Features Case Law Opinion
Police have duty to ensure safety

In R. v. Lowes, 2016 ONCA 519 a person called 911 reporting that she heard her neighbours arguing, then a man threatening to kill a woman and the woman crying and pleading, “Please don’t kill me.” She also heard loud banging and crashing. Police arrived within minutes, confirmed the location with the neighbor and knocked on the door. There was no answer. Eventually, a woman came to the window of the third floor and an officer explained why police were on scene.

The woman said she was in bed, told the officer to leave, refused to open the door and insisted there was no one else in the apartment. It was obvious to officers that she was speaking to someone standing behind her.

Concerned that the woman and/or others, were in immediate danger, officers decided to seek their supervisor’s permission to break down the door but before they had a chance to force entry, the woman appeared at the door. She had no visible injuries and stepped outside to speak with them.

The woman told officers she did not want them to enter and there were no sounds coming from within. Concerned for the woman’s safety and that of anyone who might be inside with the person heard uttering the threats, police forced their way inside and saw marijuana and other drugs.

Lowes was found hiding under the bed. Continuing their search for anyone else in the residence, police found more contraband. Lowes was removed, the apartment “sealed” and a warrant sought, granted and executed. Drugs were seized and Lowes was charged with drug offences.

Police testified in the Ontario Court of Justice that they were concerned about the safety of the woman and anyone else who might be inside based on the 911 call, the obvious lies the woman told about being alone and her demeanour when speaking from the window and at the door.

The judge recognized that police could enter without a warrant if they had reasonable grounds to believe entry was necessary to protect the lives and safety of others. However, he held police could not enter without taking additional investigative steps such as questioning the woman further about the circumstances and what went on in the apartment, further questioning the neighbour who called or applying for a telewarrant.

The judge found the police entry unlawful and the resultant search and seizure of the contraband a s. 8 Charter breach. The evidence was excluded under s. 24(2) and Lowes was acquitted.

The Crown successfully challenged the acquittals to the Ontario Court of Appeal, which found police lawfully entered the apartment.

None of [the additional investigative steps identified by the trial judge] were necessary or, indeed, even relevant to whether the police were under a duty to enter the premises when they did to ensure that there was no one in the premises whose life or safety was in immediate danger and to ensure that [the woman’s] life or safety was not in immediate danger should she choose to re-enter the residence… “The circumstances in which the police found themselves strongly suggested that [the woman] was the victim of ongoing domestic abuse when they arrived at the residence. She clearly lied to the police when they first spoke to her. In these circumstances, the police would have been derelict in their duty had they accepted what [the woman] said without going into the residence.

Any further discussion with the neighbour would not in any way have detracted from the emergency situation faced by the police. Nothing the neighbour could possibly have said would have eliminated the immediate risk to the lives and safety of others, including [the woman].

Finally, the delay inherent in obtaining a telewarrant, assuming the police could get one, created obvious and significant risks that in these circumstances the police could not, in good conscience, take.

Lowes’ acquittals were quashed and a new trial ordered. The court noted that the issue of whether the scope of the police search went beyond the boundaries of s. 8 may have to be litigated at the new trial.

You can email Mike Novakowski at caselaw@blueline.ca.