R. v. Schmidt (F.L.) et al., (2010) 496 A.R. 129 (QB)

• Judge: Tilleman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 20, 2010
• Citations: (2010), 496 A.R. 129 (QB);2010 ABQB 349

R. v. Schmidt (F.L.) (2010), 496 A.R. 129 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JN.082

Her Majesty the Queen (Crown) v. Faye Lana Schmidt (accused) and Daniel Gregory Muzyka (accused)

(071125595Q4; 2010 ABQB 349)

Indexed As: R. v. Schmidt (F.L.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Tilleman, J.

May 20, 2010.

Summary:

The accused were charged with drug offences. At issue was whether the accused's Charter rights were violated when police performed a warrantless entry, warrantless search and several hours later, a warranted search on the accused's residence containing cocaine and cash.

The Alberta Court of Queen's Bench found a breach of s. 8 of the Charter and ordered that the evidence seized be excluded.

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - [See first Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police were investigating Thomas for suspicion of trafficking cocaine - On September 10, 2007, police decided to initiate a take-down of Thomas in a public parking lot - Thomas and his friend stated that they were meeting to use cash to go to Southview Drive apartment complex to "reload" drugs - The police then crystallized their opinion that exigent circumstances existed to search, or at least secure, the accused's (Schmidt and Muzyka) residence, which was on Southview Drive - They gained entry to the complex and knocked on the accused's door - Muzyka answered, dressed only in his underwear - The police informed Muzyka that there were exigent circumstances to search the apartment and they would have to leave - Muzyka granted them access to the apartment - Schmidt appeared - The police searched Schmidt and discovered cocaine on her person - Muzyka dressed and was brought to the police station where he was strip searched - No cocaine was found on him - While securing the apartment, the police seized drugs, cash, scales and ledgers - The accused were charged with drug offences - The accused alleged a breach of their s. 8 Charter right to be free of unreasonable search and seizure - At issue was, inter alia, whether the police received consent to enter into the apartment - The Alberta Court of Queen's Bench found that the police had not received consent - The accused could not understand enough to consent at the door unless the police explained what exigent meant and offered the residents enough time to let police in, or close the door and wait for the warrant - The police formed an intent to enter the apartment unit prior to making any request to do so - On these facts the police conduct negated or vitiated Muzyka's freedom to chose whether or not to allow them entry into the apartment in order to pursue the course of conduct they had indicated in making the request - See paragraphs 56 to 59.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police were investigating Thomas for suspicion of trafficking cocaine - On September 10, 2007, police decided to initiate a take-down of Thomas in a public parking lot - Thomas and his friend stated that they were meeting to use cash to go to Southview Drive apartment complex to "reload" drugs - The police then crystallized their opinion that exigent circumstances existed to search, or at least secure, the accused's (Schmidt and Muzyka) residence, which was on Southview Drive - They gained entry to the complex and knocked on the accused's door - Muzyka answered, dressed only in his underwear - The police informed Muzyka that there were exigent circumstances to search the apartment and they would have to leave - Muzyka granted them access to the apartment - Schmidt appeared - The police searched Schmidt and discovered cocaine on her person - Muzyka dressed and was brought to the police station where he was strip searched - No cocaine was found on him - While securing the apartment, the police seized drugs, cash, scales and ledgers - The accused were charged with drug offences - The Alberta Court of Queen's Bench held that the warrantless search violated the accused's s. 8 Charter rights - The search was not reasonable - There was no reliable evidence linking the activities of Thomas to the accused's residence - Further, there were no exigent circumstances necessitating an immediate and warrantless entry into the dwelling - See paragraphs 60 to 87.

Civil Rights - Topic 1653.2

Property - Search and seizure - Warrantless search and seizure - General - [See both Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police were investigating Thomas for suspicion of trafficking cocaine - On September 10, 2007, police decided to initiate a take-down of Thomas in a public parking lot - Thomas and his friend stated that they were meeting to use cash to go to Southview Drive apartment complex to "reload" drugs - The police then crystallized their opinion that exigent circumstances existed to search, or at least secure, the accused's (Schmidt and Muzyka) residence, which was on Southview Drive - They gained entry to the complex and knocked on the accused's door - Muzyka answered, dressed only in his underwear - The police informed Muzyka that there were exigent circumstances to search the apartment and they would have to leave - Muzyka granted them access to the apartment - Schmidt appeared - The police searched Schmidt and discovered cocaine on her person - Muzyka dressed and was brought to the police station where he was strip searched - No cocaine was found on him - While securing the apartment, the police seized drugs, cash, scales and ledgers - The accused were charged with drug offences - The Alberta Court of Queen's Bench held that the warrantless search violated the accused's s. 8 Charter rights - On their own evidence the police either did not think about it or they had no reasonable and probable grounds for the arrest and there was no exigency on the basis of the police hunches - Further to that, the securing of the residence under beds and in closets ended up as a search of the residence before the warrant arrived - Whatever autonomies and privileges the accused enjoyed in their residence before the police entered, ended when they were both in jail within the one-half hour or soon thereafter - This was severe and favoured exclusion - It was fundamental to an untarnished society that its justice system allowed evidence to proceed to trial, but not in the presence of key search warrant defects - In balancing s. 24(2) of the Charter, the court took a "hard look" at other ways in which any other evidence, not tainted by the first search could be admitted - Absent the evidence obtained during the warrantless entry into the residence, there were insufficient grounds upon which to execute a search warrant - The court excluded the evidence - See paragraphs 89 to 114.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 46].

R. v. Krall (A.J.) (2003), 341 A.R. 311; 2003 ABPC 171, refd to. [para. 46].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 46].

R. v. McCormack (R.D.) (2000), 133 B.C.A.C. 44; 217 W.A.C. 44; 143 C.C.C.(3d) 260; 2000 BCCA 57, refd to. [para. 46].

R. v. Hale-Matthews (J.) (2002), 323 A.R. 1; 2002 ABPC 26, refd to. [para. 46].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 46].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 46].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 46].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 309 D.L.R.(4th) 87; 2009 SCC 34, refd to. [para. 46].

R. v. Roberts (E.) (1992), 125 N.B.R.(2d) 107; 316 A.P.R. 107 (T.D.), refd to. [para. 46].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161 refd to. [para. 46].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 46].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, dist. [para. 47].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109; 1998 ABCA 418, refd to. [para. 56].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 60].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 60].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 64].

R. v. Castro (J.F.) et al. (2001), 157 B.C.A.C. 97; 256 W.A.C. 97; 157 C.C.C.(3d) 255; 2001 BCCA 507, leave to appeal dismissed (2002), 292 N.R. 400; 173 B.C.A.C. 160; 283 W.A.C. 160, refd to. [para. 66].

R. v. Damianakos (W.) (1997), 126 Man.R.(2d) 81; 167 W.A.C. 81; 121 C.C.C.(3d) 293 (C.A.), refd to. [para. 66].

R. v. Van Puyenbroek (Y.) (2007), 231 O.A.C. 146; 54 C.R.(6th) 374 (C.A.), refd to. [para. 67].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 73].

R. v. Gomboc (D.J.) (2009), 460 A.R. 150; 462 W.A.C. 150; 2009 ABCA 276, leave to appeal allowed (2010), 408 N.R. 1; 490 A.R. 327; 497 W.A.C. 327; 2010 SCC 55, refd to. [para. 85, footnote 4].

R. v. Macooh, [1993] 2 S.C.R. 802; 155 N.R. 44; 141 A.R. 321; 46 W.A.C. 321, refd to. [para. 86].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 94].

Katz v. United States (1967), 389 US 347 (Sup. Ct.), refd to. [para. 97].

Entick v. Carrington (1765), 19 State Tr. 1029; 1 Wils. KB 275, refd to. [para. 97].

Semayne's Case, [1558-1774] All E.R. Rep. 62, refd to. [para. 97, footnote 7].

R. v. U.P.M. (2010), 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 104].

R. v. Koppang (D.P.) (2004), 357 A.R. 383; 334 W.A.C. 383; 2004 ABCA 334, leave to appeal denied [2005] 1 S.C.R. xi; 343 N.R. 198; 380 A.R. 244; 363 W.A.C. 244, refd to. [para. 107].

Counsel:

Ron Hill, for the Federal Crown;

J.A. Oman, for the accused, Faye Lana Schmidt;

Stewart R. Kennedy, for the accused, Daniel Gregory Muzyka.

This case was heard on March 8-10, 2010, by Tilleman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of judgment on May 20, 2010.