R v Wu, 2013 ABQB 675

Court of Queen ’ s Bench of Alberta Citation: R v Wu, 2013 ABQB 675 Date: 20131114 Docket: 110398112Q1 Registry: Calgary Between: Her Majesty the Queen Crown/Respondent - and - Jie Fang Wu Accused/Applicant Corrected judgment: A corrigendum was issued on December 17, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _________________________________________ ______________ Introduction

[ 1 ] This decision relates to an application brought by the accused, who alleges that there was a violation of her

section 8 Charter rights, the right to be secure from unreasonable search and seizure. The police entered the accused's residence as a result of a 911 call, and in the process of "clearing" the residence, discovered a large marihuana grow operation. The application is for the exclusion from evidence at trial of the marihuana and drug paraphernalia found by the police. Facts [ 2 ] The following facts were proven from the evidence called in a voir dire : 1. Constable Grier and Constable Hann were on duty on August 2, 2010. They received over the radio a "check on welfare" call to go to a house in Calgary.

Constable Grier understood from the dispatch that there had been a call from a third party indicating that an Asian female was screaming for help. Constable Grier was concerned this may be a domestic dispute. 2. Constable Grier drove Constable Hann in one police vehicle. Constable Price drove a separate police vehicle. By the time they arrived at the house, Constable Hann understood from the information aired over the computer that there was a domestic dispute, involving an Asian male and female with a young child. There was a verbal argument outside of a house and the male had departed in a green truck. 3.

When the police arrived at the house, no people were observed. There was a white truck in the driveway. Upon approaching the house, they saw an older Asian man who was smoking on the front balcony. The police attempted to engage him in conversation, but he apparently did not speak English. He went into the house. 4. The Constables knocked at the door of the residence. They could hear discussions inside which were not in English. Not immediately, but less than a minute later, a woman identified as the accused answered the door with her young child. 5.

The accused told the police that she had been arguing with her ex-boyfriend about the child, but the dispute was over. She did not appear eager to speak with the police. 6. Constable Grier believed that this was the woman involved in the dispute, but she thought that the accused was tense and acting strangely. An elderly gentleman and woman were standing shoulder to shoulder behind the accused in a narrow hallway, there was some noise behind them (later identified as a children's TV show). Constable Grier felt something was wrong from the body language and situation.

She wanted to enter the house to "clear" the residence, meaning to check for any other people who may be in distress in the home. Her training had been that often in domestic disputes the dispute is ongoing, but the couple does not want police involvement. 7. Constable Grier asked permission for the police to enter into the residence, to be sure that everyone was alright. The accused consented. Constable Grier was clear in her evidence that she would have entered the house in any event, but she asked for consent, in order that force was not necessary.

She had to shoulder her way past the two adults who stood behind the accused in the doorway. 8. The accused left the house with the child, and talked to Constables Hann and Price. She told them that her ex-boyfriend had come to take the child and there was a dispute. She then made a telephone call on a cell phone, speaking to someone in a foreign language. After that call, she refused to identify herself, answer any questions about what had happened and was reluctant to verify even what she had earlier told the police. 9.

Constable Grier entered the house alone and walked down the hallway, but she was closely followed by the older woman. She looked into a number of rooms, and saw no one. In a room at the end of a hall, she saw a large venting coil, in an open cupboard. She thought this may be associated with venting a marihuana grow operation. She had a heightened concern about her safety in clearing the house at this point, so she exited to get Constable Hann to assist her.

She had expected him to follow her into the house for the initial search, as generally the search would be done by two officers, for officer safety reasons. 10. Constables Grier and Hann immediately re-entered the house, where Constable Grier expressed her belief that there may be marihuana growing in the house. As they went downstairs, Constable Grier detected the smell of growing marihuana plants as well as the odour of cut marihuana, but found no evidence of the drug or any person downstairs. 11. The two police officers then searched the right side of the house, finding no people in need of assistance.

At this point, they left the house. The accused had by now walked away down the street with her child. The police returned to their cruiser, and while looking at the house, realized that there was another entrance to the house at the side. The house from the outside was much larger than they thought, leading them to believe that they had not in fact looked through the whole house while "clearing" it. 12. Constable Grier at this time contacted her Sergeant for advice.

She felt there were now two competing investigations: firstly, she felt she had not yet cleared the whole house, to be sure everyone was safe; and secondly, she suspected there was a marihuana grow operation in the house. 13. As a result of the telephone conversation with the Sergeant, Constables Grier and Hann returned to the house, knocked on the door and asked the elderly couple to come out. There, they arrested them on drug charges. They took the couple to the police cars to charter and caution them. This took some time as neither spoke English, so an interpreter was necessary. 14.

When this was complete, it was 90 minutes since the police had originally arrived to respond to the "check on welfare" call. Constable Grier, concerned that the police had not yet searched the whole house to be sure there was no other person in need of help, (in essence, wishing to check off all that she felt should be done) returned to the house, and entered it. She noticed a door in the kitchen which she had not seen in the first sweep.

She went through it, to the downstairs.There, she walked through four rooms, finding no one in need of police help or assistance, but a sophisticated grow operation of some 463 marihuana plants. 15. Constable Grier left the resident and was the affiant to obtain a search warrant for the home.

The Law [3] In this application pursuant to the Canadian Charter of Rights and Freedoms, the accused bears the burden to prove on thebalance of probabilities that there has been a breach of her Charter rights. The accused must first show that she had a reasonableexpectation of privacy in the place searched.

In this case, the accused has a privacy interest in the house, based on the following: (1) heradmission of ownership, (2) various papers with her name and address found in the home, and (3) her presence there when the policearrived. [4] As the initial entries by the police are admitted to be a warrantless search, the Crown has the burden to show that the searchwas, on the balance of probabilities, reasonable. The Crown can show a warrantless search is reasonable if it can show that: (1) itsactions were authorized by law; (2) the law itself was reasonable; and (3) the search was carried out in a reasonable manner.

See: R v Buhay, 2003 SCC 30, [2003] 1 SCR 631; R v Collins, (SCC), [1987] 1 SCR 265 at 278, 38 DLR (4th) 508. [5] The Crown argues here that the search, (the “clearing” of the house and looking for people in need of assistance) isauthorized both by common law and by the duties of the police prescribed by the Police Act, RSA 2000, c P-17. It argues that the law isreasonable, that 911 calls must be investigated, and the well being of the occupants of the house assured. The Crown argues that thesearch was carried out in a reasonable manner.

The Constables were honest in their wish to make sure no one was in need of assistance,and they were suspicious due to the reaction of the accused (the tensions and the accused's refusal after her initial statement to beresponsive). The Crown argues that the police were not gathering evidence; rather, the third entry into the house was an honest wish by ajunior Constable to complete the job of making sure everyone was safe. [6] The defence argues that each of the three entries was not authorized by law or reasonable.

Defence argues that once thepolice arrived and determined that: (1) the accused was likely the subject of the call; (2) there had been a dispute, but it was over; and (3)the Asian male, identified by the accused as her ex-boyfriend, was gone; there was no reason for the police to go into the house the firsttime, or the second time, or the third time. [7] The Supreme Court of Canada in the case of R v Godoy, (1998), (SCC), [1999] 1 SCR 311, 168 DLR (4th)257 (“Godoy”) has set out the scope of police duties in responding to 911 or emergency calls.

A court must look at the facts of each caseand decide if the police conduct fell within the scope of their duties (imposed by statute or recognized at common law) and whether theconduct was an unjustified use of the powers associated with that duty. [8] Godoy makes it clear that the police duties in common law and statute (there, the Ontario Police Services Act, RSO 1990, c P15) include the protection of life. The importance of the police duty to protect life justifies a forced entry into a dwelling to ascertain thehealth and safety of a 911 caller.

Residents have a recognized privacy interest in their home, but the public interest in maintaining aneffective emergency response system is obvious, and significant enough to merit some intrusion on a resident's privacy interest.

Theintrusion must be limited to the protection of life and safety; the police do not have further permission to search the premises orotherwise intrude in a resident's privacy or property. [9] There are numerous cases that have considered the rights of police responding to 911 calls in the context of Godoy, the mostinstructive in this case are: R v Hill, 2006 BCCA 530, 214 CCC (3d) 492; R v Slaunwhite, 2012 NSSC 342, 321 NSR (2d) 201; and R vMarx, 2005 ABPC 18, 373 AR 169.

Application of the Law to the Facts [10] The analysis must focus on the question of whether it was within the scope of the duties of the police and a justified use oftheir powers, for them to walk through the home to ensure all the occupants were free from distress, once the accused had explained thenature of the dispute that led to the 911 call. [11] I accept that the officers wished to walk through the home to determine the welfare of all occupants. They asked for andobtained the accused’s consent to do so. Constable Grier was clear that even without that consent, she would have entered.

In the contextof the law and the facts as I have found them here, it was within the scope of the duties of the police to enter into the house the first time,to make sure there were no people in distress, and it was a reasonable use of their powers to do so. [12] There had been a distress call and it was determined a welfare check was necessary. This must be evaluated in the context of apotential family violence situation involving a child.

Although there was information that the male had driven away, in light of thetenseness the police observed and the elderly couple perhaps blocking entrance into the house, I accept there was a concern by the policeofficers that the situation might not have been totally explained. In addition, the accused at no time showed any objection or concernabout the police entry; in fact, she agreed to their original request. [13] Defence argued that the accused’s consent to enter was not informed. This is not a case where a detailed discussion ofinformed consent is necessary.

In the context of a 911 call, the right of the police to enter the house should be dealt with under theprinciples set out in Godoy. That is, the reasonableness of the entry into the house is based on the emergent situation and surroundingfacts, not the question of informed consent. [14] I also accept that when Constable Grier came out and re-entered with Constable Hann, that this was a continuation of theoriginal purpose for entry. Although at that time she believed there may be a grow operation in the house, she was justified for policesafety reasons to come out and ask Constable Hann to accompany her.

The evidence was clear that police policy indicates that the twoofficers should have entered together in the first place. In addition, the shadowing by one of the occupants was justifiably concerning.The return to the house to finish clearing or checking it was a reasonable sequence to the initial entry.

[ 15 ] The third entry into the house is more difficult. At this point, the officers were aware that they had a dual concern and duty: to finish investigating the initial call to make sure everyone was alright, as well as to follow up on their belief that there was a marihuana grow operation. As a result of the advice from their Sergeant, they had already arrested the two individuals found in the home.

Clearly at this point, they had taken a course of action that focused on the marihuana grow operation. [ 16 ] I accept that when Constable Grier re-entered the house the third time, she felt there was a need to complete the “checklist” to be sure there was no one else in the house needing assistance. However, I find that the third entry into the house was not a reasonable execution of the duty to check on the safety of individuals as a result of the 911 call. Most importantly, it was 90 minutes since arrival.

The police had information that the man involved in the dispute had left in a green truck, and was likely not there. In addition, the woman that the police believed was the victim was seemingly not concerned, and not at risk. The two other adults in the house were under arrest. There were no indicia or report of any bodily harm.

There were no noises suggesting ongoing risk (thumps, shots, noises in the house). [ 17 ] In fact, when the police left the house after the first and second entries, they believed it was cleared; it was only later that they realized that there was another part to the house which they had missed in their walk-through.

Had the police truly been concerned that a walk-through of the missed area was necessary on an emergency basis to ensure all occupants were free from distress further to the 911 call, any one or two of the three officers would have done that immediately on realizing there was more to the home than they thought. [ 18 ] The decision to arrest the occupants and the passage of time raises a clear break from the original right of entry that is accorded to a police officer due to a concern to ensure all occupants of the home are free from distress.

The execution of that police duty involves a reasonably quick and efficient walk through of the home. In the facts of this case, to suggest that it was a reasonable execution of police duties resulting from the 911 call to re-enter the residence 90 minutes after arriving and after the arrest of two occupants, is not acceptable. [ 19 ] The need for the public to maintain an effective emergency response system is obvious, and allows for some intrusion on a resident's privacy interest, but the intrusion must be limited to the protection of life and safety.

The police do not have permission to search the premises or intrude on a resident's privacy or property more than can be justified. [ 20 ] As a result, I find that the third entry into the house was a breach of the accused's

section 8 right to be free from unreasonable search and seizure. Remedy [ 21 ] As there has been a breach of the accused's Charter rights, I must consider the appropriate remedy.

Section 24 of the Charter provides that where there is a breach of a guaranteed right, this court may grant the remedy it considers appropriate and just in the circumstances. It provides that evidence obtained in a manner that infringes on a Charter right shall be excluded if it is established that, in all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.

The accused has the onus to establish that, on the balance of probabilities, the evidence should be excluded. [ 22 ] The Supreme Court of Canada in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 has addressed the process of inquiry to be undertaken where an application for the exclusion of evidence under section 24(2) of the Charter is made. A court must consider: (1) the seriousness of the Charter- infringing state conduct; (2) the impact of the Charter -protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits.

Seriousness of the Charter -infringing conduct [ 23 ] I must assess whether admitting the evidence would bring the administration of justice into disrepute, by suggesting that the court as an institution condones state deviation from the rule of law. The more severe or deliberate the state conduct, the greater the need for the courts to dissociate themselves from that conduct. [ 24 ] The two Constables each had two years' experience with the police force at the relevant time. I do not find their conduct was in bad faith.

However, both Constables seem to have put more emphasis on the fact of a 911 call, rather than critically evaluating the presenting circumstances, in deciding whether entry into the house was necessary or reasonable. [ 25 ] After the Constables understood they had "cleared" the house, they realized it was bigger than they thought. Constable Grier was concerned about the two situations that had developed; that she may not have cleared the whole house and that she suspected there was a grow operation, so this may become a drug investigation. Unsure what to do, she sought advice from a Sergeant.

This advice led to the arrest of the two occupants and then the return to the house. [ 26 ] The return to the house was not simply the mistaken action of a junior member; she sought advice and was directed by her supervisor, a Sergeant. The actions she took after this advice are suspect, and led to a breach of the accused’s Charter rights. This elevates the seriousness of the conduct, as it was conduct directed or sanctioned by a more senior member of the police force, whose advice was sought. This suggests exclusion of the evidence.

The impact of the breach on the Charter- protected interests of the accused [ 27 ] I must look at the seriousness of the impact of the breach on the Charter -protected interest of the accused. The more serious the impact, from fleeting or technical to profoundly intrusive, the more likely the risk that the admission of evidence would bring the administration of justice into disrepute. [ 28 ] The law upholds the sanctity of the home, where a person has a high expectation of privacy. A breach of the Charter that

involves an unjustified, warrantless entry into a home is serious. A search that intrudes into an area where the individual enjoys a high expectation of privacy is more serious than one that does not. [ 29 ] The accused was the owner of the home, and was found to have a privacy interest in the home. The third entry was intrusive, and involved a search of a private dwelling house. This suggests exclusion of the evidence. Society's interest in the adjudication of the case on its merits [ 30 ] Society has a clear interest in the adjudication of a charge on its merits.

The question is whether the truth-seeking function of the criminal trial process is better served by the admission of the evidence than its exclusion. [ 31 ] Here, the drugs that the accused seeks to exclude were a large number of marihuana plants, essential to the case for the Crown on the drug charges. The impact of exclusion is fatal to the prosecution.

There is no question that society's interest here would strongly suggest inclusion of the evidence. [ 32 ] I do also have to consider that there is an important public interest in the integrity of the 911 calling system that police will answer the calls and act within the limits set by law. Conclusion [ 33 ] Overall, after balancing the three factors above, I find that the accused has satisfied her onus to prove that the drugs and paraphernalia seized from the home should be excluded from evidence at trial.

They were obtained as a result of a search warrant based on the observations by the police officer of a grow operation when she was in the house in breach of the accused’s

section 8 Charter rights. [ 34 ] The application of the accused for exclusion of evidence is granted. Heard on the 3 rd day of October, 2013 to the 4 th day of October, 2013. Delivered orally on the 25 th day of October, 2013. Dated at the City of Calgary, Alberta this 14 th day of November, 2013. R.E. Nation J.C.Q.B.A. Appearances: Donna Spaner, Public Prosecution Service of Canada for the Crown/Respondent Derek Jugnauth, Wolch deWit Silverberg & Watts for the Accused/Applicant

_______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice R.E. Nation _______________________________________________________ Citation number has been changed to 675.