Vancouver Sun, May 24, 2018 by Kim Bolan
A Vancouver police search of a Yaletown apartment that resulted in the seizure of an illegal AK-47, two Ruger guns, a silencer and ammunition violated the Charter rights of the condo resident, a B.C. Supreme Court judge has ruled.
Justice Heather MacNaughton acquitted Michael John French of several firearms charges after she ruled that the guns could not be used as evidence because the police initially searched his 16th floor unit in May 2014 without a warrant.
The Crown in the case had argued that police had exigent circumstances to go into French’s suite at 1199 Seymour Street because of a call from a neighbour that French had assaulted someone. Officers had also been told that French was suicidal and had sent disturbing text messages to friends.
But MacNaughton noted in her May 16 ruling that French cooperated with police and complied with their request to exit the suite. No officers asked his permission to go inside.
“There was no objective basis for a concern that there was a victim of an assault in the suite. There was also no objective basis to believe that there was a possible assailant in the suite who would present a risk to them,” MacNaughton said.
After an initial walkthrough, the officers found a live round for a .233 calibre firearm on the kitchen floor. They went back in a second time and looked for a gun.
One officer testified that when he searched a closet, “he found a pistol, two magazines loaded with ammunition, and a threaded suppressor, or silencer, which appeared to fit the threaded end of the pistol.”
At that point police placed French under arrest, locked down the suite and went to obtain a search warrant.
They came back the following evening around 10:30 p.m. with the warrant and found the AK-47 and another rifle, plus oversized magazines and ammunition.
MacNaughton said she had no choice but to disallow the firearms into evidence.
“I have concluded that the warrantless search of Mr. French’s residence was unlawful and unreasonable. The initial search violated his rights under Section 8 of the Charter,” she said. “The subsequent warrantless search and the search under warrant were also unlawful, as the grounds for them were undermined by the illegality of the first search.”
Police would not have been able to get a search warrant without the information obtained during the improper search, she said.
She also ruled that police violated French’s rights when they handcuffed him in the hallway after he complied with their request to come out of the apartment.
MacNaughton acknowledged that the charges against French were serious and “that there is a substantial public interest in this case in having them adjudicated on their merits.”
“This is particularly so because Mr. French had the firearms in a residential building in the heart of downtown Vancouver,” she said.
But she sad in the long term, the reputation of the justice system “would be adversely affected by admitting the firearms.”