Common Law Entry For Distress 911 Calls

What happens if the police get a 911 call that is cut off? Can they enter the premises from where the call was made? If so, what is the authority on entry?

The recent Ontario Court of Justice decision in R. v. Dutchession, 2008 ONCJ 289 deals with this issue and restates the law as set out nearly a decade ago in R. v. Godoy, 1999 CanLII 709 (S.C.C.). In a nutshell, the police have common law power to enter but only insofar as is necessary to determine if someone is in danger or distress; once that issue is determined, the common law authority to enter ends and the police must leave (or address the issue as presented). As the Supreme Court noted in Goday, “the intrusion must be limited to the protection of life and safety … [The police] do not have permission to search premises or otherwise intrude on a resident’s privacy or property”.

The Court in Dutchession writes:

[14] The scope of the police response to interrupted 911 calls was authoritatively dealt with by the Supreme Court in R. v. Godoy, 1999 CanLII 709 (S.C.C.), [1999] 1 S.C.R. 311. The Court had earlier recognized that the police have a common law duty to preserve the peace, prevent crime and protect life and property. These duties extend to responding to distress calls and, in Godoy, the Court decided that the police have a commensurate common law power to enter homes to investigate such calls. However, the lawful exercise of such power, as said at para. 11, “depends on the circumstances of each case”. Some measure of reasonable necessity appears to be the threshold condition for such entry. As said, at para. 18, of the situation presented in Godoy, “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.” (See, also, para. 22 and R. v. Power, 2005 CarswellOnt. 666 (C.J.), at paras. 16-19.)

[15] The exercise of this power inevitably interferes with protected privacy interests. Accordingly, even where justified, its exercise remains closely circumscribed. This is clear from the following passage of the Chief Justice’s reasons (at para. 22):

… 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. … 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.

The principles set out by the Supreme Court in Godoy have since been applied in dozens of cases, although, unlike the instant matter, chiefly in aid of Charter-driven remedies. Much of this authority has been pressed upon me as a result of the industry of counsel. None, to my mind, fundamentally recast the principles and analytical framework worked out in Godoy.