Digest: R v McMahon, 2018 SKCA 26

• Date: April 05, 2018

Reported as: 2018 SKCA 26

Docket Number: CACR 2902 , CA17137

Court: Court of Appeal

Date: 2018-04-05

Judges:

• Richards
• Herauf
• Schwann

Subjects:

• Constitutional Law � Charter of Rights, Section 24(2) � Exclusion of Evidence � Search and Seizure � Search Warrant
• Statutes � Interpretation � Child and Family Services Act

Digest: The accused was charged with unlawful production of marihuana and possession for the purpose of trafficking. The RCMP attended at her home at the request of Mobile Crisis, which had received an anonymous tip concerning the well-being of the children living in her residence. The accused exited her house to greet the officers and was informed of the purpose for their visit. She asked for a few moments to clean up her home, but her request was denied. Upon entering the home, the officers detected the smell of burnt marihuana and noticed a mason jar in open view that appeared to contain marihuana buds. The officers immediately placed the accused and two other adults present in the home under arrest for possession of a controlled substance and placed them in the police cruiser. With no adults left in the home, the officers concluded that the children should be temporarily taken into care. While accompanying one of the children to retrieve a pair of socks, the officer noticed a number of marihuana plants in a separate room in the basement. The officers secured the residence and prepared an ITO for a search warrant based on the information learned from Mobile Crisis and personal observations of the home. After the warrant was granted, the RCMP sized 191 marihuana plants. The accused applied pursuant to s. 8 and s. 24(2) of the Charter to have the plants excluded from evidence. The trial judge excluded the evidence. The appeal court considered whether: 1) the Child and Family Services Act authorize a warrantless search; 2) the accused consented to police entry; 3) police entry into the accused�s home was authorized by the common law duty to protect the public; and 4) the trial judge erred in excluding the evidence pursuant to s. 24(2).
HELD: The appeal was dismissed. 1) Nothing in the Act expressly authorizes child protection workers or peace officers to enter a private dwelling to conduct an investigation. Section 17, which authorizes warrantless entry, is designed for emergency apprehension purposes only. Section 13 imposes a statutory obligation on peace officers to investigate child protection concerns, but there must first be reasonable grounds to believe that a child is in need of protection. An anonymous tip without corroboration may, on its own, constitute reasonable grounds in rare cases. However, absent any other indicia of reliability or corroboration, it runs the risk of giving rise to little more than a suspicion or hunch on the part of an officer, which falls short of meeting the applicable statutory threshold. On the evidence, even if the officer possessed a subjective belief that a child was in need of protection, the anonymous tip on which she based her belief did not hold up to objective scrutiny. The officer relied exclusively on what Mobile Crisis told her and there was no evidence that she probed Mobile Crisis for particulars to assess reliability of the information. Since the police lacked reasonable grounds to believe there were children in need of protection, they were not statutorily mandated to investigate and authority to enter without a warrant had to lie elsewhere. 2) The accused did not give valid consent to police entry. For consent to be valid, it must be voluntary and informed. Jurisprudence does not support an argument that criminal protections for an accused person are less robust in child protection contexts than in criminal matters. The accused was informed about the anonymous tip and the reason for police presence, but not of the police authority under the Act, the right to refuse entry without a warrant, or the potential consequences of her choice. 3) The police actions did not amount to a...