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POWERS OF SEARCH AND SEIZURE - Search - Warrantless searches

Thursday, May 11, 2017 @ 8:28 AM  

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Appeal by Davidson from convictions for production and possession of marijuana for the purpose of trafficking. On a June morning, Davidson’s four-year-son, clad only in a diaper, was seen standing alone at a busy intersection. A passing motorist called 911. By the time the police arrived, the boy was safely in his mother's arms, wrapped in a blanket. Davidson arrived shortly thereafter. Davidson explained to the police that his son was autistic, had a tendency to wander away from the family home, which was 50 metres away, and had managed to get outside alone by defeating a special lock Davidson had installed on the front door. The police insisted on examining the lock, and Davidson agreed they could do so. After being satisfied about the state of the lock, police insisted on looking inside the house. They smelled marijuana inside and ultimately found a marijuana grow operation in the basement of Davidson’s home. Davidson was unsuccessful in convincing the judge to exclude the drug evidence found in his home based on violation of his right to protection against unreasonable search.

HELD: Appeal allowed. The marijuana evidence was excluded for violation of Davidson’s right to protection against unreasonable search. His  convictions were consequently set aside and replaced with acquittals. Despite evidence from the lead police investigator that he was not only concerned about the child’s safety, but was looking for evidence that the child’s parents might be drug users, the judge rejected the suggestion that the police might be using the child’s abandonment as a ruse to seek drug evidence. Exigent circumstances did not exist to justify the entry of the police into Davidson’s home after they knew the child was safe and they had inspected the lock. The warrantless search was unreasonable. Davidson was not informed of his right to refuse to consent to the police entry and did not expressly consent. There was no evidence of any risk to the child’s health or safety if the police had taken the time to obtain a warrant. There were a total of four breaches of Davidson’s rights, including the right to protection against unreasonable search and to be informed of his right to counsel. The fact that there were multiple rights violations, and the police conceded that they knew they lacked grounds to obtain a warrant and that conducting warrantless searches of homes to check on the well-being of children was a systemic practice within their department, rendered the violations serious. Davidson’s Charter-protected interests were significantly impacted. The police entered Davidson’s home, where he had a high expectation of privacy, and, once inside, engaged in conduct that infringed upon Davidson’s dignity, such as questioning him in front of his family. The exclusion of the drug evidence was justified.

R. v. Davidson, [2017] O.J. No. 1572, Ontario Court of Appeal, J.I. Laskin, E.E. Gillese and D. Watt JJ.A., March 29, 2017. TLD-May82017010