R. v. Kyriakidis Date:, 2016 BCPC 165

Citation: R. v. Kyriakidis Date: 20160517 2016 BCPC 0165 File Nos: 39332-1-KA Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL STEVEN KYRIAKIDIS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE PETER M. DOHERTY Counsel for the Crown: M. Dyler Counsel for the Defendant: D. Karp Place of Hearing: Courtenay , B.C. Dates of Hearing: May 2, 3 and 17, 2016 Date of Judgment: May 17, 2016

BACKGROUND [ 1 ] This is file 39332-1-KA out of the Courtenay Registry. Trial opened with a voir dire held on May 2 and 3 to determine the admissibility of certain evidence, namely the seizure of a number of firearms, from the residence of the accused. [ 2 ] The accused alleges the search was warrantless and therefore his

Section 8 and 9 Charter protections were violated, making the admission of the firearms inadmissible under 24 [2]. In addition the accused alleges unlawful detention. THE VOIR DIRE EVIDENCE [ 3 ] Constable Archer, a 15 year veteran of the RCMP, on February 11, 2016 responded to a domestic abuse complaint involving the accused and his spouse. [ 4 ] The information this officer received from dispatch was that the complaining party, the property manager of the complex, heard a male and female having a confrontation inside their apartment.

That involved “crying and banging.” [ 5 ] In all, four police officers including a dog handler, responded to the complaint. Met in the lobby of the building by the property manager, police were informed that the male living in the subject apartment was in possession of firearms. Officers attended the apartment and knocked on the door. A female voice told them that she was in the shower. According to police it was a full minute before the apartment door was opened. The female, Leanne Tarkanton, did not appear damp from the shower and it was noted she had a small blood smear behind one of her ears.

It was not her blood. Despite her protestations and her assertion that everything was “fine”, two officers entered the tiny 600 square feet apartment. [ 6 ] Constable Archer was familiar with the couple who rented this apartment, having attended a domestic dispute at that location the evening before. On this occasion, a brother officer advised that a loaded handgun had been discovered in the bedroom. Constable Archer immediately arrested the female. Ms. Tarkanton informed the officer that it was she who loaded the gun and left it in the bedroom with a suicide note.

Constable Archer testified he may have entered the apartment briefly to “have a look around.” He described seeing “heads shaped” indentations in the drywall. He also observed blood in various places. [ 7 ] In cross-examination this officer acknowledged that the property manager who met police in the lobby told police that the accused “had $10,000 worth of firearms in his apartment.” [ 8 ] Constable Archer also said there was no discussion among the four officers about a plan of entry, nor did it occur to any of these police officers that a search warrant might be required.

Understandably, given the urgency of a domestic dispute their first priority was to determine whether anyone needed assistance. However, it is clear from the testimony from all of the officers who gave evidence in the voir dire that the possibility of firearms in the residence was very much a live issue in their minds. That too is understandable. [ 9 ] Constable Archer confirmed in cross that: 1. The blood on the female was “a little smear.” 2. That the female said everything was “fine.” 3.

That she told police she did not require assistance. [ 10 ] In the circumstances of responding to a domestic call, police cannot simply accept that kind of information as reliable. They have a duty to investigate further and that may include entry to a dwelling to determine the well-being of any occupants. [ 11 ] While Constable Archer said there was no discussion beforehand as to what he and his brother officers were going to do, the result was that he remained in or near the doorway with Ms. Tarkanton and two other officers entered the premises; Cpl. Backus and Constable Curtis.

Within seconds, and estimates vary from between 10 seconds and nearly a minute - the lower time estimate being the most credible given the size of the apartment, Cpl. Backus shouted out “I got him.” The accused was located hugging the wall on the balcony. [ 12 ] In those few seconds Constable Curtis took it upon himself to “clear the apartment.” [ 13 ] Constable Hack is a dog handler. He attended, he says, to assist should “someone become a runner.” He left his K-9 in his police vehicle. Hack was also tasked by Cpl. Backus to take photographs, a decision that the good Cpl. came to regret.

The photographs, for investigative purposes, were only marginally helpful and this is especially so when it comes to the bedroom and its contents. A photograph from the entry door into the bedroom, for example would have been immensely helpful in that it would have shown exactly what Constable Curtis saw before he entered. It also might have supported Constable Curtis’ reasons for searching the freestanding metal case and the clothes closet. [ 14 ] Constable Hack recalled hearing Cpl.

Backus shouting “I got him on the balcony” and he observed the accused being handcuffed and placed on the living room couch by Cpl. Backus. [ 15 ] Constable Curtis, a 10 year veteran of the RCMP, was the key witness for the Crown in the voir dire . He testified that he responded to a domestic disturbance 911 call, being informed that the caller reported “banging and screaming” from an apartment. He was also aware police had responded to the subject address the day before relating to a domestic dispute.

[ 16 ] At the scene he and his colleagues were met by the property manager who informed police that the male in apartment 310 possessed $10,000 worth of firearms. [ 17 ] Constable Curtis said he did not know how many people he was going to be dealing with, despite the fact that he knew the previous domestic call involved only this particular couple, and the domestic he was now responding to a day later also involved, as reported by the informant, only this particular couple.

The suggestion that he did “not know how many people he was going to be dealing with” is difficult to accept but it is the foundation upon which this officer rationalized his search of the bedroom. [ 18 ] Constable Curtis confirmed the evidence of his fellow officers that the female who answered the door of apartment 310 was dismissive, saying everything was fine, and told the police there was no need for their presence.

He acknowledged she did not voluntarily allow police into her apartment. [ 19 ] Constable Curtis said police were determined to go into the apartment to ensure everything was really okay “on public safety grounds.” As part of the safety grounds it was necessary to clear the apartment and for Constable Curtis that included a look into the bedroom. [ 20 ] Clearing the bedroom might simply have involved standing at the open door and observing.

We do not have a photograph of what he could see from the door but as I have already noted, this was a tiny apartment and a visual check from an open doorway should have satisfied the officer that it was secure. Instead, Constable Curtis entered the bedroom where there was a freestanding metal cabinet the door of which, he says, was open providing some sort of impediment to his view from the doorway. This cabinet was about 6 feet tall and not very wide with a very shallow depth.

Nonetheless, this officer decided to inspect the cabinet to ensure “no one was hiding in it.” [ 21 ] Asked by Crown in chief why he found it necessary to look deeper into the bedroom in the first place, the officer responded “to look for other people and evidence of an assault.” [ 22 ] When Constable Curtis examined what, he said, was an open cabinet he discovered a loaded handgun in plain sight. He examined the pistol and unloaded it.

There is no photograph of exactly where the handgun was positioned when it was found by Constable Curtis as it had been removed before Constable Hack took his photographs. [ 23 ] In addition to the loaded Smith & Wesson 9 mm semiautomatic pistol found in the closet, Constable Curtis discovered boxes of ammunition. He also found a gym bag, coincidently open just enough at the top to reveal the butts of several rifles and another pistol wrapped in cloth. [ 24 ] Asked by Crown if at any point this officer considered applying for a warrant under

section 117 of the Code , Constable Curtis replied “No.” Again, Constable Curtis justified his search on the grounds of public safety. In cross examination, this officer was asked if he considered the legality of his search and responded “It never crossed my mind. We were going to ensure everyone in that apartment was all right. We had no idea how many people were in that apartment.” Again, that evidence is difficult to accept given that police had every good reason to believe there were only two people in that apartment.

Upon entry, police quickly apprehended the male while the female remained at the door in the company of two police officers. In my view there were no reasonable grounds to believe there was anyone else involved. [ 25 ] Constable Curtis testified that “people not guns” were his priority. That evidence contradicts what he told the Senior Administrative Crown Counsel, Bob Richardson, in a preparatory telephone interview; that his mission was to “find guns and find people.” That, I suggest, is more aligned with the truth.

The priority, for this police officer at least, was to find firearms. [ 26 ] This officer reiterated that the cabinet doors were open and he could not see around them from the doorway and that was the reason he stepped into the bedroom to examine the cabinet - to ensure no one was ‘hiding’ in it. [ 27 ] Cpl. Backus, a 16 year veteran of the RCMP was the watch commander on the date in question. He attended the call because he was trying to reduce the number of files individual members had on their plates.

He was present when the property manager mentioned guns and the amount of weaponry supposedly possessed by the male occupant in apartment 310. He was told of a male and female screaming and crying in 310 and he was aware of a complaint from the previous evening involving the same couple. [ 28 ] Interestingly, no police officer in attendance, except Constable Curtis, including the most senior officer ever suggested, or thought, or considered there could possibly be more than two people involved. Only Constable Curtis thought that and used it as his grounds for a search of the bedroom and specifically the cabinet.

I conclude that three of the four officers attending did not think it reasonable to believe there were more than two people in that apartment. [ 29 ] It was reported to Cpl. Backus that the female in 310 was heard to say “no” and “don’t do that”. I conclude from evidence to which I will refer to shortly, that Ms. Tarkanton was responding to the male’s anguish at being told by Ms. Tarkanton that she was leaving him. The accused repeatedly butted his head into the drywall as a result. In fact, that is how he sustained his injury.

In other words, she was pleading for her partner to stop not because he was doing anything to her but because he was injuring himself. [ 30 ] As to what happened at the door of 310, the evidence of Cpl. Backus is consistent with that of the other officers. Cpl. Backus informed Ms. Tarkanton that police were going to enter the residence to make sure everyone was okay. He directed Ms. Tarkanton to remain at the front door with two police officers. [ 31 ] Cpl. Backus walked through the small apartment, noted blood and holes in the wall, and continued on to the balcony.

Given the small space of this tiny apartment it took him mere seconds to locate the accused on the balcony. [ 32 ] Cpl. Backus brought the accused into the living room, arrested and handcuffed the accused and placed him on the couch. Constable Curtis then informed Cpl. Backus that he, Curtis, found a loaded handgun and other firearms in the bedroom. The accused was then rearrested for unsafe storage of firearms. Cpl. Backus told the Court that the initial arrest of the accused was because “he had

blood on him.” This was a rather odd justification because it was the accused’s own blood but, in any event, the initial arrest seemed to be for assault. [ 33 ] Cpl. Backus entered the bedroom. At that time the second pistol wrapped in cloth in the gym bag had not been found. It was only found as a result of an additional search of the gym bag. The aim, then, of Cpl. Backus was to secure the weapons and remove both the accused and his spouse from the residence. This was accomplished in short order and the firearms seized. [ 34 ] Cpl. Backus claimed authority for his actions and those of Cst. Curtis under

section 117.02 of the Criminal Code . I set out the relevant section; 117.02

(1) Where a peace officer believes on reasonable grounds (

a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or (

b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed. [ 35 ] It will be noted that the

section includes the words “other than a dwelling house.” It is difficult to understand how Cpl. Backus and Constable Curtis thought their actions were supported by this section. [ 36 ] Cpl. Backus confirmed that neither he nor any other officer with him that night contemplated, spoke of, or considered obtaining a warrant. The mantra from these officers was this was a domestic violence case, public safety was paramount. [ 37 ] In cross examination, Cpl.

Backus agreed the female did not appear to be in distress “only bloody.” Hardly that, the female had a small smear of blood near her ear and the blood was not hers. She was not injured. On the other hand the male was very much bloody and had been injured. [ 38 ] It occurred to him, he says, that the female or someone else might be in danger. That was hardly true of the female since she was standing at the entrance of the door of the apartment with two police officers. DEFENCE EVIDENCE ON THE VOIR DIRE [ 39 ] Defense called Leanne Tarkanton, age 33, and the wife of the accused. At the time of this incident, Ms.

Tarkanton was having significant problems with alcohol. At trial she told the Court that after this incident she went into rehab and has been clean and sober for some considerable time now. She is a mother of a nine-year-old daughter and has custody of the child. [ 40 ] On February 10, the day before this incident, she and her husband had an argument. What she colourfully described as a “bugger off order” was invoked and she demanded her husband leave her presence. He did so.

I would describe her at that time, and from her candid evidence she would no doubt agree, that alcohol made her a ‘drama queen’, and a cruel one at that. [ 41 ] After the accused left the matrimonial residence on the night of February 10, Ms. Tarkanton broke into the metal cabinet Constable Curtis described, to obtain money from a pickle jar that held change. That pickle jar is clearly visible in one of the photographs taken by Constable Hack.

She testified that the cabinet was locked when she broke into it and she closed the doors afterward, distinctly remembering the click of the latch when the doors were fully closed. [ 42 ] At some point during her search for money in the cabinet she decided to pen a suicide note. She removed the Smith & Wesson from its case, loaded it and placed it back on top of the case on the uppermost shelf, with the pistol acting as a paperweight to the note.

The paper on which this note was written is also plainly visible in one of the photographs taken by Constable Hack but was not seized by police. [ 43 ] The next day, February 11, the date of this incident, Ms. Tarkanton went to the pub early. So desperate for alcohol was she, that she pawned her wedding ring so she would have funds to buy food and drink. The accused called his wife after he got off work at 5 PM and begged her to go to dinner with him. She said “No.” The accused then showed up at the pub at which she was drinking and they eventually returned to their apartment together.

At this point in her life Ms. Tarkanton’s cruelty knew no bounds. She told her husband she was leaving him. [ 44 ] The accused was distraught, yelling and crying and at one point started to put his head into the drywall with sufficient force to indent and crack the wall. He also injured himself while doing so. All this commotion drew the attention of someone who alerted the property manager who in turn, called police. [ 45 ] When police arrived Ms. Tarkanton, said she panicked. She was not injured, her husband was, and any blood on her person came from him while she tried to comfort him.

She said police simply pushed past her and within a few seconds had her husband in custody. One of the officers, she noted, headed straight to the bedroom at which time she heard Cpl. Backus announce “I got him.” In the meantime the officer who went into her bedroom searched the clothes closet. She said she could hear hangers moving. She also heard them open a toolbox and then the cabinet. [ 46 ] Ms. Tarkanton testified that she said to one of the officers guarding her “he shouldn’t be in there” although she may have said to

the searching officer “you shouldn’t be in there.” Even the officers are not clear whether it was one or the other. EVALUATING THE EVIDENCE [47] It would seem the placement of the pistol in the position it was found, was due to Ms. Tarkanton. She had broken into themetal cabinet, removed the Smith & Wesson pistol from a small gun box, loaded it, wrote a suicide note, placed a note on top of thesmall gun box, and then placed the loaded pistol on top of the note and closed the cabinet doors. [48] There is conflicting evidence as to the nature of the cabinet.

It was several times referred to as a gun cabinet but it is not. Thereis conflicting evidence as to whether the doors to that cabinet were open or closed when Cst. Curtis entered the bedroom. [49] Again, there is no helpful photograph showing the view Cst. Curtis might have had as he stood in the doorway of the bedroom. There is no photo showing the position of the cabinet and its doors in relation to the bedroom entrance and whether these doors couldhave possibly obstructed the constable’s view. That said, in my view, Cst. Curtis was on a mission.

He says he was trying to ascertainwhether anyone else might be in the apartment, but neither he nor any of the other officers had any reasonable expectation there would beanyone else. A cursory glance from the bedroom door would have satisfied the Constable that no one else was present. What Cst. Curtisreally was looking for were firearms. In my view, that was his top priority exactly as reflected in his telephone conversation with Mr.Richardson. I find that Cst. Curtis entered the bedroom primarily to search for firearms.

In that regard it probably makes no differencewhether the cabinet was open or closed. [50] While we do not have the dimensions of the cabinet, except as a rough estimate, the frontal photographs show what areobviously shelves of shallow depth. For example, what appears to be a standard document binder lying flat and back to front of thecabinet would seem to indicate a depth of about 12-14 inches. It is this cabinet, the officer said, he wanted to examine “in case someonewas hiding in it.” SUBMISSONS - CROWN [51] Crown challenged the credibility of Ms.

Tarkanton and argued that the Court could not rely on a witness who had been drinkingfor a considerable time before police arrived. Interestingly, not one of the officers made mention that Ms. Tarkanton was inebriated or sobefuddled by the consumption of alcohol that police could not obtain a statement. The statement shows an individual who was clearlyemotionally distraught but there is no suggestion by anyone she was so impaired that her statement could not be taken or even reliedupon. [52] Ms.

Dyler, for the Crown, submitted that police were within their rights, indeed had a duty, to ensure there was no one else inthe apartment and that required Cst. Curtis to search the bedroom and the cabinet. Police, she said, had no way of knowing whetherthere were others in the apartment. [53] Asked by the Court why, once the male was in custody within seconds of entry and the female already secured, police could notsecure the apartment and apply for a warrant to search for firearms they believe present, Ms.

Dyler’s response was that there were“manpower considerations.” Since there were four officers involved and this was a tiny 600 ft.² apartment, it is difficult to understandwhy manpower considerations would be a factor. As to the “risk” in waiting for a search warrant, another issue raised by Crown, it wasnegligible. [54] Finally, Crown argued that if there was a Charter breach the breach was not serious, the timeline was short, and there was nobad faith on the part of police. THE LAW [55] Defense relies heavily on the relatively recent decision of R. v.

Ahmed-Kadir, [2015] BCCA 346, which has many of the samefactual elements as the case at Bar. [56] Before I get to the above noted case, I would like to refer to the case law provided in Crown’s book of authorities, the first ofwhich is R. v. Godoy, (SCC), [1999] 1 SCR 311. Police in that case responded to a 911 domestic call. The accusedanswered the door but refused to let officers enter. Officers forced their way in and found the spouse of the accused in their bedroomdistraught and injured. The trial judge ruled the entry unlawful. Eventually the case made its way to the Supreme Court of Canada.

From the headnote: Public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwellinghouses in the course of such an investigation depends on the circumstances of each case.

If police conduct constitutes a prima facieinterference with a person’s liberty or property, as it does here, the court must consider two questions; first, does the conduct fall withinthe general scope of any duty imposed by statute or recognized at common law and second, does the conduct, albeit within the generalscope of such duty, involve an unjustifiable use of powers associated with the duty. The common-law duties of the police [statutorilyincorporated in. 42 [3] of the Ontario Police Services Act] include the protection of life.

The police duty to protect life is engagedwhenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before thenature of the emergency can be determined. The importance of the police duty to protect life warrants and justifies a forced entry into adwelling in order to ascertain the health and safety of a 911 caller.

While residents have a recognized privacy interest within the sanctityof their home, the public interest in maintaining an effective emergency response system is obvious and significant enough to merit someintrusion on a resident’s privacy interest. However, the intrusion must be limited to the protection of life and safety; the police do nothave further permission to search premises or otherwise intrude on the resident’s privacy or property. [57] In the case at Bar police determined that the protection of life and safety included an immediate search for firearms.

Noconsideration was given to the latter admonition that the intrusion must be limited. [58] R. v. L.V.R., 2011 BCSC 1158, was a “plain view” case. The court concluded that even if it was unable to find police had

reasonable grounds, S.24 [2] of the Charter did not require exclusion. [59] Finally, R. v. Wint, [2006] OJ 2770, is an Ontario case that held police had a common-law and statutory duty to enter thedwelling in exigent circumstances. This was another ‘plain view’ case involving a firearm and drugs. The court held the evidence to benon-conscriptive, seized in good faith, and its admissibility would not affect the administration of justice. [60] It should be noted, that L.V.R and Wint, preceded R. v. Ahmed-Kadir, [2015] BCCA 346, and R. v.

MacDonald, 2014 SCC 3, [2014] SCJ 3. [61] MacDonald held that to determine whether a safety search was justified a number of balancing factors are involved including:[from the Head Note] 1. The importance of the performance of the duty to the public good. 2. The necessity for the interference with individual liberty. 3. The extent of the interference with individual liberty. [62] In MacDonald the court observed that restraints on safety searches are particularly important in dwellings where such searchescan give authorities access to private and sensitive personal information.

The court concluded there was an imminent threat, consideringthe accused had a firearm in his hand. [63] In Ahmed-Kadir, as in the case at Bar, police responded to a 911 domestic. The issue is stated in paragraph 1 under the heading‘Introduction.’ 1. The principal issue on this appeal is the extent to which police officers responding to a 911 domestic dispute call can search residentialpremises for safety-related reasons. 2. The first two officers to arrive separated Mr. Ahmed-Kadir and Ms.

McFadyen; she was taken into the hallway, he was arrested forassault and detained inside the suite.... one of the first two officers on the scene then looked into a shopping bag on a shelf in that closet. There was a handgun in the bag. [64] As in the case at Bar, Ahmed-Kadir was arrested for assault and handcuffed. Also, as in the case at Bar, he was not read hisrights. The accused in our case was arrested for assault although grounds for such an arrest did not exist. Nonetheless, the accused washandcuffed, placed on a couch, and remained unchartered. [65] In Ahmed-Kadir, Cst.

Rossiter entered the suite and did a sweep of the apartment by looking into, but not entering, thewashroom. She also looked into, but did not enter, the kitchen. She then walked into the living room where the accused was being held. She justified this search as a way to ensure the suite was clear of any other persons and also to make sure police had a number of partiesaccounted for. [66] These were also the grounds used by Cst.

Curtis in the case at Bar, the difference being he felt compelled to actually enter thebedroom and open doors. [67] In Ahmed-Kadir, as in this case, the accused asserted that the warrantless search and seizure of the handgun was unreasonableand a violation of s.8 of the Charter. A further s.9 violation of the Charter took place when the accused was arbitrarily detained and hisright to counsel infringed contrary to

section 10(b). The two cases are remarkably alike. [68] As to the s.10 (

b) breach, in Ahmed-Kadir the courts, both trial and appellate, found such a breach and Mr. Justice Frankel saidat paragraph 98; The s.10 (

b) breach is significant, as it denied Mr. Ahmed-Kadir an opportunity to exercise his right to counsel for some time.... The s.9breach is significant because the handcuffs were an unnecessary additional restraint on Mr. Ahmed-Kadir’s liberty. [69] Frankly, in the case at Bar I find it puzzling as to why the accused was immediately arrested and handcuffed “for assault.” There seem to be no attempt by the investigating officers to ascertain what had gone on before the arrest.

Rather, they automaticallyassumed the defendant was the perpetrator of an assault and acted accordingly, even though it was the defendant who was bleeding. Nordid police bother to read the defendant’s Charter rights. It was only after the handgun was found and the defendant “rearrested” that hewas Chartered and warned, and even that took place after the defendant was removed from his apartment and placed in a police vehicle. Cpl.

Backus even stopped long enough to interview neighbours before he got around to it. [70] These actions by police confirm what I believe to be the case; the focus here was on firearms and the rationale for the search, ifnot created ex post facto, was based not on ‘officer safety’ or ‘securing the premises’ or ‘looking for others’ but a determination to searchand secure firearms that they believed to be in the dwelling. COMMENT [71] The Court recognizes that police work can be difficult and downright dangerous at times. Officer and public safety are utmostin their minds.

In addition, split second decisions made on the spot are often scrutinized in excruciating detail and at leisure in acourtroom. Still, when it comes to groundless arrests and the invasion of privacy in a dwelling house, society expects police to get itright no matter how difficult the situation. Police, in this instance, did not get it right. The initial arrest for assault was groundless andnot justified. The failure to initially provide 10(

b) rights is significant as is the delay in providing those rights. [72] As to the subsequent arrest for the handgun offense, it might well have been justified provided the warrantless search of thebedroom cabinet and bag could be supported at law. In my view it cannot be so supported.

[ 73 ] While the appellate court could find no fault to the clearing search of the bedroom, it was lawful only because the police officer did no more than walk into the room and look around. Doing so had no appreciable impact on the accused’s privacy interests. [ 74 ] Mr. Justice Frankel goes on, however, to note at paragraph 99, “the unauthorized searches of the closet seriously compromised Mr. Ahmed-Kadir’s right to privacy.

People have a reasonable, indeed a strong, expectation of privacy in their homes.” [ 75 ] In Ahmed-Kadir the appellate court found, as I find here, there was no objective basis for police to even suspect a third party might be present. [Para 76.] Mr. Justice Frankel found, as I do here, that the search of the bedroom and closet was unreasonable in the circumstances [para 80.] [ 76 ] In the case at Bar, as in Ahmed-Kadir , the firearms are reliable evidence without which Crown has no case. The firearm charges, that include a loaded handgun, are serious.

However, as is noted in Ahmed-Kadir , [para 101] “…. the focus is not on the ‘immediate reaction’ to an individual decision to admit or exclude evidence obtained in breach of the Charter, but in the long-term effect of a decision on the over-all repute of our system of justice: Grant, para. 68.” BALANCING FACTORS [ 77 ] In Ahmed-Kadir the appellate court concluded [para 103] “…the conduct of the police seriously undermined [the defendant’s] Charter rights and is deserving of disapprobation.” As in this case, Mr.

Ahmed-Kadir “… was not advised of his right to counsel, handcuffed without a valid reason, improperly questioned, and his home searched without lawful authority.” As noted by Mr. Justice Frankel, “Although the common-law confers certain powers on police officers who respond to urgent situations such as 911 calls, it does not give them license to disregard the Charter rights of those whom they encounter.” [ 78 ] In R v.

Reddy, [2010] BCCA 11, at para 107, [in part] the court notes; “...the public…expects those engaged in law enforcement to respect the rights and freedoms we all enjoy by acting within the limits of their lawful authority.” [ 79 ] The court in Ahmed-Kadir notes that every s. 24(2) determination is fact specific. Mr. Justice Frankel [para 111] said; In my view, the scales tipped toward exclusion of the handgun found in Mr. Ahmed-Kadir’s residence. The importance of maintaining respect for Charter rights and ensuring that the justice system remains above reproach of ways the collective cost of his acquittal.

To admit the handgun in the faces of the breaches that occurred here would send the message that when the charges are serious, individual rights count for little. JUDGEMENT [ 80 ] It is rare to find an appellate decision so closely on point and this trial judge is particularly grateful for the guidance provided in R. v. Ahmed-Kadir . [ 81 ] The conclusion I draw from all of the evidence in this case is that the focus was on firearms.

The admission to Crown that the search was for “guns and people”, and in that order, caused a warrantless search - a situation that could have easily been rectified had any one of these four officers turned their mind to the issue. None of them did. [ 82 ] To sum up:

a) The defendant was not advised of his right to counsel until sometime after he was arrested. In fact, the arresting officer stopped to interview neighbours before he Chartered and warned the accused. [10(b)]

b) The initial arrest and handcuffing of the accused on the grounds of assault was without foundation and therefore the handcuffed accused was arbitrarily detained. [s.9]

c) Constable Curtis conducted an unreasonable search of the bedroom. There were no reasonable grounds to believe that anyone else but the female, in care of the police at the door of the apartment, and the accused secured inside the apartment, were accompanied by anyone else. Per MacDonald ; before conducting a safety search police must have reasonable grounds to believe there is an imminent threat to safety and the search is necessary to address that threat. In the case at Bar no such grounds were established [s.8]

d) Even if Constable Curtis’ entry into the bedroom could be justified under ‘public or officer safety’ the search of the closet and the gym bag was unreasonable. [s.8] [ 83 ] For the reasons given in Ahmed-Kadir and the reasons I have outlined in this judgment, I am compelled to exclude the firearms seized. [ 84 ] Judgment accordingly. BY THE COURT _________________________________

The Honourable Judge Peter M. Doherty