Pubdate: Fri, 13 Nov 2015
Source: Lawyers Weekly, The (Canada)
Copyright: 2015 LexisNexis Canada Inc.
Contact: http://www.lawtimesnews.com/97-contacts/7-glenn-kauth
Website: http://www.lawyersweekly.ca/
Details: http://www.mapinc.org/media/4556
Author: Michael Benedict
Page: 1

WARRANTLESS SEARCH UPHELD IN DRUG CASE

The B.C. Court of Appeal has upheld a warrantless home search in a 
drug case, raising concerns among some legal observers that the 
practice is on the increase.

"If police are relying more heavily on exigent circumstances to 
justify warrantless searches of people's homes, the time may be right 
for the Supreme Court to look at this matter," said Toronto criminal 
appeals lawyer Enzo Rondinelli, an adjunct professor at Osgoode Hall 
Law School.

Shae Alexander Hunter of Nanaimo, B.C., was convicted of heroin, 
cocaine and methamphetamine trafficking after an authorized search 
was conducted of his home. However, before the warrant was issued, 
police conducted a warrantless search to secure the home against the 
possible destruction of any evidence.

In R v. Hunter [2015] B.C.J. No. 2242, the provincial high court on 
Oct. 19 rejected Hunter's appeal grounds that there were no exigent 
circumstances justifying the warrantless search, and that even if 
such circumstances did exist, they were created by the police.

The searches were triggered by Philip Pham's arrest as he was about 
to board a ferry from Nanaimo to Vancouver. Pham had been under 
surveillance and was seen leaving Hunter's home just before going to 
the terminal. Upon his arrest, police found he was carrying more than 
$50,000 and other evidence pointing to Hunter's involvement in a drug deal.

Afraid that Pham or an associate who may have witnessed his arrest 
might tip off Hunter or the people in his home to destroy evidence, 
police entered the residence to secure it. At the same time, they 
applied for a search warrant that was granted shortly thereafter. As 
a result, police found the evidence that led to Hunter's conviction.

Under the Charter, Canadians are protected against "unreasonable 
search and seizure" - also a common law right that dates back 
centuries. Typically, the only exceptions are when police suspect 
imminent danger such as the result of a 911 call or are in hot 
pursuit of a suspected criminal. However, another exception is 
allowed under the Controlled Drugs and Substances Act that authorizes 
police to conduct a warrantless search "if the conditions for 
obtaining a warrant exist but by reason of exigent circumstances it 
would be impracticable to obtain one."

Writing for the B.C. high court, Justice Peter Willcock found that 
the trial judge on the facts "rightly found there were such exigent 
circumstances in this case." Willcock added: "It was not necessary 
for the police to identify a specific individual who might have 
observed or soon became aware of Mr. Pham's arrest, or to determine 
who remained in the house, in order to have a well grounded belief 
that evidence might be destroyed if they did not act quickly to secure it."

As for the claim that the police created the exigent circumstances, 
Willcock said the trial judge "properly" rejected that argument.

"[Pham's] apparent plan to board the ferry was found by the trial 
judge to have forced the hand of the police...[a finding] with which 
we ought not to interfere."

For Rondinelli, who is also involved in an Ontario warrantless search 
case, "it seems the police are turning to these searches more and 
more." He added: "I'm not a big fan of freezing a home based on 
someone arrested off site. What happens if there's a warrantless 
search to secure a home and then there is no follow-up warrant? How 
long can the police contain the home?"

Micah Rankin of Thompson Rivers Law School said the B.C. judgment is 
"part of a pattern in which the courts won't second-guess police 
decisions in real-time situations." However, he added that while the 
appeal court had no reason to overturn the trial judge's findings of 
fact, those findings were "somewhat speculative."

"There was no evidence that a call was made," said Rankin. "The 
exigent circumstances threshold might have been met, but perhaps a 
stricter test is called for." Toronto criminal lawyer Andrew 
Menchynski of Presser Barristers warned police may use this decision 
to justify warrantless searches in all cases where there is a public arrest.

"Pham could have been followed and arrested in a private place after 
he arrived in Vancouver," said Menchynski. "Then, a warrant could 
have been obtained in the normal way."

Nader Hasan of Stockwoods in Toronto questioned whether the Crown 
properly met the second test of the legislation - that it was 
"impractical" for the police to obtain a warrant in the situation.

"It is fairly uncontroversial that the circumstances in this case 
existed for a warrant, but in the age of telewarrants the Crown 
should have been required to show why the police had to rely on the 
exigent circumstances exception," said Hasan.

Hunter's lawyer did not respond to interview requests.
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