R v Warren, 2017 MBCA 106

Citation: R v Warren, 2017 MBCA 106 Date: 20171102 Docket: AR16-30-08607 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) J. M. Mann ) for the Appellant ) (Appellant) Appellant ) N. H.

Sims, Q.C. ) for the Respondent - and - ) ) Appeal heard: DWAYNE SCOTT WARREN ) September 15, 2017 ) ) Judgment delivered: (Accused) (Respondent) Respondent ) November 2, 2017 Cameron JA Introduction [ 1 ] In this case the court is once again called on to consider the important question of the ability of police to seize evidence pursuant to section 489(2) of the Criminal Code (the Code ) (seizure without a warrant) and the circumstances under which that

section is applicable. [ 2 ] The Crown appeals the decision of the

summary conviction appeal judge upholding the ruling of the trial judge that the warrantless seizure of four firearms from the accused’s residence breached his right pursuant to

section 8 of the Canadian Charter of Rights and Freedoms (the Charter ) to be free from unreasonable search or seizure. Pursuant to section 24(2) of the Charter , the trial judge excluded the admission of the firearms into evidence and acquitted the accused of four counts of unlawfully storing an unsecured firearm ( section 86(2) of the Code ) (the four offences). The

summary conviction appeal judge upheld those rulings. [ 3 ] Leave to appeal was granted on the following two 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? See R v Warren , 2016 MBCA 78 at para 12 . [ 4 ] For the reasons that follow, I conclude that the

summary conviction appeal judge erred in upholding the trial judge’s ruling that the seizure of the firearms constituted a breach of the accused’s right to be free from unreasonable search or seizure. In my view, the firearms were lawfully seized pursuant to section 489(2)(

c) of the Code and were admissible in evidence at the accused’s trial. As I have found no breach of the Charter , I need not consider the exclusion of evidence. There being no other issue raised, I would allow the Crown’s appeal, overturn the acquittals, enter convictions and remit the matter back to the trial judge for sentencing. Background

[5] During the early morning hours, police responded to a domestic disturbance call to a residence in rural Manitoba. The first officer to arrive spoke to the accused’s common-law wife (the wife) outside of the house. She told him that the accused wasintoxicated. She expressed fear for her safety and that of her children. She said that there were “lots of firearms” in the family residencewhere the accused remained with the children. The accused exited the residence. He approached the officer in a highly agitated stateand spoke in a belligerent manner.

Fearing for his safety, the officer called for backup officers. The accused returned to the residence. Two additional officers arrived and were told of the information conveyed by the wife. The accused again exited the residence and, as aresult of his continued belligerent behaviour, was arrested “to prevent a further breach of the peace.” [6] After the accused was arrested, one of the additional officers (the seizing officer) entered the residence with thewife’s sister to check on the children.

Upon entering the front door, he saw four unsecured firearms and ammunition in a room directlyin front of him, which he seized. As a result of the seizure, the accused was charged with four counts of unlawfully storing an unsecuredfirearm. A gun safe in plain view beside the entry and additional ammunition identified by the wife were also seized. The seizure ofthese last two items did not result in any charges. No other search was conducted of the residence.

Decision of the Trial Judge [7] In his reasons on the voir dire, the trial judge accepted that the seizing officer lawfully entered the home to ensurethe safety of the children. However, he held that, after the seizing officer observed the firearms, his “purpose changed from ensuring thesafety of the children to evidence gathering as in regards to the firearms.” In support of his conclusion, he noted that the seizing officerdid not remove the children (who were asleep on the second floor) from the home.

The trial judge relied on R v Godoy, (SCC), [1999] 1 SCR 311, for the authority that the police power to investigate a 911 call ends once the caller has been located and therequired assistance has been provided, and that the police do not have “further permission to search premises or otherwise intrude on aresident’s privacy or property” (Godoy at para 22). The trial judge concluded: I see the circumstances in this case as analogous to a 911 or distress call.

The purpose of the police attending the residence was to ensurethe safety of the children and no more. [The seizing officer] should have removed himself from the home and sought the lawfulauthority to search the home, either through the permission of one of the homeowners or by way of a warrant. His failure to do so was abreach of [the accused’s] right to be secure against unreasonable search and seizure. It was not argued, nor did the trial judge consider, the applicability of section 489(2)(

c) of the Code, which is at the heart of this appeal. The Decision of the

Summary Conviction Appeal Judge [8] At the

summary conviction appeal, the Crown raised, for the first time, the argument that section 489(2)(c)authorized the seizure of the firearms, thereby making it legal. That

section provides: Seizure without warrant 489(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal orprovincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a placepursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes onreasonable grounds (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [9] The accused argued that the court should not consider the Crown’s position as it constituted a new argument that wasnot raised at the trial. [10] The

summary conviction appeal judge held that she could consider the new argument. She noted that the issue at trialwas whether the search was authorized by law. She said that, while section 489(2) was not argued, the facts underlying the questionwere fully canvassed at the trial. Thus, she held that the new argument could be “fully effectively and fairly addressed on appeal.” Herdecision in this regard was not strenuously argued by the accused at the hearing of this appeal and, in my view, the

summary convictionappeal judge did not err in the conclusion that she reached. See R v Grant (IM), 2009 MBCA 9 at paras 40-46. [11] Despite considering the argument, the

summary conviction appeal judge held that section 489(2) did not apply becausethe seizing officer was not lawfully present in the accused’s home at the time he observed the firearms. Relying on the trial judge’sruling that once the need to ensure the safety of the children no longer existed the seizing officer’s justification for being in the homecame to an end, she found that he was under a duty to remove himself from the home and obtain lawful authority to search the home.

Positions of the Parties [12] The Crown argues that the trial judge was correct when he held that the seizing officer was initially lawfully in thehouse pursuant to his common law and statutory duty to ensure the safety of the children. Further, it maintains that he was in executionof his duties when he observed the firearms, which were readily apparent. It asserts that, based on the fact that the firearms wereunlawfully stored and unsecured, he had an immediate right to seize them pursuant to section 489(2).

[13] The accused argues that the entry to the home was warrantless with the result that the onus shifted to the Crown toshow that the search was otherwise reasonable. He relies on the finding of the trial judge that the purpose of the police presence in thehome changed from protection of the children to evidence gathering once the seizing officer observed the firearms. He claims that thisfinding is supported by the fact that the seizing officer did not search for the children after he entered the home.

He argues that thepolice should have removed the children from the home, secured the residence and applied for a search warrant. He also argues that thepolice could have simply secured the area where the firearms were located and left the children in the residence while they applied for awarrant. [14] Finally, the accused argues that the

summary conviction appeal judge did not err in holding that the seizure was notauthorized by section 489(2) of the Code. Discussion [15] As was determined in the leave decision, the ground of appeal regarding whether the

summary conviction appeal judgeerred in finding a breach of

section 8 of the Charter raises a question of law and, therefore, the standard of review is correctness. [16] It is undisputed that the police made the seizure without warrant and, therefore, the onus is on the Crown to show that itwas reasonable. A search or seizure will be reasonable if it is “authorized by law, if the law itself is reasonable and if the manner inwhich the search [or seizure] was carried out is reasonable.” See R v Collins, (SCC), [1987] 1 SCR 265 at para 23. [17] As I earlier stated, in reaching her conclusion that section 489(2) did not authorize the seizure, the

summary convictionappeal judge relied on the finding of the trial judge that the police were not lawfully in the residence at the time the guns were seized. Inmaking that finding, the trial judge quoted the following passage written by Lamer CJC in Godoy relating to police entry into a residencein response to a 911 call (at para 22): I emphasize that the intrusion must be limited to the protection of life and safety.

The police have authority to investigate the 911 calland, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required.The police authority for being on private property in response to a 911 call ends there. They do not have further permission to searchpremises or otherwise intrude on a resident’s privacy or property. [18] Unfortunately, both the trial judge and the

summary conviction appeal judge failed to recognize that, in Godoy, LamerCJC also stated that he refrained “from pronouncing on whether an entry in response to a 911 call affects the applicability of the ‘plainview’ doctrine” (ibid). [19] In R v Frieburg (TL), 2013 MBCA 40 at para 63, Beard JA quoted with approval a “concise

summary” of the plainview doctrine found in R v Jones, 2011 ONCA 632 (at para 56): The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfullyauthorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power issubject to the following restraints, however: (

i) The officer must be lawfully in the place where the search is being conducted (“lawfully positioned”, in the language of theauthorities); (ii) The nature of the evidence must be immediately apparent as constituting a criminal offence; (iii) The evidence must have been discovered inadvertently; (iv) The plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does notpermit an exploratory search to find other evidence of other crimes. [emphasis added] [20] In Frieburg, Beard JA noted that

section 489 of the Code and the power to seize conferred by the plain view doctrineare not co-extensive. She concluded that

section 489 is a self-contained provision, separate from the plain view doctrine, and thereforedid not require the police to meet all of the requirements of that doctrine. See paras 66-67.

[21] In R v RMJT, 2014 MBCA 36, I applied Frieburg to a situation where police, who were lawfully in a residence with theconsent of one of its residents, seized a computer from a shared area of that residence.

In that case, I noted that, unlike the plain viewdoctrine, the application of section 489(2) did not require that the evidence be discovered and seized in the course of a search regardingan unrelated investigation. [22] In my view, Godoy should not be broadly interpreted to apply to the seizure of items made pursuant to section 489(2) ofthe Code in situations where the impugned evidence is readily apparent upon the lawful entry into a residence. I would thereforeconclude that the trial judge erred in his application of Godoy to the facts of this case. Further, the

summary conviction appeal judgeerred to the extent that she relied on the trial judge’s application of the principles in Godoy in her analysis of section 489(2) to concludethat police were not lawfully in the residence at the time the firearms were seized. [23] The trial judge found that the original reason for police entry into the residence was to ensure the safety of the children. The facts of this case support that finding.

This was a domestic dispute where all three adults had been consuming alcohol and the policewere advised that there were unsecured guns “laying around the residence” where young children were present. There is no seriousdispute that, in order to ensure the safety of the children, the police had the authority to enter the residence for the valid purpose ofpreserving the public peace, preventing crime and protecting life and property.

See Dedman v The Queen, (SCC),[1985] 2 SCR 2 at 11-12; Godoy at paras 14-22; R v Alexson (TL), 2015 MBCA 5 at paras 15-17; and sections 18(2), 24(1) and 25 of ThePolice Services Act, CCSM c P94.5. [24] The

summary conviction appeal judge distinguished RMJT and the applicability of section 489(2) on the basis that, inthat case, the police were lawfully in the accused’s residence by virtue of having obtained the consent of one of its occupants when theevidence was seized. In my view, she erred in this regard. In this case, neither consent nor a warrant was required.

As I explainedabove, the police were lawfully in the residence to ensure the safety of the children at the time the firearms were observed. [25] The uncontroverted evidence of the seizing officer was that, as soon as he entered the residence, he observed a firearmin an open case on the floor, a closed firearm case on the floor, a firearm on top of a cabinet and a firearm on top of a fridge beside a boxof ammunition. Contrary to the finding of the trial judge, the observations by the seizing officer and the decision to seize the impugneditems did not change the fact that he was lawfully in the residence.

It was at the moment that the seizing officer observed the unlawfullystored, unsecured firearms, that the authority to seize that evidence crystalized pursuant to section 489(2)(

c) of the Code. [26] In conclusion, the four firearms that formed the subject matter of the charges were lawfully seized pursuant to section489(2)(

c) of the Code. No other issue having been raised regarding the legality of the legislation or the scope of any search, the seizurewas not unreasonable and the firearms constituted admissible evidence at the accused’s trial. In his testimony, the accused acceptedresponsibility for the placement of the guns in the house and the fact that they were not lawfully or securely stored in accordance with thelegislation.

Thus, his guilt not otherwise being in issue, I would find him guilty of the four offences. [27] For all of the above reasons, I would allow the Crown appeal, admit the seized guns as evidence, enter convictions onthe four offences and remit the matter back to the trial judge for sentencing. JA I agree: JA I agree: JA