In R. v. Kelsy, the Ontario Court of Appeal considered the the limits of permissible investigative procedures in the course of responding to a 911 call. Rosenberg J.A., writing for the court, held that the police have considerable latitude to secure the scene in such cases, but their actions are still subject to review under s. 8 of the Charter. Specifically, he held that seizure of property may be necessary to stabilize the scene of a 911 response, but any search of that property is still subject to the reasonable necessity requirements of the Waterfield doctrine.
In this case, a 911 call was made after the appellant's boyfriend had been attacked outside his apartment. The appellant and her two-year-old daughter, who had been in the apartment, stepped outside as police searched the premises. They ordered the appellant to drop a knapsack she was carrying while they secured the scene and escorted her and her daughter to safety. A subsequent search of the knapsack revealed a loaded prohibited firearm and a quantity of heroin.
The trial judge found that the search was reasonable by drawing on both doctrines of exigent circumstances and the Waterfield test. However, Justice Rosenberg held that while the two doctrines may be related or even overlap, it is preferable to keep them separate. Although he noted that investigations in response to 911 calls justify significant intrusions into privacy, he held that there was nothing in the circumstances that necessitated a search of the knapsack. The police had grounds to temporarily seize the appellant’s bags, but in this case searching them violated her s. 8 rights. In respect of the s. 24 analysis, Justice Rosenberg agreed with the trial judge’s findings that any breach of the appellant’s rights was not serious and that the police had acted in good faith. Given that “[t]his case is one of first impression and the limits of permissible investigative procedures in the course of responding to a 911 call were not entirely clear”, the police mistake was understandable and the evidence could be admitted.
September 22, 2011
Link to Decision
Tony Drake & Marc Gibson
*
No comments:
Post a Comment