Charter rights are personal

Mike Novakowski
September 06, 2011
By Mike Novakowski
Alberta's top court has once again confirmed that Charter rights belong to an individual and cannot be vicariously argued.  In <R. v. Schmidt, 2011 ABCA 216> a drug-using tenant rented a one-room apartment in a building known to  police for violence, drug trafficking and gang member activity. He asked a patrol officer for help to remove unwanted guests staying at and taking over his suite. The officer agreed to stop by, knock and make sure everything was okay. The first time he checked two unwanted guests were sleeping in the tenant's bed. They were ejected and banned from the building due to their gang affiliation and history of violence, drug use and trafficking. A sawed-off rifle was also removed from the residence.  The tenant told police he did not have the courage to tell unwanted guests to leave, fearing they would hurt him if he tried to eject them or bar them from entering. He was also afraid he would be harmed if word got out that he was cooperating with police or asking for their assistance. As a result of those concerns, a safe word was agreed upon for future conversations that would indicate the tenant felt safe to speak openly with police.

Alberta's top court has once again confirmed that Charter rights belong to an individual and cannot be vicariously argued. 

In R. v. Schmidt, 2011 ABCA 216 a drug-using tenant rented a one-room apartment in a building known to  police for violence, drug trafficking and gang member activity. He asked a patrol officer for help to remove unwanted guests staying at and taking over his suite. The officer agreed to stop by, knock and make sure everything was okay. The first time he checked two unwanted guests were sleeping in the tenant's bed. They were ejected and banned from the building due to their gang affiliation and history of violence, drug use and trafficking. A sawed-off rifle was also removed from the residence. 

The tenant told police he did not have the courage to tell unwanted guests to leave, fearing they would hurt him if he tried to eject them or bar them from entering. He was also afraid he would be harmed if word got out that he was cooperating with police or asking for their assistance. As a result of those concerns, a safe word was agreed upon for future conversations that would indicate the tenant felt safe to speak openly with police.

Police performing a routine patrol of the apartment building later stopped at the suite. The tenant opened the door when they knocked and, when prompted, replied that "friends" of his were there. He then backed away from the door and waved his arm, which the officers took as an indication for them to enter. They understood the gesture to mean that unwanted people were there. Because the tenant did not use the safe word, police were concerned that these "friends" were unwanted gang members, drug users or drug dealers.

Four people were in the fairly dark suite, including Schmidt, the accused, who sat semi-conscious on a bench. Clothing and bags were strewn about and there was drug paraphernalia on a table. The officer approached Schmidt to identify him and saw that his hand was on the handle of a steak knife, which rested on a bench and was pointed towards the officer. 

The officer was concerned the situation could escalate into a lethal force encounter because of Schmidt's state and the fact police were outnumbered five to two in the suite's small confined space. He grabbed Schmidt, pulled him away from the knife and pushed him up against the fridge, arresting him for possessing a weapon.

The officer felt an object in Schmidt's pocket during a pat down, pushed it up and determined that it was a shotgun shell. A black gym bad was laying open on the floor two to three feet from where Schmidt had been sitting. The officer used a flashlight to see inside and, pushing apart the flaps a little, saw a sawed off shotgun (a prohibited firearm). It wasn't loaded but a shotgun shell found in the kitchen area matched the brand and calibre of the one found in Schmidt's pocket. Both could be fired from the shotgun. Schmidt was also bound by an order prohibiting him from possessing any firearms or ammunition.

The tenant testified in Alberta Provincial Court that he did not invite the officers in but the judge found police had consent to enter. He also concluded that Schmidt did not have a reasonable expectation of privacy in the apartment and ruled the pat-down search reasonable because it was done for officer safety reasons after he was seen holding the knife. 

No Charter breaches were found. The black bag was in plain view, close to where Schmidt was sitting with a shotgun shell in his pocket. The only rational conclusion was that he was aware of the shotgun in the bag and had knowledge and possession of it. Schmidt was convicted of possessing a prohibited firearm with ammunition and two counts of possessing a firearm/ammunition contrary to a prohibition order.

Schmidt challenged his conviction to the Alberta Court of Appeal arguing, in part, that the trial judge erred in finding sufficient evidence of consent to search the suite and that there were grounds to detain and search him. These arguments were all rejected.

Consent

The court concluded there was sufficient evidence for the trial judge to determine police had consent to enter and search the apartment. The trial judge did not believe the tenant's evidence. Furthermore, "even if the police officers did not have the consent of the tenant to enter and search his apartment, their conclusion that they had his consent was reasonable and means that they acted in good faith in searching," the court said. This would have been a significant factor in admitting the evidence under <s. 24(2)> had a constitutional violation been found. 

"A Charter breach is not something that can be loaned by one citizen to another. If the police were wrong in their understanding that they had consent to search the apartment, that might have been a Charter breach vis-à-vis the tenant," said the court. "That breach of the tenant's right does not protect the (accused)."

Search

The discovery of the shell during the pat-down search was lawful either as a search incident to arrest or incident to investigative detention.

The search was conducted after the officer observed the (accused) either in a state of sleep or near sleep, or of extreme intoxication, with a knife under his hand. The scenario included what can only be described as a dark drug den with several people in a small confined space, all apparently in a stupor of some sort.

The officer believed that the purpose of the knife involved danger to the police or the others in the apartment. Although the (accused) wasn't convicted of the charge that flowed from his having the knife, the standards required for an arrest and a conviction are substantially different. 

The officer had the requisite grounds to make an arrest; search of the person incident to arrest does not result in a Charter breach. In R. v. Mann... the Supreme Court held that police officers who have reasonable grounds to suspect that an individual is connected to a particular crime may detain the individual for investigative purposes and may also conduct a pat-down search of the individual for the purposes of officer safety and the safety of others. That is exactly what the police did here> (paras. 21-22).

Schmidt's appeal was dismissed.

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