R v Warren, 2016 MBCA 78

Citation: R v Warren, 2016 MBCA 78 Date: 20160729 Docket: AR16-30-08607 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN ) C. R. Savage ) for the Applicant ) (Appellant) Applicant ) D. S. Warren ) on his own behalf- and - ) ) Chambers motion heard:DWAYNE SCOTT WARREN ) July 28, 2016 ) (Accused) (Respondent) Respondent ) Decision pronounced: ) July 29, 2016 LEMAISTRE JA [1] On July 1, 2013, shortly after midnight, the RCMP received a call about a domestic disturbance from the common-law wife of the accused (the wife) at a residence near Elton, Manitoba.

The first officer to arrive spoke with the wife on the road nearthe residence. She told the officer that the accused was intoxicated, that there were firearms in the residence, and that she feared for hersafety and that of her two young children who were in the home. Two additional officers arrived and were told about the informationprovided by the wife. The accused approached the officers. He was highly agitated and belligerent and was arrested for breaching thepeace. One of the officers went inside the residence to check on the children.

As he entered the home through the front door, he sawfour unloaded, unsecured firearms and a container with ammunition, which he seized. Sometime later, the wife turned over anotherunloaded, unsecured firearm to police that she said she found outside the home. [2] The accused was charged with five counts of careless storage of a firearm pursuant to section 86(2) of the CriminalCode (the Code). At the trial, the judge ruled that the first four firearms seized by the police could not be admitted into evidencebecause the accused’s right to be secure against unreasonable search or seizure pursuant to

section 8 of the Canadian Charter of Rightsand Freedoms (the Charter) had been infringed, and he dismissed the charges relating to these four firearms. The fifth firearm wasadmitted into evidence and the accused was convicted of careless storage of a firearm regarding that weapon. The Crown appealed thetrial judge’s decision. The

summary conviction appeal judge upheld the decision of the trial judge. The Crown seeks leave to appealthe decision of the

summary conviction appeal judge pursuant to section 839(1) of the Code. [3] The Crown raises two issues: 1. Did the

summary conviction appeal judge err in finding a breach of

section 8 of the Charter? 2. Did the

summary conviction appeal judge err in upholding the decision to exclude the seized evidence? [4] For the reasons that follow, I would grant the Crown leave to appeal on these two issues. [5] Leave to appeal may only be granted in this case on questions of law alone (see section 839(1) of the Code). If thereis a question of law alone, it has to raise an arguable issue of substance that merits the attention of the full court. See R v Langlois (DJ),2008 MBCA 72, 228 ManR (2d) 256; R v Schalla (KT), 2007 MBCA 104, 220 ManR (2d) 69; and R v McCorriston (GJ), 2010 MBCA3, 251 ManR (2d) 106.

Further, an appeal to this Court is from the judgment of the appeal judge, not the trial judge (R v Emery (1981), (BC CA), 61 CCC (2d) 84 (BC CA), leave to appeal to SCC refused, [1981] SCCA No 72 (QL)). As a result, theremust be an exceptional circumstance or compelling reason to allow this second level of appeal. See R v RWM, 2011 MBCA 74 atparas 26, 32, 34, 270 ManR (2d) 29. [6] In finding that the accused’s

section 8 Charter rights were breached, the trial judge held that, while the initial entryinto the home to ensure the safety of the children by the police was lawful, the purpose changed shortly after he entered the home and his

justification for being there ended. The trial judge went on to conduct an analysis pursuant to section 24(2) of the Charter and found that, “the admission of the evidence by the breach of [the accused’s] rights would bring the administration of justice into disrepute”. Counsel did not argue that section 489(2) of the Code applied to the facts of this case at the trial and the trial judge did not consider it. [ 7 ] At the

summary conviction appeal hearing, the judge considered the applicability of section 489(2) of the Code in determining whether the officers were lawfully present in the home. She agreed with the trial judge that the officer “should have removed himself from the home and sought lawful authority to search the home either through the permission of one of the homeowners or by way of [a] warrant.” She also agreed with the trial judge that the accused’s

section 8 Charter rights were breached and upheld his decision to exclude the firearms. [ 8 ] The Crown argues that the officer was in the residence pursuant to his statutory and common law duty to protect the public and he was authorized under section 489(2) to seize the firearms which were in plain view in order to preserve evidence.

No further authorization was required. [ 9 ] The accused argues that the officer entered his home unlawfully, that the officer did not articulate an intention to check on the well-being of the children, nor did he check on their well-being, that this intention was raised for the first time at trial, suggesting it was fabricated to provide evidence of a lawful reason to enter the home, and that he was in possession of the firearms, therefore they did not need to be secured.

The accused further asserts that he did not commit a crime, and that he is entitled to protection against unreasonable search and seizure under the Charter . [ 10 ] The evidence at trial was that the officer saw the unsecured firearms as soon as he entered the residence to check on the well-being of the children. Section 489(2) permits a police officer who is lawfully present in the execution of duties to seize any thing that will afford evidence of an offence. In my view, the

summary conviction appeal judge did not conduct a meaningful analysis regarding the application of section 489(2) to the circumstances of this case. [ 11 ] Whether the seizure of the firearms was authorized by law in the circumstances of this case is a question of law. In my view, there is an arguable issue of substance in this case of sufficient importance to merit the attention of the full court because police need to know the scope of their powers when they are lawfully in a residence with children present and they see unsecured firearms. See R v Alexson (TL) , 2014 MBCA 20 at para 8 . [ 12 ] Therefore, I grant leave on the following questions of law: 1. Did the

summary conviction appeal judge err in finding a breach of

section 8 of the Charter ? 2. Did the

summary conviction appeal judge err in upholding the decision to exclude the seized evidence? JA