Section 8 Charter Violation Where Police Seized and Searched Cameras Located in the Bedroom Following an Arrest for Sexual Assault

R. v. Sloat 2013 ABQB 476 – police responded to a 911 call originating from the residence. According to the arresting officer, he received a complaint about a “sexual assault in progress” and attended at the residence. When he got there, a female told him she could hear noises coming from her male roommate’s bedroom and she went down, opened the bedroom door, and saw her roommate laying on the bed naked. There was a female with the male roomate, so she asked this female if she needed help, and the victim said “yes”.   The arresting officer entered the bedroom and found the accused and the female sitting on the bed. He arrested the accused and removed him from the bedroom. Other officers attended to the female sitting on the bed who was having a “difficult time talking, let alone answering any direct questions” (intoxicated).  Following the arrest, police searched the accused’s bedroom and his personal electronics for at least 2 hours. Back at the police station, officers continued to show the contents of the camera to at least three other officers.  The information found on the cameras was then used to obtain search warrants to “get data from cameras” so that the police would have a “copy for court purposes as evidence”.

The accused argued that he had a high expectation of privacy in his home, his bedroom, and the personal electronic devices contained therein. The accused argued that the police were not entitled to use any evidence obtained during these illegal searches in support of judicial authorization for further searches.  The Crown argued that it is black letter law that police have the power to search a person and their surroundings after arrest for evidence of the crime. The Crown submitted that the search conducted here was clearly within the scope of that power.

The ABQB ruled that the scope of the police’s common law authority to investigate a 911 call was articulated by the Supreme Court in R. v. Godoy, [1999] 1 S.C.R. 311, and in this case the arresting officer was authorized to enter the residence and the accused’s bedroom for the limited purpose of determining whether anyone inside required assistance and to provide that assistance, and he was entitled to perform the actions required to preserve life and ensure safety. The arresting officer and the officers who followed him into the residence were not entitled to conduct any searches or investigations ancillary to that purpose at the point of their entry.

Applying R. v. Golub  (1997), 117 C.C.C. (3d) 193 (Ont. C.A.); leave to appeal refused (1998), 55 C.R.R. (2d) 188 n (S.C.C), the court ruled that the search of a dwelling house as an incident of an arrest is generally prohibited subject to exceptional circumstances. In this case, the court concluded that there were no exceptional circumstances, as the complainant had been located and given assistance and the accused had been taken into police custody. There were no safety concerns that necessitated a search and indeed officer safety was not mentioned in any of the evidence. There was no risk of the loss, destruction or disappearance of evidence – the police could have easily secured the bedroom
and sought judicial authorization to search.

Side note for those that haven’t read Golub.  In part, the court in Golub ruled:

In my opinion, searches of a home as an incident of an arrest, like entries of a home to effect an arrest, are now generally prohibited subject to exceptional circumstances where the law enforcement interest is so compelling that it overrides the individual’s right to privacy within the home. After Feeney, the general principles governing the scope of searches as an incident of arrest set down in Cloutier do not control where the place to be searched is a residence. Those principles are still helpful in that they identify relevant considerations. However, those considerations must be looked to, not to balance competing interests, but to determine whether the circumstances are sufficiently exceptional to justify overriding the general prohibition against warrantless searches of the home.

In addition to having no lawful authority to search the bedroom, the ABQB said the police had no grounds to search the accused’s cameras. Initially, an officer claimed she ordered the search of the camera because she had noticed it sitting at a suspicious angle. However, when she was further examined and shown the contradictory photos she took at the scene, she changed her testimony and acknowledged she may have been “mistaken” about her recollection on that point. The Information to Obtain (“ITO’s”) in this case stated that both cameras were found on the bedroom floor. In any event, the officer acknowledged she had no reasonable grounds when in her evidence she admitted that when she saw the first camera, she did not know what she would find on it, and had no information to suggest that anyone had filmed any sexual activity. The second camera was searched because of the contents of the first camera.

In her evidence, the officer also testified that she was not in possession of a search warrant when she seized the cameras and did not consider getting one because the cameras were “in plain view”. The ABQB concluded that the plain view doctrine had no applicability in these circumstances, and could not be used to justify the search and seizure of the cameras.   In order for the plain view doctrine to apply, the court said an officer must come across a piece of evidence “in circumstances where it is at once obvious and visible without positive action on the officer’s part to make it observable, he has the right to seize it.” The constable had no idea what, if any, data might be stored on the camera when she ordered it searched. She instructed an officer to pick the camera up and turn it on for the specific purpose of determining its contents. The images or data contained on the camera were not in plain view; and the police purposefully searched the devices in order to view the impugned data. Recourse to the plain view doctrine in the particular facts of this case is without lawful justification.

The ABQB concluded that the Crown had failed to establish that the warrantless searches of the accused’s bedroom and cameras were lawful. As such, the illegally-obtained information collected during the course of these searches must be excised from the ITOs and the video evidence in this case must be excluded under section 24(2) of the Charter.

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