Gunning for s. 24 – What Can be Seized, What Can’t?R v Warren, 2016 MBCA 78 (CanLII)
Keywords: Firearms; Domestic Disturbance; Section 8 of the Charter; Search and Seizure
After midnight, the RCMP receives a domestic disturbance call and police “attend” at the residence of the accused, Mr. Dwayne Warren. Officers arrive and speak with the complainant, who informs them the accused is intoxicated, that there are firearms in the residence, and that she fears for her safety, and the safety of her two children. Following a brief interaction with police, the accused is arrested for breaching the peace. An officer enters the home and spots four unloaded, unsecured firearms and ammunition. The items are seized. Shortly thereafter, the complainant turns over an additional firearm to police.
The accused is charged with five counts of careless storage of a firearm pursuant to s. 86(2) of the Criminal Code. The Trial Judge rules the first four firearms seized cannot be admitted into evidence; the accused’s s. 8 right to be secure against unreasonable search and seizure was infringed by police. The accused is convicted on the fifth charge – for careless storage of the firearm turned in by the complainant.
The Crown appeals; the trial decision is upheld by the Summary Conviction Appeal Judge. The Crown seeks leave to appeal the decision pursuant to s. 839(1) of the Criminal Code, raising the following issues:
- Did the summary conviction appeal judge err in finding a breach of s. 8 of the Charter?
- Did the summary conviction appeal judge err in upholding the decision to exclude the seized evidence?
The Court of Appeal grants leave to appeal on these two issues.
Citing R v Langlois (DJ), 2008 MBCA 72 (CanLII), 228 ManR (2d) 256; R v Schalla (KT), 2007 MBCA 104 (CanLII), 220 ManR (2d) 69; and R v McCorriston (GJ), 2010 MBCA 3 (CanLII), 251 ManR (2d) 106, the Court of Appeal confirmed that, if leave to appeal is sought on a question of law alone, it must raise an arguable issue of substance. The Court of Appeal stated there must be exceptional circumstances or a compelling reason to justify a “second level” of appeal for the Crown. (See para. 5).
The Trial Judge found that, pursuant to s. 24(2) of the Charter, ‘“the admission of the evidence by the breach of [the accused’s] rights would bring the administration of justice into disrepute”’. (See para. 6).
The Summary Conviction Appeal Court Judge agreed the officer should have removed himself from the home and sought lawful authority to conduct the search which resulted in the seizure of the accused’s firearms. Such permission could have been obtained from one of the homeowners, or by means of a warrant. In the Summary Conviction Appeal Court Judge’s view, the absence of lawful authority meant the accused’s s. 8 Charter rights had been breached. (See para. 7).
The Crown argues the officer attended the residence pursuant to either his statutory or common law duty to protect the public; that he was otherwise authorized by s. 489(2) to seize the firearms in plain view. Although the Court of Appeal did not express an opinion as to the Crown’s probability of success on appeal, the Court of Appeal stated s. 489(2) “permits a police officer who is lawfully present in the execution of duties to seize any thing that will afford evidence of an offence”. (See para. 10).
The Court of Appeal found there was “…an arguable issue of substance in this case of sufficient importance to merit the attention of the full court…” since the Summary Conviction Appeal judge “…did not conduct a meaningful analysis…” with respect to s. 489(2), and the police “need to know” the scope of their powers in circumstances where firearms are involved and they are “…lawfully in a residence with children present…” (See para. 11).
Accordingly, leave to appeal was granted.
Counsel for the Applicant: Craig Savage (Justice Manitoba – Public Prosecutions, Winnipeg)
Counsel for the Respondent: Dwayne Warren (on his own behalf)