many aspects that were totally unknown to the police, with no positive indication of the threat level to victims, officers, or members of the public.

[ 85 ] I find that the decision of Staff Sergeant McArthur to enter the residence of 3665 Upper Fraser Road meets the test of reasonable necessity. I find that his subjective belief that exigent circumstances existed is objectively reasonable based on the information known to police at the time of the entry. This is not a situation where police manufactured exigent circumstances. They were responding to and fully investigating a 9-1-1 distress call. The police knew that the residence at 3665 was likely a crime scene where evidence of the crime would exist.

In addition, police had information that as few as one and as many as 10 possible suspects with access to firearms would be found in the residence. Given these facts and the rural location of the property, I find that Staff Sergeant McArthur had no realistic choice other than to err on the side of caution and conduct the sweep of the premises to locate any persons in the residence and to secure it for forensic examination. [ 86 ] I find that the search herein, which lasted about 15 minutes, was a search conducted to protect life and safety. It was not a search for the purposes of investigating crime.

I note that although the officers located a firearm, brass knuckles, a marihuana grow operation, and shoes, no items were seized and removed at that time. [ 87 ] I find that Crown has established on a balance of probabilities that in this case the exceptional circumstances existed that justified the warrantless entry of 3665 Upper Fraser Road. [ 88 ] Accordingly, as the search is legally justified, it is not an unreasonable search and seizure within the meaning of s. 8 of the Charter . The evidence will be admissible. (RULING CONCLUDED)