COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Jones,

 

2013 BCCA 345

Date: 20130723

Docket: CA039935

Between:

Regina

Respondent

And

Francoise Yvonne Jones

Appellant

 

 

Before:

The Honourable Madam Justice Levine

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

On appeal from:  A decision from the Supreme Court of British Columbia, dated December 16, 2011, (R. v. Jones, 2011 BCSC 1845,
New Westminster Docket X072982)

Counsel for the Appellant:

H. Stevenson

Counsel for the Respondent:

R. Prior

Place and Date of Hearing:

Vancouver, British Columbia

May 6, 2013

Place and Date of Judgment:

Vancouver, British Columbia

July 23, 2013

 

Written Reasons by:

The Honourable Madam Justice Neilson

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Groberman


 

Summary:

The appeal of convictions for unlawfully producing a controlled substance and unlawfully possessing a controlled substance for the purpose of trafficking is allowed. The trial judge erred in finding there was an objective basis to support an unauthorized search of the appellant’s residence by police pursuant to their common law power to respond to public safety concerns. As well, the trial judge erred in principle by failing to consider the investigative alternatives to a warrantless search available to the police. Consideration of the factors in R. v. Grant, 2009 SCC 32 leads to a conclusion the evidence obtained from the search is inadmissible. The convictions are accordingly set aside.

Reasons for Judgment of the Honourable Madam Justice Neilson:

[1]             Ms. Jones appeals her convictions for unlawfully producing a controlled substance and unlawfully possessing a controlled substance for the purpose of trafficking, imposed by a Supreme Court judge on December 16, 2011. The charges arose from a warrantless police search of Ms. Jones’ residence on August 1, 2008, during which Cst. Todd Abram of the Surrey RCMP discovered a marihuana grow operation. The search was prompted by a 9-1-1 call placed by Ms. Jones to assist with a situation that had arisen with her daughter.

[2]             Ms. Jones’ convictions followed a voir dire on the admissibility of the evidence obtained as a result of Cst. Abram’s unauthorized search. The trial judge concluded that Ms. Jones had a reasonable expectation of privacy in her residence, but found Constable Abram was acting in accordance with the general scope of his common law duties to protect against public safety concerns when he entered the home. She therefore dismissed the defence application under s. 8 of the Charter to exclude the evidence, and found Ms. Jones guilty of the two charges: 2011 BCSC 1845.

[3]             On appeal, Ms. Jones contends, first, that the trial judge erred in ruling the search was justified pursuant to the common law duties of the police to protect against public safety concerns. Second, if she succeeds on the first ground of appeal, the items found as a result of the search should not be admitted as evidence.

Background

[4]             Cst. Abrams, Ms. Jones, and her daughter, Rachelle Jones, testified on the voir dire. Their evidence conflicted in many respects. The trial judge generally found the evidence of Ms. Jones and Rachelle was not credible, and accepted Cst. Abram’s version of the events. Her findings of fact are not challenged on appeal, and I summarize them as follows.

[5]             In the late evening of August 1, 2008, Rachelle, who suffers from bipolar disorder and does not live with Ms. Jones, was visiting her mother. When Ms. Jones asked her to leave, Rachelle refused to do so, and Ms. Jones called 9-1-1 for an ambulance to assist in removing her. Ms. Jones then went outside and waited in her vehicle for the ambulance to arrive, while Rachelle remained in the house.

[6]             The call was relayed to Cst. Abram as the B.C. Ambulance Services requested that police attend to assist with the situation. He was told the call was placed to assist with a “mental health issue between a daughter and a mother” and that the daughter was “freaking out” while the mother waited outside.

[7]             Cst. Abram did not know exactly what “freaking out” meant, and thought it could cover many circumstances. He thought this description could include an individual with suicidal tendencies, someone off their medication or with a weapon, or someone in extreme distress. Further, in his experience a matter described by dispatch could be materially different than the actual circumstances he encountered.

[8]             When he arrived, Cst. Abram found Ms. Jones sitting in her vehicle. She was in extreme emotional distress, crying and upset, and had been drinking. He had a brief discussion with her, in which she confirmed her daughter was the only person in the house and was upstairs “freaking out”. She wanted her daughter removed. She gave Cst. Abram a key to the residence for that purpose and remained in the vehicle. She did not give him permission to search the house and, if asked, would have refused entry for that purpose.

[9]             Cst. Abram nevertheless understood that he was authorized to go into the house to check for Rachelle, or anyone else inside. He was under the impression that there might be medical issues since Ms. Jones had asked for an ambulance. He waited five minutes for back-up, during which there was no indication of untoward activity in the house. He then approached the house and opened the door with the key. Once inside, he saw Rachelle sitting near the door on the stairs going up to the second floor. She was quite passive, and he spoke with her briefly and asked her to leave the residence. Rachelle did so without incident. He asked if anyone else was in the house and she said no. When it became clear Cst. Abram intended to look around in the house she told him her mother would not want him to do that and he should ask her permission.

[10]         Although there was no indication of criminal activity or the presence of someone else in the house, Cst. Abram decided to search the residence for reasons the trial judge summarized as follows:

[65]      Aside from his subjective belief that he had the permission of Ms. Jones, Constable Abram testified that he searched the upstairs for two reasons: firstly, that there was a policy regarding 9‑1‑1 calls to enter and clear the residence and make sure that they had fully investigated the situation; and secondly, he would have searched the residence, in any event, to ensure that there was no one else in the residence who was either injured or in distress and that everything was “all right”.

[11]         During the 15-minute search, Cst. Abram found a marihuana grow operation in three rooms of the house. While he did not seize anything at the time, his observations formed the basis for a search warrant, which, when executed, recovered 413 marihuana plants and 788 grams of dried marihuana. Ms. Jones was subsequently charged with the two offences set out above.

The Reasons for Judgment of the Trial Judge

[12]         The trial effectively took the form of a voir dire in which Ms. Jones took the position that Cst. Abram’s warrantless search of her residence was a breach of her rights under s. 8 of the Charter. The Crown’s first position in response was that Cst. Abram had express or implied permission from Ms. Jones to enter and search her residence or, alternatively, that she had no reasonable expectation of privacy, given the circumstances under which he entered her residence.

[13]         The trial judge rejected this. She found Ms. Jones had not given the police permission to search her home, and held Cst. Abram’s permissible access was limited to locating and removing Rachelle. Once this was accomplished, Ms. Jones maintained her expectation of privacy with respect to her residence.

[14]         The Crown’s second position was that even if there was a reasonable expectation of privacy, the search was justified under the general common law power that enables the police to search premises without a warrant where there are public safety concerns. The trial judge described this as follows:

[57]      It is of course the case that a forcible entry by police into a private dwelling home constitutes a prima facie interference with a person’s liberty and property. Nevertheless, the police may do so under the principles set out in R. v. Godoy, [1999] 1 S.C.R. 311, where there are safety concerns regarding the occupants or the public. The onus to show that the primary motive for the search was to satisfy public safety concerns lies on the Crown: R. v. Jamieson, 2002 BCCA 411 at para. 28.

[58]      Two questions must be answered in order to justify the interference. Firstly, does the conduct fall within the general scope of any duty imposed by statute or recognized common‑law? Secondly, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty? See Godoy at paras. 12 - 13; R. v. Brown, 2003 BCCA 141 at para. 4; and R. v. Purchase, 2011 BCSC 154 at para. 60.

[15]         Ms. Jones did not seriously contest that the police have a common law duty to respond to distress calls. The trial judge therefore found the real issue arose under the second question from Godoy: whether Cst. Abram’s search of the residence constituted an unjustifiable use of this police power.

[16]         As set out earlier, the trial judge noted Cst. Abram said he searched the house because of a police policy to clear the premises after a 9-1-1 call, and because he wanted to make sure everything was “all right”. She rejected the view that the policy alone provided grounds for a warrantless search, but accepted that Cst. Abram believed he had other justifications for entering the home:

[69]      In the circumstances, I accept the evidence of Constable Abram given at the voir dire that there were reasons for him to have entered the residence going beyond a simple police policy arising from a 9‑1‑1 call. He felt that he had the permission from the accused to not only locate Rachelle and get her out of the house, but more generally to make sure that everything was all right. Independent of that, he also wanted to make sure that everything else was all right and that there was nothing else going on in the house that could pose a threat to the safety of its occupants.

[70]      I also note that the portion of the transcript put to the officer from the preliminary inquiry indicates that Constable Abram said that he [as read in]:

 . . . advised Rachelle, because of the situation of the call being it’s a distress‑type call, that we were going to enter the residence to check and see if anyone else was inside and under any distress.

This was consistent with his testimony at the voir dire.

[71]      Central to Constable Abram’s decision to go into the residence was his view that he could not necessarily believe either the accused or Rachelle as to what was truly going on in the residence that had given rise to the emergency call to 9‑1‑1. …

[17]         The trial judge then reviewed relevant authorities and the circumstances leading up to the warrantless search, emphasizing the following points. The information provided to Cst. Abram through the 9-1-1 call was limited to the fact that there was a mental health issue involving the daughter inside the residence, and did not convey what had happened or that the only issue was the removal of Rachelle from the premises. In Constable Abram’s experience, information from dispatch on 9-1-1 calls is not always accurate or complete. From Constable Abram’s perspective there was obviously something serious going on in Ms. Jones’ residence, as she had physically removed herself, was in serious emotional distress, and had called 9-1-1 in the middle of the night. Rachelle’s demeanor did not satisfy him that everything had settled down.

[18]         The trial judge concluded:

[78]      Upon encountering Rachelle, the circumstances that Constable Abram found himself in were inexplicable, in the sense that the circumstances, as scantily portrayed by the accused and Rachelle, did not make any sense in relation to the obvious gravity of the situation that had prompted the call in the first place and caused the accused to be in extreme distress.

[79]      In those circumstances, in my view, Constable Abram was justified in continuing a search of the premises to determine that there were no other persons involved in the situation who needed assistance, and that there were no other hazards in the house that had occurred as a result of the mental health episode that the accused said had occurred.

[80]      It was possible that, notwithstanding the demeanour and response of Rachelle, and given her mental health issues, that there were other persons involved or that there was something untoward happening in the upstairs portion of the home where she had clearly been spending time. It is possible that she could have been making plans to harm herself, and had only been interrupted by Constable Abram entering the premises. It is equally possible that she had been in the process of creating a hazard, such as setting fire to the premises, which would have created a dangerous situation for both herself and anyone else who might have re-entered the premises.

[19]         The trial judge acknowledged Cst. Abram had no suspicion of criminal activity when he entered the residence, and found his only concerns were the health and safety of Ms. Jones, Rachelle, and any other person who might have been in the premises. She concluded:

[87]      I find as a fact that the sole motive and focus of Constable Abram’s investigation and subsequent entry into the residence was related to the protection of life and prevention of injury in a potentially volatile mental health situation. He had only some vague information concerning what was actually happening. The gravity of the situation was manifest, given the circumstances and nature of the 9-1-1 call.

[88]      In conclusion, it is my view that Constable Abram was acting in accordance with the general scope of his duties to protect against public safety concerns when he answered the 9‑1‑1 call. I find that Constable Abram at all times acted in good faith, with a view to investigating the 9‑1‑1 call that had been made by the accused. Further, I find that Constable Abram entered the residence with the subjective and reasonably‑held belief that his duty required him to investigate the mental health issues, to ensure that there were no other persons involved, and to determine whether there were any public safety concerns or concerns regarding either the accused or Rachelle or anyone else present. Finally, I find that his actions were reasonable, given the entirety of the circumstances that he faced in responding to the accused’s 9‑1‑1 call.

[20]         The trial judge therefore dismissed Ms. Jones’ application to exclude the evidence obtained as a result of the search. Although she acknowledged that not every 9-1-1 will lead to a situation in which the police have the authority to search a residence, she held that on the facts in this case prudence dictated a fuller investigation.

[21]         Following the trial judge’s ruling on the voir dire, Ms. Jones admitted the elements of the offences and was found guilty of unlawfully producing marihuana and unlawfully possessing marihuana for the purpose of trafficking.

Issues on Appeal

[22]         I would frame the issues raised by Ms. Jones as follows:

1)       Did the trial judge err in ruling that the search of Ms. Jones’ residence was justified by the common law power of the police to conduct searches related to public safety concerns?

2)       If the trial judge did err in that manner, should the items found in the unauthorized search be admitted as evidence?

Analysis

1)       Did the trial judge err in ruling that the search of Ms. Jones’ residence was justified by the common law power of the police to conduct searches related to public safety concerns?

[23]         It is common ground that under the principles set out in R. v. Godoy, [1999] 1 S.C.R. 311, 168 D.L.R. (4th) 257, the police have a common law duty to protect the public from health and safety risks in responding to 9-1-1 emergency calls, and the performance of that duty may, in some circumstances, permit them to forcibly enter and search private premises without authority. The issue before the trial judge was whether the circumstances surrounding Ms. Jones’ emergency call justified Cst. Abram’s search of her home.

[24]         In Godoy, the Court addressed the limits on the common law duty in these terms, finding an unauthorized search is justified only if it is both reasonable and necessary:

[22]      … the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident’s privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property. In Dedmansupra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances. …

[Italicized emphasis added.]

[25]         Ms. Jones contends that the trial judge erred by applying the wrong standard in determining whether Cst. Abram’s intrusion into her home was justified. She says Godoy is clear that the standard is objective, and an unauthorized entry to a private residence must be both necessary and reasonable for public protection. She submits the judge mistakenly applied a lower standard, requiring only that there be a “possibility” of a public safety risk, and relying on Cst. Abram’s subjective view of that risk to justify his search. Ms. Jones argues that when examined on the required objective basis, it is clear Cst. Abram’s entry and search constituted an unjustifiable exercise of his common law power. In support of this argument, she points to a number of facts that she says were apparent to a reasonable observer of the circumstances, including the absence of any evidence that others besides Ms. Jones and Rachelle were present in the home, or that anyone was injured or in need of assistance.

[26]         In response, the Crown maintains the trial judge properly found Constable Abram’s conduct was within the permissible scope of his police duties. It says the police need not be certain of a risk before entering a private dwelling, and a lack of information may provide a compelling reason to justify police entry into a residence. The Crown says Constable Abram’s search was minimally intrusive in that he entered the home only for the limited purpose of seeing if anyone was in need of assistance, he did not use force, and his search was quick and efficient.

[27]         The question of whether an unauthorized search is justifiable in the exercise of the duty to protect the public is generally fact-driven, and depends on the circumstances of the individual case. Given the importance of protecting life and safety, it is accepted that the police must err on the side of caution. Ms. Jones is nevertheless correct that the standard is objective, and the evidence must reveal a reasonable basis for a police officer’s subjective belief that public safety concerns necessitated a search: R. v. Larson, 2011 BCCA 454 at paras. 26, 33, 52. The question of whether the findings of fact with respect to Constable Abram’s actions meet the required object of standard is reviewable on a standard of correctness: R. v. Shepherd, 2009 SCC 35 at para. 20; R. v. Moore, 2012 BCCA 400 at para. 14.

[28]         At paras. 87 and 88 of her reasons for judgment the trial judge found the sole purpose of Cst. Abram’s search was to protect life and prevent injury in a manifestly grave and “potentially volatile mental health situation” about which he had only vague information. She was satisfied he entered the residence “with the subjective and reasonably-held belief” that he was required to investigate the mental health issues, ensure no one else was involved, and determine if there were any public safety concerns regarding Ms. Jones, Rachelle, or anyone else.

[29]         For the following reasons, I am unable to agree. In my view, the facts as found by the trial judge do not provide the required objective basis to support her conclusion that Cst. Abram’s search was reasonable. Further, I am persuaded the trial judge erred in principle by failing to consider the alternatives that were available to Cst. Abrams before he decided a search was necessary.

[30]         It is common ground there was no suggestion of criminal activity in the 9-1-1 call, which requested an ambulance rather than police. Nor did the call reveal any precise safety threat or risk. The information provided that this was a “mental health issue” and Rachelle was “freaking out” was nebulous. Moreover, it is evident there was nothing on Cst. Abram’s arrival to indicate exigent circumstances, as he waited several minutes for back-up to arrive and during that time, neither saw nor heard anything to indicate immediate action was required.

[31]         When Cst. Abram approached the house to locate Rachelle, the ambulance personnel were evidently present or en route to deal with any mental health risk she presented. No such risk emerged. He located her immediately just inside the front door, and observed nothing else of concern in the house. Rachelle was passive and cooperative, came out without protest, answered his questions lucidly, and told him her mother would not want him to search the house.

[32]         The trial judge enumerated several “possibilities” in this scenario to justify Cst. Abram’s search:

[80]      It was possible that, notwithstanding the demeanour and response of Rachelle, and given her mental health issues, that there were other persons involved or that there was something untoward happening in the upstairs portion of the home where she had clearly been spending time. It is possible that she could have been making plans to harm herself, and had only been interrupted by Constable Abram entering the premises. It is equally possible that she had been in the process of creating a hazard, such as setting fire to the premises, which would have created a dangerous situation for both herself and anyone else who might have re‑entered the premises.

[Emphasis added.]

[33]         With respect, I am unable to find the necessary evidentiary support to transform these speculative concerns to an objective basis for the search. As to the spectre of others in the house, nothing in the 9-1-1 call suggested this was the case. Both Ms. Jones and Rachelle told him no one else was there. Cst. Abram observed nothing that suggested otherwise. Any possibility that Rachelle might harm herself in the house was clearly alleviated when she left it in a calm and obedient manner. Nor was there anything to provide an objective basis for believing there was an emergent hazard in the house.

[34]         I do not disagree with the trial judge’s assessment that the limited information Cst. Abram had initially did not eliminate the potential that this was a grave and volatile mental health situation. Within minutes of his arrival, however, the situation was significantly transformed. Rachelle was not “freaking out” or volatile, and ambulance personnel were present or en route to handle any mental health concerns. Ms. Jones, while upset, was secluded from Rachelle and secure in her car.

[35]         Returning to the comments of the Supreme Court at para. 22 of Godoy, before the search Cst. Abram had located the 9-1-1 caller, determined the reason for her call, and provided the requested assistance by extricating Rachelle from the house. His authority to be in the house ended there. Rachelle’s warning to him that he should not search the house without her mother’s permission gave this additional emphasis.

[36]         Significantly, if Cst. Abram remained concerned about whether “everything was all right” he had other avenues open to him before embarking on an unauthorized search. Notably, he could have waited until Ms. Jones was settled and calm, and then questioned her and Rachelle about the events leading up to the 9-1-1 call. Alternatively, he could have asked Ms. Jones to enter the residence and ensure all was well, and then made arrangements for Rachelle to leave the area in whatever manner was appropriate.

[37]         The importance of looking to alternative investigative methods before embarking on an unauthorized search of private premises to protect public safety was recognized by the Nova Scotia Court of Appeal in R. v. Timmons, 2011 NSCA 39, a case that does not appear to have been brought to the attention of the trial judge. At the request of a concerned mother, the RCMP went to the accused’s house to pick up her daughter, whom she feared was being abused. When they arrived, they heard what they thought was a scream coming from the residence. The daughter came to the door in response to their request and told them everything was fine. Although the police had no information that anyone else was in the house, they entered it and found cocaine and marihuana. The Court of Appeal held that the trial judge, who had upheld the propriety of the search, erred in principle in failing to consider the alternatives to the warrantless search. The Court held that while it would have been reasonable for the RCMP to enter the residence to find the alleged victim, once the daughter came to the door their search of the house was not justified because there were other alternatives open to them. In particular, if they had continuing concerns, they should have asked the daughter to step outside, and questioned her away from any possible influence by the accused.

[38]         The majority judgment of this Court in Larson, at paras. 50-53, endorsed this aspect of Timmons, and affirmed the necessity of considering investigative alternatives before embarking on a warrantless search, even in cases where the police apprehend a threat to life or public safety.

[39]         It is notable that in each of the cases referred to by the trial judge, and provided to this Court, in which a search in the interests of public safety was upheld, there was some objective indicia of criminal activity or an identifiable threat to public safety in the 9-1-1 call or the circumstances that greeted the police on their arrival. These included the presence of a gun or other weapon (R. v. Borecky, 2011 BCSC 1573; R. v. Purchase, 2011 BCSC 154; R. v. Brown, 2003 BCCA 141; R. v. Hill, 2006 BCCA 530; and R. v. Gillingwater, 2006 YKTC 65), an indication of an assault or other injury (Godoy; Timmons; and R. v. Wu, 2008 BCCA 7), and an injury in the presence of an operating drug lab (R. v. Jamieson, 2002 BCCA 411).

[40]         The absence of similar concrete indicators of crime or threat to public safety in this case is telling, and distinguishes these cases from that before us. Here, the 9-1-1 call requested an ambulance. The arrival of police was unexpected. As earlier described, once Rachelle left the house, there remained no objective support for Cst. Abram’s subjective belief that the “mental health episode” justified an immediate search to “make sure everything was all right”.

[41]         I would therefore conclude that the trial judge erred in principle in failing to consider the alternatives open to Constable Abram before he embarked on the unauthorized search of Ms. Jones’ home, and ultimately erred in finding that search was a necessary and reasonable violation of Ms. Jones’ rights under s. 8 of the Charter.

[42]         As a final point, I acknowledge the Crown’s submission that allowing this appeal may have a chilling effect on police response to public safety concerns arising from 9-1-1 calls. I also recognize the difficulties these situations present to the police in that they require rapid judgment calls in situations where all the circumstances are not known, whereas the courts examine them in a tranquil setting with the benefit of hindsight. As a result, I agree it is appropriate to err on the side of caution in permitting a citizen’s privacy rights to trump the objectives of public protection and safety. Nevertheless, not every 9-1-1 call engages issues of public protection, and the requirement that a search be both reasonable and necessary does not constitute an unwarranted interference with the duty of police to protect the public. It remains to analyze each situation on its own facts in an effort to balance these competing interests.

2)       Should the items found as a result of the unauthorized search be admitted as evidence?

[43]         Having found Cst. Abram’s search was a violation of Ms. Jones’ s. 8 rights, it is necessary to consider whether the evidence recovered in that search should nevertheless be admitted pursuant to s. 24(2) of the Charter. The parties did not make submissions on this point before the trial judge, and her findings did not require her to consider it. Both parties agreed this Court should decide this issue if it arose as a result of our findings on the first ground of appeal.

[44]         In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada set out the considerations to be addressed in deciding whether evidence obtained from a Charter violation should be admitted at trial:

[71]      … When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. …

[45]         While these factors are considered on the facts of each individual case, there is a broader underlying consideration, which is whether admission of the evidence would bring the administration of justice into disrepute in the long-term sense of maintaining the integrity of, and public confidence in, the justice system.

[46]         As to the seriousness of Cst. Abram’s breach of s. 8, I appreciate the trial judge found that he acted in good faith and had a subjective belief that his duties required him to search the premises. While this mitigates the breach to some extent, an examination of the basis for that subjective belief demonstrates aggravating features that move it toward the more serious end of the spectrum. Cst. Abram relied, first, on a police policy that they are to enter residences on any 9-1-1 call to ensure those inside are safe. He was vague when cross-examined on this policy, however, saying he had not read it but had learned about it through his experience with other officers. To the extent this suggests a systemic basis for the s. 8 violation, it is an aggravating feature: R. v. Harrison, 2009 SCC 34 at para. 25. Cst. Abram’s second reason for entry was generic: to make sure everything was all right. In the absence of some objective indication of risk or harm, this indicates a significant misapprehension of the breadth of his common law duty to protect public safety, particularly when Rachelle had told him not to enter without Ms. Jones’ permission and, as previously described, he had investigative alternatives at hand.

[47]         In short, if Cst. Abram’s rationale for the search were accepted, it would lead to an indiscriminate and unauthorized search in response to every 9-1-1 call, with no consideration of citizens’ privacy rights. In Larson, the Court at para. 62 found a s. 8 violation in similar circumstances was “moderately serious”. I would adopt the same characterization in this case.

[48]         As to the impact of the breach, the unauthorized search of a citizen’s private residence is unquestionably a serious intrusion: Grant at para. 113. Although Cst. Abram’s search was brief, it was wide-ranging and had a significant impact on Ms. Jones’ Charter-protected privacy rights.

[49]         There is no question the marijuana plants and product recovered as a result of the search is highly reliable evidence, and society has a significant interest in having cases involving grow operations adjudicated on their merits. Having balanced the three Grant factors, however, I conclude this last factor does not outweigh the concerns I have expressed on the first two. I would therefore exclude the evidence recovered as a result of Cst. Abram’s warrantless search.

Conclusion

[50]         Without that evidence, the Crown’s case collapses. I would accordingly allow Ms. Jones’ appeal, set aside her convictions, and enter an acquittal on each charge.

“The Honourable Madam Justice Neilson”

I AGREE:

“The Honourable Madam Justice Levine”

I AGREE:

“The Honourable Mr. Justice Groberman”