R. v. Tran Date:, 2012 BCPC 401

Citation: R. v. Tran Date: 20121101 2012 BCPC 0401 File No: 217056-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NGOT VAN TRAN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: B. Smith and K. Guest Counsel for the Defendant: J. I. Solomon Place of Hearing: Vancouver , B.C. Dates of Hearing: July 9, 11, 12, 13, 16, and September 10, 2012 Date of Judgment: November 1, 2012

A corrigendum was released by the Court on November 14, 2012. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On November 10, 2011, Ngot Van Tran (“the accused”) was arrested by members of the RCMP outside his apartment at 304- 2001 E. 36th Avenue (“the apartment”), in the City of Vancouver. The accused was arrested for the production of methamphetamine, in addition to possession for the purpose of trafficking in methamphetamine. [ 2 ] Following the arrest of the accused by the RCMP, investigators conducted two warrantless entries into the apartment.

Though this was a private residence, the principal purpose of this residence was the manufacture of methamphetamine. The location of this residence is a concentrated mix of residential and commercial properties. East 36 th Avenue intersects with Victoria Drive, a major traffic corridor. At this location there are two northbound traffic lanes and two southbound. Parking is permitted on the east and west curb lanes. [ 3 ] The accused now faces two charges. First, that he did unlawfully produce methamphetamine, contrary to s. 7 (1) of the Controlled Drugs and Substances Act (“ CDSA ”).

Second, that he did unlawfully possess methamphetamine, for the purpose of trafficking, contrary to s. 5 (2) of the CDSA . ISSUE ON VOIR DIRE [ 4 ] The accused submitted that the two warrantless entries into the apartment were in violation of his s. 8 Charter right to be secure against unreasonable search or seizure. The court determined, with the agreement of counsel, that this was a threshold issue, and therefore s. 24(2) of the Charter was not addressed by counsel.

DETAILED BACKGROUND [ 5 ] On October 20, 2011, the RCMP "E" Division Clandestine Laboratory Team commenced an investigation of the accused - Project “E” Nativity. The decision of the RCMP to investigate the accused's activities arose from his suspected involvement in two prior clandestine methamphetamine laboratories, one of which posed a significant risk to public safety. These are briefly described below. [ 6 ] On April 27, 2011, a complaint about a house fire in Surrey led to the discovery of an active clandestine methamphetamine lab that the accused allegedly controlled.

The reported fire turned out to be a chemical reaction involving a compressed gas cylinder that was part of the clandestine methamphetamine lab. [ 7 ] On August 27, 2011, an active clandestine methamphetamine lab was discovered in Burnaby and the accused was arrested when he attempted to flee the scene. A compressed gas cylinder was also found at the Burnaby methamphetamine lab. [ 8 ] Specific duties were assigned to the “E” Nativity Team. Cpl. Rettie was to head the investigation team. Cst.

Hartnett was designated as the affiant who would be responsible for drafting the Information to Obtain (“ITO”) a search warrant. Cst. Carlos was the designated exhibits officer. [ 9 ] On October 27, 2011, RCMP investigators received information that indicated that the accused was looking to buy a tank of compressed hydrochloric acid (“HCL”), a chemical that can be involved in the production of methamphetamine. [ 10 ] On October 31, 2011, RCMP investigators, through their surveillance of the accused, connected him to two residential properties in Vancouver. One was a house on E. 28th Ave. (“the house”).

The second was the apartment. He was also associated with a car which was ultimately seized and searched. [ 11 ] Further surveillance on November 1 and 2, 2011, confirmed that the accused was associated with the two residential properties. [ 12 ] On November 3, 2011, RCMP investigators observed the accused purchasing materials at a Canadian Tire store after which he was observed returning to the apartment carrying a backpack.

Subsequently, RCMP investigators heard noise coming from the apartment consistent with ongoing construction. [ 13 ] Officers conducting further surveillance on November 3, 2011, observed the accused purchasing materials at a Rona store. The accused was then followed to a Home Hardware store where he was seen purchasing lye. The accused was then followed to a General Paint store where he was observed purchasing toluene. While lye and toluene have legitimate purposes, they are also chemicals known to be involved in the production of methamphetamine.

[ 14 ] Following these surveillance observations on November 3, 2011, RCMP investigators observed the accused returning to the apartment though he was not seen bringing any materials into the apartment. [ 15 ] On November 4, 2011, the RCMP "E" Nativity Team held a full briefing concerning the status of the investigation. There was a general belief that the accused was either producing methamphetamine or actively preparing for the production of methamphetamine at either the house or the apartment. [ 16 ] On November 8, 2011, RCMP investigators contacted the owner of the apartment block on E. 36th Ave.

The owner advised the RCMP that no tenants had the authority to carry out any construction in their apartments. Also, on November 8, 2011, RCMP investigators conducted surveillance from outside the apartment but did not note anything suspicious at that time. [ 17 ] On November 10, 2011, RCMP members arrived at the apartment building location shortly after 7 a.m. One of the first members at the scene was Cpl. Rettie. At 7:13 a.m. Cpl. Rettie went onto the roof of the property.

From his experience in dealing with methamphetamine labs, he detected a chemical odour coming from an open window of the apartment that he believed to be consistent with a clandestine methamphetamine lab. This chemical odour was subsequently confirmed by Cst. Mike Roe who had joined Cpl. Rettie on the roof. [ 18 ] At 7:35 a.m., Cpl. Rettie called his superior officer, Sgt. Sheppard, to advise him of his observations and to obtain his approval to have Cst. Hartnett secure a search warrant. This approval was granted. [ 19 ] Cst. Hartnett, who was now on scene, was directed by Cpl.

Rettie to go to the RCMP office in Langley, and finish drafting the ITO. He was then to apply for a search warrant for the apartment, the house, and the accused’s car. Cst. Hartnett testified that the Langley office was approximately 45 minutes from the apartment block. [ 20 ] At or about 8 a.m., Cpl. Rettie was joined by Cst. Ballard and Cst. Carlos. It was the plan that the three police officers would hide in a third floor stairwell as an observation post from which they could view the entrance to the apartment.

At 8:12 a.m., the three RCMP officers took up a position in the stairwell where they were able to establish a view of the apartment door. The tactical plan thereafter proposed by Cpl. Rettie was to arrest any person exiting the apartment. [ 21 ] Cpl. Rettie also made the tactical decision that there would be a safety clearing search of the apartment following the arrest of any person exiting the apartment. In anticipation of such an entry Cpl. Rettie and Cst. Ballard had safety apparatus gear with them in the stairwell. [ 22 ] At 8:51 a.m., Cpl. Rettie sent an email to Cst.

Hartnett detailing his observations from the roof of the apartment where he had noted the chemical odour coming from the apartment window. Cpl. Rettie relayed this information to Cst. Hartnett for the purpose of supporting the ITO. [ 23 ] At 11:20 a.m., the accused exited the apartment and was immediately arrested. The arrest involved Cpl. Rettie shouting "police" as he ran from the stairwell area down the hall. Cpl. Rettie took the accused to the ground. First Warrantless Entry [ 24 ] At 11:21 a.m., Cpl.

Rettie conducted a warrantless entry into the apartment as he believed that exigent circumstances existed that would authorize entry into the apartment. Cpl. Rettie was assisted by Cst. Ballard in relation to this entry. Both wore protective gear. Upon entry, Cpl. Rettie discovered an active clandestine methamphetamine laboratory. Cpl. Rettie also noticed, and became very concerned about, an unidentifiable gas cylinder with a rudimentary attachment latched together by vice grips and electrical tape. Cst.

Ballard noticed that there was an open-flame candle and removed this candle from the apartment for safety reasons. [ 25 ] There were no other individuals in the apartment. Cpl. Rettie described the search as a brief search of approximately 1 minute in duration. The only item that was removed from the apartment was the candle. Prior to exiting, Cpl. Rettie opened the sliding patio door and the bedroom window to vent any gases associated with the lab for safety reasons. [ 26 ] At 11:28 a.m., police evacuated the apartment block. This apartment block had three levels.

At the ground level there were small commercial businesses, including a café. The second floor was unoccupied for renovation purposes. The third floor was occupied by tenants. Second Warrantless Entry [ 27 ] Cpl. Westwick’s duties within the RCMP included the assessment and safe processing of clandestine methamphetamine laboratories. Cpl. Westwick had specialized training in relation to clandestine methamphetamine labs. At 1:36 p.m., Cpl. Westwick conducted a second warrantless search to assess any risk or danger associated with the compressed gas cylinder.

He based the decision to conduct a second entry on the information provided by Cpl. Rettie about the gas cylinder. [ 28 ] Cpl. Westwick entered the apartment in the company of a Vancouver Fire Department Hazardous Materials Technician. Cpl. Westwick located the free standing gas cylinder in a rear bedroom of the apartment. At the valve connection, vice grips were used as a clamp and those vice grips were secured by electrical tape. There was a hose leading from the valve area into a bucket. Cpl.

Westwick was concerned that there was no "formal type of regulator" and that there was a danger of the gas cylinder being hit or tipped over since it was not properly secured. [ 29 ] At 1:52 p.m., Cpl. Westwick and the Fire Department Technician exited the apartment and went through the process of

decontamination. At approximately 5:17 p.m., Cpl. Westwick learned that a warrant to search the apartment had been granted. Upon receiving that information, Cpl. Westwick advised Fire Department Hazardous Material Technicians at the apartment building to prepare for the dismantling of the methamphetamine lab. Issuance of the Warrant [ 30 ] Cst. Hartnett completed his ITO at 3:30 p.m. He then drove to the Justice Centre in Burnaby to obtain warrants to search the apartment, the house, and the accused's vehicle. Warrants to search the two properties and the vehicle were granted at 5:15 p.m.

ADMISSIONS [ 31 ] Pursuant to s. 655 of the Criminal Code , the following admissions were made by the accused: - identification; - continuity of all exhibits; - the informational component of the Exhibit Flow Chart for the truth of the contents; - Health Canada drug lab analysis and corresponding certificates of analyst; - selected photographs; - date, place and jurisdiction; - that Staff Sgt.

Murphy was qualified to give an expert opinion in all aspects of trafficking in methamphetamine; - that Health Canada chemist Glen Wong was qualified to give an expert opinion in all aspects of the production of methamphetamine; - the accused signed a Residential Tenancy Agreement on September 27, 2011, to commence residency at the apartment from October 1, 2011, until the date of the offence. POSITION OF THE PARTIES (

i) The Accused’s Position [ 32 ] The accused submitted that the RCMP made "multiple warrantless entries" into his apartment that were prima facie unreasonable and in violation of s. 8 of the Charter . It was submitted that the onus to prove reasonableness rested with the Crown and that on the facts of this case, the burden had not been met. [ 33 ] It was submitted by the accused that the Crown could not rely upon the statutory exemption to the warrant requirement contained in s. 11 (7) of the CDSA , which reads:

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

[ 34 ] The accused took the Court through the known RCMP history of the accused, commencing with the RCMP investigator’s awareness of the accused's involvement in two prior clandestine methamphetamine labs. The accused then reviewed the RCMP surveillance evidence of the accused from October 27, 2011, up to and including November 10, 2011. [ 35 ] It was submitted by the accused that as of November 4, 2011, both Cpl. Rettie and Sgt.

Sheppard were of the belief that the accused was active in the production of methamphetamine at either the house or the apartment and, as a result, sufficient grounds existed to secure a warrant. [ 36 ] It was noted by the accused that in relation to the first warrantless entry into the apartment, Cpl. Rettie testified that he believed exigent circumstances existed. Those exigent circumstances included Cpl.

Rettie's belief that: - other suspects could be in the apartment; - those other suspects could destroy evidence; - those other suspects could be an officer safety concern; - those other suspects could flee out of the third-floor balcony or window; - the third floor was occupied by other tenants, including small children; - methamphetamine labs were notoriously dangerous; - the accused was not a sophisticated methamphetamine producer based on his previous lab experience; - by doing nothing, he likely was putting people at risk. [ 37 ] It was submitted by the accused that the evidence of Cpl.

Rettie established that he never considered applying for a tele-warrant, even though he was familiar with the process, as he left the warrant task with Sgt. Sheppard and Cst. Hartnett. In addition, the accused pointed out that Cpl. Rettie did not testify that it was impracticable to obtain a warrant prior to the first or second warrantless entries. He simply did not consider the availability of a Criminal Code tele-warrant. [ 38 ] The accused submitted that there were three key issues:

(1) Has the Crown proved that by reason of exigent circumstances it was impracticable to secure a tele-warrant prior to the first warrantless entry at 11:21 a.m. on November 10, 2011?

(2) Has the Crown proved that by reason of exigent circumstances it was impracticable to obtain a warrant prior to the second warrantless entry at 1:36 p.m. on November 10, 2011?

(3) Did the alleged exigent circumstance arise out of the manner in which the police chose to structure their operation? In other words, did the RCMP create their own exigent circumstance by not obtaining a warrant prior to November 10, 2011; by not applying for a tele- warrant shortly after 7:35 a.m. on November 10, 2011; and/or by carrying out a loud arrest at the apartment door when they could have affected a quiet arrest outside the building? Issue Number 1 [ 39 ] The accused submitted that the Crown had failed to prove that it was impracticable to obtain a tele-warrant prior to the first

warrantless entry into the apartment. The accused submitted that as early as November 3, 2011, the RCMP had sufficient grounds toestablish that he was actively involved in the production of methamphetamine at either the house or the apartment. Hence, by extension,a tele-warrant was a reasonable alternative to a general search warrant. [40] On this issue, the accused submitted that no officers involved in this investigation gave any consideration to securing a tele-warrant pursuant to the Criminal Code. Issue Number 2 [41] The accused submitted that the RCMP, and in particular Cst.

Hartnett, had ample time to secure a general search warrant prior tothe second entry into the apartment. It was submitted that in October 2011, Cst. Hartnett commenced his preparation of the ITO. TheITO in support of the application for a warrant was not completed until 3:30 p.m. on November 10, 2011. It was submitted that thisamounted to a failure to move swiftly to secure a warrant and that this failure to move swiftly was unexplained. Issue Number 3 [42] The accused submitted that Cpl. Rettie made a tactical decision to arrest the accused by taking him to the ground and shouting"police" outside the apartment.

The suggestion that a commotion could establish a purported exigency on the basis that evidence withinthe apartment might be destroyed by another occupant was characterized by the accused as "complete nonsense". Indeed, it wassubmitted that the accused could have been quietly arrested after leaving both his apartment and the apartment building. [43] The accused further submitted that Cpl. Rettie's belief that the chemical odour coming from the apartment posed a public andofficer safety risk, thereby establishing an exigent circumstance for a warrantless entry, did not make sense.

If there was any exigency itwas established at or about 7:30 a.m. when Cpl. Rettie smelled chemical odours coming from the apartment window. However, afterCpl. Rettie smelled the chemical odours, nothing was done to protect public or officer safety for approximately four hours. The RCMPdid not evacuate the building until after the first warrantless entry was conducted. [44] It was submitted by the accused that securing a general search warrant in relation to the house, the apartment, and the car was areasonably practicable alternative to the immediate arrest of the accused.

The RCMP’s failure to act swiftly in this regard contributed tothe breach of his s. 8 right. [45] In addition, the accused submitted that an application for a tele-warrant was a feasible alternative to an immediate arrest and asearch of the apartment. The failure of the RCMP to turn their minds to the feasibility of obtaining a tele-warrant could not establish thata warrant was impracticable within the meaning of s. 11 (7) of the CDSA. [46] The accused provided the Court with authorities in support of issues raised in this voir dire.

In particular, the accused submittedthat the Court should give significant weight to the decision of R. v. King, 2006 BCPC 284 , 2006 BCPC 0284 where the Courtfound a flagrant violation of s. 8 of the Charter in relation to a warrantless entry purportedly based on exigent circumstances.

The Kingdecision will be discussed through my analysis of the issues raised by the accused. (ii) The Crown’s Position [47] The Crown submitted that the accused's exit from the apartment and his immediate arrest created an exceptional situation thatnecessitated a warrantless entry into the apartment in order to ensure the safety of the RCMP investigators and members of the publicand preserve evidence. [48] There were four component parts to the Crown’s submission: 1. Warrantless entry was lawful where exceptional circumstances existed; 2. The RCMP had a duty to investigate thoroughly; 3.

Delay between arrest and entry into the apartment was reasonable; and 4. The decision to enter the apartment on an exigent basis was reasonable.

[ 49 ] In relation to the first component, the Crown submitted that the warrantless entry into the apartment was lawful pursuant to s. 11 (7) of the CDSA and pursuant to s. 487.11 of the Criminal Code . It was submitted that the grounds for a search warrant existed on November 10, 2011, but that exceptional circumstances arose which made it impracticable for the RCMP investigators to take the necessary time to apply for a tele-warrant. [ 50 ] It was submitted that the circumstances facing Cpl.

Rettie after arresting the accused were exceptional, compelling him to conduct a brief warrantless entry into the apartment to ensure the safety of the RCMP investigators and the public, and/or to secure the evidence. [ 51 ] It was submitted that after the accused left the apartment and was arrested, Cpl. Rettie had both a subjective belief that exceptional circumstances existed and an objective basis for that belief. [ 52 ] In relation to the second component, the Crown submitted that Cpl. Rettie's duty was not concluded when he arrested the accused. Rather, Cpl.

Rettie had a further obligation and duty to protect those at the scene of the arrest and to preserve any evidence of a crime. [ 53 ] In relation to the third component, the Crown submitted that it was reasonable for RCMP investigators at the scene of the apartment block to take the necessary time to put on protective gear and take other necessary precautions prior to entering the apartment. [ 54 ] The Crown submitted that a tele-warrant, like a regular warrant, was an investigative tool, and that the absence of a tele-warrant in and of itself did not render either warrantless entry unreasonable. [ 55 ] In relation to the fourth component, the Crown submitted that the RCMP investigators believed that the accused was actively involved in the production of methamphetamine on November 10, 2011.

Furthermore, it was submitted that the RCMP investigators did not know if other persons were inside the apartment and did not know the extent to which the lab posed a danger to the RCMP investigators and the public. Accordingly, Cpl.

Rettie had a duty to enter the apartment following the arrest of the accused in order to confirm that no other persons were in the apartment and to assess the risk posed by the lab to officer and public safety. [ 56 ] The Crown submitted that the first entry into the apartment was of a very brief duration, for the exclusive purposes of clearing the apartment and assessing any danger relating to the methamphetamine lab. [ 57 ] It was submitted that Cpl.

Rettie was aware that the accused was associated with two other alleged methamphetamine labs, one of which had posed a significant risk to the public due to a fire. It was submitted that when Cpl.

Rettie isolated the chemical odour coming from the window of the apartment, taking into account his knowledge of the surveillance of the accused, his belief that there was an active methamphetamine lab inside the apartment on November 10, 2011, was reasonable. [ 58 ] In their closing submission, the Crown addressed the public safety risk in relation to clandestine methamphetamine labs as follows: Cases involving active drug labs are unlike most other cases in that there is a very real and high probability that the safety of the community is at risk.

The risk of explosions and/or chemical reactions is a very real factor when dealing with clandestine laboratories. The case at hand is somewhat unique in that the absence of other unknown persons created its own real and specific danger. (Transcript, September 10, 2012, p. 5, l. 2-10) THE LAW Statutory Framework [ 59 ]

Section 8 of the Charter constitutionally protects an individual's right to privacy from unreasonable state intrusion. That

section reads as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. [ 60 ] Reference was made to the wording of s. 11 (7) of the CDSA above, at paragraph 33. Subsections 11(1) and (2) are also relevant and read as follows: 11.

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to a contravention of this Act, under

section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it.

(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication inaccordance with

section 487.1 of the Criminal Code, with such modifications as the circumstances require. [61]

Section 487.11 of the Criminal Code also permits entry into a building, receptacle or place without a warrant if the conditionsfor obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. That

section reads asfollows: 487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial lawand whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any ofthe powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason ofexigent circumstances it would be impracticable to obtain a warrant.

General Principles [62] As a matter of law an individual enjoys a high expectation of privacy in a residence or dwelling place. This expectation ofprivacy is a fundamental principle of law. In R. v. Silveira, (SCC), [1995] 2 SCR 297 at paragraph 141, Cory J. had thisto say: ... It must be the final refuge and safe haven for all Canadians. It is there that the expectation of privacy is at its highest and where thereshould be freedom from external forces, particularly the actions of agents of the state, unless those actions are duly authorized.

Thisprinciple is fundamental to a democratic society as Canadians understand that term. [63] In relation to this privacy interest, it is not relevant whether or not criminal activity takes place in the residence. This wasdiscussed in R. v. McCormack, 2000 BCCA 57 at paragraph 11, which reads in part as follows: ...

This residence was the appellant's home and his privacy interest in it was significant, even if it was his place of criminal business. ... [64] A warrantless police entry and search is presumptively unreasonable and is, accordingly, a breach of s. 8 of the Charter: Thispresumption is established in Hunter v. Southam Inc., (SCC), [1984] 2 SCR 145 at paragraphs 27 and 28. [65] I find as a fact that two warrantless entries and searches were conducted at the apartment. Accordingly, these entries andsearches were prima facie in violation of s. 8 of the Charter.

In relation to both entries and searches the burden rests on the Crown toestablish on a balance of probabilities that these entries and searches were reasonable. To establish that a warrantless entry and searchwas reasonable, the Crown must establish that:

(1) The entry and search was authorized by law;

(2) The law itself was reasonable;

(3) The manner of the search was reasonable. R. v. Collins, (SCC), [1987] 1 SCR 265 at paragraphs 23-24 [66] Section 11 (7) of the CDSA authorizes a warrantless entry and search where "the conditions for obtaining a warrant exist but byreason of exigent circumstances it would be impracticable to obtain one". An entry and search properly conducted under this

section is asearch authorized by law which would meet the first criteria established in Collins. [67] In this voir dire hearing, no challenge was advanced by the accused in relation to the reasonableness of s. 11 (7) of the CDSA or

the reasonableness of the manner of the warrantless entries. As such, the critical issue to be determined is whether the warrantless entriesand searches were authorized by law. [68] For a warrantless entry and search to fall within the ambit of s. 11 (7) of the CDSA, two conditions must be satisfied:

(1) The conditions ordinarily required to obtain a search warrant are present, and

(2) Exigent circumstances must exist that render it impracticable to obtain a warrant. [69] The parties agree that the first condition of s. 11 (7) was met at the time of the first warrantless entry. Indeed, the accusedargued that the circumstances ordinarily required to obtain a search warrant existed as early as November 3, 2011. [70] On November 10, 2011, Cst. Hartnett was directed by Cpl. Rettie in the early morning hours to obtain a search warrant prior tothe first entry. I find that at that time Cst.

Hartnett had all of the necessary supporting information to complete the ITO, including Cpl.Rettie’s detection of chemical odours emanating from the apartment. That ITO was the basis for a Justice to grant a warrant at 5:15 pmauthorizing the RCMP to search the accused’s apartment, house, and car. [71] It is the second condition that is at issue.

Accordingly, it must be determined whether or not exigent circumstances existed atthe time of the two warrantless entries into and searches of the apartment that rendered obtaining an earlier general or tele-warrantimpracticable. [72] Exigent circumstances are not defined in the CDSA. At paragraphs 19 and 20 of McCormack, the Court discussed the meaningof exigent circumstances under s. 11 (7) of the CDS as follows: 19 The term "exigent circumstances" was discussed in R. v. Grant (1993), (SCC), 24 C.R. (4th) 1 (S.C.C.). In thatcase, the Supreme Court of Canada held that

section 10 of the Narcotics Control Act, which authorized a warrantless search, must beread down. Writing for the court, Sopinka J. set the standard now found in s. 11(7) at p. 18: . . . I have concluded that warrantless searches pursuant to s. 10 of the NCA must be limited to situations in which exigent circumstancesrender obtaining a warrant impracticable. 20 At pp. 19-20 Sopinka J. then discussed the test for exigent circumstances: "...

Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearanceof the evidence if the search or seizure is delayed. [73] Assistance in defining exigent circumstances can be found is ss. 117.02(1), 487.11 and 529.3 of the Criminal Code. Thesesections grant the police authority to enter a place without a warrant if the conditions for obtaining a warrant exist but by reason ofexigent circumstances it would be impracticable to obtain a warrant.

Section 529.3(2) of the Criminal Code defines exigentcircumstances as follows:

(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 to anyperson; or (

b) 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. [74] A warrantless entry and brief search may also be justified at common law where “exceptional circumstances” exist that overrideprivacy interests. In R. v.

Golub, [1997], (ON CA), leave to appeal to SCC denied, [1997] SCCA No. 571, Doherty JAdiscussed the ambit of what exceptional circumstances would justify a warrantless entry and search of a residence as an incident to arrestat paragraphs 42 through 46. Paragraph 46 of Golub is particularly apposite: 46 I would hold that where immediate action is required to secure the safety of those at the scene of an arrest, a search conducted in amanner which is consistent with the preservation of the safety of those at the scene is justified.

If, in order to secure the safety of those atthe scene, entry into and search of a residence is necessary, I would hold that the risk of physical harm to those at the scene of the arrestconstitutes exceptional circumstances justifying the warrantless entry and search of the residence. The search must be conducted for thepurpose of protecting those at the scene and must be conducted in a reasonable manner which is consistent with that purpose. (EmphasisAdded) THE TEST FOR EXIGENT CIRCUMSTANCES [75] McCormack at paragraph 25 establishes that in order to find exigent circumstances two elements must be met:

(1) The police must hold a subjective belief that exigent circumstances existed, and

(2) There must be an objective basis for that belief. [ 76 ] In relation to those two elements, police conduct in respect of purported exigent circumstances should be held to a standard that errs on the side of caution when the safety of the police and the public is potentially at risk. In support of this risk-averse approach, the Court of Appeal in R. v. Larson , 2011 BCCA 454 , at paragraph 26 , had this to say: 26 The standards applied by the courts in determining whether life or safety is at risk are fairly relaxed ones.

It is recognized that in matters involving the protection of life and physical safety, the police have no realistic choice but to err on the side of caution. The Crown cites a series of judgments of this Court that illustrate this point. [ 77 ] Reasonable grounds for belief that there is a risk to officer or public safety is not required. Rather, reasonable suspicion is sufficient: R. v.

Golub , at paragraph 48 . [ 78 ] However, the lower standard of reasonable suspicion does not vitiate the need for the police to consider alternatives to a warrantless entry that would be equally effective in safeguarding the police and the public: R. v. Larson , at paragraph 50 . Did Exigent Circumstances Exist in this Case? [ 79 ] The accused argued that Cpl. Rettie made a tactical decision to arrest the accused by shouting "police" and then taking him to the ground in the hallway outside the apartment. It was this action by Cpl. Rettie that the accused says created exigent circumstances wherein Cpl.

Rettie made the decision to conduct a warrantless entry as a result of his subsequent concern for: - The possible destruction of evidence; - Concern that there were others in the apartment; - The possible escape of unknown individuals in the apartment; - Officer safety concerns; and - Possible public safety concerns with respect to dangers associated with clandestine methamphetamine labs. [ 80 ] None of these concerns, it was argued by the accused, would have arisen had the accused been “quietly” arrested outside of the apartment building.

The accused’s concerns respecting the method of his arrest are discussed at paragraph 42 of this Ruling. [ 81 ] Cpl. Rettie is an experienced RCMP officer. He has significant experience in dealing with clandestine methamphetamine labs. That experience was established in his testimony. I accept his evidence that he subjectively believed that a warrantless entry into the apartment was necessary in relation to his concerns respecting: - The possible destruction of evidence; - Concern that there were others in the apartment; - The possible escape of unknown individuals in the apartment; - Officer safety concerns;

- Concerns of possible risk to the public; and - Inherent dangers associated with clandestine methamphetamine labs. [ 82 ] As for the existence of an objective basis for Cpl. Rettie’s belief that exigent circumstances existed once the accused left the apartment, Cpl. Rettie was aware that the two prior clandestine methamphetamine labs associated with the accused did not involve, apparently, any person beyond the accused. Cpl.

Rettie was also aware from police surveillance of the accused that no other individual was associated with the apartment. [ 83 ] In addition, prior to the arrest of the accused, the last substantive surveillance of the accused took place on November 3, 2011. This is a period of one week in which it was entirely unknown whether there were other persons associated with the apartment.

Further, there was no evidence to establish whether it was common or uncommon to have more than one person associated with the operation of a clandestine methamphetamine lab. [ 84 ] I conclude that there was not an objective basis for Cpl. Rettie’s belief that the first warrantless entry was necessary in relation to: - Concern that there were others in the apartment; and - The possible escape of unknown individuals in the apartment. [ 85 ] As for the objective basis for the belief that there were evidence preservation concerns, officer safety concerns and public safety concerns, Cpl.

Rettie was aware of the accused’s association with two alleged previous clandestine methamphetamine labs. In particular, one such lab was discovered as a result of a reported fire. [ 86 ] I find that the history of the accused was an objective basis for Cpl. Rettie’s belief that safety was a concern where the accused was involved in the clandestine production of methamphetamine. I accept his belief to be reasonable on this basis. In addition, Staff Sgt.

Patrick Murphy provided opinion evidence concerning the many dangers that can be associated with the clandestine production of methamphetamine, including the potential for fire. I accept those opinions of Staff Sgt. Murphy as true. [ 87 ] It must be kept in mind that the location of the apartment building was in a core area of Vancouver as noted at paragraph 2. [ 88 ] Though I do accept the proposition of the accused that there would be objective safety concerns that could establish exigent circumstances when Cpl.

Rettie noted the odour of chemicals coming from the apartment window, safety concerns were reduced since Cpl. Rettie believed that the accused was tending to the methamphetamine lab at that time. When looking through the lens of a police investigation, one must appreciate that many police investigations are both fluid and dynamic. In this case, the dynamic of the police investigation altered course when the accused left the apartment. At that point, the safety concerns were objectively heightened. [ 89 ] In cross examination it was put to Cpl.

Rettie by counsel for the accused that no active steps were taken at 7:35 a.m. to clear the apartment building. Cpl. Rettie testified that he did not want to compromise the ongoing investigation: Q Did you knock on the neighbours' doors to let them know that they should exit the building immediately due to the concern about this active meth lab in Apartment 304? A Not at 7:35 in the morning, no. Q Why not? A We did not want to compromise the ongoing investigation.

Knocking on doors in a -- in an apartment building with very thin walls could have caused a commotion that Mr. -- or the suspects inside may have heard. Maybe -- possibly making things worse in terms of the risk. Q So the investigation in your view -- the success of your investigation was more important than notifying the tenants at that time, correct? A No, I -- I disagree with that.

As I said, the -- knocking on doors and causing a commotion and people -- I don't know what their reactions could be if -- yelling and screaming or running out could -- could make things worse for public safety. (Transcript, July 12, 2012, Page 33, Lines 23-43) [ 90 ] I find that Cpl. Rettie was in a difficult position as he had to balance real officer and public safety concerns with the integrity of

the ongoing police investigation. It was clear that he was well aware that Cpl. Hartnett was in the process of completing the ITO and that Cpl. Rettie believed that a warrant would be granted to enter the apartment. I find that both police and public safety concerns are heightened by the action of the accused in leaving the apartment and the decision of Cpl. Rettie to arrest the accused in the hallway of the apartment. This raised safety concerns as it was clear that the accused would not be returning to the meth lab. Arresting the accused in the manner described by Cpl. Rettie does not reduce Cpl.

Rettie’s concerns in relation to evidence preservation or officer safety and public risk concerns. [ 91 ] I find that letting the accused leave an active clandestine methamphetamine lab unattended for an unknown period of time would violate the police duty to ensure officer and public safety. As noted earlier in this voir dire , police must err on the side of caution when assessing matters involving the protection of life and physical safety. [ 92 ] I accept Crown’s concerns with respect to public safety noted at paragraph 58 of this voir dire to be valid concerns.

The risk of explosions, chemical reactions and fire are very real when dealing with a clandestine methamphetamine lab. [ 93 ] I also find R. v. Jamieson , 2002 BCCA 411 , to be persuasive authority with respect to the existence of concerns for public safety where there is a suspected clandestine methamphetamine lab in a private residence. I do not find that Cpl. Rettie exercised any improper motive in conducting the first warrantless entry into the apartment. I accept that his motivation was focused on evidence preservation concerns and officer safety and public risk concerns. I find that Cpl.

Rettie had a subjective belief in those concerns and an objective basis for that belief when he made the first warrantless entry. [ 94 ] I now address the accused’s concern with respect to the manner of his arrest. While it was perhaps more appropriate to arrest the accused outside the apartment building rather than in the hallway, I find that this tactical decision by Cpl. Rettie was not in any way manufactured or designed to justify the first warrantless entry by creating exigent circumstances. Cpl. Rettie gave his evidence in a forthright manner. His narrative of events was credible and reliable.

I do not find that there was any improper motive in his tactical decision to arrest the accused in the hallway. [ 95 ] In making this finding I have taken into account the decision of my former colleague C. Bruce, PCJ (now Madam Justice Bruce) in King . That case dealt with allegations respecting possession of cocaine, heroin and marijuana for the purpose of trafficking. Police in King believed that there was an active dial-a-dope operation taking place at a private residence.

The police made a warrantless entry into this residence based upon a belief that exigent circumstances existed that made it necessary to prevent the destruction of evidence. [ 96 ] Prior to the warrantless entry in King , one of the occupants had been lured to exit the residence by a police telephone call using a dial-a-dope scenario as a ploy. Judge Bruce found that this action created the exigent circumstances when there was no urgency and there was ample time to secure a warrant to search.

On this point Judge Bruce concluded at paragraph 36: On the evidence before me I must conclude that the decision to arrest Cruz immediately after his second drug transaction of the day with Constable Sullivan created the exigent circumstances relied upon to enter apartment No. 7 without a search warrant. Further, I find there was no need for the police to arrest Cruz at this point in the investigation. Clearly his arrest was not necessary as a pre-condition to obtaining a search warrant for the apartment.

Cruz had already made two sales of cocaine to undercover police officers and the constables secreted in the apartment building had been able to pin point the apartment from which Cruz was operating. While the Crown speculated about a reason for the precipitous arrest of Cruz, there was no evidence before the Court to establish any sense of urgency justifying this decision on the part of the police . (Emphasis Added) [ 97 ] King did not involve officer safety issues or public risk concerns. Rather, the case turned on the possible destruction of incriminating evidence within the apartment.

Judge Bruce found that any police concerns over the possible destruction of incriminating evidence was speculative and therefore the warrantless entry could not be justified. [ 98 ] However, in this case there were both officer and public safety concerns, and the RCMP did not use a ploy to lure the accused out of the apartment. I find that exigent circumstances existed when the accused left the apartment and was arrested. The subsequent warrantless entry was justified under s. 11 (7) of the CDSA .

Was it Impracticable to Obtain a Warrant? [ 99 ] The accused submitted that the Crown has failed to establish that it was impracticable to obtain a warrant prior to both the first and second warrantless entries into the apartment, notwithstanding officer safety and public safety concerns. As such, the accused submits that his s. 8 Charter right was violated. Specifically, the accused argued that the claim of exigency was created by (

a) tactical decisions not to apply for a warrant before November 10, 2011, when reasonable grounds existed, and (

b) failing to consider and apply for a tele-warrant between 7:35 a.m. and 11:21 a.m., and prior to 1:36 p.m. on November 10, 2011. [ 100 ] I do not find that the evidence supports the accused’s assertion that the exigency was manufactured in part by the RCMP’s decision not to apply for a warrant before November 10, 2011. The evidence establishes that there was essentially no surveillance from November 4, 2011, through November 9, 2011. As such, prior to Cpl.

Rettie going up to the roof of the apartment building on November 10, 2011, the information that the RCMP had as of November 3, 2011, had not changed. [ 101 ] At that point, based on three days of surveillance, the RCMP knew that the accused was associated with the apartment, the house and his car. They knew that he had purchased materials consistent with the construction of a clandestine methamphetamine lab, but had not observed the accused taking these materials into either residence.

While grounds arguably existed for the issuance of a warrant as of November 3, 2011, I accept the evidence given by RCMP members that the evidence at that time was of questionable sufficiency for a warrant.

[ 102 ] I find that sufficient grounds were established when Cpl. Rettie noted the chemical odour coming from the accused’s apartment window. That observation was communicated to Cst. Hartnett by Cpl. Rettie with the further direction that Cst. Hartnett proceed immediately to complete the ITO and apply for the warrant. I accept the evidence of Cpl. Rettie that it was the additional detection of the chemical odour which provided him with sufficient grounds to apply for a search warrant. [ 103 ] Cpl. Rettie testified that he did not consider applying for a tele-warrant at 7:35 a.m. on November 10, 2011.

However, he said that he considered the application for a warrant to be urgent and that he conveyed that sense of urgency to Cst. Hartnett. He left the warrant application to Cst. Hartnett and Sgt. Shepherd. [ 104 ] Cst. Hartnett testified that he was working "feverishly" to complete the ITO through the morning of November 10, 2011. On this point, in direct examination, the following exchange took place: Q What -- give us a sense of how the morning progressed that day. A The morning progressed with me feverishly typing the ITO as quickly as I could. There was a lot of work that needed to be done.

I had not expected to have the document prepared at that time. We were expecting about a week we would need it, so the -- the document was in a very rough draft and I still had a lot of work to do in terms of summarizing the previous investigations at Surrey -- Surrey and Burnaby and in gathering all -- all of my information together. For instance, the Health Canada report that was still outstanding. (Transcript, July 16, 2012, Page 9, Lines 16 – 28) [ 105 ] Cpl.

Hartnett further testified that a tele-warrant application would not have been as complete as a general warrant since all his work in relation to the ITO was on his computer at the Langley RCMP detachment. He had thought that he would have sufficient time to complete his ITO through the normal warrant process. [ 106 ] I accept Cpl. Rettie’s evidence that while he did not consider applying for a tele-warrant, such did not impact on his tactical decision to arrest the accused when he left the apartment and then to conduct a brief warrantless entry. I also accept Cst.

Hartnett’s evidence that he was working “feverishly” to complete his ITO and that an application for a tele-warrant would not have been as complete as an application for a regular warrant. [ 107 ] Again, the accused relied on the King decision to support his position. I note that in King , Judge Bruce criticized the police for failing to consider a tele-warrant. However, the circumstances in King were very different than those in this case. In King , there were no officer or public safety issues at play.

In addition, Judge Bruce found that the actions of the police amounted to a flagrant disregard of the accused’s s. 8 Charter right. She found that the police created the exigent circumstances by the manner in which they chose to conduct their investigation. [ 108 ] As noted earlier in this voir dire , it was the accused who elected to leave the apartment and, accordingly, he created the exigency which compelled Cpl. Rettie to make a warrantless entry. I do not find that any of the actions of Cpl.

Rettie or other members of the investigation team amount to a flagrant disregard for the accused’s s. 8 Charter right. [ 109 ] Once the accused left the apartment, I find that it would have been impracticable for the RCMP to secure a tele-warrant in relation to the first warrantless entry. I find that it was the actions of the accused that created exigent circumstances when he left the apartment at 11:20 am, on November 10, 2011, thus leaving the active clandestine methamphetamine lab unattended. [ 110 ] At that point, Cpl.

Rettie had legitimate evidence preservation concerns and a duty to protect officer and public safety. The absence of a tele-warrant did not render the first warrantless entry unreasonable in the specific circumstances of this case. [ 111 ] Likewise, in relation to the second warrantless entry in the absence of a tele-warrant, I find the entry to be justified as the RCMP had a duty to assess any dangers relating to the lab.

In particular, the status of the jerry-rigged compressed gas cylinder would be of significant concern to officer and public safety. [ 112 ] As was noted by the Court of Appeal in Jamieson , at paragraph 34 , a tele-warrant is an investigative tool available under the Criminal Code to the police, and the failure to secure a tele-warrant, based upon the particular circumstances of a case, may not render a warrantless entry unreasonable. This would be particularly so where the protection of life and property are in play. [ 113 ] In relation to both warrantless searches, I find that the entries were reasonable.

I find on the evidence before me that there was minimal interference with the integrity of the interior of the apartment. There was no evidence to suggest that the entries were anything but discreet and appropriate. [ 114 ] The warrant process was well underway prior to the first warrantless entry. The apartment, the house, and the accused’s car were only thoroughly searched after the general warrant was granted. The delays in securing a general warrant in this case in relation to the two warrantless entries have been explained in evidence presented in this hearing which I accept.

CONCLUSION [ 115 ] I find that the Crown has rebutted the presumption in relation to the two warrantless entries of the accused’s apartment. Accordingly, the application by the accused seeking a Ruling that his s. 8 Charter right has been violated is dismissed. The Honourable Judge G. Rideout Provincial Court of British Columbia

CORRIGENDUM – Released November 14, 2012 In the Ruling on V oir Dire dated November 1, 2012, the following changes have been made: [1] On page 1, paragraph 1, the year “2001” should be changed to “2011”. [2] On page 23, paragraph 84, first line, the word “is” should be changed to “was”.