R v Alcantara, 2012 ABQB 341

Court of Queen ’ s Bench of Alberta Citation: R v Alcantara, 2012 ABQB 341 Date: 20120523 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.J. Greckol on Motion Relating to Search and Seizure from Residences _______________________________________________________ I. Introduction................................................................................................................ Page: 3 II.

The Evidence.............................................................................................................. Page: 3 A. The November 27 th and 28 th Briefings............................................................. Page: 3 B. Seizure from Alcantara Residence................................................................... Page: 6 C. Seizure from Knapczyk Residence................................................................ Page: 11 D. Knapczyk ’ s Recorded Statement................................................................... Page: 16 III.

Issues........................................................................................................................ Page: 16 IV. Legislation................................................................................................................ Page: 17

V. Discussion of Issues.................................................................................................. Page: 19 A. Whether the Arrests of Alcantara and Knapczyk were Unlawful as being Contrary to s 8 of the Charter ...................................................................................................................... Page: 19 1. Arguments of the parties relating to the Alcantara arrest and seizure Page: 19 (

a) Alcantara ............................................................................... Page: 19 (

b) The Crown ............................................................................ Page: 21 2. Arguments of the parties relating to the Knapczyk arrest and seizure Page: 22 (

a) Knapczyk .............................................................................. Page: 22 (

b) The Crown ............................................................................ Page: 24 3. Analysis ............................................................................................ Page: 25 B. Should the Evidence Seized Incidental to the Arrests be Excluded under s 24(2) of the Charter and the Grant analysis?.............................................................................................. Page: 30 1. Arguments of the parties ................................................................... Page: 30 (

a) Alcantara ............................................................................... Page: 30 (

b) Knapczyk .............................................................................. Page: 31 (

c) The Crown ............................................................................ Page: 31 2. Analysis ............................................................................................ Page: 32 1. The seriousness of the Charter -infringing state conduct ........ Page: 35 (

a) Was the violation inadvertent or committed in good faith or was it wilful, deliberate and flagrant? ............................................. Page: 36 (

b) Was the violation serious or merely of a technical nature? Page: 38 (

c) Was the violation motivated by urgency or necessity? Page: 38 (

d) Were there other investigative means available that would not infringe the Charter? .................................................................... Page: 38 2. The impact of the breach on the Charter -protected interests of the Accused Page: 39 3. Society's interest in the adjudication of the case on its merits Page: 40 4. Conclusion on whether the evidence garnered in breach of s 8 should be excluded .............................................................................................. Page: 41 C. Were Knapczyk ’ s ss 9, 10(

b) and 7 Charter Rights Infringed?...................... Page: 42 1. Arguments of the parties ................................................................... Page: 42 (

a) The Crown ............................................................................ Page: 42 (

b) Knapczyk .............................................................................. Page: 43 2. Analysis ............................................................................................ Page: 45 (

a) Chronology ........................................................................... Page: 45 (

b) Breach of s 9 of the Charter .................................................. Page: 45 (

c) Breach of s 10(

b) of the Charter: voice identification and the right to counsel Page: 45 (

d) Breach of s 7 of the Charter: voice identification and the principle against self incrimination ......................................................................... Page: 50 VII. Conclusion................................................................................................................ Page: 55

I. Introduction [ 1 ] John Reginald Alcantara (Alcantara) and Alan Peter Knapczyk (Knapczyk) are jointly charged with conspiracy to traffic in cocaine contrary to s 5(1) of the Controlled Drugs and Substances Act ( CDSA ) and s 465(1)(

c) of the Criminal Code ( Code ), trafficking in cocaine contrary to s 5(1) of the CDSA , and conspiring and trafficking in cocaine for the benefit of, at the direction of, or in association with a criminal organization of at least three persons, contrary to s 467.12 of the Code . [ 2 ] November 28, 2006 was “take down” day. The police attended at the respective residences of Alcantara and Knapczyk that day and, pursuant to arrest warrants under s 507(1) of the Code , proceeded to arrest Alcantara and Knapczyk.

A number of other individuals said to have been involved in the alleged conspiracy and related conspiracies also were arrested on November 28 th . [ 3 ] At the time they made the arrests of Alcantara and Knapczyk, the police did not have Feeney warrants issued under ss 529ff of the Code containing prior judicial authorization to enter the dwelling houses to carry out the arrests. Nor did they have search warrants for the residences.

While no general searches of the residences were made at the time, the police did seize leather Hells Angels vests and their contents from both residences, which were in plain view of the police on entry into the homes. [ 4 ] Alcantara and Knapczyk each contend their arrest and the seizure of their Hells Angels vest incidental to their arrest at their residence was illegal as being contrary to s 8 of the Charter of Rights and Freedoms .

Each has brought an application for an order pursuant to s 24(2) of the Charter excluding the vest and its contents from evidence, together with any derivative evidence, arguing these were obtained in breach of their right to be secure against unreasonable search and seizure under s 8 of the Charter as the searches were not authorized by law. Each asserts the vest and contents were obtained by warrantless searches. [ 5 ] Knapczyk also seeks the exclusion of evidence identifying his voice, alleging his statements were involuntary and taken in breach of his s 10(

b) Charter rights and s 7 Charter right to silence. His application is largely based on the ground the police did not advise him they would use his statements as a means of voice identification. II. The Evidence A. The November 27 th and 28 th Briefings [ 6 ] Sergeant Mark Anderson (then Cpl. Anderson), the primary investigator on Project Koker, testified that November 28, 2006 was “take down” or arrest day. There were 18 individuals to be arrested and processed. One of the targets was in British Columbia, one in Newfoundland, and 16 in Alberta, including Alcantara and Knapczyk. On November 24, 2006, Sgt.

Anderson obtained two arrest warrants for Alcantara (only one relating to these proceedings) and one for Knapczyk. The warrants were obtained pursuant to s 507(1) of the Code , not pursuant to ss 529ff of the Code , which provides for judicial authorizations to enter a dwelling-house to carry out the arrest of the person sought. [ 7 ] On Monday November 27, 2006, between 1:00 and 3:00 p.m., Sgt. Greidanus, the team commander, and Sgt. Anderson, the lead investigator in Project Koker, conducted a briefing at RCMP K Division for about 40 of the Edmonton and Calgary arrest team members.

Sergeant Greidanus provided an overview, following which Sgt. Anderson presented a PowerPoint presentation (Ex VD-73) and went over the background of the targets, the address where they were to be arrested, what they were being arrested for, and arrest protocols. One slide in the PowerPoint presentation indicated that, where possible, the officers were to use digital recorders. There was also a notation “No search warrants are contemplated - complete all searches incidental to arrest (ie persons, vehicles, etc.).” Sergeant

Anderson testified that, as the wiretap interceptions ended in February 2006 and the arrests were not until November, he was of the view there were no grounds to support search warrants. At the briefing, specific officers were assigned to each target.

The Edmonton arrest teams were advised that all of the Edmonton targets were to be taken on arrest to the RCMP Sherwood Park detachment. [ 8 ] Sergeant Anderson testified there were officer safety concerns in terms of the Alcantara and Knapczyk arrests as a handgun had been found when Alcantara’s residence was searched on February 9 2006, and Knapczyk was on judicial interim release for a firearms offence at the time. As a result, the Edmonton Police Service (EPS) tactical team was asked to assist with those arrests. [ 9 ] Members of the EPS tactical team attended the November 27, 2006 briefing, including Sgt.

Cherniawski and Cst. Scott Innes. Constable Innes testified they were provided with the names, photographs and information about Alcantara and Knapczyk, and were advised of the charges against them. He was told warrants were in place for their arrest. He could not recall if he saw the arrest warrants that day, but said he saw one the next day. He testified he knows what a Feeney warrant is but did not recall if the arrest warrants here were Feeney warrants. According to Cst. Innes, the tactical team (including himself, Det. Shafer, Cst. Bob Chafe, Sgt.

Cherniawski, and three other members) was not tasked with making any seizures at the Alcantara or Knapczyk residences. [ 10 ] Constable John Rajman with the RCMP testified that he too was at the November 27 th briefing at K Division. He was assigned as one of the Knapczyk arresting team members, along with Det. Whitney, S/Sgt. Kevin Brezinski (then Det.) and Cst. Rhonda Sargent of the EPS. He confirmed this was a general meeting and that photographs of the targets were distributed, the warrants confirmed, and questions posed and answers given in relation to the assignments for takedown day.

He said he saw the arrest warrant for Knapczyk that day or at a briefing the next day. He did not recall anyone being specifically tasked at the meeting with seizing the Hells Angels vests. [ 11 ] The plan in terms of both the Alcantara and Knapczyk arrests was to set up in a vehicle in the area of the target’s residence. The tactical team was to contain the residence by having members at the front and back of the home. An investigator was then to make a phone call to the residence to give the target the opportunity to surrender himself to the police.

Tactical would then make the initial approach to ensure officer safety and would ring the doorbell or knock on the door. Once the tactical team members decided it was safe, the remainder of the arrest team would approach. Investigators had the warrants and were to attend the front of the residence after the tactical team. [ 12 ] On November 28, 2006, another briefing was held for the Edmonton arrest teams to deal with last minute details, before they rolled out to their arrest locations.

Sergeant Anderson went over the last minute details. [ 13 ] Constable Innes confirmed that they met with investigators in the morning, at about 8 a.m. The team was tasked with arresting Alcantara and Knapczyk. He was primary on the Knapczyk arrest and secondary on the Alcantara arrest (Det. Shafer was primary on the Alcantara arrest), meaning that he was a uniformed presence but had no dealings or conversation with Alcantara. He confirmed the plan was to contain the residence, phone the residence, let the target know the police were there with a warrant for his arrest, and have him surrender to the police.

The investigator who had the warrant was to attend at the front of the residence with tactical. Constable Innes testified that as far as he recalled, there was no plan about effecting entry if the target did not answer the door. He said the tactical team carried equipment in the tactical vehicle that would permit a forced entry to be made. [ 14 ] Constable Rajman said that he was tasked at the briefing with arresting Knapczyk. [ 15 ] Staff Sergeant Brezinski said that he was assigned the task of locating and seizing Knapczyk’s Hells Angels vest. He testified that Sgt.

Anderson said something to the effect of “[w]hen you enter the residence, if the vest is in view, seize it.” He said that he was informed at the briefing at 8 am at K Division that Knapczyk was arrestable for a number of offences, including aiding a criminal organization. He testified that he believed the Hells Angels vest was offence-related property. [ 16 ] Sergeant Anderson was asked in cross-examination if he directed S/Sgt. Brezinski to seize Knapczyk’s vest. He testified that he could not recall how it came about that S/Sgt. Brezenski seized the vest, who called whom.

He said he believed it was something that evolved as the arrests unfolded. He kept no notes of this, and agreed it was possible that he said at the briefing something to the effect of “[i]f you see the vest, seize it.” He thought that it happened later; that is, a call was made as the arrests unfolded. However, he agreed he would not have hesitated to direct S/Sgt. Brezinski to seize the vest incidental to arrest if “the patch” was in plain view. He did not recall S/Sgt. Brezinski raising the question of the absence of a search warrant.

[ 17 ] Detective Paul Shafer (then Cst.), an EPS officer, testified that on November 27 th , he was told the tactical team would be needed the next day for arrests. On the morning of November 28, at the start of his shift, prior to 9 a.m., there was a briefing session at which he was given details of what the squad’s and his role would be in the arrests of Alcantara and Knapczyk. They were told there were warrants for their arrest. Constable Innes, Sgt. Cherniawski and three to four other members of the tactical team also were at the briefing.

Detective Shafer indicated it was standard that all members of the tactical squad would attend this type of briefing, which was held in the locker room at EPS headquarters. Detective Shafer was told they would go to two different addresses. Constable Innes was the acting team leader that day. Tactical’s role was to contain the residences and assist with the arrests, not to facilitate searches of the residences. An investigator was to contact and arrest the targets. Detective Shafer said he received information from someone, possibly Cst. Innes, about the arrest warrants. B.

Seizure from Alcantara Residence [ 18 ] Sergeant Anderson testified that he was responsible for the arrest of Alcantara. [ 19 ] Sergeant Darren Michael Feist (then Cpl.) of the Edmonton Proceeds of Crime Unit testified that he met with Sgt. Anderson and Cst. Czernik of the EPS Gang Unit at 9:30 a.m. at a staging area, and had a briefing before they proceeded to the Alcantara residence. The EPS tactical team included Sgt. Cherniawski (tactical team leader), Cst. Innes, Det. Shafer, Cst. Chafe, and three other members. Sergeant Feist testified that he knew Sgt. Anderson would make the arrest of Alcantara.

He said that he was not aware of any discussion about seizing the vest or of who would do so. He did not recall any discussion about the lack of a search warrant. He was aware there was an arrest warrant and said that he saw it and read it at some time, although he was not sure when. [ 20 ] Sergeant Anderson confirmed that at 9:30 a.m., the arrest team gathered. He, Cst. Czernik, Sgt. Feist and EPS tactical team members (led by Sgt. Cherniawski) went over the game plan for the arrest.

At 9:39 a.m., they approached the residence with the EPS tactical team, and at 9:40 a.m., he tried calling two different phone numbers for Alcantara. One was out of service and the other went to voice mail. [ 21 ] Detective Shafer testified that he, Cst. Innes and Sgt. Cherniawski approached the front door at 9:40 a.m. He was in the scout’s position; that is, he was the first to the door, covering any threats. His task was to be the first to recognize if the team was compromised in approaching the door. He and the team were to ensure the security of the situation over Alcantara.

Detective Shafer said that he, Cst. Innes and Sgt. Cheriawski were wearing their issue blue tactical uniform with shoulder flashes identifying them as members of the EPS. A patch on the left pocket said “Tactical Section” and on the right pocket there was a patch with his name. He believed he was probably wearing external ballistic plate armour (bullet proof vest) and might have been armed with a submachine gun and Glock. He thought Sgt. Anderson was in a vehicle parked out front of the residence when they approached the door. [ 22 ] One of the tactical team members knocked on the door at 9:42 a.m.

Detective Shafer could not recall who. He said it was standard protocol when knocking on the door to identify themselves as the police. Alcantara answered the door in a bathrobe and identified himself. Detective Shafer testified that he, Cst. Innes and Sgt. Cherniawski stepped about 32 to 34 inches into the foyer to advise Alcantara of the arrest warrant. Detective Shafer said he believed he had the authority to enter the foyer based on the arrest warrant.

He did not recall if they had a Feeney warrant or if they were given permission to enter, but he said it was cold outside and he did not force his way in. [ 23 ] He estimated the foyer was about four feet by eight feet in size. Straight ahead were stairs to the second level and a hall to the kitchen. There was a closet to the left and an external wall to the right.

Immediately on stepping into the foyer, he observed a distinctive, dark-coloured jacket with a Hells Angels patch on the back, hanging on a hangar on a coatrack near the base of the stairs. [ 24 ] After stepping inside the residence, one of the tactical team members contacted Sgt. Anderson. Sergeant Anderson testified that as he approached the door, Alcantara was just inside the residence, neither hiding nor trying to close the door. He described Alcantara as standing at the threshold or just beyond.

Sergeant Anderson identified himself and advised Alcantara that he was under arrest for conspiracy to traffic in cocaine, among other offences, and that they had warrants for his arrest. Alcantara said that he understood. Sergeant Anderson entered a few feet into the entranceway or foyer. The foyer was 7 to 8 feet long and a few feet wide. He thought he probably was the first to enter. The tactical team members may have been just at the threshold, in a position to take control if necessary.

[ 25 ] Sergeant Anderson was asked what authority he believed he had to enter Alcantara’s residence. He said that he had two arrest warrants and he had common law authority. He believed he had reasonable grounds to arrest Alcantara or he would not have signed the arrest warrants. For officer safety reasons, he wanted to take control of the situation. He confirmed Alcantara was co-operative, at least initially.

It was his view that when a suspect is co-operative, he has authority to enter to effect the arrest. [ 26 ] Sergeant Anderson testified there was a Hells Angels patched leather vest in plain view in the foyer of the residence. He said that Alcantara told him that he wanted to grab something to wear. He testified that Alcantara’s wife Nicole Yakimishyn (Ms. Yakimishyn) was present. [ 27 ] Sergeant Feist confirmed that he was behind Sgt. Anderson in approaching the Alcantara residence. He too said that Alcantara answered the door (at 9:41 a.m.) and that Sgt.

Anderson then advised Alcantara he was there to place him under arrest. He said that when Sgt. Anderson followed Alcantara back into the foyer of the residence, he followed to assist with the arrest from an officer safety perspective. He said the entryway was about five feet wide by ten feet deep, and opened out into an open concept living area. There was a wall to the right when you were at the doorway facing in. Behind and to the left of where Alcantara was standing, there was a coatrack, which was quite noticeable on entry into the home. The only item on the coatrack was a vest, hanging on a coat hanger.

It was one of the first things he noticed when he came into the house. He said the Hells Angels’ death head logo or insignia on the vest was facing the door. [ 28 ] Sergeant Feist testified that Sgt. Anderson arrested Alcantara at 9:43 a.m. Sergeant Anderson testified that from the first time he interacted with Alcantara on November 28, 2006, when Alcantara acknowledged that he understood why Sgt. Anderson was there and what he was being arrested for, he recognized his voice as the person he believed to be Alcantara in the intercepted telephone conversations. [ 29 ] Sergeant Feist could not recall if Sgt.

Anderson told Alcantara what he was being arrested for or if Sgt. Anderson used a tape recorder. He said that after Alcantara was arrested, Ms. Yakimishyn became upset. Sergeant Feist engaged her in conversation to calm her down. [ 30 ] He said Alcantara asked to put on clothes. Sgt. Anderson testified that he told Alcantara that was no problem but that he would be escorting him for officer safety reasons. While Sgt. Anderson went with Alcantara, Sgt. Feist stayed with Ms. Yakimishyn. Sergeant Feist went with Ms. Yakimishyn to the area where the phone was located so she could make some calls.

He said he accompanied her for officer safety reasons and to console her as she was upset. [ 31 ] Sergeant Anderson testified that he took Alcantara upstairs to the master bedroom to give him an opportunity to get dressed and to brush his teeth. Detective Shafer testified that he and Sgt. Innes accompanied Sgt. Anderson and Alcantara upstairs. Sergeant Anderson said very minimal conversation occurred during that time frame. Alcantara was not handcuffed at the time. [ 32 ] According to Sgts. Anderson and Feist, Sgt. Anderson and Alcantara came downstairs at 9:50 a.m.

Sergeant Anderson placed handcuffs on Alcantara. Sergeant Anderson then informed Alcantara they would seize his “patch.”Alcantara became upset, vocal, and commented “[y]ou fuckers, the vest has nothing to do with it.” Alcantara started moving towards Sgt. Anderson as he was trying to retrieve the vest from the coatrack in the entryway. He said a minor struggle ensued. Sergeant Anderson seized the vest incidental to arrest.

He testified that because Alcantara was verbally worked up, he was taken out and put in a tactical vehicle to allow him to cool down. [ 33 ] Sergeant Anderson said that he did not go to the Alcantara residence expecting to see the vest hanging on a coat rack in plain view. However, he testified that if he had seen anything relating to the offence in plain view, he would have seized it. [ 34 ] Sergeant Anderson was asked what authority he believed he had to seize the vest. He said he observed the full patch black leather vest hanging in the foyer, in plain view.

The back of the vest was facing anyone who walked into the residence. He did not seize it right away, but rather waited until he had come back downstairs with Alcantara. He testified that he seized the vest as offence-related property. After six months of the wiretap, he was of the view they had reasonable grounds to believe the Accused were committing the offences with which they were charged. During that time frame, Alcantara became a full patch member of the Hells Angels. Sergeant Anderson said he felt the vest had a direct relationship to the offences with which Alcantara was charged.

Sergeant Anderson did not

conduct a search of the residence and said he had no intention of doing so. [ 35 ] Sergeant Anderson agreed that Sgt. Greidanus was “Command Post” and was being called on November 28 th as targets were located. Sergeant Anderson was asked whether he considered calling Sgt. Greidanus for a search warrant to seize the vest. He replied that he had been confident that a search warrant was not necessary. It did not cross his mind that he should post an officer at the residence and leave to obtain a search warrant.

He said the vest was in plain view and, therefore, he was of the belief that judicial authorization was not required for the seizure. He agreed that if he had thought it was necessary, he could have called from the residence to have a search warrant obtained. [ 36 ] Alcantara was taken outside and turned him over to EPS tactical members. At 10:02, he was taken out of the tactical vehicle and placed in the back of Sgt. Anderson’s police vehicle. Constable Czernik and Sgt.

Anderson were in the front of the car. [ 37 ] Detective Shafer confirmed that dealings with Alcantara had been cordial up until an RCMP member took the Hells Angels jacket from the hangar on the coatrack near the foot of the stairs. Detective Shafer testified that he did not conduct a search of the residence and was not aware of anyone else doing so. He and Cst. Innes took Alcantara to an unmarked vehicle. Detective Shafer testified that he never returned to the residence after that. He placed Alcantara in the back seat of the vehicle. Alcantara left with him, Sgt. Anderson and Cst. Innes.

Alcantara was taken to the Westmount detachment, where they waited for a vehicle to do the transport to the Sherwood Park detachment. He turned Alcantara over to uniformed officers. He said no damage was done to Alcantara’s residence during his presence. He had nothing more than normal conversation with Alcantara. [ 38 ] Sergeant Anderson testified that he advised Ms. Yakimishyn they were going to the Sherwood Park detachment. [ 39 ] By 10:02 a.m., Alcantara had calmed down and was placed, handcuffed, in the back of Sgt. Anderson’s vehicle.

At 10:05 a.m., Sgt Anderson advised Alcantara he would be audio recording his cautioning, and proceeded to do so. Given that Sgt. Anderson was audio recording the cautioning, he did not make notes. The audio recording was somewhat muffled. Sergeant Anderson advised Alcantara of the offences for which he was being charges and arrested. Alcantara indicated that he understood. Sergeant Anderson then read Alcantara the s 10(

a) and 10(

b) Charter cautions from his card. Sergeant Anderson testified that Alcantara was advised of his right to call a lawyer. Sergeant Anderson said Alcantara indicated he understood he had the right to retain and instruct counsel. Alcantara said he wanted to make a phone call to counsel when he got to the detachment. Sergeant Anderson also told Alcantara that he had a right to remain silent. [ 40 ] At about 10:10 a.m., Sgt. Feist left and made his way to the Sherwood Park RCMP detachment. He testified that he did not see Sgt. Anderson seize the vest as he had to escort Alcantara out of the house. Sgt.

Feist testified that he did not search the residence. He did not seize anything from it. He did not have any conversation with Alcantara in the residence, as far as he recalls. He did not notice any damage to the residence done as a result of the arrest. [ 41 ] According to Sgt. Anderson, they departed for the Sherwood Park detachment at 10:10 a.m. He and Cst. Czernik were in the front, Alcantara in the back of the vehicle. Constable Feist was following them. Sergeant Anderson testified that it was standard policy not to provide accused with access to counsel until they were at the detachment.

At 10:31 a.m., they arrived at the detachment and a quick search of Alcantara was conducted. Alcantara was placed in the phone room and Sgt. Anderson dialled Mr. C. Moustarah’s cell phone number for him. It went to voice mail and Sgt. Anderson left a message. At 10:34 a.m., Sgt. Anderson dialled Tarrabain and Co. and advised Mr. Moustarah’s assistant that Alcantara was under arrest. He then left the phone room to give Alcantara privacy to speak with the assistant. At 10:38 a.m., Alcantara was off the phone and confirmed he had spoken to counsel.

At 10:40 a.m., Alcantara was given the opportunity to call his wife, which he did. At 10:42 a.m., Alcantara was out of the phone room and Sgt. Anderson began processing him. During the search of Alcantara’s jacket, Sgt. Anderson found a marijuana cigarette. They joked that it was the least of his worries. Sergeant Anderson and Const. Czernak of the EPS gang unit booked Alcantara, which involved taking his personal effects, taking his photograph, photographing his tattoos and scars, and lodging him in cells. [ 42 ] At 1:08 p.m., Sgt. Anderson turned over Alcantara’s vest to Cst. Rajman. The vest had been in Sgt.

Anderson’s possession until that time. [ 43 ] Rajman confirmed that at 1:08 p.m. on November 28, 2006, Sgt. Anderson gave him the Hells Angels vest that had been

seized from the Alcantara residence (S23-T1). After he received it from Sgt. Anderson, he had sole custody of it. On November 29 at 12:25 a.m., Cst. Rajman stored the vest seized from the Alcantara residence in his K Division locked exhibit locker for which he alone had the key. He testified that it was similar to the vest seized from Knpaczyk’s residence, except for the design of the leather and the location and number of crests and pins. He inspected Alcantara’s vest on December 8, 2006 at 4:15 p.m. He described it as a leather vest with a flame pattern in the leather going up the front of the vest.

There were no pins, markings or stitching on the front right side of the vest. On the left side, there was an Edmonton crest over the breast pocket, a small MC pin, and a gold death skull pin on top of the MC pin over the pocket and patch. On the back, there was a Hells Angels top rocker, the death skull logo stitched in the centre of the vest, the MC logo under the skull and a bottom rocker saying “Alberta.” [ 44 ] Rajman testified that from the inside left pocket, he seized two Canada patches, a patch saying “Edmonton,” a “1%” patch, and five “Support Your Local Hells Angels, Edmonton” stickers (S23-T2).

From the outside front left breast pocket, he took a Trans- West Insurance holder with registration and insurance for a 2006 Harley Davidson in Alcantara’s name and address (S23-T4). From the inside left chest pocket, he took four motorcycle club phone and contact lists: two for the Hells Angels MC Saskatoon, one for Hells Angels MC Edmonton and one for Red Devils Motorcycle Club, Grande Prairie (S23-T5). [ 45 ] Sergeant Anderson testified that at 1:22 p.m., Alcantara was removed from cells for another phone call. Alcantara met Knapczyk in the hall in passing.

They embraced and addressed each other as “brother.” Sergeant Anderson then dialled Mr. Moustarrah for Alcantara and explained that Alcantara had been arrested. Twelve minutes later, Alcantara was placed back in cells. [ 46 ] After the call, Det. Floyd Whitney took fingerprints of both Alcantara and Knapczyk. At 3:55 p.m., Sgt. Anderson took Alcantara out to the secure bay area for a cigarette and then put him back in cells. [ 47 ] At 6:21 p.m., Sgt. Anderson and Cst. Feist commenced a cautioned statement with Alcantara. Sergeant Anderson read Alcantara the secondary caution. He played five intercepted calls.

At 17:15 p.m., the interview ended. Sergeant Anderson served Alcantara with a Notice of Intention and Certificates of Analysis. [ 48 ] At 7:40 pm, Alcantara was placed back in cells. At 11:25 p.m., Sgt. Anderson left the Sherwood Park detachment with Alcantara to transport Alcantara to the Edmonton Remand Centre (ERC). They stopped at Tim Horton’s for coffee. At midnight, they arrived at the ERC. C. Seizure from Knapczyk Residence [ 49 ] Constable Innes testified there was a staging area, about a block away from Knapczyk’s residence.

They moved to the house just before 10:45 a.m. on November 28, 2006, and set up in front of the house. He thought an investigator phoned the house but did not receive a response. He and Sgt. Cherniawski were at the front of the house along with Det. Shafer and Cst. Chafe. Other tactical team members, including Csts. Paton, Laycock and Mitzel, were at the back of the house. Constable Innes and Det. Shafer went to the front door. He was in the regular blue tactical uniform, which had some subdued blue flashes and a crest that said “Edmonton Police.” Detective Shafer was dressed in the same fashion.

He knocked several times on the door and then Knapczyk opened it. Constable Innes said he and Det. Shafer were at the door at the time. An investigator was behind them. He identified Knapczyk and advised him he was with EPS and they had a warrant for his arrest. He said he stepped inside the house to close the personal space between them so that Knapczyk would know he was in custody. He testified that an RCMP investigator followed and told Knapczyk he was under arrest as soon as they stepped into the foyer. [ 50 ] Constable Innes said the front door was at ground level.

There were stairs up to the kitchen and another set of stairs up to the bedroom. Standing at the front door, he could see a small vestibule. There was a closet on the left. As soon as he walked in, he could see a coat rack with a leather jacket on it. He did not recall seeing any other clothing on it. [ 51 ] Constable Rajman testified that he arrived in the vicinity of the residence at 9:30 a.m. with S/Sgt. Kevin Brezinski, Det. Whitney and Cst. Sargent. They were advised to stand by until they received the all clear from the tactical team. The tactical team approached the residence. Cst.

Rajman was in a police car at the time. At 10:45 a.m., he received the all clear and was on the scene within seconds of the door being knocked on and the all clear given. He believed that when he arrived, S/Sgt. Brezinski was at or near the front door, the front door was open, and a few tactical team members were still there. When he stepped in the front door, he identified

Knapczyk, who was a few steps away. There was a coatrack on the left of the foyer, maybe a foot away from the door, with a black vest hanging on it. The vest had crests on it of a skull, with Hells Angels Motorcycle Club patches sewn around the skull and the word “Alberta” at the bottom. There were stairs at the back past the entrance. The kitchen was off to the right. When asked what his authority was for entering the residence, Cst. Rajman responded that he had a warrant for Knapczyk’s arrest and his right to enter was implied since other officers had been let in the house by Knapczyk. [ 52 ] In 2009, Cst.

Rajman stated that he placed Knapczyk under arrest at 10:50 a.m., told him why he was being arrested and advised him of his right to counsel. In 2012, it was his evidence that on entry, once he had identified Knapczyk, he arrested him at the front door and advised him he was under arrest for conspiracy to commit trafficking. When he asked Knapczyk if he understood, Knapczyk noded “Yes.” Constable Rajman did not mention cautioning him or reading him his Charter rights.

Constable Rajman thought Knapczyk was wearing a hoodie at the time, but could not confirm that. [ 53 ] Constable Rajman testified that Knapczyk indicated he needed his medication for pain caused by recent dental work. Constable Rajman went with Knapczyk to find the painkillers but Knapczyk could not locate them. Constable Rajman testified that he did not conduct a search or seize anything. He said he went with Knapczyk so he would not escape custody. When asked if Knapczyk did anything else other than look for painkillers while upstairs, he indicated he could not recall.

He could not recall what Knapczyk was wearing or if he had put on shoes. Constable Rajman thought he was in the residence for about five minute. He said he and Det. Whitney left the home at 10:55 a.m. He escorted Knapczyk to a police car. [ 54 ] Staff Sergeant Brezinski assisted with Knapczyk’s arrest. He drove to the Knapczyk residence with Cst. Sargent. They arrived in the vicinity approximately 45 minutes before the entry. He said the phone call to the Knapczyk residence was made by Cst. Sargent. The tactical team then approached the residence and knocked on the door.

He said there was no need for the tactical team to force the door as Knapczyk opened it himself. The tactical team entered the residence and took control of Knapczyk. [ 55 ] Staff Sergeant Brezinski testified that he was aware that a search warrant had not been obtained for the residence. He said Sgt. Anderson told him about one charge against Knapczyk that related to a criminal organization. He could not recall if the Hells Angels was the criminal organization referred to by Anderson.

He said he had been aware of the Project Koker investigation and that it included some members of the Hells Angels as well as others. [ 56 ] Staff Sergeant Brezinski testified that he entered the residence at 10:55. Constable Rajman was ahead of him by seconds. He said that Cst. Rajman cautioned Knapczyk. The others then entered the residence. He watched Cst. Rajman and tactical team members escort Knapczyk to the back of the house. [ 57 ] Constable Innes testified that Knapczyk was not fully dressed and needed some clothes before leaving with the police. He said he and Det.

Shafer went upstairs with Knapczyk so he could get dressed. He said they escorted Knapczyk upstairs as Knapczyk had a history with the police and they had a concern he might have access to weapons. Constable Innes said he had no conversation with Knapczyk other than to ask him for articles of clothing so that he could do a pat down search for weapons or items that might facilitate his escape. Knapczyk did not say anything when they went upstairs. He said the RCMP investigator stayed in the foyer. [ 58 ] Constable Innes testified they were upstairs for about ten minutes.

They then escorted Knapczyk downstairs and handed him over to the investigator. Knapczyk was then handcuffed and taken to a waiting police car by the investigator. [ 59 ] Staff Sergeant Brezinski and Cst. Sargent remained in the entry area. Staff Sergeant Brezinski did not observe any other occupants. He said there was a coatrack three to four feet in front of him in the entryway, with a vest on it. No one drew his attention to the vest. He indicated that he observed the vest as soon as he entered the residence.

It was distinct, with a death’s head patch on the back of the vest, a Hells Angels patch on top, and an Alberta patch below. He could not remember which way the vest was facing. He did not recall any other clothing on the coatrack. He was not sure if there was a closet. [ 60 ] As previously indicated, Constable Rajman took Knapczyk to a police car, placed him in the car, told him again he was being arrested for conspiracy to commit trafficking, and cautioned him by reading from a card and Chartered him.

Constable Rajman said when Knapczyk was told he had the right to retain a lawyer, he responded “Yeah, I’ll call a lawyer.” He also said “Yeah” when asked if he understood he had the right to remain silent and whatever he did say could be used in evidence. There was nothing outstanding in Knapczyk’s demeanor. They went to the RCMP Sherwood Park detachment, arriving at 11:35 am.

[ 61 ] Sergeant Anderson was asked whether it was part of the plan that Knapczyk not be allowed to call counsel from home and not until he was placed in cells. He said that it was standard protocol to provide a secure environment for the call to counsel. [ 62 ] Constable Rajman testified that he did not believe any damage was done to the residence as a result of this arrest. From the time of the arrest to their arrival at the detachment, Knapczyk was in his custody. No other officer spoke to Knapczyk. He believed that Det.

Whitney went to the detachment with them. [ 63 ] Staff Sergeant Brezinski said he observed Knapczyk being escorted out of the house by Det. Whitney and Cst. Rajman. He said tactical team members left at the same time as the others. Staff Sergeant Brezinski then seized the Hells Angels vest. He did not seize anything else. Staff Sergeant Brezinski said that he seized the vest on the direction of Sgt.

Anderson, who had said something at the briefing to the effect of “when you enter the residence, if the vest is in view, seize it.” He had been advised at the briefing at 8 a.m. at K Division that Knapczyk was arrestable for a number of offences, including aiding a criminal organization. He believed the vest was offence-related property. [ 64 ] Staff Sergeant Brezinski testified that he held off on seizing the jacket so Knapczyk would not observe him holding or carrying the vest. He was worried that Knapczyk would become upset and cause a disturbance because their vests are important to Hells Angels members.

He testified that he did not observe any damage done to the residence during the arrest. He did not search the residence. He confirmed that Knapczyk was cooperative. [ 65 ] After the seizure, S/Sgt. Brezinski and Cst. Sargent left the residence. Staff Sergeant Brezinski conceded it was possible some tactical members were behind them. He could not recall who secured the house. An entry in his notes stated that at 11:30 a.m., he followed Det. Whitney and Cst. Rajman to the Sherwood Park detachment. At trial, he explained that he probably arrived at the detachment at 11:30 a.m.

His notes state: “12:22 Sherwood Park detachment.” He clarified that was when he turned the vest over to Cst. Rajman. Staff Sergeant Brezinski did not search the vest. He said had no conversation with or dealings with Knapczyk at the time. He did not hear or observe any officer threaten or intimidate or give promises to Knapczyk to get him to speak with an officer. [ 66 ] Constable Innes said he was the last out (at 10:55 a.m.) and locked the front door of the house. He confirmed that he did not search the residence. He did not note any damage done to the residence. He did not seize anything from the residence.

He did not see anyone else seize or remove anything from the residence. He too confirmed that Knapczyk was cooperative. [ 67 ] Sergeant Anderson said that Knapczyk was photographed by the civilian guard at the Sherwood Park detachment. [ 68 ] Sergeant Anderson testified that Knapczyk said he was glad the RCMP came to arrest him. Sergeant Anderson advised him that EPS had been involved as well. Knapczyk’s processing took 20 to 30 minutes. According to Sgt. Anderson, Knapczyk was cooperative.

They had some general conversation together. [ 69 ] Sergeant Anderson agreed that he did not advise Knapczyk specifically that his statement could be used for voice identification. [ 70 ] Sergeant Anderson testified that he formed the belief he could identify Knapczyk's voice for identification at the time of the November 28, 2006 take-down, specifically when Knapczyk was being photographed at the cell block. As soon as Knapczyk starting speaking, Sgt. Anderson recognized his voice. [ 71 ] Constable Rajman testified that at 11:40 a.m., they took Knapczyk to the telephone room.

Knapczyk said he had to phone his mother to ask her to pick up his daughter. Constable Rajman dialled Knapczyk’s mother’s work phone number. At 11:43 a.m., Knapczyk said he wanted to speak to his lawyer, Jake Chadi. Constable Rajman dialled Jake Chadi’s number, but could not get through to him. He said that, at 11:45 a.m., Det. Whitney dialled the number and got through to Mr. Chadi. Knapczyk was given privacy in the phone room for the call and at 11:50 a.m. he indicated he was off the phone. When Cst.

Rajman was asked if he had any indication of whether Knapczyk had spoken to counsel at that time, he testified “just his indication that he had.” Constable Rajman said that Knapczyk did not

advise that he was unsatisfied with his contact with counsel. Constable Rajman assumed that once Knapczyk had spoken to counsel, his counsel would be arriving at the detachment to speak with him. He did not make a note of any conversation with Knapczyk in that regard. [ 72 ] At 12:15 p.m., Cst. Rajman lodged Knapczyk in cells after photographs were taken of him and his tattoos. Constable Rajman testified there would have been guards monitoring the prisoners in the cells. [ 73 ] At 12:26 p.m., S/Sgt. Brezinski gave Cst. Rajman the Hells Angels vest seized from Knapczyk’s residence.

Constable Rajman had custody of it until 12:25 a.m. on November 29 th , when he returned to the temporary lockup area and put it in his drug exhibit locker. He was the only key holder for that. [ 74 ] At 1:14 p.m., Sgt. Anderson provided Knapczyk with the chance to make a call. Knapczyk indicated he thought he knew Sgt. Anderson, that maybe they went to school together, that he looked very familiar. Sgt. Anderson phoned Mona Karout at Mr. Chadi’s office and Knapczyk spoke to counsel. At 1:22 pm he was off the phone. [ 75 ] Between 1:24 and 4:00 pm, Knapczyk was in cells, except when Det.

Whitney took his fingerprints. [ 76 ] Sergeant Anderson testified that Knapczyk wanted to speak to Mr. Chadi also, so Sgt. Anderson put him in the phone room at 3:58 p.m. and got Mr. Chadi on the line. Sergeant Anderson did not believe he advised Mr. Chadi that he planned a second interview with Knapczyk but said he would have told him if he had asked. He did not recall Mr. Chadi advising that Knapczyk was asserting his right to remain silent. He said that, even if he had, he would have pursued an interview. At 4:20 p.m., Knapczyk was done with the call. Sgt. Anderson took Knapczyk for a cigarette.

That took five minutes. At 4:25 p.m., Knapczyk was placed back in cells. [ 77 ] On December 7, 2006 at 3:30 p.m., Cst. Rajman inspected the vest (S22-T2), which had remained in the locked lockup until then. The vest had a maroon flame pattern on the back. There was a death skull pin and pin with MC over each breast pocket, the left one over an Edmonton patch and the right one over a Canada patch. There was also a pin with “81" in the centre of the right breast pocket, with death skull logos on either side of the pin.

The vest had a Hells Angels top rocker, the death skull logo with the MC emblem under the wings, and an Alberta bottom rocker on the back of it. From the front left breast pocket (S22-T3), he seized a Hells Angels patch or crest, a Phantom Choppers business card with the name Terry K on the bottom, with a phone number, business cards saying Blower and Installation, two business cards with the name Dominic Jr. written on them, along with other business cards and a torn piece of cigarette carton with a phone number written in blue ink on it.

From the right breast pocket (S22-T4), he seized two sign language cards, business cards, a birth certificate for Knapczyk, an insurance pink slip in the name of Trevor Phillips, a vehicle registration for Phillips, a vehicle registration form for Knapczyk, another pink slip and other documents, including a telephone list that says “Nomads” on the top, with an e-mail address for Nomads 81. The list stated: “If found, destroy or suffer pain” (S22-T5). D. Knapczyk ’s Recorded Statement [ 78 ] At 5:10 p.m., Cst. Rajman and Sgt.

Anderson took Knapczyk to the interview room at the detachment and began to interview him at 5:18 p.m. The interview was audio and video recorded. Knapczyk was advised the interview was being recorded. Sergeant Anderson read Knapczyk his rights. Sergeant Anderson read the secondary caution from a card. Knapczyk responded that he understood. The interview concluded at 5:41 p.m. Sergeant Anderson told Knapczyk that he could apply for the return of his vest. Knapczyk replied that he would not want it as the police had touched it and he would have to burn it anyway. At 5:44 p.m., Cst.

Rajman served him with the notice of intention and copies of certificates of analyst. At 5:55 p.m., service was completed. Sgt. Anderson said he made no threats or promises to Knapczyk nor did he see anyone else do so. Constable Rajman testified that Knapczyk was relaxed, coherent and able to respond during the interview. Constable Rajman confirmed that during the time frame he dealt with Knapczyk, he did not promise anything to him, threaten or intimidate him in order to obtain his statement. He did not note any other officer doing so. [ 79 ] By 6:05 p.m., Knapczyk was back in the cell block. Cst.

Rajman took Knapczyk for a cigarette in the secure cell area, while Knapczyk was waiting for his lawyer. Knapczyk mentioned that he’d had surgery on his abdomen. At 6:20 p.m., Knapczyk met with his lawyer. [ 80 ] At 11:25 p.m., Cst. Rajman left the detachment with Alcantara and Sgt. Anderson on the way to the Remand Centre.

Constable Rajman testified that he made no promise or threat to Knapczyk and did not observe any other officer doing so. III. Issue s [ 81 ] The issues in this voir dire are: A. Whether the arrests of Alcantara and Knapczyk were unlawful as being contrary to s 8 of the Charter ? B. If so, should the evidence seized incidental to the arrests be excluded under s 24(2) of the Charter and the Grant analysis? C. Whether Knapczyk’s s 7 and 10(

b) Charter rights were infringed? D. If so, whether any of the evidence identifying his voice should be excluded under s 24(2) of the Charter ? IV. Legislation [ 82 ] The relevant provisions of the Charter include: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. . . . 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; . . . 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[ 83 ] The following provisions of the Code also are of relevance: 507(1) Subject to subsection 523(1.1), a justice who receives an information laid under

section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under

section 505, shall, except if an accused has already been arrested with or without a warrant, (

a) hear and consider, ex parte , (

i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and (

b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence. . . . 529(1) A warrant to arrest or apprehend a person issued by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection (2), to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending the person if the judge or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the person is or will be present in the dwelling-house.

(2) An authorization to enter a dwelling-house granted under subsection (1) is subject to the condition that the peace officer may not enter the dwelling-house unless the peace officer has, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house. 529.1 A judge or justice may issue a warrant in Form 7.1 authorizing a peace officer to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied by information on oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that (

a) a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada; (

b) grounds exist to arrest the person without warrant under paragraph 495(1)(

a) or (

b) or

section 672.91; or (

c) grounds exist to arrest or apprehend without warrant the person under

an Act of Parliament, other than this Act. . . . 529.3(1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in

section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under

section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death toany person; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in thedwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. 529.5 If a peace officer believes it would be impractical in the circumstances to appear personally before a judge or justice to make anapplication for a warrant under s 529.1 or an authorization under s 529 or 529.4, the warrant or authorization may be issued on aninformation submitted by telephone or other means of telecommunication and, for that purpose,

section 487.1 applies, with anymodifications that the circumstances require, to the warrant or authorizations. V. Discussion of Issues A. Whether the Arrests of Alcantara and Knapczyk were Unlawful as being Contrary to s 8 of the Charter 1. Arguments of the parties relating to the Alcantara arrest and seizure (

a) Alcantara [84] Alcantara notes that S/Sgt. Brezinski was tasked at a briefing on November 28th with seizing Knapczyk’s Hells Angels vest asoffence related property. He asserts the inference should be drawn that Sgt. Anderson intended to seize his vest as Sgt.

Anderson waspart of the arresting team, he assigned himself the task of making the arrest and no other officer was tasked with seizing the vest. [85] Alcantara submits that R v Feeney, (SCC), [1997] 2 SCR 13 at paras 19-20 recognized the heightenedprivacy interest infringed by state entry into a home and laid down a general prohibition against warrantless entries as an incident to anotherwise lawful arrest. [86] He says the same applies to seizures (R v Golub (1997), (ON CA), 34 OR (3d) 743 at para 41 (CA), app’nfor leave to appeal dism’d [1997] SCCA 571). [87] The Code now provides for warrants which allow for entry into private premises.

To enter a residence to effect an arrest, thepolice must obtain a warrant under ss 529, 529.1 or 529.5 of the Code, except in exigent circumstances (s 529.3). [88] Alcantara concedes the common law recognizes that the occupier of a dwelling house gives implied licence to members of thepublic, including the police, on legitimate business, to come on to private property and approach the door of the house (R v Evans, (SCC), [1996] 1 SCR 8 at paras 13, 16), but submits this implied licence does not extend to approaching the residence withthe intention of gathering evidence. [89] Alcantara relies on R v Nguyen, [2006] OJ No 4393 (SCJ) (QL), in which the court held that a licence to approach theresidence does not include a licence to effect a warrantless arrest.

The police had no Feeney warrant and, although an arrest warrantexisted in respect to an accident that had occurred the previous day, it was not in the possession of the police. Nevertheless, they enteredthe premises and discovered marijuana. Hill J emphasized at para 66 that the search of the residence was warrantless and a warrantlesssearch raises a presumption of unreasonableness, relying on R v Mercer (1992) (ON CA), 70 CCC (3d) 180 at 184

(Ont CA)(sub nom R v Kenny), leave to appeal ref’d [1992] 2 SCR viii, [1992] SCCA No 231). The unlawful entry and warrantlesssearch was followed by a violation of the occupant’s s 10(

b) rights and the evidence seized was excluded. [90] Alcantara says the plain view doctrine that authorizes the seizure of evidence in plain view only applies when the police areon the premises lawfully (R v Smith, 1998 ABCA 418 at paras 7-9, 13, 19, 219 AR 109; R v Law, 2002 SCC 10 at para 27, [2002] 1SCR 227; R v Knee (2001), 2001 ABPC 23 , 285 AR 64 at para 43 (Prov Ct); R v LF (2002), (ON CA),166 CCC (3d) 97 at para 28 (Ont CA)); R v Spindloe (2001), 2001 SKCA 58 , 154 CCC (3d) 8 (Sask CA) at para 36; R vJones, 2011 ONCA 632 at para 56, 107 OR (3d) 241). [91] Alcantara submits that the evidence is clear the police entry into his residence was not authorized by law.

Therefore, the Courtmust undertake an analysis of the reasonableness of the intrusion, which the prior authorization provisions in the Code are designed toavoid. [92] Alcantara says there is no suggestion in the evidence he invited the police into his home, consented to their presence orwaived his privacy interests. He submits the police were in breach of s 8 of the Charter when they crossed the threshold. Therefore, hisarrest was in breach of his ss 8 and 9 Charter rights and Sgt. Anderson was not lawfully positioned when he saw the vest in plain view.Accordingly, the seizure of the vest was in breach of s 8.

The police simply barged in to take control of him. [93] Alcantara maintains the police knew or ought to have known a Feeney warrant was required to enter the dwelling home toeffect his arrest. He says the circumstances are similar to those in R v DMM (2005), (MB PC), 203 Man R (2d) 226(Prov Ct), where the court excluded the evidence obtained after the police unlawfully entered a home. [94] Alcantara argues that R v Guiboche, 2004 MBCA 16, 183 CCC (3d) 361, app’n for leave to appeal dism’d [2004] SCCA No.177 does not state the law as outlined by the Crown.

He says the applicant in that case did not rely on the crossing of the threshold.Rather, he argued the police had entered his father’s residence without a warrant to arrest him. Freedman JA concluded at paras 58-59that the applicant’s father had given the police consent to enter the residence and, in any event, the applicant did not have standing toassert a reasonable expectation of privacy in his father’s house. [95] Alcantara submits the police entry into his residence was not “benign.” He argues the seizure of the vest was unreasonablegiven the unlawful entry and the failure by Sgt.

Anderson to apply for a telewarrant under s 529.5 of the Code. [96] Alcantara also contends the police anticipated the vest would be found in his residence. He argues that for the discovery to beconsidered inadvertent and the plain view doctrine to apply, the police must be in a position to say that they did not “know” in advancethat the evidence was at the location where it was seized. (

b) The Crown [97] The Crown argues that the police, even without a search warrant, can search an individual and his immediate surroundings,including the interior of a residence, and seize evidence of a crime, incident to the individual’s arrest, as long as three conditions are met:(1) the arrest is lawful; (2) the search is truly incident to the arrest; and (3) the search is conducted in a reasonable manner (R v Golden,2001 SCC 83 at para 84, [2001] 3 SCR 679; R v Caslake, (SCC), [1998] 1 SCR 51 at paras 13-17; Cloutier v Langlois, (SCC), [1990] 1 SCR 158 at paras 49 and 53; R v Bedard (1998), (ON CA), 125 CCC (3d) 348 atpara 18 (Ont CA); and R v Stillman, (SCC), [1997] 1 SCR 607 at para 27).

It says this is an exception to the generalrule that a warrantless search is prima facie unreasonable. [98] The Crown contends that Alcantara was lawfully arrested pursuant to a valid arrest warrant. It argues that the lawfulness ofthe arrest was not invalidated by the entry of the police into the foyer of the Alcantara residence.

The Crown also asserts that neitherFeeney nor ss 529ff of the Code prevent the police from knocking on a suspect’s door, so long as they have no intention of forciblyentering the residence or conducting a search. [99] The Crown takes the position that approaching Alcantara’s front door and knocking did not amount to a search. It maintains

the police attended the residence in the hope of making the arrest, but without any forced entry or intention to search the residence. Itsays that while they seized the jacket and its contents, the evidence does not support the inference they selected the residence in order tosearch it. It argues that the facts here do not offend Feeney or Evans. While Sgt.

Anderson testified that he was prepared to seize HellsAngels clothing as evidence of the offences if it was in plain view, he did not go to the residences expecting to see any. [100] The Crown submits that the lawful police presence at the front door of the Alcantara residence was not rendered unlawful bysubsequent events. The police were dressed in uniforms identifying them as EPS officers. When Alcantara voluntarily answered the door,they identified him, advised him there was a warrant for his arrest and then Sgt.

Anderson attended at the residence and placed himunder arrest. [101] The Crown maintains it is unclear who entered the foyer first - Cst. Innes, Cst. Shafer or Sgt. Anderson. In any event, the arrestoccurred within the confines of the foyer. The Crown asserts that it makes little difference whether the arrest occurred on one side of thethreshold or the other (Guiboche at para 56). However, it recognizes that the law on this issue is unsettled and some cases take adifferent view than Guiboche (R v MCG, 2001 MBCA 178 at para 27, 160 Man R (2d) 131).

The Crown contends that a principledapproach supports the approach taken in Guiboche when the arrest takes place in a foyer since the concern driving the decision inFeeney was the individual’s privacy interest and the front foyer of a residence is open to the public whenever the door is opened. [102] The Crown notes that after he was arrested, Alcantara asked to and was given the opportunity to get dressed. Sgt. Andersonaccompanied him for officer safety reasons. Sgt. Feist accompanied Ms. Yakimishyn further inside the residence to the phone.

Hetestified that he did so to comfort her and for officer safety reasons as she was upset. The Crown notes that the police never searched thehouse. The jacket was seized, incidental to the arrest, since it was in plain view in the foyer. 2. Arguments of the parties relating to the Knapczyk arrest and seizure (

a) Knapczyk [103] Knapczyk says that the principal purpose of s 8 of the Charter is to protect the privacy interests of all persons againstunreasonable intrusion by the state. Police conduct interfering with a reasonable expectation of privacy constitutes a “search” (Hunter vSouthan Inc., (SCC), [1984] 2 SCR 145 at 149; R v Edwards, (SCC), [1996] 1 SCR 128 at para 30;Law at para 15).

Knapczyk maintains it is clear the taking of the vest was a seizure. [104] Knapczyk relies on the principle that the state may not invade the privacy of a person’s home without a judicially authorizedwarrant (R v Silveira, (SCC), [1995] 2 SCR 297 at para 41). He submits that if the initial entry is invalid, the subsequentsearch is also (Silveira at para 45). He contends that it is not a trivial or minor intrusion when uninvited state agents step into theentryway of a person’s home (Evans at para 3). [105] Knapczyk says that a warrantless search is presumptively unreasonable.

In the absence of prior judicial authorization, a searchis reasonable only if: (1) the search is otherwise authorized by law; (2) the law is reasonable; and (3) the manner of conducting thesearch is reasonable (R v Collins, (SCC), [1987] 1 SCR 265 at para 23; R v Buhay, 2003 SCC 30 at para 32, [2003] 1SCR 631; Law at para 28). [106] Knapczyk says that absent exigent circumstances, authorization under ss 529ff of the Code was and is required to carry out anarrest in a dwelling-house.

He maintains that as the police approached his door to arrest him, they exceeded the scope of the common law“invitation to knock,” given S/Sgt. Brezinski’s evidence he had been charged with seizing Knapczyk’s Hells Angels vest (Evans at paras15-16; DMM at para 23). [107] Knapczyk points out that the majority in Feeney held that an arrest warrant alone does not provide authority to enter a dwelling-house. Rather, a warrant must be obtained based on reasonable and probable grounds to arrest and to believe the person sought is withinthe premises in question (Feeney at para 51).

Such a warrant is provided for in ss 529(1), 529.1 and 529.5.

Section 529.3 spells outexigent circumstances that can justify warrantless entry.

[108] Knapczyk concedes it is possible for an individual to consent to the police entering without a warrant. However, informedconsent requires announcement by the police, before entry, of the true nature of their business, i.e. to make an arrest (R v Nguyen,[2006] OJ No 4393 at para 56 (SCJ) (QL)). [109] Knapczyk submits that the Crown cannot rely on the plain view doctrine in terms of the seizure by the police of his vest.

Theprerequisites for application of that doctrine are that: (1) the officer must be lawfully positioned (Buhay at para 37; Law at para 27; R v LF, (ON CA), [2002] OJ No2604 at para 32 (CA)); R v Spindloe (2001), 2001 SKCA 58 , 154 CCC (3d) 8 (Sask CA) at paras 38-39); (2) the evidence must be discovered inadvertently (Jones at para 56; Spindloe at paras 38-39; R v Lane (1990), (NB KB), 104 NBR (2d) 141 (QBTD)); (3) it must be immediately apparent that it related to a crime; and (4) it must be visible without an exploratory search (Jones at para 46). [110] Knapczyk submits that the plain view doctrine does not apply unless the evidence is discovered inadvertently (Jones at para 56;Spindloe at paras 38-39; Lane; Smith).

He points out that in this case, S/Sgt. Brezinski testified he was assigned the task of seizing thevest if it was in plain view. [111] Knapczyk says that it is absurd to say that he consented to entry of the police into his residence, given he was faced with twoarmed members of the tactical team wearing plated bullet-proof body armour, one of whom immediately stepped into the residence, andwas followed by the investigator who arrested him. He refers to a similar situation in R v Jerace, 2011 ABQB 50 at paras 70-72, 507 AR337.

Knapczyk suggests that no matter what the reason was for going upstairs, whether to get dressed or to find pain medication, it didnot amount to implied consent as he believed he had been lawfully arrested. [112] Knapczyk says that officer safety concerns did not provide authority for the police to enter his home (Feeney at paras 52-53). (

b) The Crown [113] The Crown advances the same arguments as it does in terms of the seizure from the Alcantara residence. It maintains thatKnapczyk was lawfully arrested. It distinguishes Feeney on the basis that the police in the present case contacted Knapczyk and soughtto have him voluntarily surrender himself. The intention of the police was to arrest Knapczyk pursuant to an arrest warrant, not to forceentry into the residence or to search it. [114] The Crown contends that approaching the front door of the Knapczyk residence was not a search.

Unlike the situation in Evans,the police intended to effect an arrest rather than a search. It argues that the arrest of Knapczyk was not a search. Cst. Innes stepped intothe foyer to close the gap between himself and Knapczyk, to let him know he was in police custody, not to conduct a search. Cst. Rajmanand Det. Brezinski then entered to make the arrest. [115] The Crown notes that after Knapczyk was arrested, he asked for the opportunity to get his painkillers and to change clothes.

Cst.Rajman and two tactical team members escorted him for officer safety reasons and as he was under arrest at the time. [116] The Crown says that Det. Brezinski seized the vest as it was in plain view, hanging in the foyer. There was no search conducted

of the house. Detective Brezinski had been advised the vest was offence related property in relation to the offences for which Knapczyk was arrested. [ 117 ] The Crown contends the seizure was effected in reasonable manner. 3. Analysis [ 118 ] The majority in Feeney at para 24 noted the common law principle that a warrantless entry into a dwelling house, without permission, is legal if: (

a) the officer has reasonable grounds to believe that the person sought is within the premises; (

b) proper announcement is made; (

c) the officer believes reasonable grounds for the arrest exist; and (

d) objectively speaking, reasonable and probable grounds for the arrest exist. [ 119 ] However, the majority also recognized the important privacy interests an individual has in their private dwelling and concluded at para 48 that given privacy rights under the Charter , an arrest warrant alone is insufficient to provide the police with authority to enter a dwelling house to effect an arrest. The majority held that warrantless arrests in dwelling houses generally are prohibited. The police must obtain prior judicial authorization for entry into the dwelling house in order to arrest the person.

At the time of Feeney , there was no provision in the Code specifically providing for a warrant containing such prior authorization. As a result, the court read such a provision into the terms of the Code . [ 120 ] The majority at para 51 summarized the requirements that must be met before an arrest for an indictable offence in a private dwelling is legal: (

a) a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within the premises in question; (

b) proper announcement must be made before entering, except in situations of hot pursuit. [ 121 ] The majority did not decide the issue of whether a general exception exists for exigent circumstances. [ 122 ] In 1997, subsequent to Feeney , the Code was amended to add ss 529, 529.1 and 529.5, which specifically provide for prior judicial authorization for entry into a dwelling house to carry out an arrest. These are commonly referred to as Feeney warrants. [ 123 ] On November 24, 2006, Sgt. Anderson obtained two arrest warrants for Alcantara (only one relating to these proceedings) and one for Knapczyk.

The warrants were obtained pursuant to s 507(1) of the Code , not pursuant to ss 529ff of the Code . The two Accused were arrested inside their residences and Hells Angels vests and their contents seized. The Accused argue their arrests and the seizures were unlawful as being contrary to their s 8 Charter right to be secure against unreasonable search and seizure. [ 124 ] Sergeant Anderson was the chief investigator in the Project Koker prosecutions, was the guiding mind behind the arrests that

occurred on take down day, and was responsible for Alcantara’s arrest. In the case of both Alcantara and Knapczyk, the police phoned the respective residence before approaching the front door, but did not succeed in reaching the Accused. In both cases, members of the EPS tactical team, armed and wearing bullet proof vests, went to the front door, knocked, identified themselves as police and, when the Accused answered the door and identified himself, crossed the threshold into the foyer before an investigator (Sgt. Anderson for Alcantara and Cst. Rajman for Knapczyk) entered the residence and made the arrest.

In both cases, the police accompanied the Accused upstairs so that the Accused could get changed and, in the case of Knapczyk, for him to look for his pain medication. They did so as the Accused was then in custody and for officer safety reasons. In both cases, the police seized a Hells Angels vest that was in plain view of the police entering the doorway. The vests were hanging in plain view on stand alone coat racks within a few feet of the door through which the police gained access.

They were prominently displayed with the death head facing the door. [ 125 ] Detective Shafer, one of the tactical team members who entered the Alcantara residence, testified that he was of the belief he had the authority to enter based on the arrest warrant. He did not recall if they were given permission to enter, but he said it was cold outside and he did not force his way in. [ 126 ] Sergeant Anderson was asked during the voir dire what authority he believed he had to enter Alcantara’s residence. He said that he had two arrest warrants and he had common law authority.

He believed he had reasonable grounds to arrest Alcantara or he would not have signed the arrest warrants. For officer safety reasons, he wanted to take control of the situation. He confirmed Alcantara was co- operative, at least initially. It was his view that when a suspect was co-operative, he had authority to enter to effect the arrest. [ 127 ] Constable Rajman testified that he entered Knapczyk’s residence because he had an arrest warrant and he thought permission was implied since other officers had been let in. [ 128 ] Constable Innes, one of the tactical team members who entered before Cst.

Rajman, did not indicate that he had permission to do so. He said that he stepped in to close the personal space between himself and Knapczyk and to let Knapczyk know he was in custody. [ 129 ] The Crown argues that both Alcantara and Knapczyk were arrested pursuant to lawful arrest warrants and the lawfulness of their arrests is not affected by the entry of the police into the foyer of the residences. It contends that neither Feeney nor ss 529ff of the Code prevent the police from knocking on a suspect’s door so long as there is no intention to forcibly enter or search the residence.

It maintains that the police accompanied Alcantara and Knapczyk upstairs so that they could get changed and for officer safety reasons. [ 130 ] I accept the evidence of Sgt. Anderson that he believed that the police, armed with the arrest warrants, had the authority to approach the residence of the Accused, knock on the door, and arrest the Accused. I accept that the police had no intention to forcibly enter or to search the premises of the two Accused.

Once the two Accused had been arrested, they were afforded the opportunity to change, and in the case of Knapczyk, to obtain his medication. [ 131 ] However, in light of the Feeney decision and the subsequent amendments to the Code , I am of the view that where the police had reasonable and probable grounds to arrest the Accused and intended to do so at their homes, in order to effect the arrests within the dwellings, they were obliged to comply with the provisions in the Code requiring prior judicial authorization to enter a dwelling house for the purpose of carrying out an arrest. [ 132 ] There is a noble history to the Charter protection for the privacy rights of citizens within the sanctity of their own homes.

It is intended to ensure there is prior judicial authorization for arrest in the dwelling home, unless there are exigent circumstances as contemplated by the Code .

The Crown did not argue that there was any exigency in relation to the arrests of Alcantara or Knapczyk, nor does the evidence demonstrate that there was any, as the arrests took place some 10 months after the active phase of the investigation. [ 133 ] As the Crown argues, the majority of the Supreme Court of Canada in Evans at paras 13-16 recognized an implied licence for all members of the public, including the police, to approach the door of a residence and knock.

This implied licence to knock, a waiver of the occupier's expectation of privacy in the approach to his or her home, is intended to facilitate communication between the public and the occupant of the dwelling. It extends only to those activities reasonably associated with the purpose of communicating with the occupant. In Evans , that did not include approaching the door in the hope of getting a whiff of marijuana and securing evidence against the occupants. The court in Evans concluded at para 16 that where the police approach a dwelling with the intention of gathering

evidence against the occupant, they have exceeded any authority that is implied by the invitation to knock. [134] The implied licence to knock ends at the door (R v Tricker (1995), (ON CA), 21 OR (3d) 575 at 579 (CA)).It does not include authority to make an entry to arrest without prior judicial authorization (R v Grotheim, 2001 SKCA 116, 161 CCC(3d) 49 at para 25 (Sask CA), leave to appeal refused [2002] SCCA No 17). [135] On the evidence, I cannot conclude that either Accused invited the police to enter, consented to their presence, or waived theirprivacy rights in their home.

There was a strong contingent of officers in the foyer and in the immediate area of both homes. The tacticalteam was present as there was some history of possession of weapons with respect to both of the Accused. However, this was all themore reason why the proper Feeney warrants should have been obtained: the need to be prepared for any problem or eventuality thatmight arise in the execution of the arrest warrants. [136] The police knew where the Accused resided and attended in the morning, undoubtedly with the expectation that they would bein their homes.

No explanation has been provided as to why Feeney warrants were not obtained, other

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