R. v. Baxter (M.A.) et al., (2007) 423 A.R. 272 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 30, 2007
• Citations: (2007), 423 A.R. 272 (PC);2007 ABPC 242

R. v. Baxter (M.A.) (2007), 423 A.R. 272 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. SE.010

Her Majesty The Queen v. Martin Anton Baxter and Michael Thomas Doyle (051370302P101001; P101002; P102001; P102002; 2007 ABPC 242)

Indexed As: R. v. Baxter (M.A.) et al.

Alberta Provincial Court

Semenuk, P.C.J.

August 30, 2007.

Summary:

Firefighters responding to a suspected residential chimney fire entered the unoccupied home through a window. There was minimal smoke coming from an improperly vented fireplace insert. Upon searching the home to determine if anyone was present, a marijuana grow operation was discovered in the basement. The firefighter informed a police officer on the scene, who then entered the home and searched the basement. A search warrant was subsequently obtained. The accused were charged with possession of marijuana for the purpose of trafficking and production of marijuana. The accused submitted that they were subjected to an unreasonable search and seizure contrary to s. 8 of the Charter and that the evidence obtained should be excluded under s. 24(2).

The Alberta Provincial Court held that the initial entry by firefighters, and the subsequent search of the home, was lawful in the execution of their duties as firefighters, and not as state agents. There was no violation of s. 8. The police officer's initial entry and subsequent search, in non-exigent circumstances, constituted an unreasonable search and seizure. However, after excising the information based on what the officer did and saw, the remaining information, as amplified on the review, was sufficient to justify the issuance of a search warrant. Accordingly, the search warrant was valid and the evidence of the marijuana grow operation was admissible.

Civil Rights - Topic 1556

Property - Land - Search and seizure of private residence - Firefighters responding to a suspected residential chimney fire entered the unoccupied home through a window - There was minimal smoke coming from an improperly vented fireplace insert - Upon searching the home to determine if anyone was present, a marijuana grow operation was discovered in the basement - The firefighter informed a police officer on the scene, who then entered the home and searched the basement - A search warrant was subsequently obtained - The accused were charged with possession of marijuana for the purpose of trafficking and production of marijuana - The accused submitted that they were subjected to an unreasonable search and seizure contrary to s. 8 of the Charter and that the evidence obtained should be excluded under s. 24(2) - The Alberta Provincial Court held that the initial entry by firefighters, and the subsequent search of the home, was lawful in the execution of their duties as firefighters, and not as state agents - There was no violation of s. 8 - The police officer's initial entry and subsequent search, in non-exigent circumstances, constituted an unreasonable search and seizure - However, after excising the information based on what the officer did and saw, the remaining information, as amplified on the review, was sufficient to justify the issuance of a search warrant - Accordingly, the search warrant was valid and the evidence of the marijuana grow operation was admissible.

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - [See Civil Rights - Topic 1556 ].

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See Civil Rights - Topic 1556 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1556 ].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1556 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Civil Rights - Topic 1556 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See Civil Rights - Topic 1556 ].

Police - Topic 3186

Powers - Search - Private property - [See Civil Rights - Topic 1556 ].

Cases Noticed:

R. v. Kicovic (N.) (2004), 377 A.R. 176; 2004 ABPC 190, refd to. [para. 68].

R. v. Huynh (H.), [2005] O.T.C. 565; 32 C.R.(6th) 142 (Sup. Ct.), dist. [paras. 70, 84].

R. v. Jarvis (W.J.) (2002), 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 169 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 72].

Southam Inc. v. Hunter (1984), 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 78].

R. v. Collins (1987), 74 N.R. 276; 56 C.R.(3d) 193 (S.C.C.), refd to. [para. 80].

R. v. Godoy (V.) (1999), 235 N.R. 134; 117 O.A.C. 127; 131 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 82].

R. v. Hern (1994), 149 A.R. 75; 63 W.A.C. 75 (C.A.), refd to. [para. 84].

R. v. Waldron (T.V.) (2003), 185 B.C.A.C. 310; 303 W.A.C. 310; 2003 BCCA 442, dist. [para. 84].

R. v. Hill (W.) (2006), 233 B.C.A.C. 120; 386 W.A.C. 120; 214 C.C.C.(3d) 492 (C.A.), dist. [para. 84].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109; 126 C.C.C.(3d) 62 (C.A.), refd to. [para. 84].

R. v. Knee (T.C.) (2001), 285 A.R. 64; 2001 ABPC 23, refd to. [para. 84].

R. v. Tymensen (A.W.) (2002), 331 A.R. 15; 2002 ABPC 164, refd to. [para. 84].

R. v. Krall (A.J.) (2003), 341 A.R. 311; 2003 ABPC 171, refd to. [para. 84].

R. v. Marx (K.H.) (2005), 373 A.R. 169; 2005 ABPC 18, refd to. [para. 84].

R. v. Plant (R.S.) (1993), 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 84 C.C.C.(3d) 203 (S.C.C.), refd to. [para. 90].

R. v. Araujo (A.) (2000), 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257 (S.C.C.), refd to. [para. 91].

R. v. Garofoli et al. (1990), 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 80 C.R.(3d) 317; 60 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 95].

Counsel:

E. Funk, for the Crown;

C. Stewart, for the accused, Baxter;

K. Molle, for the accused, Doyle.

This matter was heard at Calgary, Alberta, before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on August 30, 2007.