R v Larson, 2011 BCCA 454 (10 November 2011)
In this case, the Court of Appeal for British Columbia overturned Mr Larson's conviction for unlawful production of cannabis under s 7(1) of the Controlled Drugs and Substances Act, SC 1996, c 19. The decision was based on the finding that the warrantless search of Mr Larson's residence, which uncovered his marijuana growing operation, was unlawful under s 8 of the Canadian Charter of Rights and Freedoms, which confers the right “to be secure against unreasonable search or seizure”. Evidence obtained in this and subsequent searches was excluded by the court under s 24(2) of the Canadian Charter, which provides for exclusion of evidence obtained in a manner that infringes any Charter rights if admission of the evidence would bring the administration of justice into disrepute.
Mr Larson was found by police officers swimming in Shuswap Lake, allegedly trying to escape from a group of persecutors. After he was convinced to come ashore, he remained agitated and reported that two men had invaded his home and that passing cars were shooting at him. Recognising his clearly paranoid delusional state, the officers apprehended him and transported him to hospital.
While Mr Larson was in hospital, two police constables went to his house to investigate the reported invasion. Although the police suspected that Mr Larson grew marijuana, the officers testified that on this occasion their sole purpose in going to his house was to investigate the alleged assault. A preliminary investigation of the premises and surroundings returned no indication that a home invasion had occurred.
Despite the lack of evidence to confirm Mr Larson's report, the police entered the house. They found no sign of forced entry, assault or other disturbance. However, in the course of their search they uncovered a marijuana growing operation in the basement. Subsequently, they obtained a search warrant and re-entered the residence to investigate the marijuana production.
At trial, the judge found the warrantless entry lawful under the common law police power to protect public and individual safety. This was based on his finding that the police had a subjective belief that a home invasion had occurred, and that this belief was reasonable. Consequently, he held that the subsequent warrant (issued based on evidence uncovered in the warrantless search) was valid, and that the evidence obtained should not be excluded.
On appeal, Mr Larson argued that both searches of his residence were illegal and therefore the evidence obtained was inadmissible.
Legality of the Warrantless Search under s 8 of the Canadian Charter
The majority, overturning the trial judge's findings, concluded that the warrantless search was not reasonably justified on the basis that it was conducted to protect life and safety. It therefore violated Mr Larson's rights under s 8 of the Canadian Charter.
Under Canadian law, a warrantless search conducted without the occupant's consent is prima facie unreasonable and therefore a breach of s 8. However, under the principles set out in R v Godoy  1 SCR 311, the police have a common law power to enter a dwelling without a warrant if there is reason to believe that such entry is necessary to protect the lives or safety of the occupants or the public. The scope of this power is limited by the R v Waterfield  1 QB 164 test, which requires any use of such power to be justified (ie necessary and reasonable in the circumstances).
The justifications for police entry into Mr Larson's residence proposed by the trial judge included investigating the report of the home invasion and determining whether a threat to Mr Larson’s or public safety existed. While the majority acknowledged that despite Mr Larson's obviously delusional state, it was possible that an invasion had occurred and a police investigation was warranted, they rejected the adequacy of these justifications in supporting the use of the common law power. The first justification related only to investigating a completed crime, so could support the issue of a search warrant but could not justify warrantless entry. The second justification, while in theory capable of justifying use of the common law power, lacked the urgency needed to support warrantless entry in this instance.
Accordingly, the warrantless search was found to be unlawful, and any evidence obtained in its course incapable of supporting the issue of a warrant for the subsequent search.
Exclusion of Evidence under s 24(2) of the Canadian Charter
The majority held that this was a case in which evidence obtained in the two unlawful searches should be excluded. This conclusion was based on the three considerations for exclusion of evidence under s 24(2) laid down in R v Grant  2 SCR 353: the seriousness of the state's Charter-infringing conduct, the impact on the Charter-protected rights of the accused, and the society's interest in the case being adjudicated on the merits. In balancing these considerations, the majority found that while there was substantial public interest in prosecuting the case against Mr Larson, this was outweighed by the seriousness of the police breach and the impact it had on Mr Larson’s privacy rights.
Relevance to the Victorian Charter
While the Victorian Charter does not expressly provide for a right to be secure against unreasonable search and seizure, the discussion of the requirement that police interference with privacy within the home must be reasonably justified may be relevant to interpreting s 13(a) of the Victorian Charter, which protects the right of persons not to have their privacy, family, home or correspondence arbitrarily interfered with. With respect to exclusion of evidence, improper search and seizure by police conducted in breach of s 38(1) of the Victorian Charter may lead to exclusion of evidence so obtained under s 138 of the Evidence Act 2008 (Vic), which provides for ‘exclusion of improperly or illegally obtained evidence’.
The decision can be found online at: http://canlii.ca/en/bc/bcca/doc/2011/2011bcca454/2011bcca454.html.
Julia Freidgeim is a Seasonal Clerk at Allens Arthur Robinson