Courtesy of Lift Magazine
An Alberta court has ruled that evidence obtained from a search of a private residence that revealed a cannabis grow-operation should be ruled inadmissible as evidence against two defendants.
The judge’s decision, handed down on March 1st, came after the defence alleged Charter violations, including unreasonable search and seizure, resulting in a voir dire—a trial within a trial—to determine the admissibility of evidence.
The search was conducted by a constable with the Calgary Police Service who was assigned to the Child At Risk Response Team (CARRT). After receiving an anonymous tip that “they are growing and I think they even have a young child who lives with them,” the constable visited the residence along with a CARRT social worker.
After knocking on the front door, the constable told the respondent, Vinh Quang Tran, that she needed to search the house to verify the child’s well-being. After refusing to let the officer into her house, she finally relented. A private interview with the child did not reveal any information that there were drugs in the house, and a cursory search of the house did not reveal any drugs. However, Tran refused to open the locked basement door. The constable called for backup officers, who then forcibly opened the basement door.
Justice Tyndale, in his ruling, outlined the three possible justifications for a search of a residence. First, the judge explored search warrants. One was not obtained in this case, and it was admitted by the police that they would not have had the requisite probable and reasonable grounds needed to obtain one—at least before having entered the basement of the house.
Second, the judge explored statutory authorization. The officers had pointed to the Alberta provincial Drug-Endangered Children Act which allows police officers to enter residences if they believe a child’s life is in imminent danger. However, the judge pointed out that the standard in the legislation is also “reasonable and probable grounds,” which he found had not been established.
Finally, the justice explored consent, which is the third and final justification for a search. The judge found that Tran’s actions did not amount to consent, and her co-accused’s threat to call their lawyer also indicated that there was a lack of consent.
In the end, the justice found that the co-accused’s section 8, 9, 10(a) and 10(b) Charter rights were violated. Given the number of Charter violations, it is unsurprising that the justice found that the violations could not be saved by section 1 of Canada’s Charter, which allows for reasonable limits on Charter rights.
What does this case mean for the future? For one, police officers and the Crown should be aware that child endangerment legislation enacted by provinces cannot be used as a shield for otherwise unlawful searches. Second, the case demonstrates that the standard for a lawful search of a residence is almost always “reasonable and probable grounds.” Third, consent for residential searches must not be illusory, and the person providing consent must be made aware of the