Michael Purcell was charged with various drug offences including production and possession for the purpose of trafficking. At trial Purcell brought an application to have evidence discovered by a police search of his home excluded due to a breach of section 8.

The search was conducted in response to a 911 call. Murray J dismissed the application: 2012 CarswellOnt 7187 (SCJ).

On December 26, 2009 a 911 call was placed from Purcell's residence. It was 2:04 am; the dispatcher could hear a male and female voice arguing in the background. There was yelling and swearing.

The 911 call was disconnected at the source without the dispatcher haven spoken directly to anyone. An immediate return call from the dispatcher was placed and a male responded, the male without prompting gave the phone to a female who told the dispatcher that she had called 911 by accident. The woman identified herself as Francine McDonald.

In discussion with the dispatcher Ms. McDonald stated that the following:

she had dialed 911 in error;
there was no argument;
she was not in the geographic area that the dispatcher believed the call originated from; and
the number the dispatcher called was not her cell phone number.

The phone call ended when the dispatcher asked Ms. McDonald for her address.

The dispatcher confirmed that the number was registered to Purcell at an address on Francis Road in Burlington; police were sent.

Uniformed police arrived at Purcell's residence at 2:27 am. Police could see lights on in the house, they could see a male sitting on the couch next to the window, they could hear a dog barking. Officers approached and shouted "Police, open the door" on a number of occasions and got no response. Officers took up positions around the house including the front and rear entrance. Officers continued to announce their presence and stated that they were present due to a 911 call. Officers could see the male on the couch and he responded that no one had called 911.

At one point the female came to the door, did not open it, and spoke to officers.

Officers repeatedly stated that they were there in response to a 911 call and that they needed to enter in order to ascertain the safety of all the occupants.

Finally at 2:46 am officers decided to forcibly enter the residence.

The male was standing at the door at the time and refused to step back, as a result when officers penetrated the door it struck the male on the head, knocking him down and causing a bruise.

Upon entry one officer spoke to Purcell who identified himself and confirmed that he had had a verbal argument with a female.

The female, came down a flight of stairs into the living room and was observed by officers to have swollen and puffy eyes, as if she had been crying. She identified herself, as Francine King, and stated that she had called 911 by mistake. She also advised that no one else was in the house.

Officers testified that they viewed it as their duty to investigate further. They were not prepared to take the word of either of the individuals they had spoken to.

Officers could smell marijuana in the house and subsequently discovered garbage bags filled with mature plants and plastic containers with various sized plants growing. Purcell was arrested and charged.

In dismissing the application for relief under the Charter, Murray J held that:

In the case at bar, the forced entry into the appellant's home as 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 9-1-1 distress. They did not know whether the call was in response to a criminal action or not. They had the duty to act to protect life and safety and therefore the duty to respond to the 9-1-1 call. Having arrived at the residence of the accused, their duty extended to ascertaining the reason for the 9-1-1 call. In my view, acceptance of Mr. Purcell's statement that the call had not been made from 676 Francis Rd., or acceptance of the contradictory statement made by the female occupant that the call had been made by mistake, would have been insufficient to satisfy that duty. As has been held by our Court of Appeal, and by the Supreme Court of Canada, in such circumstances the police have the power, derived as a matter of common law from this duty, to enter the residence of the accused to verify that there was in fact no emergency. In this case, the accused and the female occupant had for in excess of 15 minutes refused to respond in a meaningful way to the police. In the circumstances, consistent with the jurisprudence, the privacy interest of the occupant must yield to the interest of another person or persons inside the apartment who may have been in danger. As the Supreme Court of Canada said in Godoy: "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."

I further find in the circumstances of this case that the search of the premises was reasonable. There was no reason why the police officers should have accepted the representations of the woman who identified herself as Francine King that she was the person who made the 9-1-1 call and that she had done so by mistake. The caller had identified herself as Francine McDonald. The caller – for reasons unknown to the police - had been uncooperative when asked by emergency dispatcher where she was located. The caller had said she used a cell phone belonging to her when the dispatcher read out the number from which the call had been made. The male occupant and the female occupant had given different reasons for the police not to be concerned. The male had stated that no 9-1-1 call had been made from 676 Francis Rd. and the female occupant had indicated that the 9-1-1 call had been made by mistake. The occupants had refused to open the door to the police for a significant period of time notwithstanding constant requests by the police, who were clearly identified as police and who clearly identified the purpose of wanting entrance [paras 22-23]; [emphasis added].