Reported as: 2018 SKPC 63
Docket Number: 991045607|991052592 , PC18058
Court: Provincial Court
- Constitutional Law � Charter of Rights, Section 8, Section 24(2)
Digest: The accused was arrested by the police for being unlawfully at large contrary to s. 145(1)(b) of the Criminal Code. A Canada-wide warrant had been issued and the police received a tip that he might be staying at a certain address. While the building was under surveillance, they saw the accused knock and be given entry to a ground floor apartment. The accused was wearing a backpack. The officers announced their presence at the door but received no response. The police obtained a Feeney warrant and the accused opened the apartment door. He was arrested and taken to a police car. An officer who had known the accused for a long time and knew of his criminal activities testified that he went into the apartment to check to see whether there were other individuals in it because he knew from experience that it was not uncommon for people to be held against their will if there was potential gang involvement. He was also concerned that other individuals hiding in the apartment could be a danger to the police. While he was in one of the bedrooms, he noticed the accused�s backpack on the floor of a closet. He opened it and found a semi-automatic rifle and ammunition which led to the laying of gun charges against the accused. The defence brought a Charter application alleging breaches of s. 8 on the basis that the search and seizure was unreasonable and sought exclusion of all the evidence. The issues were: 1) after the execution of the Feeney warrant, did the officer have any legal authority to enter and search the apartment; and 2) if so, was the seizure and search of the backpack appropriate.
HELD: The Charter application was granted and the evidence of the search was excluded. The court found with respect to each issue that: 1) the general requirement for the police to preserve the peace allowed the officer to enter the premises for the limited purpose of ensuring that there were no other citizens potentially at risk; and 2) the seizure and search of the backpack violated s. 8 of the Charter. It was not incidental to the arrest of the accused. There was no evidence that the accused might have been armed when he entered the...