legally speaking - Justice Institute of British Columbia

OFFICER SAFETY CONCERNS
MUST BE MORE THAN
GENERALIZED & NON-SPECIFIC
R. v. Chuhaniuk, 2010 BCCA 403
The police obtained a telewarrant
authorizing them to search only the
accused’s “residence” for evidence
of electricity theft. The property was
in a rural area, consisted of several
a c r e s , a n d had several outbuildings located a
considerable distance from the
residence. A search team was
assembled and during the briefing all
officers were made aware that the
warrant was limited to the residence.
Some officers were instructed to go
the front and back doors while others
were tasked with securing the
outbuildings. Upon their arrival at the
property police used bolt cutters on a
locked driveway gate. When police
knocked at the residence an occupant
answered the door. She was detained
while the accused, located at the rear
of the residence, was arrested. Other
officers immediately approached
outbuildings, not covered by the warrant, to allay
their “safety concerns”. At a shed, an officer saw two
electrical meters mounted at its front and smelled
growing marihuana. He could not see inside
because there were no windows and the doors were
locked. He obtained a key from the occupant and
opened the shed. He saw equipment sometimes
used in the marihuana production.
The officer then went to a garage on the property
and again detected the odour of marihuana. He
entered using a key and heard muffled voices
coming from a small room where he found a radio
playing. He saw a trap door, opened it, and found an
underground bunker where he discovered a
marihuana grow-operation. A second officer
checked a summer house by walking around it and
looking through the windows. He heard music
coming from its basement, announced his presence,
and entered, detecting a strong odour of
marihuana. No one was inside but the officer
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noticed marihuana and paraphernalia associated
with marihuana production. Following the discovery
of the grow-operation the accused and his wife were
arrested for marihuana production and advised of
their rights. A second telewarrant under the
Controlled Drugs and Substances Act (CDSA) was
obtained now authorizing the police to search the
“Residence and Outbuildings” on the property.
Police located over 1,200 marihuana plants and
growing equipment such as lights, timers, air filters,
and fans in the bunker, and 170 marihuana plants,
bags of marihuana, $14,000 in cash, and various
documents from the summer
house.
“[I]f police officers have
reasonable grounds to be
At trial in British Columbia
Supreme Court the accused
argued that police lacked
authority to approach and enter
the outbuildings without a
warrant, breaching his s. 8
Charter right to be free from
unreasonable search and
seizure in doing so. He further
contended that the evidence
seized from the outbuildings
after the second warrant was
obtained should have been
excluded. The Crown, on the other hand, submitted
that there had been no s. 8 breach because the
police were acting under the exigent circumstances
exception found in s. 11(7) of the CDSA and officersafety
concerns justified the warrantless entry of the
outbuildings.
concerned that there is a
possibility that someone
who poses an immediate risk
to their safety or the safety
of others is in such other
place or premises, then they
can take reasonable steps
to minimize that risk.”
The judge found the initial warrant only authorized a
search of the main residence on the property, not the
outbuildings. He acknowledged that the need for the
police to discharge their duties safely could give rise
to exigent circumstances, but in this case there were
none that would justify the warrantless entries of the
outbuildings. After considering s. 24(2) of the
Charter the judge admitted the evidence of the grow
operation in the bunker but the marihuana, cash,
and documents seized from the summer house were
excluded. The accused was convicted of producing
marihuana and possessing marihuana for the
purpose of trafficking. He was sentenced to a year in
jail.