Mike Novakowski

Mike Novakowski

Officers need to pay attention to detail on the face of their search warrants or risk possible invalidation on review.
A vague safety concern about a child welfare matter did not justify police entry into a dwelling to conduct a spot check, so says the Saskatchewan Court of Appeal.

In R. v. McMahon, 2018 SKCA 26, the police received information from a Mobile Crisis Unit (MCU) about an anonymous tip it had concerning the well-being of McMahon’s children. The tipster stated that the children were not being properly fed and the home had poor living conditions.

The MCU requested the RCMP to “go and just take a look, find out what things were like and report back.” A corporal and a constable attended McMahon’s home. When they pulled into the yard, McMahon exited her house and greeted the officers. The corporal told McMahon about the anonymous tip and the purpose for the police visit. McMahon asked for a few moments to “clean up” her home before police entered. This request was denied, the corporal explaining it would be inconsistent with the purpose of a spot check.

When the officers followed McMahon inside, they detected the odour of burnt marijuana. The officers walked up the entrance stairs to an open living room and kitchen area where they encountered two other adults and three young children. Police noticed a mason jar containing marijuana bud on top of a microwave stand.

The adults, including McMahon, were immediately arrested for possessing a controlled substance and the children taken into care. In the course of retrieving a pair of socks for one of the children, police noticed a number of marijuana plants in a separate room in the basement. The residence was secured and a search warrant was then obtained and executed on McMahon’s home and out-buildings. Police seized 191 marijuana plants. McMahon was charged with unlawfully producing marijuana, possessing it for the purpose of trafficking and unlawful storage of a firearm.

Saskatchewan Provincial Court
The officer testified the reason for entering McMahon’s house was to check on the welfare of the children and the conditions of the house. It was also revealed that the occurrence report generated by police dispatch had referenced possible “drug use” in relation to McMahon but this “drug use” allegation had not found its way into the search warrant’s information to obtain (ITO).

The judge went on to the find that the police breached McMahon’s s. 8 Charter rights. In his view, the police were present at McMahon’s home merely to inquire into the well-being of the children and the anonymous tip to MCU did not constitute reasonable grounds to enter the home. Although the police were entitled to approach the house under the implied licence doctrine and ask McMahon questions, the police exceeded its scope when they entered the home.

Since the entry was warrantless, it was presumptively unreasonable, a presumption the Crown failed to rebut.  

First, the judge found McMahon had not consented to the entry into her home. Second, the police were not acting under their common law duty to protect life and safety — the police did not believe the lives of the children were in danger or their safety jeopardized. Rather, the corporal was only acting on a vague and anonymous tip.

The officer’s observations made in the course of police entry were excised from the ITO and, without them, the warrant should not have been issued. The warrantless, non-consensual, non-urgent search of McMahon’s residence was unreasonable. The judge went on to exclude the evidence under s. 24(2) and dismissed all charges.  

Saskatchewan Court of Appeal
The Crown appealed the trial judge’s ruling, arguing he erred in his analysis of the police officers’ authority to enter McMahon’s home. In the Crown’s view, there were three legitimate bases for police entry:

1.     Manitoba’s Child and Family Services Act (CFSA)
2.     consent
3.     the common law police duty to preserve peace, prevent crime and protect life and safety

Manitoba’s Child and Family Services Act
The Crown submitted that the duty to investigate imposed on police under the CFSA implicitly authorized entry into a private dwelling, without judicial authorization, in order to investigate whether the children in the home were in need of protection.

In the Crown’s view, a warrantless entry in a non-emergency situation is an implied and necessary offshoot of the “duty to investigate” imposed by s. 13. Or, in the alternative, the Crown suggested s. 13.1 implicitly authorized police entry when a parent does not expressly refuse entry.

Under s. 13 of the CFSA, an officer is obligated to investigate information they receive if, in the opinion of the officer, a reasonable ground exists to believe that a child is in need of protection.

Apprehension of a child by police is an interim, highly-intrusive measure that is disruptive to the parent/child relationship and considered a remedy of last resort.  Section 13.1 authorizes entry into a private dwelling with a warrant provided, among other things, an officer has reasonable grounds to believe that a child may be in need of protection and a person refuses to give the peace officer access to the child.

Section 17 authorizes a warrantless intervention on an exigent basis provided the officer has reasonable and probable grounds to believe that a child is both in need of protection and at risk of serious harm. But there is nothing in the CFSA that expressly authorizes an officer to enter a private dwelling for the purpose of conducting an investigation.

Even if the Crown’s argument that the s. 13 duty on officers to investigate a child protection concern implicitly authorizes entry, the officer would first need to be of the opinion that there were reasonable grounds to believe that a child was in need of protection. Here, however, the corporal did not subjectively believe McMahon’s children were in need of protection.

“At no place in her testimony did [the corporal] identify the basis or foundation for her belief that Ms. McMahon’s children were in need of protection, apart from reference to the anonymous tip (which incidentally alluded to the presence of drugs),” said Justice Schwann, authoring the Court of Appeal’s opinion. “In her mind, the ‘check’ was required to firstly determine if the children were in need of protection. At no point did [she] articulate any discernible fact(s) that she relied on to support a basis to believe the children were in need of protection, apart from the anonymous tip.”

Further, even if the corporal possessed a subjective belief, it was not objectively reasonable.

“There was simply no evidence of any confirmatory investigation having been done by Mobile Crisis or, for that matter, [the corporal] to substantiate the reliability of the information provided by the anonymous source,” said Schwann.

The trial judge did not err in concluding that the officer did not subjectively believe McMahon’s children were in need of protection or that any subjective belief would not have been objectively reasonable. Without reasonable grounds, s. 13 was not engaged and therefore no corresponding statutory duty was imposed on police to investigate. This undermined any “implied power of entry” and no need for the Court of Appeal to determine whether the duty to investigate under s. 13 impliedly authorized entry into a private dwelling without warrant.

Consent

The Crown contended that McMahon’s actions indicated that she waived her right to privacy and consented to police entry.
First, the Crown suggested that since McMahon did not actually refuse police entry, the police had an implied right to enter her home in pursuit of its child protection mandate. Second, the Crown opined that the criminal law informational components for consent did not apply in child protection cases. In its view, a less robust consent standard was warranted in child protection investigations. But the Court of Appeal disagreed.

“Criminal protections for an accused person must [not] be watered down or eschewed entirely simply because the impugned police action arose in a broad, unsubstantiated child protection context,” Schwann said, describing a valid consent as follows:

[F]or consent to be valid, at a minimum, two requirements are necessary: the consent must be voluntary and it must be informed. To be informed, individuals must have the requisite informational foundation to make their choice meaningful. This has been interpreted to mean that an individual must be made aware of his or her right to refuse consent, otherwise the consent is not voluntary. To be voluntary, the person must have a choice. [para. 83]

In this case, the trial judge found no evidence of a valid consent and the evidence amply supported this conclusion. The police did not take any steps to inform McMahon of her right to refuse police entry or of their ability to get a warrant under s. 13.1 of the CFSA if she refused.
Although McMahon was informed about the anonymous tip and the reason for police presence (to conduct a spot check on her house and children), the police made no effort to explain their authority under the CFSA, or to identify McMahon’s right to refuse police entry without a warrant. Neither was she made aware of the potential consequences of her choice.

“The onus was on the Crown to demonstrate that Ms. McMahon’s consent was both voluntary and informed,” Schwann said. “Knowledge of the options open to her and an appreciation of the consequences are essential components for a valid consent.”
The Crown had failed to meet this onus.

Common law duty
The Crown maintained that the common law police duty to preserve peace, prevent crime and protect life and safety authorized a forced entry. A warrantless entry can sometimes be authorized under the police common law duty to protect life and property provided the entry amounts to a justifiable use of police powers. This analysis requires a consideration of whether the entry was necessary in the circumstances and there were no less intrusive means available.

After reviewing the case law concerning the power to enter a residence where the police are acting under their common law duty to protect a person’s life or safety, the Court of Appeal noted two important points.

“First, the police duty to protect life is only engaged when it can be inferred that someone is or may be in some distress,” Schwann said. “Second, the duty to protect life only justifies warrantless entry where the police reasonably believe the life or safety of someone in the home is in danger and the exercise of the power is both reasonable and necessary.”

In this case, the Court of Appeal agreed with the trial judge that the forced entry was not justified. There was no evidence the children were in distress, nor did the corporal personally think the children were in danger. Rather, the police were on a fact-finding mission (investigating) for MCU to determine whether there was any validity to the anonymous tip. Since they did not have reasonable grounds to believe the children were in distress, entry into the home was not necessary. Furthermore, there were other less intrusive measures other than entry available to the police, such as reporting back to the MCU or seeking a warrant.

The trial judge’s decision to exclude the evidence was upheld and the Crown’s appeal was dismissed.

Mike Novakowski is Blue Line’s case law columnist. He can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
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Two protestors have been awarded damages after police used plastic ties to restrain them and detained them longer than necessary.

In Godin v. City of Montreal, 2017 QCCA 1180, three plaintiffs were amongst a group of 60 to 70 other protestors occupying a small and densely populated tent city in Montreal’s Victoria Square in support of the “Occupy Wall Street” movement. Municipal authorities ordered the public park, which included Victoria Square, closed on a 24-hour basis. An order to leave was given by the Montreal police and most of the protestors left voluntarily and peacefully. However, about a dozen people, including the three plaintiffs, refused to leave and attached themselves to each other and a tent. They were arrested — two of the plaintiffs had their hands bound behind their backs with plastic tie wraps and were held in a heated bus parked at the site for about 20 to 60 minutes.

Following their arrest, the plaintiffs were photographed and the back of one hand was marked with a number in black felt pen and invisible ink, which could be viewed under a special light in the event that the black ink is erased or blurred (for the purposes of identification).

In the experience of the police, some people refuse to identify themselves or provide a false name and so the numbers allow the police to match the person arrested with any possessions seized from them. As well, the numbers provide easy identification should the arrestees return to occupy the square upon their release from custody. The ink would ordinarily be gone from the hand in three days.

An extensive video recording was also made by the police of the entire operation. One of the plaintiffs, Godin, was released on site (his car was parked nearby) but the two others, Haugh and O’Callaghan, were placed in the back of police cars, still bound by plastic ties, and driven to other parts of the city. This prolonged their detentions for about 20 minutes.

All three plaintiffs sued the City of Montreal, seeking damages for bodily, moral or material injury under the Civil Code of Quebec for, among other things, marking their hands with invisible and black ink, taking photos of them during their detention, and for the duration and manner of their detention, including the cuffing of their hands with plastic ties and their transport to other parts of the city.

A Court of Quebec judge dismissed the plaintiffs’ actions. He found the plaintiffs failed to demonstrate the police did not act reasonably. In the judge’s view, the techniques used and the force applied were not excessive, given the necessity of physically removing the plaintiffs from the square, their persistent refusal and their passive resistance. Marking their hands with invisible and black ink was not offensive in the context of a mass arrest. As for the binding of the hands behind the back with plastic tie wraps, the judge found this to be a lawful common practice. The judge ruled that the detention in a heated bus was, in the circumstances, reasonable. The taking of the plaintiffs’ photos following their arrest was for the purposes of identification. And, even if the police did commit a fault, the plaintiffs suffered no damage and any discomfort experienced by them was minor and temporary.

The plaintiffs appealed the trial judge’s decision to the Quebec Court of Appeal.

Marking the hands
The Court of Appeal found that marking the hands with ink was momentary and minimal, did not penetrate the skin, and did not interfere with the plaintiffs’ physical, psychological or emotional integrity in more than a fleeting manner. Nor was there any suggestion that the plaintiffs were bothered or suffered psychologically beyond the fact of their arrest by the markings. The police committed no wrong. And, even if they did, there was no material damage proven.

Photographing
Although there was no statutory authority for the taking of the plaintiffs photos, since they were only arrested for a by-law infraction, the police may nonetheless “take a photo of people they arrest as part of their duty to retain evidence of the offence (i.e. the identity of the alleged perpetrators)... A photo simply records in visual form what a sketch or notes of a detainee’s appearance would preserve in written form,” stated Justice Schrager, adding:

A police officer acting reasonably would seek to preserve evidence of the offence, including the arrestees’ identity and appearance for the purposes of collecting evidence to present to a court. There was consequently no fault committed by the police in taking the photographs in question. [para. 39]

Furthermore, no damages (bodily, material or moral) had been proven that might have resulted from the taking of the photos after arrest.

Plastic tie wraps
The two plaintiffs who had their hands bound with plastic tie wraps argued this was unnecessary because they were co-operative. The police, on the other hand, contended that the binding was necessary to prevent the detainees from rubbing out the black ink numbers marked on their hands and as a security concern.

“Police officers, acting reasonably, may handcuff an arrested person for reasons of security or to execute their duties,” said Justice Schrager. “Even though handcuffing may arise upon arrest, the fact of arrest, even if legal, does not automatically give rise to the right to apply handcuffs to a detained person… Handcuffing should not be carried out systematically. Applying handcuffs (or tie wraps) is within the discretion of an arresting officer but there must be a good reason to do it, such as the security of the police or others, including the arrestee.”

In this case, the initial binding of the hands was not unreasonable. However, the plaintiffs’ continued restraint in the back seat of police cars with their hands bound when they were taken off the bus was unreasonable. At this point, the police had already decided not to charge the two plaintiffs.

Detention duration
The Court of Appeal found the plaintiffs’ detentions in the bus for 20 to 60 minutes was not unreasonable. However, the prolonged detention once they were off the bus constituted a fault by police. Once it was decided the plaintiffs would be released, their continued detention was not necessary and the police were therefore obliged to release them:

Though the police do not operate a taxi service, if having resolved to release the [plaintiffs], the police really felt the necessity to remove [the plaintiffs] out of the area of Victoria Square to avoid a re-occupation of the square, they could have uncuffed them and offered to drive them home. Instead, they left them handcuffed and transported them without consent to a distant point. This constitutes a fault in what was otherwise reasonable action on the part of the police. [para. 58]

Damages
In assessing damages, the Court of Appeal awarded Haigh and O’Callaghan, the two plaintiffs who were zip tied and transported to other parts of the city, $2,000 each with interest for moral and material loss related to the inconvenience of the transport and discomfort of the tie wraps.

As for Godin’s detention, the third plaintiff, it was not prolonged and he was not handcuffed so no damages were awarded. However, his initial order to pay legal costs was reversed given the public interest questions involved in this case.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
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