Background
Morgan Robert Schmidt was charged with 28 firearms-related offences after a series of warrantless searches conducted by the RCMP on his rural Alberta property in September 2018 (paras 2–3, Appendix para 1). At trial in the Provincial Court, the Crown proceeded summarily. Following a blended voir dire on alleged Charter breaches, the judge convicted Schmidt on 12 counts and imposed fines totaling $6,200, along with a forfeiture order for the seized firearms (paras 2–3, 6–7).
Schmidt appealed to the Court of Queen’s Bench. The Crown conceded all but three convictions—Counts 1, 2, and 3—relating to possession of firearms without secure locking devices, contrary to s. 86(2) of the Criminal Code (para 5). These firearms were discovered during the first of three warrantless searches conducted by RCMP Constable Stewart on September 13, 2018, after a 911 call about Schmidt firing at hallucinations (Appendix paras 7–15).
Judge McIntosh had ruled that the first search did not violate Schmidt’s Charter rights, relying on s. 117.04(2) of the Criminal Code, which allows a warrantless search where safety concerns render obtaining a warrant impracticable (Appendix paras 49–52). Schmidt argued on appeal that the officer did not actually rely on s. 117.04(2), but instead claimed “exigent circumstances,” and failed to meet the statutory threshold (para 14).
Outcome
Before the hearing, the Crown conceded the appeal on most of the issues which we raised – which meant the appeal was allowed for nine out of twelve counts. Justice Burrows dismissed the appeal in relation to Counts 1–3 and upheld the convictions (para 18).
He found that although Constable Stewart did not expressly cite s. 117.04(2), the trial judge correctly applied that provision based on the evidence. It was objectively reasonable for the officer to believe Schmidt posed a safety risk and that it was impracticable to obtain a warrant, as Schmidt was a voluntary patient at a rural hospital and could leave at any time (paras 15–16; Appendix para 52). Accordingly, there was no s. 8 Charter breach and the evidence from the first search was admissible.
Because the appeal only contested the first search, Justice Burrows did not need to address the legality of the second and third searches, which had raised more complex Charter concerns (para 17; Appendix paras 53–70).
Key Takeaways
- Section 117.04(2) Permits Warrantless Firearm Seizures in Limited Circumstances
The provision allows police to search and seize firearms without a warrant where safety concerns exist and obtaining a warrant is impracticable. The Court confirmed that the test is objective and can apply even if the officer does not explicitly rely on the provision, so long as the factual conditions are met (paras 13, 15–16; Appendix para 52). - Police Not Required to Invoke Legal Justification at the Time of Search
An officer’s failure to cite s. 117.04(2) at the scene does not invalidate a search if the trial judge later finds the legal threshold was met. What matters is whether the conditions—reasonable grounds and impracticability—were established based on the evidence (para 15). - Public Safety is a Central Justification for Firearm Seizure
The officer's concern arose from Schmidt allegedly shooting at hallucinations. That justified the belief that his possession of firearms was dangerous, triggering s. 117.04(2) powers (Appendix para 52). - Warrant Impracticability Based on Voluntary Hospitalization
Because Schmidt could have returned home at any time from hospital, the Court accepted that delay in obtaining a warrant posed a safety risk, making warrantless action permissible under s. 117.04(2) (paras 12, 15; Appendix para 52). - Distinction Between First and Subsequent Searches
Only the first search met the s. 117.04(2) standard. The second and third searches, though not at issue in the appeal, were found by the trial judge to breach s. 8 (Appendix paras 54–55). However, most of that evidence was still admitted under s. 24(2), except for firearms found in a bedroom (Appendix paras 83). - Charter Protections Are Context-Specific
The trial judge found certain breaches of ss. 7 and 8 in later searches due to coercion and failure to read police cautions. However, these breaches did not invalidate the earlier search or all evidence gathered (Appendix paras 57, 70, 83).
Conclusion
R v Schmidt confirms the scope of s. 117.04(2) in urgent firearm seizure scenarios, emphasizing the importance of objective facts over police characterization. The decision also highlights the limited grounds for excluding evidence when breaches occur in good faith and where safety is a legitimate concern.