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. - --- MAP posted-by: Jay Bergstrom