Everett et al v McCaskill et al, 2015 MBCA 107

Citation: Everett et al v McCaskill et al, 2015 MBCA 107 Date: 20151130 Docket: AI14-30-08278 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ROSA EVERETT, KEITH MERASTY, ) ROSA EVERETT as litigation guardian of ) PRECIOUS EVERETT-SCOTT, ROSA ) R. I. Histed EVERETT as litigation guardian of ) for the Appellants LUCAS SCOTT, and ROSA EVERETT as ) litigation guardian of BRANDON SCOTT ) D. A. M.

Pambrun ) for the Respondents (Plaintiffs) Appellants ) ) Appeal heard: - and - ) April 13, 2015 ) KEITH McCASKILL and THE CITY OF ) Judgment delivered: WINNIPEG ) November 30, 2015 ) (Defendants) Respondents ) On appeal from 2014 MBQB 185 , 309 ManR (2d) 178 MONNIN JA [ 1 ] On six occasions between April 4, 2010, and September 30, 2010, the City of Winnipeg Police attended at a house on Selkirk Avenue in the north end of Winnipeg. The plaintiffs are residents of that house.

They filed a statement of claim against the defendants claiming that on these occasions the police conducted warrantless searches, wrongfully detained or assaulted some of the residents and committed batteries against some of them.

They also claimed that their Charter rights (see the Canadian Charter of Rights and Freedoms ) and rights to privacy were violated and, as a result, the City of Winnipeg (the City), the employer of the police, is civilly liable for damages, including punitive damages. [ 2 ] The matter proceeded to trial before a judge of the Court of Queen’s Bench (the trial judge) who, after reviewing each of the incidents in question, concluded that the police conduct did not amount to actionable wrongs and dismissed the statement of claim in its entirety.

She provisionally ordered nominal damages in the event that liability was ever found in another forum. The plaintiffs appeal. [ 3 ] The claims that were adjudicated by the trial judge are succinctly and aptly set out in her judgment as follows (at para 2): The plaintiffs allege that the police entries, searches and detentions were unlawful. They bring this action against Keith McCaskill on the basis of false imprisonment, battery, trespass, and violation of privacy under the Privacy Act , C.C.S.M., c. P-125.

Their tort claims are joined with a claim for breach of their constitutional rights under the Canadian Charter of Rights and Freedoms (the “ Charter ”) against the City. They assert breaches of the right to be secure against unreasonable search and seizure (s. 8), the right not to be arbitrarily detained (s. 9), the right to be informed of the reason for detention (s. 10(a)), and the right to legal counsel (s. 10(b)). They seek general, aggravated and punitive damages, as well as damages under s. 24(1) of the Charter .

Standard of Review [4] The plaintiffs raise numerous grounds of appeal relating to each incident, both evidentiary and legal. To the extentthat those matters raise issues of credibility of witnesses, or findings of fact by the trial judge, or the drawing of inferences, they aresubject to a standard of review of palpable and overriding error. [5] To the extent a ground raises an issue of mixed fact and law, then unless an extricable question of law arises, it is alsoto be reviewed on a standard of palpable and overriding error.

As well, the trial judge’s application of the law to the facts that she foundis subject to the same standard (see Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235). Evidentiary Matters [6] While I will deal with the specific evidentiary or credibility errors raised by the plaintiffs with respect to each of theincidents, I make a few preliminary comments. The trial judge favoured the evidence of the police officers called by the defendants inall important and material respects.

She made specific negative findings with respect to the credibility of the plaintiffs who were calledand explained her reasons for doing so. I am unable to conclude that the plaintiffs have raised any arguable grounds to set aside herfindings on the credibility of the plaintiffs or on the findings of fact that she has made in order to reach her conclusions. Accordingly,this appeal will proceed on the basis that the credibility and fact findings, as found by the trial judge, are to be accepted.

Legal Principles [7] The grounds of appeal raised by the plaintiffs include allegations of unlawful entry to the plaintiffs’ premises,unlawful searches, breach of the plaintiffs’ privacy interests and unlawful imprisonment (detention) as well as allegations of assault. [8] There is no issue that all of the searches conducted by the police on these occasions were without the benefit of asearch warrant. Accordingly, they must be viewed as being prima facie in breach of the plaintiffs’ rights under

section 8 of the Charterto be free from unreasonable search and seizure. It is, therefore, incumbent upon the defendants to show that the searches could bejustified under the applicable legal principles (see Hunter et al v Southam Inc, (SCC), [1984] 2 SCR 145). [9] A number of the searches were conducted as a result of 911 calls. The leading Supreme Court of Canada case of R vGodoy, (SCC), [1999] 1 SCR 311, referred to by the trial judge, sets out the principles applicable to the review ofpolice conduct when responding to a 911 distress call.

The Court confirmed that the police have a common-law duty to investigate a 911call and the authority to forcibly enter a dwelling in search of the caller. The Court, using the test for evaluating the common-lawpowers and duties of police as set out in R v Waterfield, [1963] 3 All ER 659 (CCA), followed by the Supreme Court of Canada inDedman v The Queen et al, (SCC), [1985] 2 SCR 2, now commonly known as the Waterfield/Dedman test, stated asfollows (Godoy at para 12): The accepted test for evaluating the common law powers and duties of the police was set out in Waterfield, supra (followed by this Courtin R. v.

Stenning, (SCC), [1970] S.C.R. 631, Knowlton v. The Queen, (SCC), [1974] S.C.R. 443, andDedman v. The Queen, (SCC), [1985] 2 S.C.R. 2).

If police conduct constitutes a prima facie interference with aperson’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. [10] Lamer CJC also adopted Doherty JA’s application of the Waterfield/Dedman test in R v Simpson (R) (1993), (ON CA), 60 OAC 327 at para 55, where the latter stated (at para 18): . . . the justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which someinterference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to thepublic good, the liberty interfered with, and the nature and extent of the interference.

Lamer CJC agreed that those considerations should form the basis of the analysis. [11] Godoy was considered again by the Supreme Court of Canada in R v Clayton, 2007 SCC 32, [2007] 2 SCR 725, a morerecent decision from the Court which dealt with a police response to a 911 call concerning individuals leaving premises with handguns.

While that case dealt with the extent of police powers in respect to searches incident to an investigative detention, the Court’s commentson the ability to consider the seriousness of the information conveyed in the 911 call as a factor in assessing the reasonableness of theconduct are instructive. Abella J stated (at para 34): As Doherty J.A. pointed out, the 911 system assumes that the police will react in a timely fashion to the information provided and thatthe police should be entitled to rely on such information.

and further (at paras 40-41): The police had reasonable grounds to believe that public safety was at risk, that handguns could be in the possession of those leaving the parking area, and that stopping cars leaving that area could result in their apprehension. The steps taken by the police in this case in stopping the car, based on the information they had, were reasonable and reasonably tailored to the information they had.

In the totality of the circumstances, therefore, the initial detention in this case was reasonably necessary to respond to the seriousness of the offence and the threat to the police’s and public’s safety inherent in the presence of prohibited weapons in a public place, and was temporally, geographically and logistically responsive to the circumstances known by the police when it was set up. [ 12 ] Apart from the authority given by common law to the police to enter and search the premises in response to a 911 call, there is also the concept of exigent circumstances, which is relied upon by the defendants in some of these incidents.

In R v Kelsy (M) , 2011 ONCA 605 , 283 OAC 201 , Rosenberg JA, for the Court, explained exigent circumstances as follows (at para 24): Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety.

As well, he noted that (at para 35): By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only where necessary. [ 13 ] A “safety search” has been further defined in R v MacDonald , 2014 SCC 3 , [2014] 1 SCR 37 (at para 32 ): A search that is reasonably necessary to eliminate threats to the safety of the public or the police — which I will term a “safety search” — will generally be conducted by the police as a reactionary measure.

In other words, although such searches may arise in a wide variety of contexts, they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react “on the sudden”. [ 14 ] In MacDonald , the Supreme Court of Canada relied upon its earlier jurisprudence set out in R v Mann , 2004 SCC 52 , [2004] 3 SCR 59 , concerning searches incidental to arrest, where it set out the following factors to be considered in determining whether a safety search is reasonably necessary (at para 37): This appeal marks the first opportunity for the Court to discuss whether a search incident to an investigative detention is authorized by law.

Underlying this discussion is the need to balance the competing interests of an individual’s reasonable expectation of privacy with the interests of police officer safety. In the context of an arrest, this Court has held that, in the absence of a warrant, police officers are empowered to search for weapons or to preserve evidence: R. v. Golden , [2001] 3 S.C.R. 679 , 2001 SCC 83 , at para. 95 . In the reasons following, I consider whether and to what extent a power to search incidental to investigative detention exists at common law.

I note at the outset the importance of maintaining a distinction between search incidental to arrest and search incidental to an investigative detention. The latter does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible. [ 15 ] Another response to a claim of unlawful entry or unlawful search is that the residents consented.

Recently, in Tymkin v Ewatski et al , 2014 MBCA 4 , 299 ManR (2d) 294 , this Court had occasion to comment on consent with respect to attendance by police to effect an arrest, although I believe the comment is equally applicable to the issue of entry and search (at para 89): Where police seek to rely upon a consent to enter the premises to effect an arrest, they must rely upon a valid one. The requirements for a valid consent include that:

a) it must be given by someone who has a privacy interest in the premises (see Guiboche [2004 MBCA 16, 180 ManR (2d) 276];Young v. Ewatski (2012), 2012 MBCA 64 , 280 Man.R. (2d) 239; 548 W.A.C. 239; 2012 MBCA 64; and Feeney [ (SCC), [1997] 2 SCR 13]); and

b) the consent must be an informed one (see Wills [(1992), (ON CA), 52 OAC 321] and M.C.G. [2001 MBCA178, 160 ManR (2d) 131]). [16] In short, for a consent to a search to be considered valid, those seeking to uphold it must satisfy the court, on a balanceof probabilities, that it was voluntarily given, informed and came from a person with the authority to give it. [17] As recognized by the trial judge, and as commented on in Clayton, the reasonableness of the police conduct must beassessed in light of the information that was available to them at the time.

The evidence of a number of police officers was that theywere familiar with the premises involved in these incidents. Some of the residents were believed to be members of the ManitobaWarriors, a Winnipeg street gang. The house was flagged on the police computer system as such. Furthermore, a police caution hadbeen in place since 2009 which identified the home as a suspected crack house. One police officer testified that the police had regularlyattended the home and dealt with the family.

Others indicated that, from their understanding, it was a known gang and drug house. [18] Contrary to the assertions of counsel for the plaintiffs, I believe it was appropriate for the police to have that in mindwhen considering how to respond to certain of the incidents. Failure to do so would have been most imprudent on their part.

That doesnot mean that the residents had no rights to privacy or not to be subjected to unreasonable searches or detention, but only that thereasonableness of the police response to allegations, such as the presence of firearms on the premises, must be assessed in light of thatinformation. [19] As to the issue of “constitutional damages” which are damages awarded under section 24(1) of the Charter, the leadingcase setting out the criteria and considerations surrounding the awarding of such damages are to be found in Vancouver (City) v Ward,2010 SCC 27, [2010] 2 SCR 28.

McLachlin CJC summarized the objectives of section 24(1) damages as follows (at para 31): In

summary, damages under s. 24(1) of the Charter are a unique public law remedy, which may serve the objectives of: (1) compensating the claimant for loss and suffering caused by the breach; (2) vindicating the right by emphasizing its importance andthe gravity of the breach; and (3) deterring state agents from committing future breaches. Achieving one or more of these objects is thefirst requirement for “appropriate and just” damages under s. 24(1) of the Charter. [20] She went on to consider the countervailing factors to the awarding of damages.

She concluded that given the basis ofthe requirement for the awarding of damages to be “appropriate and just”, it “must be functionally required to fulfill one or more of theobjects of compensation, vindication of the right, or deterrence of future Charter breaches” (at para 32). Other considerations may makethem inappropriate or unjust where an award of damages would serve no purpose and alternative remedies including private lawremedies were available.

As well, considerations of “good governance” allows the state to argue that damages should not be awardedunless the conduct meets a minimum threshold of gravity. [21] Using these legal principles, I turn now to a detailed review of the six incidents in question. Incident No. 1–April 4, 2010 [22] The April 4, 2010 incident arose as a result of a call to police by an individual claiming that his daughter was beingheld hostage by a male who was in possession of a loaded 12-gauge shotgun. He related that this male had abducted her from the homeof his brother and taken her to 689 Selkirk Avenue (the premises).

The abductor was alleged to be a member of the Manitoba Warriorsstreet gang. The father’s information came from his son, who had been present at the time of the abduction. [23] Police attended to where the father was located and also spoke to his brother who had been present during theabduction. The latter, intoxicated, denied seeing a gun and refused to speak of the incident. [24] The police surrounded the premises and called in the tactical support team. Attempts were made to contact theresidents of the home by phone, but were unsuccessful.

The police then used a loud-hailer to raise the residents. [25] Eventually two individuals came out, the plaintiff Keith Merasty (Keith), 21 years of age, and the plaintiff PreciousEverett-Scott (Precious), 12 years of age. They were handcuffed and placed in cruiser cars. Keith testified that he was never advised asto why he was detained or given a chance to call a lawyer.

However, one of the officers testified that Keith was told that he was beingdetained for a “firearm incident”, that he could telephone a lawyer and provided him with a police caution, to which he responded that heunderstood but did not need to call a lawyer as there was no gun in the home. There was no evidence that Precious was given the sameinformation or opportunity. [26] While they were in the cruiser car, the home was first searched by the tactical team to ensure that no one was present orinjured. A second search was then conducted by the members of the general patrol for weapons.

Keith’s evidence was that the housewas trashed and furniture broken during the course of those searches, but this was denied by the police witnesses. [27] Over the objections of plaintiffs’ counsel, the trial judge admitted evidence from police witnesses that, after they left

the scene, they spoke to the alleged victim who confirmed that she had been abducted at gun point by her former boyfriend who was in the company of two individuals, one of whom was Grant Merasty, a resident of the premises, and a relative of some of the plaintiffs. She told them that she had been taken to another location on the same street and assaulted. [ 28 ] On those facts, the trial judge was asked to conclude that Keith and Precious were falsely imprisoned, arbitrarily detained and that their constitutional rights under

section 10 of the Charter were breached. She was also asked to consider whether the searches of the home constituted trespass, an invasion of the privacy of all the plaintiffs and a violation of the right to be secure from unreasonable search and seizure under

section 8 of the Charter . [ 29 ] The trial judge concluded they did not. In her view, the reasonableness of the conduct of the police had to be assessed on the facts that were known to them at the time, which included: (

a) that they had attended the plaintiffs’ home before this occasion and had information that it was a gang and crack house; (

b) that they received information that one and possibly two guns were in the home the day before; and (

c) that they were responding to a 911 call that a young woman had been abducted at gun point and taken to that location. [ 30 ] In the trial judge’s view, the first part of the Waterfield/ Dedman test, namely that the police were acting within the general scope of their duties to provide assistance to protect life and preserve the peace, was met as both the detention of the occupants and the search of the residence were to address public and police safety concerns in response to an investigation of the 911 call. [ 31 ] The trial judge also concluded that the police actions were a justifiable use of police powers in the circumstances of the case.

Relying on the factors set out in Simpson , she was of the view that the police apprehension of danger in the circumstances was reasonable and legitimate in light of the information they had received. In her view, both the detention of the occupants and the search of the residence were justified.

She concluded that the detention of Keith and Precious, while not brief in duration, was necessary to enable the police to control the situation and safely enter and clear the residence. [ 32 ] The trial judge was also of the view that the detention of Keith was justifiable as an investigative detention under Mann , given the description the police had received of the abductors and the connection with the premises. She also concluded, on the basis of an assessment of credibility, that the police evidence was to be preferred over Keith’s.

She explained the reasons for doing so and concluded that she would put little weight, if any, on his testimony. [ 33 ] As to the detention of Precious, the trial judge concluded that even if she had been detained and the police had not provided her with a right to counsel, the police conduct was not of sufficient gravity to meet the minimum threshold to warrant constitutional damages.

In her view, there were exigent circumstances and there was no bad faith on the part of the police who were focussed on dealing with a potential hostage incident. [ 34 ] As to the searches themselves, the trial judge was of the view that they were short in duration and reasonably necessary to eliminate any imminent threat to the safety of the public or police and to release the home back to the occupants.

She accepted that these were exigent circumstances and it would have been impractical to obtain a warrant because of the potential “volatility and danger of the situation” (at para 55), relying on R v Tereck (RS) , 2008 MBCA 90 , 228 ManR (2d) 260 . In conclusion, she found the searches to have been for a limited purpose, relatively short in duration and proportionate to the concerns involved. [ 35 ] On appeal, the plaintiffs raise one ground of appeal based on an error of fact, namely the conclusion that it was impractical to obtain a warrant to search the premises.

As well, they raise ten errors of law which can be summarized as follows: (

a) Was there an unlawful entry? (

b) Were there unlawful searches? (

c) Was there an unlawful imprisonment or detention of Keith and Precious? and (

d) Was there a breach of the plaintiffs’ privacy? [ 36 ] The plaintiffs argue that there were no reasonable grounds to support the actions of the police leading them to detain the residents and search the premises. In their submission, the information was insufficient to conclude that the actions they undertook were required. The circumstances were not exigent, as the police waited a significant amount of time before seeking to enter the premises. They had sufficient time to obtain a warrant, which was not done.

As well, the detention of the two plaintiffs in question was not necessary for public security, nor were the two searches. [ 37 ] The plaintiffs rely on MacDonald and, more particularly, the comments of LeBel J, where he says (at para 41): But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled.

In my view, the principles laid down in Mann and re affirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search ( Mann , at para. 40 ; see also para. 45).

The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter ( see R. v. Tse , 2012 SCC 16 , [2012] 1 S.C.R. 531 , at para. 33 ). As the Court stated in Mann , a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” ( Mann , at para. 41 ).

Entry and Searches [ 38 ] There is no serious debate that, in deciding to remove the occupants from the premises and conduct a search for the presence of a potential hostage, the police were acting within the scope of their duties. Therefore, there is no issue as to the first part of the Waterfield/ Dedman test. [ 39 ] As to the second part of the test, namely whether the police conduct was justified and reasonable in the circumstances, the trial judge was correct in stating that the conduct must be assessed taking into consideration the knowledge they possessed at the time.

Their reliance upon the information obtained, even though second or possibly third hand, she found to be reasonable. I see no error in her doing so. The decision to enter without a warrant in order to ascertain whether the victim of the abduction was at that location was also reasonable in the circumstances and, in my view, covered by the doctrine of exigent circumstances. The trial judge found as a fact that exigent circumstances necessitated immediate action, or at least prompt action, therefore denying the ability to obtain a warrant. That conclusion is supported by the evidence.

There is no palpable and overriding error. [ 40 ] The initial search of the premises to ascertain the presence of the young woman and her abductors certainly met the test set out in Godoy . There was a clear danger to human life involved and a “safety search” was justified and reasonable. [ 41 ] The second search by the patrol officers was ostensibly for the purpose of searching for weapons. The information the police had at the time (i.e., that a gun had been present at the location the previous day) is some justification for their doing so.

In my view, that fact alone, given the passage of time, would not render the second search one which fell strictly under the Godoy approach relating to a search conducted to satisfy a concern relating to public safety. [ 42 ] However, the trial judge relied on Tereck , a decision of our Court, where we stated (at para 12): It would have been a dereliction of their duty or plain negligence if they had left the premises with the possibility that an unsecured firearm was on those premises.

In this case, the balance that is required between the interests of the state and public safety on the one hand, and an individual’s reasonable expectation of privacy on the other, must fall on the side of protecting the public. [ 43 ] Given the information the police had as to the presence of a firearm the day before, coupled with the additional fact that a firearm was used for the alleged abduction, it was reasonable for a search to be conducted to determine whether a firearm was present before releasing the premises back to the residents.

The trial judge concluded that the second search was justified for that purpose, and I see no error in her doing so. Detention [ 44 ] As to the detention and conduct at the scene involving Keith and Precious, other legal principles are involved. The plaintiffs’ position is not that the detention became unreasonable at a certain point, but that it was unreasonable from the start. In other words, the police had no reasonable grounds to detain the two individuals. I disagree.

Given the information they had at that time as to the potential presence of a hostage and an abductor with a loaded gun, the police were justified in treating any occupants with some suspicion until their identity and involvement, if any, were determined. Given the nature of the offences to which they were responding, handcuffing individuals coming out of the house was not unreasonable. I am of the view, as was the trial judge, that the exigent circumstances justified the detention, including the manner in which it was conducted, in accordance with the standard for investigative detention set out in Mann .

The trial judge found that Keith’s

section 10(

b) Charter rights were respected and that the detention, while not short in duration, was nevertheless only as lengthy as necessary to conduct the searches of the house. [ 45 ] As to Precious, many similar considerations apply. While it is right to question the need to handcuff a 12-year-old girl, evidence from the police officers raised issues of police safety in the circumstances, arising from the volatile situation. The trial judge accepted such a position, and I cannot conclude that it was an error for her to do so. I also agree that the evidence as to whether Precious received her

section 10(

b) Charter rights, namely being informed as to why she was being detained and her ability to consult a lawyer, is not sufficient to reach the minimum threshold to attract constitutional damages as found by the trial judge. Other circumstances may lead to a different conclusion in another case where the gravity of the offence and the background history suggest a less deferential approach to police conduct with respect to young detainees. [ 46 ] In

summary, I find no error in the manner in which the trial judge dealt with the claims arising from the incident of April 4, 2010. Incident No. 2–July 17, 2010 [ 47 ] On July 17, 2010, the police received a series of telephone calls in the late afternoon from neighbours of the premises. One caller informed the police that a group of males was arguing in front of the house next door, namely 691 Selkirk Avenue, that one of them was swinging a bat and that some individuals were bloodied.

A neighbour further down the street called shortly after to indicate that there was a fight outside the two residences with bats and chains. Finally, a third called to say that a group of males armed with weapons were damaging a home further down the street. It should be noted that the police were of the view that the residents at 691 Selkirk Avenue were associated with a rival gang to the Manitoba Warriors. Police witnesses testified that the occupants of both these homes had been causing the police problems for some time and had necessitated responses to other calls.

[48] Upon receiving the initial call, police officers attended to both residences. They entered both premises in order todetermine if anyone was injured. When inside, they sought identification from the individuals they encountered there. The policeevidence was that, upon entering 689 Selkirk Avenue, they identified Keith, his brother Lucas and a third male who identified himself asJordan Tyo-Osborne.

No one indicated that they wished to proceed with charges or that they needed further assistance, and the policeleft. [49] Within an hour, the police received a further phone call from the residence next door, informing them that theindividuals in question had returned and were now hiding in the basement, still armed with bats. The police again returned to bothresidences and entered both. No injured persons or weapons were found. There was no request for police assistance, and they left.

While in the cruiser car, one of the officers realized that the individual who had identified himself on the first occasion as Jordan Tyo-Osborne was, in fact, Dennis Tyo-Osborne, who had an outstanding arrest warrant. They returned to the premises, found the individualon the front porch and arrested him. [50] The trial judge was asked to find on that evidence that all three entries into the home amounted to an invasion ofprivacy, trespass and unreasonable search and seizure or violation of the plaintiffs’

section 8 Charter rights. [51] The only evidence from the plaintiffs on this issue came from Keith. For reasons that she described, the trial judgediscounted his evidence (at para 58). Applying the Waterfield/Dedman test, the trial judge considered the context in which the policewere operating, namely the belief that there was an altercation between neighbouring rival gang members armed with weapons.

She wassatisfied from the evidence of the police officers that they honestly and reasonably believed that it was necessary to enter the home inorder to properly investigate the matter and to confirm that no one was injured. The purpose for seeking identification was to make surethat there were no rival gang members being held against their will. The police were only present for a short period of time, no longerthan a total of ten minutes on each occasion. [52] The trial judge concluded that the police conduct on all three occasions was a justifiable use of police power to protectand preserve life.

They were responding to the report of possible injury and were concerned about the need for medical attention forsome of the residents in these two premises. Their entry was motivated by safety concerns.

They took no more steps than were requiredto ensure safety and as were reasonably necessary, given the calls they received. [53] The trial judge concluded that no one was detained and arrested, but did not deal with the arrest of Dennis Tyo-Osborne. [54] On appeal, the plaintiffs argued that the three entries on the premises were not a justifiable use of police powers andthat the third entry, to arrest Dennis Tyo-Osborne, was a trespass given that it was a warrantless entry without consent to effect an arrest(see Tymkin). [55] I agree with the trial judge’s conclusion that the searches conducted on that day by the police in response to the 911calls were essentially conducted for the purpose of ensuring public safety.

The calls were not of a frivolous nature, and the knowledge ofthe police with respect to the relationship between the parties in both residences gave them cause to be concerned about the safety ofresidents. I also agree with her conclusion that the request for individuals to identify themselves was a reasonable one. There is noindication that such information was coerced and the individuals need not have answered. Her conclusion that the police had an honestand reasonable belief was reasonable under the circumstances.

There is no palpable or overriding error with her conclusions. [56] The arrest of Dennis Tyo-Osborne, while occurring a short time after the second visit, in my view, must be consideredin the context of it being essentially a continuation of the second entry. The police found him on the porch outside the premises. Hadthe second visit been for the purpose specific of arresting someone, it would have required a warrant or a consent of someone on thepremises (see R v Feeney, (SCC), [1997] 2 SCR 13; and Tymkin).

However, having just attended for the purposes ofensuring public safety and of ascertaining the presence of an individual who was subject to a warrant for arrest, their return a fewminutes later to effect the arrest can be seen as a continuation of the second entry which, as found by the trial judge and with which Iagree, was justified and reasonable. Incident No. 3–July 28, 2010 [57] The attendance at the premises on July 28, 2010, arose as a result of two unrelated complaints to police. The firstinvolved an allegation of a threat and the second an assault.

In the first complaint, the individual who had called police about hisdaughter’s abduction in April (incident No. 1) called to advise that his son, while walking near the premises, was chased by a group ofmales from the home. One of the males made a threatening gesture and ran back into the premises. He also advised that the suspectmales were associates of the persons who had kidnapped and assaulted his daughter. [58] At approximately the same time, two police officers attended at a nearby home, responding to a complaint of an assaulton a young male.

He advised police that, while walking by 689 Selkirk Avenue, he had been grabbed and assaulted by a person named“Carlos”. He pointed to several individuals in front of 689 Selkirk Avenue, indicating that they were involved in the assault. [59] Two police units involved in both incidents approached the house. The door was opened by Precious. The evidence ofwhat occurred at that point is contradictory. According to Precious, she testified that the police asked to speak to an adult and, despiteher telling them to wait outside, they entered the home without her permission.

Police witnesses testified that they informed Preciousthat they were present because of a threat from someone who was thought to be in the home and to investigate the assault incident. Theyasked to enter and speak to the residents. Precious permitted them to do so, on the understanding that they not go past the living room. [60] What occurred thereafter is also subject to different versions. Once the police entered the home, Lucas, Keith andBrandon came into the living room. According to Keith, he testified that he told the police to leave and tried to telephone his lawyer.

However, he was grabbed by the police, prevented from using the phone and subjected to profane abuse and threats. Precious, Brandonand Keith testified that the police roughly grabbed Brandon, took him outside, placed him on the ground and handcuffed him. Preciousattempted to grab the handcuffs in order to assist Brandon, but was pushed by the police against the wall and open-palmed on her

forehead. [ 61 ] The police version is that, once inside the home, Brandon was recognized as one of the males who had been involved in the assault. When he came down the stairs to the living room, he became verbally aggressive as well as physically threatening. He was restrained and escorted outside to calm matters down. Precious, in an attempt to assist Brandon, screamed and charged at the police.

She was restrained. [ 62 ] After being advised of why he was being detained, namely as a suspect in the assault, and being advised that he had the right to telephone a lawyer and to remain silent, Brandon denied being involved in the assault and was released. He was cautioned, as were Keith and Lucas, in relation to the threat involving the young male. [ 63 ] The trial judge was of the view that the evidence of the police witnesses was to be preferred over the evidence of Precious, Keith and Brandon. She explained why the plaintiffs’ evidence was not credible.

With respect to gaining entry to the premises, she accepted the police evidence that they were told by Precious that they could enter but could not go past the living room, which is what they did.

She also accepted the police evidence surrounding the altercation with Brandon and Precious, namely that Brandon was threatening and hostile and was removed outside to calm the situation, while Precious was handled appropriately when she attempted to intervene. [ 64 ] The trial judge concluded that the police had received valid consent to enter the premises from Precious and that they were present not to arrest but to further investigate the incidents of a threat and the assault.

As such, she concluded that the police had reasonable grounds based upon the allegations to arrest Brandon when he appeared in the home. As well, she found that they had objectively reasonable grounds to detain him for investigative purposes with respect to the report of the assault that they were investigating.

In her view, the manner of the detention was reasonable in the circumstances given his aggressive behaviour, and excessive force was not used, nor was he threatened. [ 65 ] As to the physical encounter with Precious, the trial judge concluded that the police were justified in controlling her, given what was happening with Brandon. She found that they did not use excessive or unreasonable force in doing so. [ 66 ] On appeal, the plaintiffs raise six grounds of appeal with respect to this incident. They allege two errors of fact, namely: (

a) that the trial judge erred in finding that Precious had extended an invitation to the police to enter; and (

b) that the trial judge erred in finding that Precious had consented to the entry. The legal issues that the plaintiffs raise can be summarized as follows, namely: As to the entries: (

a) that the trial judge erred in finding that Precious had given valid consent since she lacked the capacity or authority to waive the constitutional rights of the other plaintiffs to their privacy interest; and (

b) that her waiver was neither informed nor voluntary; As to the police conduct towards Brandon and Precious: (

c) that the police had neither the power nor the justification to detain or remove Brandon in the circumstances; and (

d) that the physical assault of Precious was not justified. [ 67 ] For the reasons I have explained earlier, I am unable to find palpable and overriding error with respect to the trial judge’s findings of credibility with respect to Precious and Brandon ’s evidence in relation to these incidents.

She carefully explained why their testimony was not satisfactory to her and why she preferred the evidence of the police witnesses with respect to this incident. [ 68 ] On the basis of the facts as found by the trial judge, there was a consent to the police entering the premises for the purposes of further investigation since, contrary to what is alleged by the plaintiffs, their purpose for attending on this occasion was not to arrest but to investigate.

I agree with the trial judge when she concluded that the consent given by Precious was limited to the entrance of the home and it was not exceeded until the confrontation with Brandon. I view the entry to the limited space for the purpose of conferring with an adult as reasonable conduct on the part of the police at the time. I also agree with the trial judge’s conclusions that Precious was aware of the reasons for the request and consented to the limited entry.

Her consent was both voluntary and informed in the circumstances. [ 69 ] As to what occurred inside, namely the detention of Brandon and the physical containment of Precious, the trial judge concluded that it was a justified police response to Brandon’s aggression and that no unreasonable force was used with respect to either Brandon or to Precious. I see no error in her so concluding.

Incident No. 4–September 28, 2010 [ 70 ] On the morning of September 28, 2010, a call was received by the police informing them that the previous day a man had been seen holding a handgun outside of the premises in the company of a number of other males and they had been discussing a drive-by shooting. The same caller informed them that he had received information from a friend that shots were fired later on in the day at that location. [ 71 ] Police units were sent to the premises to investigate. At the door, they were met by the owner, Rosa Everett (Everett).

One of the officers involved testified that, after explaining the purpose of their visit, they were allowed in by Everett to confirm that

there was no one present and no gun in the home. However, at some point in their search, they were asked to leave. They did so. Their presence at the house lasted approximately ten minutes. [ 72 ] Everett herself did not testify as a result of illness. The only plaintiff who testified regarding the incident was Keith. Two of the police officers who attended testified, including those who had spoken directly to Everett.

Relying upon their evidence, the trial judge found that Everett had consented to the police entering the home and that they had left when she asked them to leave. [ 73 ] The trial judge went on to find that the police actions were a justified use of their powers according to the Waterfield/ Dedman test, as they were responding to information that there had been a gun on the premises and were attempting to determine if anyone was injured or required assistance. In fact, the police testified that they would have conducted the search whether or not Everett had consented.

The trial judge used the fact that a stabbing had just occurred a few days before at that location as a reason to find that the police position (that public safety was at stake) was reasonable. [ 74 ] On appeal, the plaintiffs argue that the trial judge made an error in fact in concluding that Everett had invited the police inside to search the premises. They also raise three errors of law arguing that the trial judge erred by: (

a) failing to find that Everett did not have capacity or authority to waive the constitutional rights of other residents of the home; (

b) failing to consider whether Everett’s consent was voluntary or informed; and (

c) in concluding that the search was a justifiable use of police powers given that the allegations had occurred a day earlier. [ 75 ] For the reasons outlined previously, the trial judge was entitled to prefer the evidence of the police officers on the events of that day, rather than that of Keith. There was no evidence from Everett to contradict that of the police officers.

The fact that her counsel had written a letter to the Chief of Police approximately six weeks earlier, stating that the police should not conduct any further searches of the house without speaking to her lawyer, was considered by the trial judge, but she found that her actions on that day were not necessarily inconsistent with that letter. In the police evidence, the police officers explained the reason why they were seeking to enter the premises, that Everett understood and that she permitted them to do so. At some point in time she revoked her consent, at which time they left.

There are no grounds to find an error of fact. [ 76 ] As to the alleged errors of law, the consent appears to have been voluntary and informed.

Everett had a privacy interest in the house and had the authority to allow the police entry and permission to search ( see Tymkin ; and R v Guiboche (GF) , 2004 MBCA 16 , 180 ManR (2d) 276 ). [ 77 ] I agree with the trial judge that the consent of Everett was sufficient to allow the police to conduct the search as they did on the day in question and that, as a result, no trespass or breaches of the Charter or privacy interests occurred. [ 78 ] On appeal, the defendants do not rely upon the trial judge’s conclusion that the search was also justified under the Waterfield/ Dedman test.

It being unnecessary for me to do so, I will not provide further comments other than to say that I have a concern that the search, happening almost one day after the allegation of the presence of a gun, with no further indication that the individuals involved were present, is difficult to justify under either an officer or public safety concern or exigent circumstances. The fact that the police officers indicated they would have conducted a search, whatever Everett said, is also of concern.

Had she refused consent, I am hesitant to say that in the circumstances they would have had the necessary authority to proceed to search without attempting to seek a warrant. Incident No. 5–September 29, 2010 [ 79 ] This incident arises as a result of the police searching for one William Laporte (Laporte), a member of the Manitoba Warriors and a suspect in two murders. He was believed to frequent a number of addresses in the neighbourhood, including 689 Selkirk Avenue. On the day in question, Detective O’Donovan came to the premises and advised Keith that he was looking for Laporte.

Detective O’Donovan says that Keith gave him permission to enter and search the premises. Keith’s evidence was that he told the Detective he could not enter, but that he did anyway. [ 80 ] The trial judge found that Keith’s evidence was not reliable or credible on this issue because it was apparent that he was confused and did not recall the incident. On the contrary, Det. O’Donovan’s evidence was clear and specific as to his encounter with Keith. He recalled remaining on the main floor with Keith while other police officers searched the house. He estimated being in the home for about five minutes.

The trial judge also found that the police had proper consent to enter the home and to perform the searches. As a result, she found that there was no unlawful entry or trespass, invasion of privacy or unreasonable search and seizure in the circumstances. [ 81 ] On appeal, the plaintiffs raise: (

a) an error of fact, alleging that the finding that Keith had consented was an error; (

b) an error of law in holding that Keith had capacity or authority to waive the rights of the other plaintiffs; and (

c) an error of law in finding that the consent of Keith was informed. [ 82 ] There is no basis to overturn the trial judge’s finding of fact as to the consent given by Keith. Her reasons for finding Keith not credible are cogent and within her purview. [ 83 ] On the issue of whether the consent was an informed one as Keith had not been advised that he did not have to let the police into the home, the trial judge found that there was no need to do so. As in all cases, the exact nature of the consent provided is something which is circumscribed by the specific matters which are being dealt with. By that I mean that consent has to be obtained on

the basis of being informed as to what it is for. The consent is only valid if the police indicate the purpose of their visit and that the conduct thereafter is in keeping both with the stated purpose and the nature of the consent given. [ 84 ] It may be that in appropriate circumstances, as in R v MCG , 2001 MBCA 178 , 160 ManR (2d) 131 , a more expansive explanation by the police is required.

In MCG , our Court found that an informed consent with respect to the arrest without a warrant of a young individual in his home required an explanation by police that he need not accompany them if he did not wish to do so. In this case, the consent given by Keith was to a sweep-search for the purposes of ascertaining whether an individual was on the premises. In his own evidence, Keith testified that he asked the police to leave, thereby confirming that he was aware that he did not have to let them in.

While the trial judge disbelieved his evidence on that occasion, past incidents at his house certainly would have left him with the knowledge that consent need not be given. In the words of the jurisprudence, he was not merely “acquiescing or complying”. [ 85 ] As to the consent and whether it could cover the privacy rights of third parties, there is no doubt that Keith had a privacy interest in the home and was entitled to allow the police to enter for the purposes of a sweep-search. Whether he would have had the authority to allow for a more invasive search of the house than a sweep-search is not before us.

I make no comment on the reasonableness of a more invasive search. [ 86 ] I am satisfied that there is no error in law in the trial judge’s determination that the nature of the consent provided by Keith was informed and sufficient for the purpose of conducting the search that was undertaken. Incident No. 6–September 30, 2010 [ 87 ] After incident No. 5, Det. O’Donovan and other police officers continued their search for Laporte, the suspected murderer. As part of the investigation into the murder, a statement had been provided by a youth, J.J.M., implicating Laporte and other members of the Manitoba Warriors.

That youth and another one, J.M., who had also provided a statement to the police, were associated with the gang and Laporte’s drug operation. They had disappeared. While searching locations Laporte was known to have frequented near the premises in question, Det. O’Donovan was approached by someone who advised him that J.J.M. was at the premises.

Detective O’Donovan contacted other police officers from the homicide unit who were looking for J.J.M. and J.M. in the belief that these youths, if information concerning their statements came out, would be in danger from other members of the gang. [ 88 ] The two detectives who were searching for the youths came to the premises and were allowed into the house by Lucas but then confronted by Keith. According to Keith’s version of events, the police told him that they were looking for a youth who was his brother’s friend. He advised them that the youth was not present and that they could not enter.

He was then physically accosted, grabbed by the hair and placed in handcuffs. As well, his brother Lucas, was told to sit on the couch and handcuffed. [ 89 ] The police evidence was that, while speaking to Keith in the foyer of the home, they recognized shoes belonging to J.J.M., having interviewed him a short time before. While they recognized that Keith was becoming hostile and telling them to leave, being concerned that J.J.M. was in need of protection, they advised Keith that they would search the home.

He became aggressive to police so he was directed physically, but not aggressively, towards the couch in the living room while police searched the upstairs. They testified that Keith was not handcuffed, as alleged. After both J.J.M. and J.M., who were upstairs, were taken into custody, they left the premises. Overall, it was a short period of time. [ 90 ] While J.J.M. was charged with two breaches of court orders, the decision to charge him came at a later time after discussions with Child and Family Services.

The police evidence was that this was done as part of a safety plan developed between Child and Family Services and the youth’s parents to protect and manage him. Also, that they did not attend the premises with the view of arresting him, but rather simply to locate him.

The trial judge accepted the evidence of the police over Keith and Lucas as to what occurred that day. [ 91 ] At trial, the police relied upon section 21(2) of The Child and Family Services Act , CCSM c C80 (the CFS Act ), which gives a peace officer, who reasonably believes that a child is in immediate danger, authority to enter premises to investigate the matter and to apprehend the child to take him to a place of safety. [ 92 ] The trial judge concluded that there were reasonable and probable grounds to believe that J.J.M. was in “immediate danger” and that it was not necessary for police to obtain a warrant for his apprehension.

She accepted that the situation was exigent as she agreed that the police believed the youths to be in jeopardy and at risk of harm or even death. [ 93 ] She did not accept the evidence of Keith and Lucas as to what occurred while the police were in their home. She found Keith’s evidence lacking in reliability and credibility, and that Lucas’s account of what occurred was generally poor and his evidence inconsistent. She was satisfied that there was evidence that Keith’s hostility and the volatile situation warranted the use of limited force to keep the situation under control.

The events occurred over a period of six minutes and the physical contact was minimal. In her view, it was not unreasonable or excessive in the circumstances. She found, therefore, no unlawful entry or battery. [ 94 ] On appeal, the plaintiffs raise four alleged errors by the trial judge with respect to this incident: (

a) her finding that there were reasonable grounds to believe that J.J.M. was “in immediate danger” on September 30, 2010; (

b) her finding that the purpose of entry on that day by the police was not to arrest J.J.M.; (

c) her finding that the battery that admittedly took place on September 30, 2010, was justified; and (

d) in failing to find that Keith and Lucas were detained. [ 95 ] The plaintiffs contend that J.J.M. was not “in immediate danger” as he would only have been in danger if the information came out that he had been co-operating with police. The police evidence at trial was that they had no information that this was the case. Accordingly, there could not be a finding which would engage the

section and displace the need to obtain a warrant to

search the premises for the youth. As well, given that the intention of the police, according to the plaintiffs, was to arrest J.J.M., they should have obtained a warrant to do so. [ 96 ] The difficulty with the plaintiffs’ contentions are that they are in disaccord with the facts as found by the trial judge and which are supported by the evidence which she accepted. In her view, the police belief that there was a likelihood of potential harm befalling the youth if the fact of his cooperation came out while in the company of other members of the gang was a legitimate and real concern.

It apparently was also a concern for Child and Family Services, as they had asked for police help in locating him. She also accepted the police evidence that the decision to arrest and charge the youth with breaches of his bail order was only arrived at after he had been placed into custody. Therefore, they did not attend with the intention of arresting him inside a dwelling house. [ 97 ] I agree that, at first blush, a reading of section 21(2) of the CFS Act would suggest a more restricted view of police powers under that section.

However, the plaintiffs’ contention that it is only aimed at situations where there is evidence of actual harm and not potential harm is, in my view, too restrictive. I believe it can encompass a situation such as the one that developed after police had entered the premises by consent. The presence of evidence suggesting the child was there, in my view, made the decision of the police officers to remain, notwithstanding the revocation of consent, reasonable and within the provisions of the CFS Act .

I am not sure it would have warranted steps taken under the public safety search set out in Godoy , but that is not what had been relied upon by the trial judge. [ 98 ] As well, the lack of cogent evidence that the child was present until the initial investigation of the house would not have afforded grounds for the police pursuing the entry without consent. However, on the facts of this case, once inside, they spotted the shoes and had evidence tying J.J.M. to the location, confirming the information they had previously received.

Given their belief as to the child’s jeopardy, I am satisfied that the trial judge was correct in finding that they were entitled to act on the belief that the child was in potential danger. [ 99 ] As to the physical contact with Lucas and Keith, the trial judge was entitled, on the evidence, to conclude that the police were merely attempting to control an escalating situation while they performed their duties under the provisions of the CFS Act . She found that the physical contact was minimal and not unreasonable or excessive in the circumstances.

Her finding that the physical contact was justified cannot be said to be in error. [ 100 ] She accepted the police evidence that the individuals were not detained and, had they indicated their desire to leave the premises, they could have left. Therefore, allegations of a detention under

section 9 of the Charter are also unwarranted. [ 101 ] I therefore find no error of law or palpable and overriding error on the part of the trial judge in her assessment of the matters arising from this incident. Damages [ 102 ] The trial judge made a provisional assessment of damages after reviewing the circumstances of the various incidents and noted that no force was used to gain entry of the home, no damage to property occurred and the police were inside on each occasion for a very short period of time.

She would have awarded nominal damages in the amount of $500 per entry in total for all of the plaintiffs with respect to the searches on July 17 and 28, 2010, and September 28, 29 and 30, 2010. [ 103 ] As to the events of April 4, 2010, and the more extensive searches on that day, she would have awarded damages in the total amount of $1,000. [ 104 ] With respect to the claims by Precious and Keith of false imprisonment on April 4, 2010, and Brandon on July 28, 2010, she noted that, while unlawful deprivation of liberty is a very serious matter, the time in custody on April 4, 2010, was relatively brief and about 35 minutes on July 28, 2010, and therefore was not extensive.

She would have awarded $1,000 to each of them had their detentions been unlawful. As to the claims for battery, she would have awarded nominal damages of $100 each as the contact was minor and none of the plaintiffs suffered any injuries. [ 105 ] She would not have awarded constitutional damages under section 24(1) of the Charter as, had she concluded that their rights were breached, the claims under the other causes of action would adequately address those damages.

She noted, as well, that the conduct of the police did not meet a minimum threshold of gravity justifying constitutional damages. [ 106 ] She found no basis for an award of punitive damages and I see no reason to differ from her decision on those conclusions. Conclusion [ 107 ] The appeal is dismissed on all grounds. One set of costs are awarded in favour of the defendants. JA I agree: JA I agree: JA