R. v. Wu (J.F.), 2013 ABQB 675

• Judge: Nation, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 25, 2013
• Citations: 2013 ABQB 675;(2013), 573 A.R. 163 (QB)

R. v. Wu (J.F.) (2013), 573 A.R. 163 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.044

Her Majesty the Queen (Crown/respondent) v. Jie Fang Wu (accused/applicant)

(110398112Q1; 2013 ABQB 675)

Indexed As: R. v. Wu (J.F.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Nation, J.

October 25, 2013.

Summary:

The police responded to a neighbour's 911 domestic disturbance call at a residence. The accused, her child and two adults were present. The accused advised that she had an argument with her boyfriend, but he had left and that everything was fine. The accused consented to the officers entering the residence to ensure everyone was fine. One officer entered, then searched room by room until she felt uncomfortable because one of the adults was following her and she noted a large venting coil that was consistent with a marijuana grow operation. She returned outside and both officers returned into the residence to finish "clearing" it. The officers smelled growing marijuana and cut marijuana, but found nothing in their search. They left the residence. Based on the size of the house from outside, the officers believed that they had not searched the entire house to "clear" it. They contacted a superior officer and advised that they had not cleared the entire house and that they suspected it housed a marijuana grow operation. The accused and child had left. The elderly adults were still in the house. The officers arrested them for drug offences and searched the rest of the house, discovering the marijuana grow operation. The accused, charged with drug offences, applied under s. 24(2) of the Charter to exclude the evidence of the marijuana and growing equipment found on the ground that the police had conducted an unreasonable search and seizure (s. 8).

The Alberta Court of Queen's Bench held that the first two warrantless entries into the residence were justified and reasonable based on the 911 call and the need to "clear" the residence to ensure that everything was okay. However, the third entry constituted an unreasonable search and seizure. The court excluded the evidence to avoid bringing the administration of justice into disrepute.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The police responded to a neighbour's 911 domestic disturbance call at a residence - The accused, her child and two adults were present - The accused advised that she had an argument with her boyfriend, but he had left and that everything was fine - The accused consented to the officers entering the residence to ensure everyone was fine - One officer entered, then searched room by room until she felt uncomfortable because one of the adults was following her and she noted a large venting coil that was consistent with a marijuana grow operation - She returned outside and both officers returned into the residence to finish "clearing" it - The officers smelled growing marijuana and cut marijuana, but found nothing - They left the residence - Based on the size of the house from the outside, the officers believed that they had not searched the entire house to "clear" it - They contacted a superior officer and advised that they had not cleared the entire house and they suspected it housed a marijuana grow operation - The accused and child had left - The elderly adults were still in the house - The officers arrested them for drug offences and searched the rest of the house, discovering the marijuana grow operation - The accused, charged with drug offences, applied under s. 24(2) of the Charter to exclude the evidence of the marijuana and growing equipment found on the ground that the police had conducted an unreasonable search and seizure (s. 8) - The Alberta Court of Queen's Bench held that the first two warrantless entries into the residence were justified and reasonable based on the 911 call and the need to "clear" the residence to ensure that everything was okay - However, the third entry constituted an unreasonable search and seizure - Ninety minutes had passed since they arrived - The accused and child were gone - The adults were arrested - There was no reason to believe anyone remained in jeopardy - The focus was now clearly on the drug investigation - It was unreasonable to re-enter to finish "clearing" the residence - Given the high expectation of privacy in a private residence, considered along side all of the other Grant factors, the court held that the evidence had to be excluded to avoid bringing the administration of justice into disrepute.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Police - Topic 2209

Duties - General duties - Duty to take preventive actions and investigate - [See Civil Rights - Topic 1646 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See Civil Rights - Topic 1646 ].

Police - Topic 3186

Powers - Search - Private property - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 4].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 38 D.L.R.(4th) 508, refd to. [para. 4].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127; 168 D.L.R.(4th) 257, refd to. [para. 7].

R. v. Hill (W.) (2006), 233 B.C.A.C. 120; 386 W.A.C. 120; 214 C.C.C.(3d) 492; 2006 BCCA 530, refd to. [para. 9].

R. v. Slaunwhite (R.L.) et al. (2012), 321 N.S.R.(2d) 201; 1018 A.P.R. 201; 2012 NSSC 342, refd to. [para. 9].

R. v. Marx (K.H.) (2005), 373 A.R. 169; 2005 ABPC 18, refd to. [para. 9].

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. 22].

Counsel:

Donna Spaner (Public Prosecution Service of Canada), for the Crown/respondent;

Derek Jugnauth (Wolch de Wit Silverburg & Watts), for the accused/applicant.

This application was heard on October 3-4, 2013, before Nation, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, whose oral decision of October 25, 2013, was filed on November 14, 2013.