R. v. Beaulieu, 2013 BCSC 2525

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Beaulieu, 2013 BCSC 2525 Date: 20130501 Docket: 30956-2 Registry: Dawson Creek Regina v. Ryan Patrick Beaulieu Clayton Jarrett Beaulieu Before: The Honourable Mr. Justice McKinnon Oral Ruling on Voir Dire #1 Re Admissibility of Warrantless Search Counsel for the Crown: K.S. Blocka Counsel for the Accused Ryan Beaulieu: D.A. MacLeod Counsel for the Accused Clayton Beaulieu: J.P. Gustafson Place and Date of Trial/Hearing: Dawson Creek, B.C. May 1, 2013 Place and Date of Judgment: Dawson Creek, B.C.

May 1, 2013 [ 1 ] THE COURT: The accused Ryan Beaulieu and Clayton Beaulieu are charged with the second degree murder of Wesley Lulu-Gladue. Crown seeks to have admitted into evidence the fruits of a warrantless search of the apartment home of Ryan Beaulieu. [ 2 ] Every person is entitled to an expectation of privacy in respect to his/her dwelling, and thus a warrantless search is prima facie unreasonable. The Crown has the burden to prove "reasonableness".

At bar, the Crown contends that the search was "reasonable", because exigent circumstances existed compelling the police to act in the way they did. [ 3 ] There is a secondary issue requiring resolution, and that is whether Clayton Beaulieu has standing to invoke an expectation of privacy in that the apartment was not rented to him, but only to his brother Ryan. [ 4 ] A voir dire was declared to resolve these issues.

The Facts [ 5 ] Shortly after 8:00 p.m. on November 6, 2011, Constable Rachel Geense of the Dawson Creek RCMP detachment received a radio message in her police car that a 911 call had been received from an anonymous caller, to the effect that the Beaulieu brothers had killed Wes Gladue over a drug deal.

The call was made from a payphone outside the 7-Eleven store in Dawson Creek. [ 6 ] Constable Geense said the call was received shortly after 7:00 p.m., but it seems clear from all the evidence that the call was routed through Prince George Dispatch, which was on a different time zone than Dawson Creek, and thus the actual time of receipt was shortly after 8:00 p.m. [ 7 ] Constable Geense testified that she knew Ryan Beaulieu but did not know Wes Gladue. She spoke with her shift supervisor, Constable Gale, who assisted in attempting to obtain a current address for Ryan Beaulieu without success.

The two then went to the Valley Motel, as they had some information that a person by the name of Gladue resided there. They spoke with some residents and learned that the unit was occupied by Oliver Gladue and his wife, but they were out of town. The motel manager admitted them into the Gladues' room and he identified a picture on the fridge as that of Oliver's son, Wes Gladue. [ 8 ] The 7-Eleven store was also checked, but there was no surveillance camera aimed at the payphone. [ 9 ] The two constables then went to the detachment office to listen to the audio recording of the 911 call.

They also called Corporal Rutledge in Fort St. John, who was then in charge of the GIS section, advising him of the information they had. [ 10 ] Constables Edwards and Hall were also briefed. A consensus was reached that they ought to contact Ryan Beaulieu and obtain his address. Constable Geense knew that he worked at the Tim Hortons coffee shop on 8th Street, and she went there shortly after 9:30 p.m. and spoke with Ryan. He told her he lived at Number 214, Sunridge Apartments. He asked why she wanted his address, to which she simply said, "For an investigation."

[ 11 ] Constable Geense then telephoned Constable Hall and gave him the information and waited for Hall to arrive at Tim Hortons. When Hall arrived, he took over the interrogation of Ryan Beaulieu, while Geense returned to the detachment. She and Constable Davidson were then directed by Constable Edwards to go to the Sunrise apartment for the purpose of "establishing the continuity of the apartment".

They arrived at 10:15 p.m., but observed nothing untoward from that time until the arrival of Constable Edwards at approximately 11:00 p.m. [ 12 ] At 11:07 p.m., Constable Edwards knocked on the door of the apartment but, receiving no response, used a battering ram to break open the door, after which he and Constable Davidson entered. Meanwhile, Constable Hall, a member of the Dawson Creek GIS, was interviewing Ryan Beaulieu at Tim Hortons. He had been called at 9:17 p.m. by his supervisor, Corporal Rutledge, to investigate the allegations made in the 911 call, while Rutledge drove down from Fort St.

John. [ 13 ] Constable Hall did not listen to the audio of the call, but was told about its contents by Rutledge and Edwards. The information he had was that Ryan Beaulieu had struck a male identified as Wesley Gladue with a metal pole and Gladue was deceased. Hall knew Ryan, but did not know Gladue. Hall was then directed to speak with Ryan, which he did at the Tim Hortons shop after arriving at 9:40 p.m. [ 14 ] Constable Hall recorded his discussions with Ryan on an audio recorder, which was filed as an exhibit on the voir dire. A transcript was also filed.

These exhibits and the viva voce evidence of Constable Hall on the voir dire suggest the constable was somewhat confused about his role. He commenced his interview with a warning to Ryan Beaulieu that he was "under investigational detention for murder". He then provided a truncated version of the accused's Charter rights. [ 15 ] In his viva voce evidence, Constable Hall said that he was in error when he referred to "investigational detention". According to Constable Hall, he had not then formed any view about what had or had not happened, and did not believe a murder had occurred.

According to him, Ryan was free to leave at any time during the early stages of this interview and was not "detained". [ 16 ] The audio recording was separated into three parts, but was mostly continuous, save for brief interruptions when Constable Hall called Constable Edwards and Corporal Rutledge.

It commenced at 9:45 p.m., and ended at 11:00 p.m., with Beaulieu's arrest on the instructions of Corporal Rutledge for "manslaughter and assault with a weapon". [ 17 ] Between information obtained from Ryan Beaulieu and calls to/from Edwards and Rutledge, Constable Hall possessed the following information at the end of his interview: 1) that Ryan Beaulieu was alleged to have struck and killed Wesley Gladue two days earlier; 2) that Ryan had refused Hall's repeated requests to sign a consent form to permit police to enter his apartment; 3) that Ryan Beaulieu advised Hall he did not have a key for his apartment, rather, the only existing key was with his brother Clayton, who sometimes stayed with Ryan. [ 18 ] Corporal Rutledge sent Constable Zwicker to Tim Hortons with instructions to detain Ryan Beaulieu for manslaughter and assault with a weapon.

On Zwicker's arrival, Constable Hall went through another form of police warning and Charter rights that would not pass muster under the most lenient

interpretation of the obligations devolving upon a person in authority. [ 19 ] Mr. Beaulieu was told that he was now "detained" but not arrested. Discussions about Mr. Beaulieu's right to counsel were never clearly explained to him. It was a perfunctory performance that was quickly brushed over by Constable Hall, who appears to have given no thought to actually providing the accused with these rights.

These deficiencies perhaps are of little consequence in respect to the issues on this voir dire, but in my respectful view they impact upon the bona fides of the claim to exigent circumstances. [ 20 ] At the close of the interview, Constable Hall told Ryan that police were going to enter his apartment with or without his consent.

When Hall requested that Ryan provide a key, he was told that only one key existed and his brother Clayton had it, and that he did not then know where Clayton was. [ 21 ] Constable Hall testified that during the second stage of this interview with Ryan Beaulieu, he noted the accused to become "vague and edgy with teary eyes and was extremely nervous". He passed this observation on to Corporal Rutledge. [ 22 ] Corporal Rutledge testified that he arrived in Dawson Creek at 10:20 p.m. He spoke with Constables Edwards and Zwicker, who played the 911 tape for him.

This tape formed the basis for Corporal Rutledge's belief that he was facing "exigent circumstances" and I will therefore read it into the record: Dispatch : 9-1-1 emergency do you need Police, Fire, or Ambulance? 911 Caller : Um I Police Dispatch : Police for which town? 911 Caller : Um Dawson Creek Dispatch : Okay and for what address in Dawson? 911 Caller : Um I can't give you an address I'm just reporting something I don't want to but I'm really freaked out and I have to report it Dispatch : Okay go ahead 911 Caller : Um I don't know what to say what am I supposed to say?

I was told that someone got killed a couple days ago

Dispatch : Oh okay. 911 Caller : (Crying) Dispatch : And do you know who this was? 911 Caller : His name is Wes GLADUE Dispatch : Sorry what was his first name? 911 Caller : Name ah the person that got hurt was Wes GLADUE Dispatch : Okay 911 Caller : And someone told me a couple hours ago and I didn't know what to do, U/K Voice : (indiscernible) 911 Caller : um the person that did it was U/K Voice : Ryan BEAULIEU 911 Caller : Ryan BEAULIEU Dispatch : Okay now is this information that were aware of or is this something you found out? 911 Caller : No nobody knows?

Dispatch : Okay how do you spell Ryan's last name do you know? 911 Caller : Um how do spell his B-E-A-U oh I don't know? BEAULIEU you should have him in his your records he's he's been to jail before Dispatch : Okay and it's BEAULIEU 911 Caller : BEAULIEU yes Dispatch : B-E-A-U-L- 911 Caller : B-E-A- U/K Voice : -U- 911 Caller : U-L-E-A-U yeah I don't know? Dispatch : Okay about how old would he be? 911 Caller : How old do you think he is? U/K Voice : (indiscernible) 911 Caller : He must be about 19, 20 years old Dispatch : Okay 911 Caller : Um I don't know where?

U/K Voice : At Ryan's house 911 Caller : And he's at I don't know Ryan's house I was told by somebody tonight that this happened a couple days ago, and that that ah I don't know? I I don't know what to do? Dispatch : Okay would you be willing to talk with a member? 911 Caller : Nope no Dispatch : Okay 911 Caller : I just wanted to tell somebody I don't know what to do?

Dispatch : Okay are you able to give me any other information about it? 911 Caller : No all I know is that he the the person that got hurt got into a fight with another person, and then Ryan BEAULIEU didn't know what to do and grabbed a a dumbbell or a barbell or something a weight and hit him in his head and then he stopped moving and he's been in his house for a couple a days now. I just don't know where Ryan lives

Dispatch : okay now do you know this Mr. Um GLADUE do you know if we've attended there then 911 Caller : Yes I do know him Dispatch : Okay do you know if we are aware though of his passing 911 Caller : Probably probab I don't know if you probably guys you guys probably know him I just know him because I know his family Dispatch : Okay alright and then Ryan is also local to Dawson is that right? 911 Caller : yes he is Dispatch : Okay.

And were these friends of yours then or? 911 Caller : Mm ah not Ryan but somebody else's Dispatch : Okay 911 Caller : And she told me in confidence and I just didn't know what else to do?

Dispatch : Okay 911 Caller : He said he wa- he's he's been sittin' in Ryan's house for a couple a days now Dispatch : That sorry has been? 911 Caller : Dead Dispatch : Wes had been? 911 Caller : Yes Dispatch : So Wes was at Ryan's house when this took place? 911 Caller : Yes Dispatch : Oh okay 911 Caller : He went there for drugs I have to go now Dispatch : Okay is there anything else you can tell me at all? … [ 23 ] That is the end of the 911 call. [ 24 ] Corporal Rutledge testified that, I was immediately concerned for the safety of Wesley Gladue.

It was clear to me the caller was providing information from a third-hand source, but it had a ring of truth to it, given the emotional tenor of the caller. I also felt that the information was specific about the event, in that the caller said the altercation took place with a third party, and Ryan Beaulieu didn't know what to do, so hit Gladue with a barbell. The deceased has been in the apartment for two days now. [ 25 ] Corporal Rutledge then said that up to that point, he believed the "incident" had taken place just hours previously, but now appreciated that it had occurred several days earlier.

All RCMP members involved who testified on the voir dire came to the same conclusion. [ 26 ] Evidence on the voir dire disclosed a clear division of opinion between Dawson Creek RCMP members and Corporal Rutledge. Constable Edwards, who knew Ryan Beaulieu, was sceptical that the 911 call accurately reflected what was alleged.

Although he said in chief that his opinion changed after listening to the 911 call and discussing it with Corporal Rutledge, my sense of his evidence is that he never believed there were exigent circumstances permitting a warrantless entry. [ 27 ] It was Constable Edwards who sent Constables Geense and Davidson to the apartment to keep it under surveillance, with specific instructions not to enter the apartment.

It was Constable Edwards' opinion then that grounds for a search warrant based upon the 911 call were "weak". [ 28 ] Constable Davidson had serious reservations about entering the apartment without a warrant. When Constable Edwards arrived at the apartment with a battering ram, Davidson was so concerned about the prospect of an unlawful entry that he called Corporal Rutledge to confirm the instructions. According to Davidson, Rutledge explained the possibility of Gladue being still alive, and thus entry was necessary to respond to that possibility.

The Entry [ 29 ] Constables Edwards and Davidson entered the apartment after battering the door in with a ram. They first announced their presence, then effected entry. Both wore booties usually worn at crime scenes to protect against compromising evidence. Constable Edwards also had a camera, which he used to take a number of pictures.

[30] Constable Edwards testified that it would have taken "a minute or two to clear the apartment". He meant by that expression thatit would have taken no more than a minute or two to determine whether there was an injured person within the apartment.Notwithstanding, the two constables were in the apartment for approximately 10 minutes, looking into bags, taking photos, and noting alarge pooling of what appeared to be blood.

Apart from these observations, no person was found inside the apartment. [31] There was never any discussion about securing an ambulance or the attendance of paramedics, in the event an injured personwas found inside the apartment. From the initial call "shortly after 8:00 p.m.", until actual entry at 11:07 p.m., no one seems to have feltthat exigent circumstances existed to permit a forced warrantless entry. [32] Constables Geense and Davidson were positioned in the hall next to Number 214 for 49 minutes.

They observed nothing ofvalue to the investigation, and clearly did not consider any need for immediate entry. [33] If, as Corporal Rutledge contends, he was concerned about the possibility of an injured Gladue within the apartment, one wouldhave thought that he would have conveyed that concern on receipt of the telephone call at Fort St. John, or while en route to DawsonCreek, where he had several telephone calls with Dawson Creek members bringing him up to date.

No one seems to have considered thepossibility of obtaining a telephone warrant or a warrant from a local judicial officer capable of issuing same, apart from ConstableEdwards, who felt the grounds were "weak". [34] After securing the apartment following entry, Constable Davidson determined that he was not leaving the area until he checkedthe garbage bins outside the building. He had a sense that, given the Beaulieu brothers had no vehicle, there was a good chance thatsomeone whose blood appeared to be in the apartment could be found in the dumpsters. Indeed, that turned out to be the case.

The bodyof Wesley Gladue was found in the dumpster nearest the exit door to Ryan Beaulieu's apartment. The Law [35] The Crown cited eight cases in support of entry under exigent circumstances. Some of these permit entry for the purposes of"securing evidence" that otherwise might be lost. [36] In R. v. Grant, (SCC), [1993] 3 S.C.R. 223, the court stated: Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance ofthe evidence if the search or seizure is delayed. [37] This is codified in s. 529.3(2)(

b) of the Criminal Code, which states: For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer . . . has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-houseand that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. [38] Constable Edwards testified that, "In my mind, it was possible Clayton Beaulieu was inside the apartment and could bedestroying evidence." [39] In cross-examination, he said that he did not know if Clayton would be inside the apartment.

All he knew was that Clayton hada key. No other officer expressed an opinion that Clayton might be inside the apartment destroying evidence. Indeed, ConstableDavidson, in cross-examination, agreed that forced entry was not for the purpose of preserving evidence. There is simply no evidence tosupport entry under this provision. [40] Counsel for Ryan Beaulieu cited six cases in support of his position in respect of the claim of unlawful entry and exclusion ofevidence thereby obtained under s. 24(2).

Counsel for Clayton Beaulieu cited eight cases in respect of his claim of an expectation ofprivacy. [41] A very recent case from the Ontario Superior Court of Justice offers guidance for the issues at bar. Hill J., in R. v. Thompson,2013 ONSC 1527, discussed at some length the principles involved in assessing warrantless searches and whether evidence should beadmitted or excluded. Judgment in that case was delivered March 19, 2013. [42] Hill at paragraph 150 set out the governing principles, and I am going to read them. Commencing at paragraph 150, Hill J. said: 150

Section 8 of the Charter protects against unreasonable searches and seizures. An assessment of what is reasonable "by its verynature, must be assessed in context": R. v. Jackpine (2006), 2006 SCC 15 , 207 C.C.C. (3d) 225 (S.C.C.), at p. 243; R. v.Biccum, 2012 ABCA 80, at para. 21. As a general rule, everyone has a "constitutional right to be left alone by the state": R. v.

Brown,2012 ONCA 225, at para. 14. 151 In the ordinary course, the police require a search warrant based on reasonable grounds to search a motor vehicle for a weapon orfor illicit narcotics unless, by reason of exigent circumstances, it would not be practicable to obtain a warrant [and the sections of theCriminal Code are cited]. 152 Because a purpose of the protection against unreasonable search and seizure "is to protect the privacy of individuals fromunjustified state intrusion" (R. v.

Hape (2007), 2007 SCC 26 , 220 C.C.C. (3d) 161 (S.C.C.), at para. 161), warrantless searchesand seizures are presumptively unreasonable unless the Crown demonstrates reasonableness in accordance with the criteria in R. v.Collins (1987), (SCC), 33 C.C.C. (3d) 1 (S.C.C.), at pp. 14-5 ((1) the search is authorized by law; (2) the law itself isreasonable and (3) the manner in which the search was carried out was also reasonable).

[43] Hill J. then went on to assess the governing principles in respect to whether unconstitutionally obtained evidence ought to beadmitted or excluded at trial, commencing at paragraph 190. I have reviewed those paragraphs and endorse the comments of Hill J.which I find helpful in assessing the 24(2) considerations at bar. [44] On all the evidence, I do not accept that police based their entry on the need to ensure the safety of Wesley Gladue. Section529.3(1) of the Criminal Code permits entry by a peace officer without warrant where, by reason of exigent circumstances, it would beimpracticable to obtain a warrant. [45] Subsection (2)(

a) defines exigent circumstances as including: . . . circumstances in which the peace officer . . . has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to anyperson . . . [46] In R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, the Supreme Court of Canada determined, as a matter of publicpolicy, that police responding to a 911 call have the authority to investigate those calls, but whether they may enter dwelling houses inthe course of such an investigation depends on the circumstances of each case.

In Godoy, officers responded to a disconnected 911 callfrom an apartment and, upon arriving, forced entry, where they found a weeping female who alleged her husband had struck her. [47] In upholding the right of police in those circumstances to effect entry, the court nevertheless cautioned that, and I quote: While residents have a recognized privacy interest within the sanctity of their home, the public interest in maintaining an effectiveemergency response system is obvious and significant enough to merit some intrusion on a resident’s privacy interest.

However, theintrusion must be limited to the protection of life and safety; the police do not have further permission to search premises or otherwiseintrude on a resident’s privacy or property. [48] At bar, no one but Corporal Rutledge expressed the view that Wesley Gladue might be lying injured inside Apartment 214.Indeed, the preponderance of evidence on this point was to the effect that Wesley Gladue was dead and had been for at least two days,and the body was in the apartment. [49] If Corporal Rutledge really believed Gladue might still be alive, he took a very long time to come to that decision.

There wasplenty of time to obtain a warrant, despite Constable Edwards' belief that grounds were "weak". [50] In my view, there were no exigent circumstances that would permit entry. It remains to determine whether the evidence shouldbe admitted notwithstanding a breach of s. 8 of the Charter. [51] In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the court stated the following: The criteria relevant to determining when, in “all the circumstances”, admission of evidence obtained by a Charter breach “would bringthe administration of justice into disrepute” must be clarified.

The purpose of s. 24(2), as indicated by its wording, is to maintain thegood repute of the administration of justice. Viewed broadly, the term “administration of justice” embraces maintaining the rule of lawand upholding Charter rights in the justice system as a whole. The phrase “bring the administration of justice into disrepute” must beunderstood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system . . . The inquiry isobjective.

It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, wouldconclude that the admission of the evidence would bring the administration of justice into disrepute . . .

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact ofthe breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. [52] Applying that test to the facts of this case, I am of the view that the evidence must be excluded. There is no credible evidencethat police ever believed Wesley Gladue was alive.

Indeed the preponderance of the evidence is that he had been dead for two days. Noone but Corporal Rutledge expressed the view that exigent circumstances existed. [53] I accept that some testified they were eventually persuaded by Corporal Rutledge to that position, but it was not based on anynew information. Rather, my sense was they were simply following orders. [54] Notwithstanding Constable Edwards' belief that grounds to obtain a warrant were "weak", it seems to me police would have hada fairly strong case to make, given the contents of the 911 call.

In any event, if grounds were "weak", they were not made any strongerby relying on exigent circumstances which did not exist. [55] Police preparations for entry and their activities on entry are problematic. The two constables entered with the intention ofobtaining evidence completely unrelated to ensuring the safety of Mr. Gladue.

According to Constable Edwards, it took "maybe a minuteor two" to clear the apartment, yet once that task was accomplished, he re-entered the apartment and took the pictures referred to.Notwithstanding they had determined there was no one in the apartment, they continued to search for evidence.

They poked and proddedand generally prolonged their entry for the purpose of gathering information subsequently used to obtain a search warrant. [56] In the result, and based upon the test for admission, I find that the evidence obtained as a result of this unlawful warrantlessentry must be excluded. [57] I turn now to the status of Clayton Beaulieu to invoke an expectation of privacy. [58] Clayton Beaulieu testified on the voir dire. He said that at the time of the search of Ryan's apartment, he was residing there. He

testified that he kept some clothes and hygiene items in the apartment. He said that typically in any month he would reside with Ryan for"about a week or so", then with his mother for a few days, and the rest of the time at a crack shack where he consumed crack cocaine. [59] When residing with Ryan, he had the only key to the apartment. Each time he left to stay at another place, he would return thekey to Ryan. Clayton said that he actually went to Tim Hortons the night Ryan was arrested and saw him in the company of police.

Atthat point, Clayton said he had the key to Ryan's apartment in his pocket. [60] On cross-examination, Clayton conceded that he never paid Ryan any rent, but that he had been staying with him "off and on"for eight or nine months. According to Constable Hall, Ryan told him that Clayton had the only key to his apartment and Hall passed thisinformation on to Corporal Rutledge. [61] In R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, the court addressed the factors to be considered when assessingthe totality of the circumstances in respect to a reasonable expectation of privacy.

Some of these factors are: (1) presence at the time ofthe search; (2) possession or control of the property or place searched; (3) ownership of the property or place; (4) historical use of theproperty or item; (5) the ability to regulate access, including the right to admit or exclude others from the place; (6) the existence of asubjective expectation of privacy; (7) the objective reasonableness of the expectation. [62] In Edwards, the court concluded that the applicant for standing was no more than a "privileged guest" of the occupant,Ms. Evers. He was described by Ms.

Evers as "just a visitor" who "occasionally stayed over". [63] At bar, Clayton Beaulieu was something more than a "privileged guest". He possessed the only key to the place at the time ofpolice entry. Even Ryan could not enter his apartment unless Clayton was there to let him in. [64] Clayton testified to a regular routine over the previous eight or nine months, where he would reside in the apartment for about aweek out of each month.

He appears to have had at least some ability to include or exclude persons from the apartment, particularlywhen he was in possession of the only key. [65] I accept that, in all the circumstances, Clayton was much more than a "privileged guest". He was Ryan's brother to whom Ryanextended an invitation to use the place as his home. He regularly stayed at the apartment and at the time of entry was staying there, hadthe only key to the place, and had some of his personal possessions stored there.

I am satisfied that Clayton Beaulieu has established anexpectation of privacy in the apartment and is accordingly entitled to the same relief as that given to Ryan Beaulieu. Judgmentaccordingly. “McKinnon J.”