R. v. Kokesch, [1990] 3 S.C.R. 3
Craig Lawrence Kokesch Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. kokesch
File No.: 21266.
1990: February 21; 1990: November 22.
Present: Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.
on appeal from the court of appeal for british columbia
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Perimeter search -- Narcotics -- Police searching yard surrounding accused's house without warrant and without probable grounds ‑‑ Whether accused's right against unreasonable search and seizure infringed ‑‑ If so, whether right subject to a reasonable limit prescribed by law ‑‑ Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 10 -- Canadian Charter of Rights and Freedoms, ss. 1 , 8 .
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Police searching yard surrounding accused's house without warrant and without probable grounds -- Warrant to search accused's house obtained pursuant to information gathered during perimeter search -- Accused's right against unreasonable search and seizure infringed by warrantless perimeter search ‑‑ Whether narcotics seized in accused's house during subsequent search undertaken pursuant to valid search warrant should be excluded -- Canadian Charter of Rights and Freedoms, s. 24(2) .
The accused was charged with possession of marijuana for the purpose of trafficking and with cultivating marijuana contrary to ss. 4(2) and 6(1) of the Narcotic Control Act. During the investigation, the police conducted a perimeter search of the accused's residence. While doing so, they heard electrical humming from the basement, noticed plywood nailed to the wall of the residence covering a louvered metal vent and, from the side of the plywood, detected an odour of marijuana as well as heat coming from the area. The search was made without a warrant and, as the police conceded, without reasonable and probable grounds to believe that an offence had been or was being committed on the property, contrary to s. 10 of the Narcotic Control Act. The visual, olfactory and aural observations could not have been made without going onto the property. As a result of that search, the police gathered enough information to obtain a warrant to search the accused's residence, where they seized a number of marijuana plants. This evidence formed the basis of the two charges. On a voir dire, the trial judge held that the evidence had been obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms and excluded the evidence pursuant to s. 24(2) of the Charter . The Court of Appeal allowed the Crown's appeal and ordered a new trial. The Court held that the perimeter search was not unreasonable, and that, even if an infringement of s. 8 had occurred, the admission of the evidence would not bring the administration of justice into disrepute.
Held (Dickson C.J. and L'Heureux‑Dubé and Cory JJ. dissenting): The appeal should be allowed.
(1) Section 8
The accused's rights under s. 8 of the Charter were violated by the warrantless search conducted by the police of the perimeter of his dwelling‑house. The police had no statutory authority to conduct that search. The perimeter of a dwelling‑house is a "place" within the meaning of s. 10(1) of the Narcotic Control Act but the police officers involved in the search did not have reasonable and probable grounds for believing that the "place" contained a narcotic and, therefore, did not comply with s. 10(1) . The police also had no authority under the common law to trespass upon the accused's property to conduct the perimeter search. The common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language. In the absence of lawful authority, the perimeter search must be found unreasonable.
(2) Section 1
The perimeter search of the accused's dwelling‑house was not "prescribed by law" in accordance with s. 1 of the Charter . The search was a police initiative undertaken without lawful authority.
(3) Section 24(2)
The nexus between the unconstitutional search of the perimeter of the dwelling‑house and the subsequent discovery of the evidence is sufficiently close to conclude that the evidence was "obtained in a manner that infringed" s. 8 of the Charter . The observations made by the police during the perimeter search formed the foundation for the warrant obtained to search the observed premises. The temporal link was not broken by any intervening events.
It is appropriate for this Court in this case to consider de novo the question of the admissibility of the evidence under s. 24(2) of the Charter . The trial judge placed undue and unsupported weight upon a finding that the police gave little consideration to other investigatory techniques, and he did not consider the other sets of factors which this Court has determined to be of relevance to a s. 24(2) analysis. Moreover, the s. 24(2) analysis undertaken by the Court of Appeal was clearly obiter.
Per Wilson, La Forest, Sopinka and McLachlin JJ.: The evidence should be excluded pursuant to s. 24(2) of the Charter . While the evidence obtained as a result of the search was real evidence and its admission would not tend to affect the fairness of the trial, the police conduct represents an extremely serious Charter violation. The unavailability of other, constitutionally permissible, investigative techniques was neither an excuse nor a justification for the police's action. Where the police have nothing but suspicion and no legal way to obtain other evidence, they must leave the suspect alone. They should not try to gather evidence illegally and unconstitutionally. When they do so, the Charter violation is plainly more serious than it would be otherwise. Any other conclusion would lead to an indirect but substantial erosion of the Hunter standards. From the point of view of individual privacy, the illegal intrusion onto the accused's private property cannot be seen as trivial or minimal. Even before the Charter , individuals were entitled to expect that their environs would be free of prowling government officials unless and until the conditions for the exercise of legal authority are met. Further, the seriousness of the Charter violation was not mitigated by good faith on the part of the police officers involved in the perimeter search. The search was conducted with the knowledge that legal search powers under s. 10 of the Narcotic Control Act were unavailable; and the police officers did not misapprehend the scope of their authority. The police must be taken to be aware of this Court's judgments delimiting police powers. Either the police knew they were trespassing, or they ought to have known. Any doubt they may have had about their ability to trespass in the absence of specific statutory authority to do so was manifestly unreasonable, and cannot, as a matter of law, be relied upon as good faith for the purposes of s. 24(2). Where police powers are already constrained by statute or judicial decisions, it is not open to a police officer to test the limits by ignoring the constraint and claiming later to have been "in the execution of his duties". Finally, the administration of justice would suffer far greater disrepute from the admission of this evidence than from its exclusion. This Court must not be seen to condone deliberate unlawful conduct designed to subvert both the legal and constitutional limits of police power to intrude on individual privacy. The section 8 violation was flagrant, and the disrepute to the justice system that would necessarily result from the admission of the impugned evidence could not be counterbalanced by speculation about the disrepute that might flow from its exclusion.
Per Dickson C.J. and L'Heureux‑Dubé and Cory JJ. (dissenting): The evidence found during the lawful search of the accused's dwelling‑house is admissible pursuant to s. 24(2) of the Charter . First, real evidence, unlike self‑incriminating statements, does not have a detrimental effect upon adjudicative fairness. Second, the "seriousness of the Charter violation" does not militate against the admission of the evidence. The violation arose as a result of a misapprehension of the law on the part of the police officers. Their error as to the scope of their authority to engage in the search was not an unreasonable one, and it was certainly not unreasonable for them to assume, as the Court of Appeal decided, that a perimeter search would not infringe s. 8. Further, although a Charter violation preceded the lawful search undertaken pursuant to prior judicial authorization, the subsequent search was not sufficiently "tainted" to render the fruits of that lawful search inadmissible. The nature of the unconstitutional intrusion was minimal, and the police infringed an interest for which the objective expectation of privacy was comparatively low. The motivation behind the Charter infringement was to obtain evidence in a situation in which other avenues of investigation seemed to have been foreclosed. Finally, it is significant that the police did obtain a search warrant prior to the actual search of the dwelling-house. All these factors reinforce the trial judge's determination of "good faith" on the part of the authorities. Third, in the present circumstances, it is the exclusion of the evidence that would do violence to the repute of the justice system. Although not trivial, the breach of the accused's Charter rights was far less severe than would be the case in a search of his person. The manifest culpability of the accused, in combination with the low level intrusion on his reasonable expectation of privacy from the Charter breach, weighs heavily in favour of the admissibility of the evidence.
Cases Cited
By Sopinka J.
Applied: R. v. Collins, [1987] 1 S.C.R. 265; referred to: R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Dyment, [1988] 2 S.C.R. 417; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Eccles v. Bourque, [1975] 2 S.C.R. 739; Colet v. The Queen, [1981] 1 S.C.R. 2; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62.
By Dickson C.J. (dissenting)
R. v. Collins, [1987] 1 S.C.R. 265; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Rao (1984), 12 C.C.C. (3d) 97; Katz v. United States, 389 U.S. 347 (1967); Colet v. The Queen, [1981] 1 S.C.R. 2; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62; R. v. Moran (1987), 36 C.C.C. (3d) 225; R. v. Haley (1986), 27 C.C.C. (3d) 454; R. v. Stannard (1989), 52 C.C.C. (3d) 544.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 8 , 24(2) .
Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 4(2), 6(1), 10(1)(a) [rep. & sub. 1985, c. 19, s. 200].
APPEAL from a judgment of the British Columbia Court of Appeal (1988), 46 C.C.C. (3d) 194, 43 C.R.R. 364, allowing the Crown's appeal from the acquittal of the accused's on charges of possession of a narcotic for the purpose of trafficking and of unlawfully cultivating marijuana contrary to the Narcotic Control Act, [1988] B.C.D. Crim. Conv. 6060‑01, 3 W.C.B. (2d) 265, 11 C.R.D. 850.50‑11. Appeal allowed, Dickson C.J. and L'Heureux‑Dubé and Cory JJ. dissenting.
David M. Rosenberg and Paul S. Rosenberg, for the appellant.
S. David Frankel, Q.C., and V. Gordon Rose, for the respondent.
//Dickson C.J.//
The reasons of Dickson C.J. and L'Heureux-Dubé and Cory JJ. were delivered by
DICKSON C.J. (dissenting) --
The Facts
The appellant was charged on an indictment that, on or about November 5, 1986, at or near Shawnigan Lake, British Columbia, he unlawfully had in his possession a narcotic, cannabis (marijuana), for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1; and that he was unlawfully cultivating marijuana contrary to s. 6(1) of the Act.
On November 5, 1986, R.C.M.P. officers entered the appellant's residence, pursuant to a search warrant dated November 4, 1986, and seized marijuana plants. This evidence formed the basis of the two charges. Prior to the commencement of trial before Cashman Co. Ct. J., counsel agreed to a voir dire in order for the trial judge to consider the admissibility of the seized evidence. For the purposes of the voir dire, counsel relied on the testimony which had been adduced at the preliminary hearing. The reasons of Cashman Co. Ct. J. on the voir dire provide a thorough summary of the events leading up to the seizure of the evidence:
The events commenced on October 30th, 1986, and what occurred is best described in the evidence of Constable Povarchook. He said that his first involvement with the matter was on October 30th, 1986, and on that day he and other members of the Drug Section were performing surveillance as a result of information which they had received from the Surrey Detachment [of the R.C.M.P. The information they received was that the driver of a truck on the ferry to Vancouver Island was suspected of being involved in the cultivation of marihuana]. They went out to the Swartze Bay ferry terminal in Sidney. At approximately 1440 hours they observed a green Toyota pickup with a white canopy come out of the ferry terminal and head south on the Pat Bay Highway. They were unable to follow this vehicle directly due to traffic, but caught up to it as it was travelling up the Malahat north of Victoria. He then observed it turn onto the South Shawnigan Lake turnoff. At no time did he have an opportunity to observe the driver of that vehicle. At approximately 1534 hours he drove by the residence of 1985 West Shawnigan Lake Road and observed the pickup which he had seen earlier parked near the house on that lot.
The following day, October 31st, he drove by the residence at approximately seven thirty in the morning and saw that the pickup truck was still there. Later in the afternoon he went up in the forces helicopter and took aerial photographs of the residence and the general area, and observed what appeared to be a white vehicle, but he was unable to make out just what vehicle it was.
On the 4th of November, 1986, at approximately two o'clock in the morning, he went to this house with Constable Handy and they conducted what he referred to in his evidence as a perimeter search of the residence. While doing so, he noticed that the residence was a two-storey structure, basement and upper level. The basement windows were curtained off and appeared to be sealed with something behind the curtain. He observed heavy condensation on the patio door window and heard electrical humming from the basement level near the carport around the rear of the residence. He saw a piece of plywood nailed to the wall of the residence, and observed it actually covered what appeared to be a louvered metal vent. From the side of the plywood, he detected a slight odour of marihuana, and on the top of the plywood, the odour was much stronger, and as well he could detect heat coming from the area.
. . .
Quite clearly from that evidence, one can see that the officer went right up to this dwelling-house, and observed it closely, and it appears from questions and answers from the cross-examination by Mr. Rosenberg that he, in fact, attempted to peer into the window. He conceded in order to get to the house he had to go down a long driveway, some seventy-five (75) to a hundred (100) yards long. He said he had not had any direct dealings with the accused, and his source of information came solely from the R.C.M.P. in Surrey and not from any informant.
The search of the area immediately surrounding the dwelling-house was conducted without prior judicial authorization. Moreover, when asked whether he had reasonable and probable grounds to believe that an offence had been or was being committed on the property contrary to the provisions of the Narcotic Control Act -- a circumstance which under s. 10(1)(a) of the Act would permit a warrantless search of the perimeter -- Constable Povarchook of the Royal Canadian Mounted Police, Victoria Drug Section, on cross-examination during the preliminary inquiry replied:
A:I did not have reasonable and probable grounds to believe that there was an offense being committed. I had a suspicion.
Q:Surely, you must have suspected something to go there?
A:Well, I had more than just suspicion. I had solid grounds, but not enough for a search warrant.
In response to further questioning, he stated that it had not been necessary to enter the property either to preserve evidence or to apprehend a felon. The Constable agreed in cross-examination that his visual, olfactory and aural observations could not have been made without going to the property and coming very close to the house.
Pursuant to a search warrant dated November 4, 1986, the police entered the appellant's residence and seized a number of marijuana plants. They also conducted a search of a vehicle that was on the property. The search warrant only authorized a search of the dwelling-house. The lawfulness of the vehicle search was not pursued at trial.
After considering the evidence, the trial judge held that the evidence upon which the Crown relied in support of the charges had been obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms . He ruled that the evidence was inadmissible pursuant to s. 24(2) of the Charter . The respondent appealed the decision to the British Columbia Court of Appeal. In a unanimous judgment, the Court allowed the appeal and ordered a new trial. The appellant now appeals from that decision to this Court.
Judgments Below
County Court of Vancouver Island
Cashman Co. Ct. J. first considered the warrantless "perimeter search" of the appellant's dwelling-house. He examined the provisions of the Narcotic Control Act and concluded that the yard surrounding a dwelling-house, while it may not be a part of the dwelling-house, is a "place" and may be searched without a warrant provided that the officer has reasonable grounds for believing that the place contains a narcotic. He then found that until Constable Povarchook entered onto the property and made observations he had no reasonable grounds to obtain a search warrant. In fact, the police officer conceded this fact.
Cashman Co. Ct. J. rejected the argument that the police action was merely an investigative procedure. The officer admitted that he had not attempted other investigative measures and, moreover, the trial judge found nothing in the evidence to suggest that what was done occurred in circumstances of urgency or necessity.
The trial judge then considered whether the actions of the police on November 4th constituted a "search". He found that the police had engaged in a warrantless search of the property surrounding the dwelling-house on the basis of a suspicion, but without reasonable grounds. Cashman Co. Ct. J. then reasoned that:
. . . since the basis of the search warrant subsequently obtained the following day was founded on what was observed during the warrantless search, I find that the search warrant is thus invalid.
Having reached this conclusion, the trial judge considered the admissibility of the evidence of narcotics pursuant to s. 24(2) of the Charter . Cashman Co. Ct. J. began by commenting upon the good faith of the police officer involved:
From what I have heard in this case, I have no reason to doubt what Constable Povarchook did on November 4th at two o'clock in the morning he did in good faith, albeit one may well view his procedure as somewhat of a shortcut in obtaining the evidence necessary to found a search warrant.
After considering the judgment of this Court in R. v. Collins, [1987] 1 S.C.R. 265, the trial judge reiterated that little consideration was given by the police to other investigative procedures. The trial judge concluded that the evidence found as a result of the search made pursuant to the warrant should be excluded "because considering all the circumstances, the admission of it would, in my opinion, bring the administration of justice into disrepute".
British Columbia Court of Appeal
The respondent appealed from the judgment of Cashman Co. Ct. J. to the Court of Appeal of British Columbia: (1988), 46 C.C.C. (3d) 194. Craig J.A. delivered the unanimous judgment of the Court. He held, first, that while the police officers were trespassers, s. 8 ensures only a reasonable expectation of privacy: Hunter v. Southam Inc., [1984] 2 S.C.R. 145. The determination of what constitutes a reasonable expectation, according to Craig J.A. (at pp. 200-201):
. . . will vary according to the circumstances. In assessing this factor, the court must consider whether in a particular situation the public interest in being left alone by government must give way to the government's interest in intruding on an individual's privacy in order to enhance its goals, notably those of law enforcement.
In the instant case, Craig J.A. disagreed with the weight which the trial judge placed upon the fact that the police failed to utilize other investigatory procedures. He concluded that since other investigative techniques were impractical, the minimal intrusion of a perimeter search, although a trespass, did not amount to an unreasonable search contrary to s. 8 of the Charter .
Although it was unnecessary to pursue the analysis, Craig J.A. then considered whether the trial judge erred in holding that the evidence obtained through the search of the appellant's dwelling-house ought to be excluded pursuant to s. 24(2) of the Charter . Craig J.A. considered the judgment of this Court in Collins, supra, and concluded that "the main factor bearing on bringing the administration of justice into disrepute was whether the violation of the accused's Charter right would render his trial unfair" (p. 203). Craig J.A. concluded that since the cultivation of marijuana was real evidence, it was admissible pursuant to s. 24(2).
The British Columbia Court of Appeal allowed the appeal on both grounds and ordered a new trial.
Relevant Legislation
Narcotic Control Act
The provisions of the Narcotic Control Act relevant to this appeal, as they stood at the time of the events in issue, are as follows:
4. (1) . . .
(2) No person shall have in his possession any narcotic for the purpose of trafficking.
6. (1) No person shall cultivate opium poppy or marihuana except under the authority of and in accordance with a licence issued to him under the regulations.
10. (1) A peace officer may, at any time,
(a) without a warrant enter and search any place other than a dwelling-house, and under the authority of a warrant issued under this section, enter and search any dwelling-house in which the peace officer believes on reasonable grounds there is a narcotic by means of or in respect of which an offence under this Act has been committed.
Canadian Charter of Rights and Freedoms
The provisions of the Charter , relevant to this appeal, are as follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
8. Everyone has the right to be secure against unreasonable search or seizure.
24. (1) . . .
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Analysis
1. Unreasonable Search and Seizure
The first issue raised in this appeal is whether the warrantless perimeter search of the dwelling-house of the appellant, conducted on November 4, 1986, was an unreasonable search or seizure pursuant to s. 8 of the Charter . At the outset, I would reiterate the dictum of this Court in Hunter, supra, regarding the interpretation of s. 8 and, specifically, the role which s. 8 plays in limiting the pre-existing search powers of the state (at pp. 156-57):
The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. . . . in guaranteeing the right to be secure from unreasonable searches and seizures, s. 8 acts as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwise possess. It does not in itself confer any powers, even of "reasonable" search and seizure, on these governments.
In the case at bar, the respondent concedes that what occurred outside of the dwelling-house of the appellant on the night of November 4, 1986, was a search for the purposes of s. 8 of the Charter . Moreover, the search was conducted without prior judicial authorization in the form of a search warrant. Of direct relevance, then, is the dictum of this Court in Hunter, supra, wherein it was recognized that the absence of prior authorization raises a presumption of unreasonableness which must be rebutted by the party seeking to justify the warrantless search (p. 161).
The first hurdle which must be overcome by the respondent in that attempt at justification is readily apparent. In R. v. Collins, supra, this Court reiterated the presumption against warrantless searches and described the burden that rests on a party attempting to establish reasonableness (at p. 278):
. . . once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.
In order to show reasonableness, then, it is first necessary for the respondent to establish that the search was authorized by law. The trial judge undertook this analysis and, quite rightly, focussed his attention on s. 10(1) of the Narcotic Control Act. Cashman Co. Ct. J. found, and on this point I do not think there can be any dispute, that the perimeter of a dwelling-house, while perhaps not part of the dwelling-house, is a "place" within the meaning of s. 10 of the Narcotic Control Act. Having made this determination, the trial judge then considered the statutory preconditions for the search of a "place" pursuant to s. 10, and he made reference to the decision of the Ontario Court of Appeal in R. v. Rao (1984), 12 C.C.C. (3d) 97. In that case, Martin J.A., for the Court, considered s. 10(1)(a) and concluded, at p. 125, that:
Section 10(1)(a) of the Narcotic Control Act authorizes a warrantless search of a "place" other than a dwelling-house by a peace officer who has reasonable grounds for believing that the "place" contains a narcotic.
He reached this conclusion on the basis of the legislative history of the section, at p. 106:
Thus, from its inception, the legislation conferring power to search places other than dwelling-houses without a warrant has required the existence of reasonable grounds for believing that the place to be searched contains a drug, possessed in contravention of the legislation. . . .
I find no legislative intent to displace the requirement that police officers, in searching places other than a dwelling-house without a warrant, must have reasonable grounds to believe that a narcotic is present or to substitute a purely arbitrary discretion on the part of police officers to search places other than dwelling-houses at will. This would be entirely contrary to the English and Canadian tradition.
Even if s. 10(1)(a) were equally open to the construction that reasonable grounds for belief are not required to justify a warrantless search of places other than a dwelling-house, or to the construction that reasonable grounds for believing that the place contains a narcotic in contravention of the Act is required, I would feel constrained to adopt the latter construction to avoid doing violence to fundamental principles which are deeply rooted in our legal system.
I fully endorse the comments of Martin J.A. on the interpretation of s. 10(1) of the Narcotic Control Act.
In ruling on the voir dire, Cashman Co. Ct. J. had little difficulty in reaching the conclusion that the police officers involved in the perimeter search lacked the requisite reasonable grounds for compliance with s. 10(1) of the Act. Given the concession by Officer Povarchook at the preliminary hearing that he did not have reasonable and probable grounds sufficient to obtain a search warrant, the inevitable conclusion is that the police lacked statutory authority to conduct the perimeter search. Indeed, the respondent conceded before this Court that the police lacked reasonable and probable grounds.
In the judgment of Craig J.A., considerable weight is placed upon certain statements in Hunter, supra, in which this Court adopted the reasoning of Stewart J., of the Supreme Court of the United States, in Katz v. United States, 389 U.S. 347 (1967): "the Fourth Amendment protects people, not places". However, the adoption of Stewart J.'s dictum in the context of s. 8 clearly was not intended to inhibit the reasonableness of the expectation of privacy of the individual with respect to his or her activities on private property. The point emphasized by Stewart J., and accepted by this Court in Hunter, was that the reasonableness of a citizen's expectation of privacy cannot be confined to those situations which involve the enjoyment of property.
The respondent also submitted that the "perimeter search" was carried out under lawful authority pursuant to the common law powers of the police and was not a trespass on private property. In my view, this argument is without foundation. This Court consistently has held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language. In Colet v. The Queen, [1981] 1 S.C.R. 2, this Court considered the validity of a warrant which authorized the police to "seize" firearms. Ritchie J., for the Court, held that the power to seize must be interpreted strictly to prevent the police from entering and conducting a general search of private property, at pp. 9-10:
All sections of the Criminal Code are presumably enacted "in the public interest" and it would in my view be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code although they are not armed with express authority to justify their action.
. . .
As I have indicated, I am of the opinion that any statutory provision authorizing police officers to invade the property of others without invitation or permission would be an encroachment on the common law rights of the property owner and in case of any ambiguity would be subject to a strict construction in favour of the common law rights of the owner.
In his reasons for judgment, Ritchie J. also made mention of the decision of this Court in Eccles v. Bourque, [1975] 2 S.C.R. 739. That case concerned an action for damages for trespass alleged to have been committed when police officers entered the plaintiff's apartment to apprehend a third party for whom there were outstanding warrants. The Court held, at p. 746, that the individual's expectation of privacy with respect to his or her home demands, as a precondition to entry, some announcement by the police:
Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion upon a man's property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance.
In my view, given these clear statements, there is no basis for the argument that the police possessed common law authority to trespass upon the private property of the appellant to conduct the search.
For these reasons, I would conclude that the warrantless perimeter search of the dwelling-house of the appellant was conducted without lawful authority under statute or the common law. In the absence of lawful authority, the perimeter search must be found unreasonable: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1147, per Lamer J. Having made this determination, it is unnecessary, strictly speaking, to consider the second and third criteria of reasonableness established in Collins, supra. It does seem to me, however, apart from the question of lawful authority, that the police do not have a constitutionally unrestricted right to trespass upon private property. In my view, then, the Court of Appeal of British Columbia erred in its determination that the search, although not conducted under lawful authority, was nevertheless reasonable. Consequently, I would find that the s. 8 Charter rights of the appellant were violated by the warrantless search conducted by the police of the perimeter of his dwelling-house.
2. Section 1 of the Charter
In the circumstances of this case, the issue of s. 1 justification for the s. 8 Charter violation merits only the briefest attention. The search that occurred in the case at bar was a police initiative undertaken without lawful authority. For this reason alone, it must be concluded that the search of the perimeter of the appellant's dwelling-house was not "prescribed by law" in accordance with s. 1 of the Charter .
3. Admissibility of the Evidence
Having found that the s. 8 Charter right of the appellant was infringed by the warrantless search, the second issue raised on appeal to be examined is whether the Court of Appeal erred in failing to find that the administration of justice would be brought into disrepute by admitting evidence obtained through a subsequent search undertaken pursuant to a valid search warrant.
In my view, the nexus between the warrantless and unconstitutional search of the perimeter of the dwelling-house, and the subsequent discovery of the evidence, is sufficiently close that it can be concluded that the evidence was "obtained in a manner that infringed or denied" s. 8 of the Charter . This threshold issue in s. 24(2) was considered by this Court in R. v. Strachan, [1988] 2 S.C.R. 980, and the Court adopted a case-by-case approach to the issue (p. 1006). Moreover, the Court stated the following general principle (at p. 1005):
. . . the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment. . . .
In the case at bar, observations made by police officers during an unconstitutional search formed the foundation for a search warrant obtained the following day to search the observed premises. The temporal link was not broken by any intervening events and it follows that the evidence was obtained in a manner that violated the constitutional rights of the appellant. Consequently, it is necessary to engage in an inquiry, pursuant to s. 24(2) of the Charter , to determine the admissibility of evidence obtained during the subsequent constitutional search.
A majority of this Court recognized in R. v. Duguay, [1989] 1 S.C.R. 93, that absent error of law or error as to the applicable principles, this Court will not substitute its own opinion for that of the courts below as regards the application of s. 24(2) of the Charter . However, in the instant case, I find that the trial judge placed undue and unsupported weight upon a finding that the police gave little consideration to other, constitutionally permissible, investigatory techniques. He did not identify the alternative investigatory techniques which might have been followed, other than to refer to two questions asked in cross-examination in which the possibility of (i) wiretapping telephones, or (ii) following other persons who were living in the residence, were mentioned. While the fact that other less intrusive means of gathering evidence may be open to the authorities is one relevant factor in a s. 24(2) analysis (see Collins, supra, at p. 285), it appears to me that the trial judge considered this to be the predominant factor. Frankly, I cannot discern how the trial judge reasonably could reach the conclusion that other investigatory techniques were available. In this regard, I agree with the comments of Craig J.A. in the Court of Appeal (at pp. 201-2):
I am nonplussed to understand how a police officer could get an authorization to put a wire-tap on Kokesch's telephone if he did not have enough information upon which to get a search warrant to search the house. . . . I am equally nonplussed to understand how following persons who were living at that residence to other locations and keeping a constant surveillance on them would be an appropriate investigative technique. So far as I am concerned, it would be a useless waste of time.
To my mind, it was the paucity of other investigative techniques that provoked the actions of the police and this fact does not necessarily militate against the admission of the evidence. Furthermore, it appears that the trial judge did not consider the other sets of factors which this Court has determined to be of relevance to a s. 24(2) analysis: Collins, supra. Consequently, Cashman Co. Ct. J. erred as to the principles applicable to a determination of the admissibility of the evidence. Furthermore, the s. 24(2) analysis undertaken by the Court of Appeal clearly was obiter, since Craig J.A. already had determined that the warrantless perimeter search did not violate the rights of the appellant. In light of that determination, it is appropriate for this Court to engage in a de novo analysis of the admissibility of the evidence pursuant to s. 24(2).
The approach which this Court has adopted for the determination of the admissibility of evidence was stated first in R. v. Collins, supra, and restated by a majority of this Court in R. v. Jacoy, [1988] 2 S.C.R. 548, at pp. 558-59:
First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" (p. 284). One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.
The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.
Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible.
I propose to deal with each set of factors in turn.
Fairness of the Trial
In my view, the admission of the evidence would not have an unfair effect on the trial. In Collins, supra, this Court recognized that real evidence, by its nature, if admitted will rarely have a detrimental impact upon adjudicative fairness (p. 284). More recently, this Court has had a number of opportunities to deal with the question of the admissibility of real evidence of narcotics: see, for example, R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, supra; R. v. Strachan, supra. In all of these cases, this Court has recognized that real evidence, unlike self-incriminating statements goaded from an accused, does not have an effect upon adjudicative fairness. This factor, then, does not indicate that the real evidence of marijuana cultivation should be excluded.
Seriousness of the Charter Violation
The second group of factors to be considered in a determination of the admissibility of evidence pursuant to s. 24(2) can be grouped together under the general heading of the "seriousness of the Charter violation". The appellant argues that this set of factors strongly favours the exclusion of the real evidence in this case. He submits, in this regard, that the infringement of constitutional rights was a flagrant violation. The police were aware that they did not have reasonable and probable grounds sufficient to obtain a search warrant, and that they trespassed in order to obtain grounds in blatant disregard of the Charter .
I disagree with this characterization of the events in issue. In particular, I find it significant, and I agree with the trial judge in this regard, that a finding of "good faith" reasonably can be made with respect to the actions of Constable Povarchook. I have reached this conclusion based upon what I perceive to be his misapprehension as to the extent of his authority to investigate his suspicion of criminal activity. When asked at the preliminary inquiry to identify the source of his authority to conduct the perimeter search of the dwelling-house, the Constable replied:
Well, I was in the execution of my duties. Whether or not that's authority or not, I'm not sure.
To my mind, the police officer's error as to the scope of his authority to engage in the search is not an unreasonable one. As well, it was certainly not unreasonable for Constable Povarchook to assume that a perimeter search would not infringe s. 8, particularly in light of the fact that this view was shared by a unanimous Court of Appeal of British Columbia. In this regard, I find this fact situation analogous to those cases in which this Court considered the good faith reliance placed upon the constitutional validity of a writ of assistance by police officers engaged in a warrantless search of premises: R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301. In both of those appeals, this Court held that real evidence obtained in violation of s. 8 of the Charter was properly admissible pursuant to s. 24(2). Similarly, the actions of the police in the instant case are not unlike those of the authorities who relied in good faith upon the constitutionality of consensual electronic surveillance in the absence of prior judicial authorization. In R. v. Duarte, [1990] 1 S.C.R. 30, and in R. v. Wiggins, [1990] 1 S.C.R. 62, a majority of this Court found that the evidence obtained through unauthorized surveillance was a result of "an entirely reasonable misunderstanding of the law" (Duarte, supra, at p. 60, per La Forest J.). I find this principle of equal relevance to the case at bar.
I also have found three Court of Appeal decisions in which evidence has been admitted pursuant to s. 24(2) of particular relevance to this appeal. First, in R. v. Moran (1987), 36 C.C.C. (3d) 225, the Ontario Court of Appeal considered a fact situation in which the police had conducted an illegal search by sequestering two officers in a shed on the property of the accused in order to observe his movements. Martin J.A., for the Court of Appeal, considered the admissibility of the observations made of the accused and he found that the seriousness of the Charter violations was not such as to demand exclusion of the evidence (at pp. 248-49):
This court has held that good faith, as a factor in deciding whether the admission of evidence obtained in a manner that contravenes s. 8 would bring the administration of justice into disrepute, is not confined to objectively reasonable good faith. . . .
[The inspector's] ignorance of the nuances of common law doctrines with respect to trespass is understandable. In any event, I do not believe that in adopting the procedure they did to obtain the evidence, the police ignorance of the relevant law was so flagrant or glaring that the admission of the evidence could bring the administration of justice into disrepute.
I find this dictum equally applicable here.
Second, in R. v. Haley (1986), 27 C.C.C. (3d) 454, the Ontario Court of Appeal considered the admissibility of evidence obtained pursuant to a validly obtained and executed search warrant where the address of the place to be searched had been obtained by an allegedly improper search of a motor vehicle. MacKinnon A.C.J.O. rejected the argument that the warrant was sufficiently "tainted" to render the evidence obtained in the subsequent search inadmissible (at pp. 466-67):
The learned trial judge found there was no malice in the actions of the police officers and that in searching the vehicle they acted according to a honestly held belief that they were entitled to do so (assuming that belief to be mistaken). There was a validly obtained and executed search warrant. It is true the address of the place to be searched was obtained by the allegedly improper search but the warrant itself was based on "reasonable grounds" for belief that an offence had been or was suspected to have been committed ....
Third, in R. v. Stannard (1989), 52 C.C.C. (3d) 544, the Saskatchewan Court of Appeal upheld the trial judge's determination that evidence obtained by the police pursuant to a technically defective warrant nevertheless was admissible pursuant to s. 24(2) of the Charter . The information which formed the basis of that warrant was obtained by the police officers trespassing on private property and looking through the secluded window of a private dwelling.
Similarly, in the case at bar, although a Charter violation preceded the lawful search undertaken pursuant to prior judicial authorization, I do not find the subsequent search sufficiently "tainted" to render the fruits of that lawful search inadmissible. The nature of the unconstitutional intrusion was minimal, and the police infringed an interest for which the objective expectation of privacy was comparatively low. The motivation behind the Charter infringement was to obtain evidence in a situation in which other avenues of investigation seemed to have been foreclosed. Finally, it is significant that the police did obtain a search warrant prior to the actual search of the dwelling-house. In my view, these factors reinforce the trial judge's determination of "good faith" on the part of the authorities, and the combination of all of these elements leads me to conclude that the "seriousness of the Charter violation" does not militate against the admission of the evidence.
Effect on the System
Finally, it is necessary to consider, in a review of the factors for consideration in determining whether evidence is admissible pursuant to s. 24(2), the impact upon the repute of the legal system from the admission or exclusion of the evidence. As indicated in Jacoy, supra, "[t]he administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial" (p. 559). Although not trivial, the breach of the appellant's Charter rights was far less severe than would be the case in a search of his person. Moreover, in Jacoy, supra, this Court made some general comments on the effect on the legal system of the exclusion of real evidence of narcotics (at p. 560):
The offences with which the appellant was charged constitute serious social evils. The narcotics are an essential piece of evidence to substantiate the charge. . . . In my view, the decision to exclude the evidence in light of all the circumstances would do violence to the repute of the justice system.
I find this dictum of particular relevance to the instant case. The manifest culpability of the appellant, in combination with the low level intrusion on his reasonable expectation of privacy from the Charter breach, in my view weighs heavily in favour of the admissibility of real evidence of marijuana cultivation.
4. Conclusion
In conclusion, although the Court of Appeal erred in finding no violation of the Charter rights of the appellant pursuant to s. 8, the real evidence of marijuana cultivation found during the lawful search of the appellant's dwelling-house is admissible pursuant to s. 24(2) of the Charter . The evidence is real evidence, the seriousness of the Charter violation is relatively minor and arose as a result of a misapprehension of the law on the part of a police officer.
Consequently, I would uphold the decision of the Court of Appeal of British Columbia to admit the evidence and order a new trial on the charges of possession of marijuana for the purposes of trafficking contrary to s. 4(2) of the Narcotic Control Act and cultivating marijuana contrary to s. 6(1) of the Act.
//Sopinka J.//
The judgment of Wilson, La Forest, Sopinka and McLachlin JJ. was delivered by
SOPINKA J. -- I have had the benefit of reading the reasons for judgment prepared in this appeal by Chief Justice Dickson, and I agree with him, for the reasons he gives, that the warrantless perimeter search conducted in this case was unlawful and therefore unreasonable within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms . I agree also that this is a proper case for this Court to consider de novo the question of the admissibility under s. 24(2) of the evidence obtained as a consequence of the search. I must, however, respectfully disagree with Dickson C.J.'s conclusion that the evidence in this case ought not to be excluded.
Section 24(2)
The factors to be considered in assessing the admissibility of evidence under s. 24(2) fall into three broad categories: (1) factors concerning the effect of admission on the fairness of the trial; (2) factors concerning the seriousness of the violation; and (3) factors concerning the effect of exclusion on the reputation of the administration of justice: see R. v. Collins, [1987] 1 S.C.R. 265, at pp. 283-86. I shall consider these categories in turn.
Trial Fairness
In Collins and subsequent cases this Court has developed a distinction, for s. 24(2) purposes, between real evidence which exists irrespective of Charter violations, and self-incriminatory evidence created by Charter violations. Lamer J. (as he then was) stated in Collins, at p. 284: "Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone."
It is uncontroversial that the evidence obtained here is real evidence. I agree with Dickson C.J. that the nature of this evidence is not such that exclusion is required in accordance with the trial fairness rationale for exclusion, as described in Collins.
Seriousness of the Violation
The purpose of considering factors relating to the seriousness of the Charter violation is to assess the disrepute that the administration of justice would suffer as a consequence of judicial acceptance of evidence obtained through a serious Charter breach. The Court must refuse to condone, and must dissociate itself from, egregious police conduct: see, e.g., Collins, supra, at pp. 285 and 288; and R. v. Greffe, [1990] 1 S.C.R. 755, per Lamer J., at pp. 784 and 796. Relevant factors in this portion of the s. 24(2) inquiry include such questions as: Was the violation deliberate, wilful or flagrant, or was it committed in good faith? Was the violation motivated by urgency or necessity to preserve evidence? Were other investigative techniques available? (See Collins, supra, at p. 285.)
Upon considering the facts of the present case, I have concluded that the police conduct at issue represents an extremely serious Charter violation, from several perspectives. I should point out at the outset that I agree with Dickson C.J. that Judge Cashman may have placed too great an emphasis on the availability of other investigative techniques. I cannot, however, draw the same conclusion from that error that Dickson C.J. appears to draw. Dickson C.J. states: "it was the paucity of other investigative techniques that provoked the actions of the police and this fact does not necessarily militate against the admission of the evidence" (p. 000). Later in his reasons, Dickson C.J. cites this factor as support for the view that the Charter violation here was not serious: "The motivation behind the Charter infringement was to obtain evidence in a situation in which other avenues of investigation seemed to have been foreclosed" (p. 000). Of course, the reason why other investigative techniques were unavailable is that the police did not have the requisite grounds to obtain either a search warrant or an authorization to intercept private communications pursuant to the Criminal Code .
In my respectful view, the unavailability of other, constitutionally permissible, investigative techniques is neither an excuse nor a justification for constitutionally impermissible investigative techniques. In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. (Dickson C.J. concurring) reiterated the requirement in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, that where feasible a warrant must be obtained, and stated (at p. 437):
. . . when the facts are scrutinized, the most probable reason why no warrant was obtained was because the officer lacked the requisite belief that the accused had committed an offence and that the seizure was likely to yield evidence which was probative of that offence. Not only do the circumstances not reveal circumstances capable of justifying the failure to obtain a warrant, but the conduct of the police failed to comport with the minimal constitutional requirement that there be reasonable and probable grounds to believe that the search would yield evidence. [Emphasis in original.]
Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation is plainly more serious than it would be otherwise, not less. Any other conclusion leads to an indirect but substantial erosion of the Hunter standards: the Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds. The irony of this result is self-evident. It should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent: see Hunter, supra, per Dickson J. (as he then was), at p. 160; and Greffe, supra, per Lamer J., at pp. 790 and 798.
From the point of view of individual privacy, which is the essential value protected by s. 8 of the Charter , this illegal intrusion onto private property must be seen as far from trivial or minimal. Even before the enactment of the Charter , individuals were entitled to expect that their environs would be free of prowling government officials unless and until the conditions for the exercise of legal authority are met: see Eccles v. Bourque, [1975] 2 S.C.R. 739; and Colet v. The Queen, [1981] 1 S.C.R. 2. The elevation of that protection to the constitutional level signifies its deep roots in our legal culture. La Forest J. put it this way in Dyment, supra, in words that commend themselves to me (at pp. 427-28):
Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.
An equally important aspect of the seriousness of the violation is the manner in which the police conducted themselves in deciding to execute this warrantless perimeter search. Was the s. 8 violation committed in "good faith", or was it "flagrant"? Both are terms of art in s. 24(2) cases. To decide whether either term is appropriate in the circumstances it is necessary to examine the evidence given at the preliminary hearing and read in on the s. 24(2) application at trial. The relevant portion of the cross-examination of Constable Povarchook reads as follows:
Q:On November the fourth, when you went to the property and sniffed around, if I can say that, you didn't have a search warrant did you?
A:No, I did not.
Q:At that time all you had was a suspicion that there was something going on in the house? You had no reasonable or probable grounds at that point did you?
A:Well, that fact is a matter of opinion.
Q:I'm asking your opinion. Did you have reasonable and probable grounds?
A:I did, Your Honour.
Q:Why didn't you go and get a search warrant?
A:I don't believe I had enough to get a search warrant to enter the residence.
. . .
Q:Did you believe on November 4, 1986 that you had reasonable and probable grounds to believe that an offense had been committed on the property under the Narcotic Control Act before you went to the property?
A:Your Honour, I believed --
Q:Can you just answer the question, please, Constable?
A:Can you re-ask the question?
Q:I'll have it read back, if you like.
(COURT REPORTER READS BACK AS REQUESTED)
Q:I note that you are taking your time. Do you have trouble understanding the question? Is your answer yes or no? Is that a yes or no?
A:No, with a qualification.
Q:It is a no with a qualification. You did not believe that you had reasonable and probable grounds before you went on November 4, 1986.
A:I did not have reasonable and probable grounds to believe that there was an offense being committed. I had a suspicion.
Q:Surely, you must have suspected something to go there?
A:Well, I had more than just suspicion. I had solid grounds, but not enough for a search warrant.
. . .
Q:Were you invited onto the property on November 4, 1986?
A:No, I was not, Your Honour.
Q:Did you have any authority to go onto the property on November 4, 1986?
A:Any authority?
Q:Any authority.
A:Well, I was in the execution of my duties. Whether or not that's authority or not, I'm not sure.
Q:That is the only authority you can think of?
A:Yes.
Q:You weren't chasing a felon? You weren't after someone who was in the process of -- someone committing an indictable offense.
A:No, I was not.
Q:You didn't believe you had to go on to the property immediately on November fourth to preserve evidence did you?
A:No, I did not. [Emphasis added.]
With respect to those who hold a contrary view, I cannot find that this state of affairs constitutes good faith capable of mitigating the seriousness of the s. 8 violation that occurred here. Judge Cashman, however, expressly found that there was good faith. He stated:
From what I have heard in this case, I have no reason to doubt what Constable Povarchook did on November 4th at two o'clock in the morning he did in good faith, albeit one may well view his procedure as somewhat of a shortcut in obtaining the evidence necessary to found a search warrant. [Emphasis added.]
This finding is vulnerable on two grounds. First, on its own terms, the finding of good faith is equivocal. The "shortcut" referred to in the emphasized passage was a search conducted in the knowledge that legal search powers were unavailable. The evidence clearly discloses that the police officers knew that they had insufficient grounds either to exercise the power to search without a warrant granted by s. 10(1)(a) of the Narcotic Control Act, or to obtain a search warrant pursuant to s. 10(2). The best answer provided to the question of any alternative source of lawful authority was a tentative "I'm not sure".
Second, even if Judge Cashman found that the Constable honestly but mistakenly believed that he had the power to search, it is my view that in these circumstances the Constable simply cannot be heard to say that he misapprehended the scope of his authority. As Dickson C.J. has amply demonstrated in his reasons in this appeal, "[t]his Court consistently has held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language" (p. 000). The contrary contention is, in Dickson C.J.'s words, "without foundation". The police must be taken to be aware of this Court's judgments in Eccles and Colet, and the circumscription of police powers that those judgments represent.
Either the police knew they were trespassing, or they ought to have known. Whichever is the case, they cannot be said to have proceeded in "good faith", as that term is understood in s. 24(2) jurisprudence. I find support for this conclusion in R. v. Genest, [1989] 1 S.C.R. 59, in which Dickson C.J., speaking for the Court, held that the Crown could not argue that the police officers' failure to recognize obvious defects in a search warrant was inadvertent. Even in the absence of evidence of bad faith the seriousness of the Charter violation in that case was enhanced, because "the defects in the search warrant were serious and the police officers should have noticed them" (emphasis added, p. 87); and later: "Well-established common law limitations on the powers of the police to search were ignored" (p. 91). In his reasons in this case, the Chief Justice points out that the error made by the police officer as to his authority to search was shared by a unanimous Court of Appeal. I do not agree. The Court of Appeal expressly found that the conduct of the police constituted a trespass but that in all the circumstances, this did not constitute an unreasonable search and seizure.
I do not wish to be understood as imposing upon the police a burden of instant interpretation of court decisions. The question of the length of time after a judgment that ought to be permitted to pass before knowledge of its content is attributed to the police for the purposes of assessing good faith is an interesting one, but it does not arise on these facts. The police here had the benefit of slightly more than twelve years to study Eccles, slightly less than six years to consider Colet, and slightly more than two years to digest the constitutional warrant requirement set out in Hunter. Any doubt they may have had about their ability to trespass in the absence of specific statutory authority to do so was manifestly unreasonable, and cannot, as a matter of law, be relied upon as good faith for the purposes of s. 24(2).
There is, in my opinion, a world of difference between the police conduct said to constitute good faith in this case and the police conduct endorsed by this Court in R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Duarte, [1990] 1 S.C.R. 30; and R. v. Wiggins, [1990] 1 S.C.R. 62. In each of those cases, the police acted pursuant to express statutory authority that rendered the particular search lawful. The police are entitled, indeed they have a duty, to assume that the search powers granted to them by Parliament are constitutionally valid, and to act accordingly. The police cannot be expected to predict the outcome of Charter challenges to their statutory search powers, and the success of a challenge to such a power does not vitiate the good faith of police officers who conducted a search pursuant to the power. Where, however, police powers are already constrained by statute or judicial decisions, it is not open to a police officer to test the limits by ignoring the constraint and claiming later to have been "in the execution of my duties". This excuse has been obsolete since, at least, the decision of this Court in Colet (see Ritchie J., at p. 9).
In conclusion on this point, the Charter violation at issue was very serious, and was in no sense mitigated by good faith on the part of the investigating officers.
Effect of Exclusion on the Reputation of the Administration of Justice
The final category of factors to be considered under s. 24(2) concerns the effect that judicial exclusion of relevant and probative evidence could have on the reputation of the administration of justice. If exclusion would occasion greater disrepute than admission, then the impugned evidence ought to be admitted: see Collins, supra, at pp. 285-86.
The offences with which the appellant is charged are serious offences, though narcotics offences involving marijuana are generally regarded as less serious than those involving "hard" drugs such as cocaine and heroin. The appellant would seem to be plainly guilty, and the impugned evidence is required for a conviction. It cannot be denied that the administration of justice could suffer some degree of disrepute from the exclusion of this evidence.
However, I have concluded, not without reluctance, that the administration of justice would suffer far greater disrepute from the admission of this evidence than from its exclusion. This Court must not be seen to condone deliberate unlawful conduct designed to subvert both the legal and constitutional limits of police power to intrude on individual privacy. As Dickson C.J. stated in Genest, supra, at p. 92: "the breach was not merely technical or minor". The violation of s. 8 of the Charter that occurred in this case must be regarded as flagrant, and the disrepute to the justice system that would necessarily result from the admission of the impugned evidence cannot be counterbalanced by speculation about the disrepute that might flow from its exclusion.
Conclusion
In view of the foregoing, the evidence must be excluded pursuant to s. 24(2) of the Charter . I would, therefore, allow the appeal and restore the acquittal.
Appeal allowed, DICKSON C.J. and L'HEUREUX‑DUBÉ and CORY JJ. dissenting.
Solicitors for the appellant: Rosenberg & Rosenberg, Vancouver.
Solicitor for the respondent: John C. Tait, Ottawa.
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