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R. v. Godoy, [1999] 1 S.C.R. 311

 

Vincent Godoy             Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and

 

The Attorney General of Canada                                                     Intervener

 

Indexed as:  R. v. Godoy

 

File No.:  26078.

 

Hearing and judgment:  December 2, 1998.

 

Reasons delivered:  February 4, 1999.

 

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

 

on appeal from the court of appeal for ontario

 


Criminal law ‑‑ Police ‑‑ Scope of police powers ‑‑ Emergency calls ‑‑ Police officers forcibly entering dwelling in response to emergency 911 call ‑‑ Whether police acting in execution of their duty to protect life and prevent injury ‑‑ Whether police had reasonable and probable grounds to arrest accused.

 

Two police officers received a call from radio dispatch concerning a 911 emergency call originating from the accused’s apartment in which the line had been disconnected before the caller spoke.  Along with two back‑up officers they arrived at the accused’s apartment and knocked on the door.  The accused partially opened the door and when asked if things were all right inside responded that there was no problem.  One of the officers asked if they could enter the apartment to investigate but the accused tried to close the door.  The officer prevented him from shutting the door and the four officers entered the dwelling.  The officer testified that as soon as they got inside, he heard a woman crying.  He found the accused’s common law wife in their bedroom, curled in a fetal position and sobbing.  The officer observed considerable swelling above her left eye.  He testified that she stated the accused had hit her.  Based on these observations, the accused was placed under arrest for assaulting his wife.  He resisted the arrest and in the ensuing struggle, an officer’s finger was broken.  The accused was charged with assaulting a police officer with the intent of resisting arrest.  The trial judge dismissed the charge, holding that the officers’ entry into the accused’s apartment was unauthorized and that therefore all subsequent actions of the police, including the arrest of the accused, were illegal.  The Ontario Court (General Division) allowed the Crown’s appeal and ordered a new trial.  The Court of Appeal upheld that decision.

 

Held:  The appeal should be dismissed.

 


Public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case.  If police conduct constitutes a prima facie interference with a person’s liberty or property, as it does here, the court must consider two questions:  first, does the conduct fall within the general scope of any duty imposed by statute or recognised at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty.  The common law duties of the police (statutorily incorporated in s. 42(3) of the Ontario Police Services Act) include the protection of life.  The police duty to protect life is engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined.  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.  While residents have a recognized privacy interest within the sanctity of their home, 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, the intrusion must be limited to the protection of life and safety; the police do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.

 

The forced entry into the accused’s home was justifiable considering all the circumstances of this case.  The police had a duty to ascertain the reason for the 911 call and had the power, derived as a matter of common law from this duty, to enter the apartment to verify that there was in fact no emergency.  The fact that the accused tried to shut the door on the police further contributes to the appropriateness of their response in forcing entry.  Having found that the police were authorized to enter the accused’s dwelling, the Court of Appeal did not err in finding there were reasonable and probable grounds to arrest the accused.

 


Cases Cited

 

Distinguished:  R. v. Feeney, [1997] 2 S.C.R. 13; referred to:  R. v. Landry, [1986] 1 S.C.R. 145; R. v. Simpson (1993), 79 C.C.C. (3d) 482; R. v. Waterfield, [1963] 3 All E.R. 659; R. v. Stenning, [1970] S.C.R. 631; Knowlton v. The Queen, [1974] S.C.R. 443; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Edwards, [1996] 1 S.C.R. 128.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, s. 8.

 

Police Services Act, R.S.O. 1990, c. P.15, s. 42.

 

APPEAL from a judgment of the Ontario Court of Appeal (1997), 33 O.R. (3d) 445, 100 O.A.C. 104, 115 C.C.C. (3d) 272, 7 C.R. (5th) 216, [1997] O.J. No. 1408 (QL), affirming a decision of the Ontario Court (General Division) allowing the Crown’s appeal from the accused’s acquittal of assaulting a police officer with intent to resist lawful arrest and ordering a new trial.  Appeal dismissed.

 

Christopher D. Hicks and Carol Cahill, for the appellant.

 

Scott C. Hutchison and Erika Chozik, for the respondent.

 

Bernard Laprade and Carole Sheppard, for the intervener.

 

The judgment of the Court was delivered by


 

 

//The Chief Justice//

 

1                                   The Chief Justice - - This case raises for the first time the scope of police powers in responding to emergency 911 calls.  The Court of Appeal held that the police had a common law duty to investigate a 911 call and, accordingly, had authority to forcibly enter a dwelling in search of the caller.  This Court affirmed that decision from the bench and indicated that reasons for judgment would follow.  The Court of Appeal decision is well reasoned.  I wish only to add a few remarks concerning the police duty to protect the safety of the public and the importance of an effective emergency response system.

 

 

I.  Background   

 

2                                   In the early morning hours of June 1, 1992, Officers Clafton and Baldesarra received a call from radio dispatch concerning an “unknown trouble call” originating from the appellant’s apartment.  An “unknown trouble call” is a 911 call in which the line is disconnected before the caller speaks.  The 911 system is equipped to trace all incoming calls and automatically provides dispatchers with the address of the caller.  Unknown trouble calls are deemed by police policy to be the second highest priority distress call, superseded only by calls concerning police officers in distress.  While all 911 calls are treated as requests for assistance, unknown trouble calls carry the added element of the unknown.  Accordingly, police procedure is to respond with back-up.  In this case, Officers Mercer and Connor assisted at the appellant’s residence.

 


3                                   At approximately 1:30 a.m., the four officers arrived at the appellant’s apartment and knocked on the door.  The appellant partially opened the door and when asked if things were all right inside, responded: “Sure, there is no problem”.  Officer Clafton asked if they could enter the apartment to investigate if there was a problem but the appellant tried to close the door.  Officer Clafton prevented him from shutting the door by putting his foot in the way.  The four officers then entered the dwelling.  Officer Clafton testified that as soon as they got inside, he heard a woman crying.  He found the appellant’s common law wife in their bedroom, curled in a fetal position and sobbing.  The officer observed considerable swelling above her left eye.  He testified that she stated the appellant had hit her.

 

4                                   Based on these observations, Officer Mercer placed the appellant under arrest for assaulting his wife.  The appellant resisted the arrest and in the ensuing struggle, Officer Baldesarra’s finger was broken.  The appellant was charged with assaulting a police officer with the intent of resisting arrest.

 

II.  Judgments Below

 

A. Ontario Court (Provincial Division)

                                                                    


5                                   At the trial, Bentley Prov. Div. J. dismissed the initial charge of assault on the appellant’s wife after she testified that he did not hit her.  With respect to the second charge of assaulting Officer Baldesarra, the trial judge held that the officers’ entry in the appellant’s apartment was unauthorized and therefore all subsequent actions of the police, including the arrest of the appellant, were illegal.  In reaching his decision that the officers’ entry into the apartment was unlawful, Bentley Prov. Div. J. concluded that the 911 call and then a denial of entry at the door did not constitute reasonable and probable grounds to violate the sanctity of a person’s dwelling house.  The charge of assaulting a police officer was dismissed.

 

B. Ontario Court (General Division)

 

6                                   Hoilett J. allowed the appeal from the Provincial Division decision on the basis that the characterization of the 911 call and subsequent denial of entry at the door as being insufficient to constitute reasonable and probable grounds to enter the home ignores modern social realities in which spousal abuse is not an “uncommon phenomenon”.  Hoilett J. noted that had the police taken “no” for an answer at the door and a homicide occurred, he could only speculate  as to public response.  A new trial was ordered.

 

C. Ontario Court of Appeal (1997), 33 O.R. (3d) 445

 

7                                   Finlayson J.A. for the court dismissed the appeal.  He reviewed the common law powers accorded to police officers as set out in R. v. Landry, [1986] 1 S.C.R. 145, and found that the 911 call gave the police reasonable and probable grounds to believe that there was an emergency in the apartment and that the caller was in distress.  The high priority given to disconnected 911 calls is instructive and reflects the collective experience of the police force in responding to this kind of distress call.  Finlayson J.A. referred to the Ontario Court of Appeal’s decision in R. v. Simpson (1993), 79 C.C.C. (3d) 482, in which Doherty J.A. applied R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.).  Waterfield sets out the test for determining the common law powers of the police.  Doherty J.A. noted that police conduct which interfered with an individual’s liberty or freedom would be authorized by the common law if two criteria were satisfied:

 


1.    the police were acting in the course of their duty when they effected that interference; and

 

2.    the conduct of the police did not involve an unjustifiable use of powers in the circumstances.

 

8                                   In considering the first element of the test, Finlayson J.A. found that the police have a power at common law to enter a private dwelling in response to a disconnected 911 call in the circumstances of this case.  The police were acting in the course of their duty to “protect life” which includes preventing death or serious injury.  They entered the apartment with the knowledge that a 911 call was made from that residence.  Entry was necessary to determine the cause of the distress and to give aid if necessary.  Giving aid to persons in distress is the very essence of the police duty to “protect life”. 

 


9                                   With respect to the second element of the test, Finlayson J.A. concluded that the interference with the appellant’s liberty in this case was minimal.  The police were only in the apartment for a short time and the forced entry was only to determine that there was no emergency and that the 911 caller was not in distress.  Having received an unsatisfactory answer from the appellant at the door, the police were obligated to enter the dwelling and investigate.  Further questions to the appellant would have been impossible had he succeeded in shutting the door.  In any event, entry into a private dwelling to investigate a disconnected 911 call is justified even if someone answers the knock at the door, where that person is evasive and uncooperative in response to proper police questioning.  Finlayson J.A. asked (at p. 459):  “How demoralized would a victim of burglary, sexual assault or spousal abuse be if the culprit was able to get rid of his or her rescuers simply by telling them that ‘there is no problem’?”  Under all the circumstances of the case, it was a justifiable use of police powers to enter the apartment in response to the disconnected 911 call.  Finlayson J.A. did note that any greater interference with the sanctity of a home, other than the level exercised here, could only be justified with further information, such as the grounds for arrest for an indictable offence.

 

III.  Issues

 

10                               1.    Did the Court of Appeal for Ontario err in finding the police were acting in the execution of their duty to protect life and prevent injury when they forcibly entered the appellant’s apartment in response to a disconnected 911 call?

 

2.                                 If not, did the Court of Appeal err in finding that the officers had reasonable and probable grounds to effect the arrest of the appellant?

 

IV.  Analysis

 

A.                               Did the Court of Appeal for Ontario err in finding the police were acting in the execution of their duty to protect life and prevent injury when they forcibly entered  the appellant’s apartment in response to a disconnected 911 call?

 

11                               In my view, public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case.

 


12                               The accepted test for evaluating the common law powers and duties of the police was set out in Waterfield, supra (followed by this Court in R. v. Stenning, [1970] S.C.R. 631, Knowlton v. The Queen, [1974] S.C.R. 443, and Dedman v. The Queen, [1985] 2 S.C.R. 2).  If police conduct constitutes a prima facie interference with a person’s liberty or property, the court must consider two questions:  first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty.

 

13                               There is no doubt that the forcible entry by police into a private dwelling home constitutes a prima facie interference with a person’s liberty and property.  It is therefore incumbent upon the Court to consider the two questions posed in Waterfield, supra

 

(1) The general statutory and common law duties of the police

 

14                               Section 42 of the Police Services Act, R.S.O. 1990, c. P 15 (the “Act”) read as follows at the relevant time:

 

42.--(1) The duties of a police officer include,

 

(a)   preserving the peace;

 

(b)   preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;

 

(c)   assisting victims of crime;

 

(d)   apprehending criminals and other offenders and others who may lawfully be taken into custody;

 

(e)   laying charges, prosecuting and participating in prosecutions;

 

(f)    executing warrants that are to be executed by police officers and performing related duties;

 

(g)   performing the lawful duties that the chief of police assigns;


(h)   in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws;

 

(i)    completing the prescribed training.

 

(2) A police officer has authority to act as such throughout

Ontario.

 

(3) A police officer has the powers and duties ascribed to a                 constable at common law. [Emphasis added.]

 

 

15                               In Dedman, supra, at pp. 11-12, this Court held that the common law duties of the police (statutorily incorporated in s. 42(3)) include the “preservation of the peace, the prevention of crime, and the protection of life and property” (emphasis added). As Finlayson J.A. noted in the Court of Appeal, the common law duties of the police have yet to be judicially circumscribed.  Furthermore, the duty to protect life is a “general duty” as described by Finlayson J.A., and is thus not limited to protecting the lives of victims of crime.  

 

16                                A 911 call is a distress call -- a cry for help.  It may indeed be precipitated by criminal events, but criminal activity is not a prerequisite for assistance.  The duties specifically enumerated in s. 42(1) of the Act may or may not be engaged.  The point of the 911 emergency response system is to provide whatever assistance is required under the circumstances of the call.  In the context of a disconnected 911 call, the nature of the distress is unknown.  However, in my view, it is reasonable, indeed imperative, that the police assume that the caller is in some distress and requires immediate assistance.  To act otherwise would seriously impair the effectiveness of the system and undermine its very purpose.  The police duty to protect life is therefore engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined. 


 

17                               Before this Court, the parties did not seriously debate whether the police have a common law duty to respond to distress calls.  Rather, the real question is whether the discharge of this common law duty entitles the police to forcibly enter a dwelling. In other words, the central issue concerns the second branch of the Waterfield test. 

 

(2)   Does the conduct in question involve an unjustifiable use of police powers in the circumstances?

 

18                               In Simpson, supra, Doherty J.A. applied both Waterfield, supra, and Dedman, supra, and described what is meant by a “justifiable” use of police power as follows (at p. 499):

 

. . . the justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

 

I agree that these considerations should form the basis of analysis.  In the case at bar, it was necessary for the police to enter the appellant’s apartment in order to determine the nature of the distress call.  There was no other reasonable alternative to ensure that the disconnected caller received the necessary assistance in a timely manner.  While the appellant suggested that the police could knock on the neighbours’ doors and question them, or wait in the apartment corridor for further signs of distress, in my view these suggestions are not only impractical but dangerous.  If a 911 caller is in serious danger and is unable either to communicate with the 911 dispatcher or answer the door upon police arrival, the caller’s only hope is that the police physically locate him or her within the apartment and come to his or her aid.

 


19                               There is unquestionably a recognized privacy interest that residents have within the sanctity of the home.  In R. v. Plant, [1993] 3 S.C.R. 281, this Court recognized that the values underlying the privacy interest protected by s. 8 of the Canadian Charter of Rights and Freedoms are (per Sopinka J. at p. 292) “dignity, integrity and autonomy”.  In R. v. Edwards, [1996] 1 S.C.R. 128, at para. 50, Cory J. elaborated that one aspect of this privacy interest is “[t]he right to be free from intrusion or interference”.  However, dignity, integrity and autonomy are the very values engaged in a most immediate and pressing nature by a disconnected 911 call.  In such a case, the concern that a person’s life or safety might be in danger is enhanced.  Therefore, the interest of the person who seeks assistance by dialing 911 is closer to the core of the values of dignity, integrity and autonomy than the interest of the person who seeks to deny entry to police who arrive in response to the call for help.

 

20                               One can imagine, for example, a person having a heart attack who dials 911 but cannot speak.  Perhaps there is no one home to answer the door.  Would a reasonable person expect that the police would take steps to ensure that the 911 caller was all right?  I believe so.  A further example might be a situation where a home is burglarized and a resident is being held at gunpoint.   Assuming a resident can actually make the 911 call, he or she might answer the door to the police under a threat of bodily injury should the police be allowed to enter.  On the other hand, the person who answers the door might well be the intruder.  I see no other use for an emergency response system if those persons who are dispatched to the scene cannot actually respond to the individual caller.  I certainly cannot accept that the police should simply take the word of the person who answers the door that there is “no problem” inside. 

 


21                               Further, the courts, legislators, police and social service workers have all engaged in a serious and important campaign to educate themselves and the public on the nature and prevalence of domestic violence.  One of the hallmarks of this crime is its private nature.  Familial abuse occurs within the supposed sanctity of the home.  While there is no question that one’s privacy at home is a value to be preserved and promoted, privacy cannot trump the safety of all members of the household.  If our society is to provide an effective means of dealing with domestic violence, it must have a form of crisis response.  The 911 system provides such a response.  Given the wealth of experience the police have in such matters, it is unthinkable that they would take the word of the person who answers the door without further investigation.  Without making any comment on the specific facts of this case, it takes only a modicum of common sense to realize that if a person is unable to speak to a 911 dispatcher when making a call, he or she may likewise be unable to answer the door when help arrives.  Should the police then take the word of the person who does answer the door, who might well be an abuser and who, if so, would no doubt pronounce that all is well inside?  I think not.

 


22                               Thus in my view, 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 Dedman, supra, 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.  (I specifically refrain from pronouncing on whether an entry in response to a 911 call affects the applicability of the “plain view” doctrine as it is not at issue on the facts of the case at bar.)

 

23      In the case at bar, the forced entry into the appellant’s home was justifiable considering the totality of the circumstances.  The police were responding to an unknown trouble call.  They had no indication as to the nature of the 911 distress.  They did not know whether the call was in response to a criminal action or not.  They had the common law duty (statutorily codified in s. 42(3) of the Act) to act to protect life and safety.  Therefore, the police had the duty to respond to the 911 call.  Having arrived at the appellant’s apartment, their duty extended to ascertaining the reason for the call.  Acceptance of the appellant’s bald assertion that there was “no problem” would have been insufficient to satisfy that duty.  The police had the power, derived as a matter of common law from this duty, to enter the apartment to verify that there was in fact no emergency.  The fact that the appellant tried to shut the door on the police further contributes to the appropriateness of their response in forcing entry.  As I have already discussed, the privacy interest of the person at the door must yield to the interests of any person inside the apartment.  A threat to life and limb more directly engages the values of dignity, integrity and autonomy underlying the right to privacy than does the interest in being free from the minimal state intrusion of police entering an apartment to investigate a potential emergency.  Once inside the apartment, the police heard the appellant’s wife crying.  They had a duty to search the apartment and find her.  In my view, Finlayson J.A. for the Court of Appeal correctly concluded that the police conduct was a justifiable use of their powers.

 

(3) The impact of the decision in R. v. Feeney, [1997] 2 S.C.R. 13


24                               In its decision, the Court of Appeal discussed this Court’s decision in Landry, supra.  In Landry, the issue was whether the police had the power to enter an apartment without a warrant to make an arrest.  Dickson C.J. held that a compelling public interest warranted giving the police the power to enter private premises to make an arrest under certain conditions.  However, Landry, a pre-Charter case, was reconsidered by this Court in Feeney, and Sopinka J., for the majority of the Court, concluded that the Landry test for warrantless arrests no longer applies in the Charter era.

 

25                               I note that the Court of Appeal did not rely upon the decision in Landry in reaching its conclusion in the case at bar.  Finlayson J.A. noted that the question in this case is whether the police had the power to enter a private dwelling where “they reasonably believe that the occupant is in distress and entry is necessary, not to make an arrest, but to protect life, prevent death and prevent serious injury” (pp. 453-54).  In fact, Finlayson J.A. noted that there were no cases directly on point.  Therefore, the fact that Landry has been superceded by Feeney does not invalidate the Court of Appeal’s decision.

 

26                               In any event, I emphasize that Feeney was concerned solely with when the police can enter a dwelling without a warrant to make an arrest.   Thus, in my view, the reasoning in Feeney does not apply to the case at bar, which is unconcerned with powers of arrest.                            

 

B.                                If not, did the Court of Appeal err in finding that the officers had reasonable and probable grounds to effect the arrest of the appellant?

 


27                               Having found that the police were authorized to enter into the appellant’s dwelling, the Court of Appeal did not err in finding there were reasonable and probable grounds to effect the arrest of the appellant.  The condition of the appellant’s wife, combined with her statement to Officer Clafton, constituted sufficient grounds for an arrest.

 

V.  Conclusion

 

28                               In summary, emergency response systems are established by municipalities to provide effective and immediate assistance to citizens in need.  The 911 system is promoted as a system available to handle all manner of crises, including situations which have no criminal involvement whatsoever.  When the police are dispatched to aid a 911 caller, they are carrying out their duty to protect life and prevent serious injury.  This is especially true where the call is disconnected and the nature of the emergency unknown.  When a caller uses a 911 system, he or she has requested direct and immediate intervention and has the right to expect emergency services will arrive and locate the caller.  The public interest in maintaining this system may result in a limited intrusion in one’s privacy interests while at home.  This interference is authorized at common law as it falls within the scope of the police duty to protect life and safety and does not involve an unjustifiable use of the powers associated with this duty.

 

29                               The appeal is dismissed and the matter returned to the Ontario Court (Provincial Division) for a new trial on the charge of assaulting a police officer with the intent to resist arrest.


Appeal dismissed.

 

Solicitors for the appellant:  Hicks Block Adams Derstine, Toronto.

 

Solicitor for the respondent:  Scott C. Hutchison, Toronto.

 

Solicitor for the intervener:  S. Ronald Fainstein, Ottawa.

 

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