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Police Powers Newsletter

By: Justice Michelle Fuerst, Michal Fairburn and Scott Fenton

Perimeter Search of Residence is Violation of section 8

Facts: At approximately 1:30 a.m., police received a call that a dog had been barking incessantly at a particular residence since 10:00 p.m. The caller said he knew the occupant of the residence as "Shane", and that he thought he had moved out, as he had not been seen in a week.

Two officers attended at the scene and were able to see a dog in the living room. When their knocks at the front door did not receive a response, they proceeded around the side of the house and into the backyard. The officers knocked on the back door and, again, did not receive a response. There was a window opening in the backdoor, lacking glass and covered with a piece of cloth. One of the officers pushed on the cloth with his baton in order to see if anyone inside the house might need help. On doing so, the officers detected a strong odor of raw marihuana and observed a large sheet or tarp at the bottom of stairs leading to the basement. At this point, the officers suspected that there might be a grow operation at the residence.

The officers then conducted a perimeter search of the house. They observed that the hydro meter was spinning at a rapid rate; there was condensation build-up on one of the basement windows; and there were eight to ten black garbage bags, one of which was ripped open and appeared to contain dried marihuana leaves and dirt. As well, one of the officers observed a green garden house running into a partially open basement window. The window was covered with a blind. Pushing aside the blind, the officer saw a bright orange heat lamp and a tarp stretching from floor to ceiling. A search warrant was obtained and police seized 109 marihuana plants and an array of grow operation equipment.

The accused challenged the validity of the warrants on the basis that the information to obtain was premised on an illegal search. A friend of the accused testified at trial. He said that the window to the backdoor of the residence was covered with plastic and securely duct taped in place on all 4 sides. He took a photo of the inside of the door a few days after the search, which revealed a plastic covering on the window and duct tape lifted on the lower side.

The accused alleged that the initial search of the residence was illegal, as the officers entered the residence by pushing on the plastic covering the window. As well, the officer's admission that he pushed aside the basement blind was not included in the information to obtain, and as such, the affiant failed to make full, frank and fair disclosure. The Crown conceded that an initial warrantless search did occur, but that it was authorized by law and conducted in a minimally intrusive manner.

Held: The initial search was authorized by law. There was no breach of s. 8.

The issue was whether the evidence relied upon by the affiant in the Information to Obtain ("ITO") the search warrants was the result of an illegal perimeter search and if so, whether that information should be excised from the ITO.
The Court held that officers lawfully initially attended at the property in response to an animal wellbeing call, in accordance with their duties under s. 25 of the Police Services Act. That said, all of their observations were made while the police were, in good faith, endeavoring to determine if the barking dogs were abandoned or otherwise whether anyone was home. Further, the evidence of the officers that the window was covered with a moveable cloth was accepted. It was reasonable for the officers to push aside the covering over the window to check on the barking of the dogs and to determine if there might be someone in distress.

Once the officers formed the suspicion that the residence was a grow operation, however, it was unreasonable for the officers to continue to inspect the property while on its perimeter, including pushing aside the blinds covering the basement window. Such conduct was contrary to the accused's s. 8 rights as discussed in R. v. Kokesh, [1990] 3 S.C.R. 3. Accordingly, the observations made as a result of the perimeter search must be excised from the information to obtain, in accordance with the authority of R. v. Wiley, [1993] 3 S.C.R 263 and R. v. Plant, [1993] 3 S.C.R. 281. Notwithstanding those excisions, the Court ruled that there remained sufficient evidence in the ITO to establish reasonable grounds necessary for the warrant to issue.

Alternatively, the Court held that, if there was a breach of s. 8, the evidence should not be excluded under s. 24(2) after applying the factors from R. v. Grant, 2009 SCC 32. Police attended at the residence in response to the animal wellbeing call, not a drug investigation; they were lawfully on the premises in question. Pushing aside the backdoor window covering was a minimally intrusive step in the execution of their lawful duties.

Commentary: This case represents the application of the well-known principles in Kokesch, Wiley and Plant. It was important to the trial judges' reasoning that the police were not engaged in a drug investigation when they first attended at the residence. The attendance at the front, side and back of the house was a minimally intrusive step in responding to the animal wellbeing call. However, once the circumstances changed and officers began to suspect that the house was a grow operation, they should have stepped away from the scene rather than continue to conduct a warrantless search while on the defendant's private property. However, the observations that they made prior to that time were lawfully obtained and were sufficient to sustain the warrant.

R. v. Markus (2013), 2014 MBQB 104, 2013 CarswellMan 778 (Man. Q.B.)

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