R. v. Chuhaniuk, 2010 BCCA 403
[59] In my view, when a warrant has been issued to search one place or premises on a particular property, the police, in the course of executing that warrant, have the authority, at common law, to inspect and enter other places or premises on that property to the extent reasonably necessary to protect themselves and others. However, they cannot take such action as a matter of course, or on the basis of generalized, non-specific, concerns. Before acting, they must have a reasonable basis for believing there is a possibility that their safety, or the safety of others, is at risk.
[60] This view is consistent with the approach that has been taken with respect to the authority of the police to conduct searches incidental to investigative detentions. In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court of Canada, applying the test set out in R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), held that the police have a common-law power to detain a person for investigation. The Court also held that, in certain circumstances, the police can conduct a limited protective search of a detainee. In discussing this common-law search power, Mr. Justice Iacobucci stated:
[40] The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. ... The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.
[Emphasis added.]
[61] Duong is also germane. In that case, Madam Justice Rowles said this in the course of upholding the search of a person detained for investigation:
[54] There is no dispute that police officers are entitled to take reasonable steps to minimize the risks they face in the performance of their duties: Ferris [(1998), 1998 CanLII 5926 (BC CA), 126 C.C.C. (3d) 298 (B.C.C.A.)] at para. 54. Where a police officer has reason to believe that his or her safety is at risk in the course of an investigative detention, the officer is authorized to conduct a protective pat-down search: Mann, at para. 43. A “frisk search” for weapons is a relatively brief and non-intrusive procedure: Mann, at para. 42. Moreover, the reasonableness of a police officer’s decision to conduct a search for officer safety cannot be judged by a standard that would second-guess the officer’s actions with perfect hindsight: Ferris, at paras. 58, 71; R. v. Willis (2003), 2003 MBCA 54 (CanLII), 174 C.C.C. (3d) 406, at para. 36 (Man. C.A.). The “police perception of reasonable necessity depends very much on the particular circumstances in which the police officer finds himself”: Ferris, at para. 71.
[Emphasis added.]
[62] Also instructive is the approach that has been taken with respect to unannounced (i.e., no knock) forced entry into a dwelling-house in the execution of a search warrant. This Court dealt with this question in R. v. Lau, 2003 BCCA 337, 175 C.C.C. (3d) 273, and R. v. Schedel, 2003 BCCA 364, 175 C.C.C. (3d) 193. Although the Court did not question that a warrant could be executed in this way in response to concerns for the safety of the police and the occupants of the premises, it held that the decision to take such action must be based on an individualized assessment of the circumstances: Lau at para. 39. The need for such an individualized assessment was recently reiterated in R. v. Cornell, 2010 SCC 31, wherein Mr. Justice Cromwell stated:
[20] Where the police depart from [the knock and announce] approach, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications: see R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at pp. 89-91; R. v. Gimson, 1991 CanLII 24 (SCC), [1991] 3 S.C.R. 692, at p. 693. I would underline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”: p. 90. I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present”: para. 24.
[Emphasis added.]
[63] In R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, the Supreme Court of Canada held that the police, in responding to a 9-1-1 call that handguns were being openly displayed in a parking lot, acted within their common-law powers in setting up a roadblock to stop and check all vehicles leaving that lot. In that case, Madam Justice Abella (at para. 22) adopted the following statement by Mr. Justice Doherty of the Court of Appeal for Ontario in the judgment appealed from:
Where the prosecution relies on the ancillary power doctrine to justify police conduct that interferes with individual liberties, a two-pronged case-specific inquiry must be made. First, the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.) at 23-24. [Emphasis deleted.]
[64] In addition, Abella J. stated:
25 In R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 18, this Court accepted the following test developed by Doherty J.A. in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 499, for assessing whether police interference with individual liberties was justified:
[T]he justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.
26 In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual’s liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public. It was expressed by Le Dain J. in Dedman, as follows:
The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35]
[65] There can be no question that police officers are acting in the exercise of a lawful duty when they execute a search warrant. The critical issue is whether conducting what I would call “security checks” of places or premises on the same property as the place or premises covered by a warrant is a justifiable use of a power associated with that duty. In my view it is. As Rowles J.A. stated in Duong, “police officers are entitled to take reasonable steps to minimize the risks they face in the performance of their duties”. Accordingly, if police officers have reasonable grounds to be concerned that there is a possibility that someone who poses an immediate risk to their safety or the safety of others is in such other place or premises, then they can take reasonable steps to minimize that risk.
[66] An example of when a security check will be justified is found in R. v. Johnson, 2005 BCPC 432. In that case, the police sought a warrant to search a residence and outbuildings in connection with a marihuana grow-operation investigation. However, a warrant to search only the residence was granted. On searching the residence, the police, after arresting the occupants, found evidence of a grow-operation and a loaded semi-automatic weapon. Being concerned for their safety, the police then entered an outbuilding near the residence in which a television or radio was playing. That search was upheld on the basis that the situation in which the police found themselves “create[d] exigent circumstances for the need to sweep the out building for officer safety”: para. 22.
[67] I now wish to deal with the Crown’s submission that the “exigent circumstances” exception in s. 11(7) of the CDSA provided Corporal Lynch and Corporal Osborne with authority to search the outbuildings. As I will explain, in my opinion, it did not.
[68] Section 11(7) is one of many “exigent circumstances” exceptions to warrant requirements Parliament has enacted. Those legislative changes appear to have been made, at least in part, in response to the decision in R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, wherein the Supreme Court of Canada doubted the existence of a common-law power to enter a dwelling-house without a warrant to prevent the destruction of evidence and suggested that the matter be addressed by legislation: paras. 152, 153. Although many statutes now contain such provisions, it is sufficient for present purposes to mention only two, both of which are in the Criminal Code:
s. 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.
...
s. 487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
Section 487(1) is one of the most commonly used search warrant provisions in the Criminal Code. Such warrants are available to assist in the investigation of any federal offence even when a warrant can be obtained under another statute: R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at 246-249. Section 492.1(1) provides for the granting of warrants to use electronic tracking devices.
[69] In Grant (1993), Mr. Justice Sopinka, in discussing warrantless searches under s. 10 of the now repealed Narcotic Control Act, R.S.C. 1985, c. N-1, said this (at 19):
Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed.
In R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, he said this, in discussing exigent circumstances in the context of an entry into a dwelling-house to effect a warrantless arrest (at 53):
According to James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances arise usually where immediate action is required for the safety of the police or to secure and protect evidence of a crime.
[70] Clearly, when police officers have the grounds necessary to obtain a warrant and a reasonable basis to believe that the evidence being sought will be lost or destroyed before a warrant can be obtained, they can act without a warrant. This is what occurred in R. v. McCormack, 2000 BCCA 57, 143 C.C.C. (3d) 260, where officers lawfully searched an apartment for cocaine pursuant to s. 11(7) of the CDSA, on the basis of a reasonable belief that there was someone inside who could dispose of the drugs before a warrant could be obtained: paras. 13-29.
[71] Similarly, as in R. v. Narayan, 2007 BCCA 429, 245 B.C.A.C. 243, there will be situations where safety concerns will satisfy an exigent circumstances exception to a warrant requirement. In that case, the police responded to a 9-1-1 call from Mr. Narayan arising out of an altercation with his girlfriend. The officers offered to drive Mr. Narayan home and he placed two guitar cases in the police vehicle. Based on information provided by the girlfriend, the police had reasonable grounds to believe there was a loaded handgun in one of those cases. They searched the cases and seized the handgun. In finding that the search was authorized under s. 117.02(1)(b) of the Criminal Code, Chief Justice Finch stated:
[15] Here, the officers were involved in a spontaneous investigation in the early morning hours in a residential area. They were confronted with an immediate need to remove the danger posed by the likelihood a loaded handgun was in one of the guitar cases. There was no need for further investigation before they acted to alleviate their concerns for the need to protect their own safety.
[72] While safety concerns can trigger a statutory exigent circumstances exception to a warrant requirement, it does not follow that such concerns will always satisfy those exceptions. Those concerns must make obtaining a warrant impracticable. Clearly, this was the situation in Narayan, where prompt action was necessary to remove the potential immediate risk created by the presence of a loaded weapon.
[73] However, I do not accept that officer-safety concerns that arise only upon, and as a result of, the commencement of a search are sufficient to justify that search being conducted without a warrant. In this regard, I find apposite the following from the judgment of Mr. Justice La Forest, in Silveira (in para. 87):
To begin with, I do not quite see how officers who enter a house without a warrant can be in a better position to ensure their safety than if they enter with a warrant. If officers are legitimately in danger from firearms in a dwelling-house, a pre-warrant entrance will not advance their security. Moreover, many serious crimes, by their very nature, involve firearms. Does that mean that a search warrant can be avoided every time it is thought firearms may be involved? Surely not.
The issue in Silveira was the admission of evidence under s. 24(2) of the Charter. All but one of the seven judges dealt with the case on the basis of the Crown’s concession that the warrantless entry into Mr. Silveira’s residence was unlawful and a violation of his rights under s. 8 of the Charter. The Court ruled, 5:2, in favour of admitting the evidence. Mr. Justice La Forest was in dissent. However, there is nothing in the majority judgment of Mr. Justice Cory that takes issue with the remarks I have just quoted.
[74] Returning now to what occurred at the McCoubrey Road property, I am of the view that the security checks of the outbuildings were, from the outset, unlawful and violated s. 8 of the Charter. Although, as found by the trial judge (at para. 121), “the police honestly believed that they needed to conduct a cursory search of [the outbuildings] to ensure their safety”, there is nothing in the record that supports a finding that those concerns were objectively reasonable. As the trial judge noted (in para. 94), there was no information to suggest that Mr. and Mrs. Chuhaniuk were violent or in possession of weapons or that they associated with known criminals. Accordingly, the common-law power to minimize any risks associated with the execution of a warrant was not engaged.
[75] As for s. 11(7) of the CDSA, it does not apply with respect to the shed and the garage for two reasons. The first is that Corporal Lynch began his security checks of those buildings before he had reasonable grounds to believe they contained drugs or evidence of drug-related offences. Accordingly, the first requirement of that provision—reasonable grounds to obtain a warrant—was not met. As for the second requirement—the impracticability of obtaining a warrant—even after Corporal Lynch detected the odour of marihuana outside the shed and garage, there was nothing to indicate that any evidence in those buildings could be lost or destroyed before a warrant could be obtained.
[76] In so far as the summer house is concerned, Corporal Osborne similarly did not have reasonable grounds to obtain a warrant when he began his security check of that building. Those grounds only came to light after he entered the premises.
[77] In conclusion, I would adopt what was said with respect to security checks in R. v. Store, 2008 BCPC 259. In that case, the police obtained a warrant to search a mobile home and a barn located on rural property for evidence of production of marihuana. On entering the property, they located and detained Mr. Store outside a blue building that was his residence. Mr. Store told the police that there was no one inside his residence and that they could not enter it unless they had a warrant authorizing them to do so. The police, however, entered the residence for “safety reasons” and discovered a grow-operation. In holding that Mr. Store’s s. 8 Charter rights had been infringed, Judge R.R. Smith stated:
[31] Officer safety is often of concern when dealing with marihuana grow operations. The Crown need not prove a probability of potential violence to investigators, but there must be reasonable grounds for the possibility of such violence, before it can be found that exigent circumstances exist for officer safety reasons to search the blue residence.
