Pubdate: Fri, 31 Mar 2017
Source: Barrie Examiner (CN ON)
Copyright: 2017, Barrie Examiner
Author: Colin Perkel
Page: A3


TORONTO - A man with a marijuana grow-op in his Barrie basement has
had his drug conviction thrown out because police had no right to
enter his home, even though his four-year-old child had been found
wandering alone near a busy intersection dressed only in a diaper,
Ontario's top court ruled on Wednesday.

While officers said they went into the Barrie home to check that the
child would be safe, the Court of Appeal found that to be a ruse.

What they did, the court found, amounted to an illegal search and a
breach of Harley Davidson's rights.

"Police can enter a home without a warrant if they have reasonable
grounds to believe it is necessary to do so to protect a person's life
or safety," the Appeal Court said. "(That) does not give the police
sweeping authority to enter a home without a warrant to investigate
whether a child's mother and father are good parents."

The case arose when a passing motorist called 911 one June morning to
report the boy standing alone next to the busy road. By the time they
arrived, the child's mom had him safely in her arms, court records

Davidson arrived soon after to say his son was autistic and tended to

Documents cite him as telling police his boy had managed to get out of
the house despite a special lock on the door. Davidson agreed to allow
police to look at the lock, but they then insisted on going inside,
saying they were entitled to do so to check on the boy's well being,
court records say.

Once inside, the officers smelled marijuana and began looking around,
including in cupboards and the fridge.

The lead investigator went to the basement and found growing marijuana
plants, court records say.

Police arrested Davidson and charged him with various drug-related

At the start of his trial in 2014, Davidson argued among other things
that police had violated his constitutional rights with the search -
an assertion Superior Court Justice John McIsaac rejected.

Essentially, McIsaac found police were entitled to do a "protective
sweep" of the home because of their "child-protection concerns."

McIsaac rejected any suggestion police were using the child as a ruse
or pretext to "insinuate themselves into a suspected drug operation,"
according to court documents.

He admitted the marijuana evidence and convicted Davidson.

On appeal, the prosecution argued the search was appropriate and
justified. The Court of Appeal, however, saw it differently.

In quashing the conviction, the Appeal Court leaned on trial evidence
from the lead investigator, who made it clear he had no concerns the
boy was in serious danger in the home, and that he would have had no
grounds to obtain a search warrant.

Justice John Laskin, writing for the Appeal Court, noted the Supreme
Court has found police have a duty to investigate 911 calls and a
limited right to enter a home without a warrant.

"Once inside the home, their authority is limited to ascertaining the
reason for the (911) call and providing any needed assistance," Laskin
said. "They do not have any further authority to search the home or
intrude on a resident's privacy or property."

Laskin found the rights breaches were serious enough to merit throwing
out the marijuana evidence, and entered an acquittal.
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