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Safety concern justifies police entry


July 4, 2016
By Mike Novakowski

661 words – MR

Safety concern justifies police entry

The Ontario Court of Appeal has overturned a man’s acquittals on drug charges after police entered an apartment in response to a neighbour’s 911 call.

In <R. v. Lowes, 2016 ONCA 519> a person called 911 to report hearing her neighbours arguing and a male threatening to kill a female. She said she heard the woman crying and pleading, “Please don’t kill me,” and loud banging and crashing.

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Police arrived within minutes and knocked on the door but there was no answer. Eventually, a woman (Ms. Muller) looked out a third floor window. An officer explained the police presence but Muller responded that she was in bed and refused to open the door, insisting there was no one else in the apartment and telling the officer to leave. It was obvious to police that Muller was speaking to someone standing behind her.

As officers prepared to force their way in, Muller came to the door. She had no visible injuries and stepped outside to speak to them. She did not want police to enter and there were no sounds coming from inside but officers nevertheless forced their way in. They were concerned for Muller’s safety and any other person who might be inside with the person heard uttering the death threats.

Police saw marijuana and other drugs inside and found the accused Lowes hiding under a cover under the bed. In the course of searching for anyone else officers found more contraband. Lowes was taken out, the apartment was “sealed” and a search warrant obtained and executed. The drugs were seized and Lowes was charged with several drug related offences.

At trial in the Ontario Court of Justice, police said they were concerned for Muller’s safety based on the neighbour’s 911 call, Muller’s obvious lies about the presence of anyone else in the apartment and her demeanour in speaking to them from the window and door.

The judge found police could enter a residence without a warrant if they had reasonable grounds to believe entry was necessary to protect the lives and safety of others. In this case though, he ruled the entry was unlawful because police failed to take additional investigative steps such as further questioning Muller or the neighbour, or applying for a telewarrant. He excluded the drugs and acquitted Lowes of the charges.

The Crown appealed the acquittals to Ontario’s top court, which agreed the trial judge erred in finding the apartment entry unlawful. In its view, none of the investigative steps the judge identified were necessary or relevant as to whether police were under a duty to enter the premises to ensure the safety of Muller or another occupant who may have been inside.

“The circumstances in which the police found themselves strongly suggested that Ms. Muller was the victim of ongoing domestic abuse when they arrived at the residence,” the appeal court said.

As for a further discussion with the neighbour, it “would not in any way have detracted from the emergency situation faced by the police.

In sum, the appeal court found the police acted lawfully in entering the apartment, allowed the Crown’s appeal and quashed Lowes’ acquittals. However, it made no finding on whether the scope of any search conducted by police after they entered the premises exceeded what would have been reasonable in the circumstances. That issue would need to be decided at a new trial.


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