Search after 9-1-1 call not unreasonable

Mike Novakowski
July 07, 2014
By Mike Novakowski
Police do not necessarily need to believe the occupants of a home on a 9-1-1 call, the Ontario Court of Appeal has said.

Police do not necessarily need to believe the occupants of a home on a 9-1-1 call, the Ontario Court of Appeal has said.

In R. v. Depace, 2014 ONCA 519 a grandmother phoned 9-1-1 after her 11 year old grandson called to say his parents were fighting. She later said that when her grandson calls it is serious. After knocking and identifying themselves, police saw the kitchen light turn off and heard a dog barking, but no one answered the door.

Officers checked their records of the home's occupants. They had Depace's name and photograph and information that he was associated with the Hell's Angels. After 25 minutes they forcibly entered and saw Depace, who appeared to be drunk, and a woman and boy on the main floor of the house, which was relatively small and open.

An officer decided to check both upstairs and downstairs to make sure there was no one else present who may need help, and for officer safety. He saw evidence of drug dealing in the basement, including cocaine, scales, cash and debt lists. Police then obtained a search warrant, found a large quantity of cocaine and cash and charged Depace with drug offences.

At trial in the Ontario Superior Court of Justice the officer testified that he did not know exactly who was who and whether another person may have been involved in the reported fighting. The judge rejected Depace's challenge to the initial warrantless search and introduction into evidence of the cocaine and money. He found no s. 8 Charter breach and, even if there was a violation, would have nonetheless admitted the evidence under s. 24(2). Convictions followed.

Depace challenged the warrantless search to Ontario's top court. Although he agreed that police could forcibly enter his home in response to the 9-1-1 call, he argued they were not entitled to go to the basement. In his view, the exigent circumstances permitting entry ended once police found the mother and child safe and unharmed and all three occupants of the home accounted for.

He further submitted that officers could have assured themselves there was no one else present by asking the occupants. They heard no noise or anything else to suggest that there might be someone else present.

The Ontario Court of Appeal rejected Depace's submissions.

The fact that the occupants denied entry to the police for 25 minutes made the 9-1-1 situation much more acute and suspicious...

(I)n the context of a 9-1-1 emergency call, the police do not need to take the word of the occupant that everything is alright. They are entitled to satisfy themselves. The extent of what they may need to do will depend on the particular circumstances.

In this case, the grandmother did not know who might be in the house as she was called by her grandson. (In R. v. Godoy, the Supreme Court of Canada) stated the applicable principle as follows: "While there is no question that one's privacy at home is a value to be preserved and promoted, privacy cannot trump the safety of all members of the house-hold."

In this case, the search was undertaken for two legitimate purposes: to ensure no one else was there, either injured or frightened, on the one hand, or threatening on the other. The search itself was cursory and non-invasive (paras. 8-9).

Since there was no s. 8 breach, s. 24(2) wasn't triggered and the evidence was admissible.

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