The RCMP's search of a Ferndale home without a warrant was not a violation of the Charter rights of one of the four men accused of kidnapping, confining and assaulting a man in an alleged drug related shakedown, provincial court judge Dan Weatherly found Monday.
Similar to a decision reached when the case was taken before another provincial court judge earlier this year, Weatherly found there were "exigent circumstances" that required the RCMP to take immediate action to ensure preservation of evidence.
Weatherly agreed with the lead RCMP officer's determination that it would have taken at least two hours to secure a search warrant, noting it was a 20- to 25-minute drive from the city to the location.
Moreover, a man was seen watching police and ambulance personnel from the home, Weatherly noted. RCMP entered the home with guns drawn and the home's owner, Michael Andrew Joseph Fitzgerald, was arrested without incident. No one else was found inside and no items were seized at the time.
Police were called to the Ferndale community hall on the night of April 15, 2012 after a bloodied and frightened man burst into the building where a function was being held, saying he had just escaped from the nearby home and that he had been confined and beaten for a matter of days.
The victim's identity cannot be revealed due to a court-ordered publication ban.
Fitzgerald faces 19 charges while Francois Christiaan Meerholz, Dillan Meerholz and Craig Anthony Niedermayer each face 10 counts in relation to the incident.
A second trial on the matter began at the start of this month after a mistrial was declared in April when the judge originally assigned to the case was forced to step down due to health reasons. Proceedings have been dominated by a "voir dire" or a trial within a trial to determine whether the search had violated Fitzgerald's charter rights as the owner of the home.
Following Weatherly's decision, a second voir dire bagan on another matter.
