Crown appeals ruling on warrantless search

When police showed up at Gordon Brian Arnault’s house, they weren’t there for him.

Rather, they were there to check whether his housemate — who, like Arnault, was subject to a high-risk offender peace bond — was following conditions of his order.

What police discovered inside led to charges against Arnault — charges eventually tossed out by a judge who found police were wrong in conducting a warrantless and “unreasonable” search that implicated the man.

The Crown launched an appeal, arguing provincial court Judge Stephen Carter was wrong in his interpretation of the law pertaining to the search-and-seizure section of the Charter.

One of the key issues pertains to the ability of police to conduct a search when someone other than the subject of that search is affected.

In this case, Arnault and his housemate were subject to like conditions — among them, no alcohol, drugs or weapons — and all three items were allegedly found inside when the Saskatoon Police Service Guns and Gangs unit acted on the search clause contained in the housemate’s valid court order.

Arnault went to trial, but Carter effectively brought an end to the matter by finding his Charter rights had been violated — a decision that tossed out all the Crown’s relevant evidence.

On Friday, Crown prosecutor Dean Sinclair argued the case in front of Saskatchewan Court of Appeal, urging the court to overturn Carter’s decision and asking for another trial.

In restating some of the details of the March 2017 search, Sinclair said police knocked and spoke to both the home’s residents, noting a number of other people were also present. Arnault objected to the search, but police went ahead anyway.

Court heard they quickly spotted evidence in plain sight that led to the arrest of the two men, including drugs, alcohol and a guest wearing gang regalia.

A further search of the residence, which included the opening of a closet and the lifting of a couch cushion and mattress, allegedly turned up two sawed-off shotguns, ammunition and three machetetype weapons.

“What they walked into, in the vernacular, was a crack house, and that was apparent,” Sinclair told the court.

He said police had decided a search warrant wasn’t required as they believed the housemate’s existing court order gave them the ability to enter the residence and conduct the search.

Carter disagreed.

Sinclair argued the ruling, if applied to other cases, would make it next to impossible for police to ever enter and search a property if a resident other than the subject is there and opposes.

“It ignores the fundamental parts of our search-and-seizure law,” he said.

Sinclair added police in the Arnault case conducted the search in a reasonable manner and didn’t use any significant force in carrying it out.

But Arnault’s lawyer Murray Pelletier argued Carter was correct in finding police overstepped in putting the housemate’s court order above Arnault’s right to a reasonable expectation of privacy.

“Simply assuming (the housemate’s) search clause trumped the accused’s reasonable expectation of privacy in his own home was a serious violation of (the Charter section),” he said.

He argued police did use force, went beyond a “cursory” search and should have obtained a search warrant.

Pelletier added Carter, as the trial judge, deserves deference as he is the one who heard the evidence at trial.

Justices Georgina Jackson, Peter Whitmore and Lian Schwann reserved decision.