Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Exigent circumstances ‑‑ Admissibility of real evidence if search unlawful ‑‑ Police entering house to protect real evidence while waiting for issuance of search warrant ‑‑ Search conducted and evidence seized only after warrant issued ‑‑ Whether or not search and seizure contrary to s. 8 of Charter ‑‑ If so, whether admission of evidence would bring administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) ‑‑ Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 10, 12.
The police arrested appellant during an undercover drug operation which had indicated that a cache of cocaine for trafficking purposes was located in appellant's house. The police delayed obtaining a search warrant for the house until after the arrest in order, they said, not to be accused of presenting stale information to the justice of the peace. To prevent the destruction or the removal of the evidence between the time of the arrest and the arrival of the search warrant, officers attended at appellant's house, knocked, identified themselves, and entered without an invitation with guns drawn. They then checked the premises for weapons, holstered their weapons, confined the occupants to the house and advised them to continue with their activities. The judicial officer issuing the warrant was not informed of the occupation of the house by the police. Cocaine and cash, some of it marked money used by the undercover police to buy cocaine on earlier occasions, were discovered on the search and seized, but no weapons were found.
Appellant, when in police custody, was told that the house had been occupied. He was not allowed to contact his lawyer, however, until he provided police with the combination of the locked bag where the drugs and drug money were found.
The entry into the house was conceded on appeal to be in violation of the s. 8 Charter right to freedom from unreasonable search and seizure. Both the trial judge and the Court of Appeal decided that admission of this evidence would not bring the administration of justice into disrepute and was therefore admissible under s. 24(2) of the Canadian Charter of Rights and Freedoms . At issue here was whether this determination was wrong.
Held (La Forest J. dissenting): The appeal should be dismissed.
Per Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The warrantless entry by the police to secure the premises and prevent the destruction of evidence was, notwithstanding their good intentions, a form of search which was not authorized by law and infringed the appellant's s. 8 Charter rights. No artificial division could be drawn between the entry into the home by the police and the subsequent search of the premises made pursuant to the warrant because the two actions were so intertwined in time and in their nature.
R. v. Kokesch was distinguishable. The illegal entry by the police here was to protect real evidence and was not analogous to the perimeter search conducted in R. v. Kokesch, which resulted in the acquisition of enough evidence by the police to obtain a search warrant.
The three primary factors which should guide the consideration of a court in determining whether evidence should be excluded under s. 24(2) of the Charter are: (a) the effect of the admission of the evidence on the fairness of the trial; (b) the seriousness of the Charter breach; and (c) the effect of excluding the evidence on the justice system's repute. Findings of the courts below pertaining to s. 24(2) issues should not be overturned absent some apparent error as to applicable principles or rules of law or unless those findings are unreasonable.
Section 24(2) of the Charter should not be used as a matter of course to excuse conduct which has in the past been found to be unlawful. The entry and search of a dwelling-house without a warrant is a very serious breach of the Narcotic Control Act and the historic inviolability of a dwelling-house. In the future, even if such exigent circumstances exist, the evidence would likely be found inadmissible under s. 24(2).
Here, the evidence seized as a result of the search was real evidence that existed in the appellant's residence. It would inevitably have been discovered in a search of those premises. Its admission cannot conceivably be thought to affect the fairness of the trial adversely.
For the police to enter a dwelling‑house without a warrant flies in the face of the provisions of the Narcotic Control Act and denies the historical and fundamental importance of a person's home. Yet, exigent circumstances did exist: the nature of the crime, the public arrests near the dwelling‑house and the belief by the police that they needed to enter the house in order to preserve the evidence while they awaited the search warrant which they believed to be on the way. The Charter violation was rendered less serious in light of the particular facts of this case.
If the urgent emergency circumstances are such that the police are required to enter a dwelling without a warrant to preserve evidence, the question as to whether or not the serious nature of the breach would render the evidence obtained in a subsequent search inadmissible will have to be carefully considered on a case-by-case basis. Such evidence will in future be admitted only in rare cases. It would be preferable for the police to obtain a search warrant prior to the arrest even if it was on more limited information. An explanation to the trial court concerning the need for speed in searching the premises may often satisfactorily answer any allegations that the warrant is so stale‑dated as to be ineffective. Now the police may be able to obtain a search warrant by telephone by making use of s. 487.1 of the Criminal Code .
Drug trafficking is a serious crime and the evidence seized was vital to the proof of the case against the appellant. The admission of the evidence would not have an adverse effect upon the reputation of the administration of justice.
Per L'Heureux‑Dubé J.: No violation of s. 8 of the Charter occurred given the exigent circumstances. The police not only had reasonable and probable cause for the arrest of the appellant but also had reasonable and probable grounds to believe that they would find drugs in his house. The police acted reasonably upon entry of the premises and were not found to have acted in bad faith. Moreover, the search of the premises did not start, nor was one attempted, before a search warrant was obtained. In fact, the police entered the appellant's dwelling-house not for the purpose of searching for narcotics but rather for securing the premises while awaiting a search warrant.
Concessions of law are not binding on courts. The concession made here, that the entry infringed s. 8 of the Charter , was unacceptable and constituted an error of law. Exigent circumstances, both under the common law and under the Charter , constitute an exception to the ancient maxim "a man's home is his castle" which underlies the finding of a serious s. 8 Charter violation. The Crown bears the onus of demonstrating that exigent circumstances justified the entry by the police.
An inquiry into the common law is required in this regard because s. 10 of the Narcotic Control Act neither eliminates the common law exceptions relative to exigent circumstances nor deals with entries into private dwellings under exigent circumstances. Neither s. 10 nor the common law precludes warrantless police entries in exigent circumstances. A warrantless entry into a private dwelling, be it under the common law or under the Charter , requires lawful justification and the exigent circumstances that were clearly found to have existed justified the entry here. The entry accordingly did not infringe s. 8 of the Charter .
A lower expectancy of privacy exists in the workplace. The level of expectation of privacy in the context of the business of trafficking in drugs is no different from that of a legitimate business, whether it be conducted from the home or on business premises. The Charter was not intended to protect blindly privacy interests claimed in the context of criminal activities played out within one's home. Given his criminal activities, the accused had an objectively low expectation of privacy within his dwelling.
If a Charter violation had occurred, the evidence should not be excluded under s. 24(2) of the Charter .
Per La Forest J. (dissenting): The Crown properly conceded that the appellant's constitutional right to be secure against an unreasonable search and seizure had been breached. The very statute the police were attempting to enforce made it abundantly clear that the police may only enter a dwelling "under authority of a warrant" issued by a justice. It thus violated s. 8 of the Charter . The police action of securing the entire household constituted a search, or at the very least, a seizure. It is difficult to see on what authority the police could hold the occupants of the house under "house arrest" in their own home with or without a search warrant and they had no reasonable grounds to believe any of them were involved in the crime under investigation.
The distinction between the initial police entry to secure the house and the subsequent search after the search warrant was granted and produced at the house is unrealistic. The seizure of the house and the ensuing search were part of a single operation aimed at finding evidence to confirm the previously monitored drug transactions.
The objective expectation of privacy of the appellant was high. The fact that one is not home does not reduce but rather reinforces the notion that the police cannot be permitted unauthorized powers of entry. More than the opportunity to destroy the evidence was lost -- appellant, and society, lost the security guaranteed by the Charter that the police will not invade a private house without conforming to the established law.
Absent clear statutory language, the police have no power to enter a dwelling-house to conduct a search without a warrant. The search therefore violated both the s. 10 of the Narcotic Control Act and s. 8 of the Charter .
The presence of exigent circumstances was not a relevant consideration under s. 8. Urgent situations may, along with other circumstances, be considered in assessing the seriousness of the Charter breach in the course of considering whether evidence gathered as a result of such breach should be admitted into evidence under s. 24(2) of the Charter but an examination under that provision presupposes a Charter breach. The "exigent circumstances" here arose solely out of the manner in which the police chose to structure the operation; they created their own.
The findings of the courts below regarding s. 24(2) issues are ordinarily accorded considerable deference. That is not so, however, where such findings flow from errors in the applicable principles.
There was a sufficient temporal connection between the warrantless search and the evidence ultimately obtained to require an analysis under s. 24(2) of the Charter . The Charter violation occurred in the course of obtaining the evidence. The initial entry, the seizure of the house and its occupants and the finding of the evidence can only be seen as part of one continuous transaction.
A number of criteria can be examined in determining whether the admission of evidence obtained in violation of a Charter right should be rejected as tending to bring the administration of justice into disrepute. These are frequently grouped as: (1) those affecting the fairness of the trial; (2) those relating to the seriousness of the Charter violation; and (3) those relating to the effect on the reputation of justice. The evidence should be rejected if its admission would result in an unfair trial. It may also be rejected if the breach is serious even without causing the trial to be unfair. The most important criteria in this case concern the good faith of the police, the circumstances of urgency, and the availability of other investigative techniques.
At best, without engaging in an ex post facto analysis, it can be assumed that the evidence would probably have been found. While the admission of the real evidence of the cocaine and drug money would be unlikely to affect the fairness of the trial, buttressing this conclusion with hindsight is indicative of precarious logic.
The right to privacy in one's home is one of a fundamental nature and was seriously breached by the police when they entered without a warrant. The exceptional and rare indicia that might permit the admission of evidence obtained through such a breach are not present.
The trial judge made no finding that the police acted in good faith, and considerable evidence indicates the contrary. The officers seemed, at best, ill-informed about the extent of their authority and ought to have known both that a warrantless entry was "highly unorthodox" and that the Charter guaranteed the right to be secure from unwarranted police entry. Their conduct was so lax to be unacceptable. The manner in which the police procured the warrant is open to serious criticism in that information about the police occupation of the house should not have been withheld from the judicial officer issuing the warrant. The seriousness of the breach was further exacerbated by the attempt by police to have the appellant incriminate himself while he was in custody and had not yet had an opportunity to speak to a lawyer. By informing the appellant that police were inside his house in order to solicit a confession or further evidence to buttress the warrant they had yet to acquire, the police unacceptably manipulated the fears and concerns of the appellant for the members of his family who were present in the house. The denial of the appellant's right to telephone counsel from the time of his arrival at the police station until after he had provided the combination to the locked gym bag containing the cocaine and drug money was yet another component in a continuing pattern of disregard for the rights of the appellant.
A reasonable way of proceeding with the request for the warrant would have been to alert the issuing justice before the arrests that additional information relevant to the proposed search might be gained during the apprehension of the suspects. The police would then supply this information to the justice as soon as possible. Absent true exigent circumstances, the Narcotic Control Act and the Charter mandate that it is the only way to proceed. This conclusion is reinforced by Parliament's provision in the Criminal Code for telewarrants. The fact that the police had available permissible and practical techniques for conducting their investigation in conformity with the Charter , but chose instead to sequence their operations in a manner that seriously offended fundamental liberty interests, further exacerbates the severity of the Charter breach. The cumulative evidence of a poorly managed operation, a glaring pattern of disregard for Charter-protected interests and an ignorance of the necessity to apprise a judicial officer fully of all relevant information when seeking a warrant were striking.
Urgency is a factor affecting the seriousness of the Charter breach to be weighed under s. 24(2) of the Charter . Here, the exigency existed as the direct result of the manner in which the police chose to structure their operation. The police could have sought a warrant before the take-down but instead created their own exigency in their sequencing of the arrests. Public arrests are not an unusual occurrence justifying a claim of exigent circumstances.
The attempt to link drugs automatically to the possible presence of firearms so as to ground a claim of exigent circumstances as justification for pre-warrant securing of premises should be resisted. Officers who enter a house without a warrant cannot be in a better position to ensure their safety than if they enter with a warrant. A general suspicion that firearms may be present should not be used to bolster a claim of urgency.
The illicit drug trade is odious and poses a grave threat to society. All reasonable steps must therefore be taken to eradicate it. But the desirability of these efforts, no matter how grave the threat, cannot make the courts deviate from their high duty to ensure that those who wield power on behalf of the state do so within the limits of the Charter . To consider constitutional guarantees as bothersome technicalities is far more destructive in the long term than the momentary evil sought to be prevented. The evidence of the drugs and money must be excluded. To apply a less exacting standard concerning the exclusion of evidence for crimes involving drugs than for other offences would not enhance the reputation of justice.
The concept of exigent circumstances allows the courts, on rare occasions, to permit the admission of evidence despite its being obtained through a breach of the Charter . That uncommon departure cannot be permitted to operate where it is feasible to obtain prior judicial authorization for a search. To expand exigent circumstances to include police created emergencies, whether arising from bad faith or gross ineptitude, is to undermine seriously the requirement that judicial authorization is required before an entry onto private premises can be made. The long term impact of allowing police practices creating exigent circumstances where minimal foresight could have avoided them dictates that the evidence in this case must be excluded. To admit this evidence would bring the administration of justice into disrepute; it must be excluded under s. 24(2) of the Charter .
Cases Cited
By Cory J.
Considered: Segura v. United States, 468 U.S. 796 (1984); United States v. Mabry, 809 F.2d 671 (1987); distinguished: R. v. Kokesch, [1990] 3 S.C.R. 3; referred to: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Strachan, [1988] 2 S.C.R. 980.
By L'Heureux‑Dubé J.
Considered: Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Macooh, [1993] 2 S.C.R. 802; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Rao (1984), 12 C.C.C. (3d) 97; distinguished: Colet v. The Queen, [1981] 1 S.C.R. 2; referred to: R. v. Duguay, [1989] 1 S.C.R. 93; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Elshaw, [1991] 3 S.C.R. 24; Semayne's Case (1604), 5 Co. Rep. 91, 77 E.R. 194; Lyons v. The Queen, [1984] 2 S.C.R. 633; Texas v. Brown, 103 S.Ct. 1535 (1983); Segura v. United States, 468 U.S. 796 (1984); United States v. Edwards, 602 F.2d 458 (1979); Commonwealth v. Amaral, 450 N.E.2d 656 (1983); United States v. Mabry, 809 F.2d 671 (1987); United States v. Riley, 968 F.2d 422 (1992); R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wiley, [1993] 3 S.C.R. 263; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. L. (D.O.), [1993] 4 S.C.R. 419.
By La Forest J. (dissenting)
R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Kokesch, [1990] 3 S.C.R. 3; Semayne's Case (1604), 5 Co. Rep. 91, 77 E.R. 194; Entick v. Carrington (1765), 19 St. Tr. 1029; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Thompson, [1990] 2 S.C.R. 1111; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Collins, [1987] 1 S.C.R. 265; Colet v. The Queen, [1981] 1 S.C.R. 2; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Wiley, [1993] 3 S.C.R. 263; R. v. Hebert, [1990] 2 S.C.R. 151; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Dyment, [1988] 2 S.C.R. 417; Olmstead v. United States, 277 U.S. 438 (1928); R. v. Wise, [1992] 1 S.C.R. 527; R. v. Genest, [1989] 1 S.C.R. 59; United States v. Santana, 427 U.S. 38 (1976); Segura v. United States, 468 U.S. 796 (1984); R. v. Burlingham, [1995] 2 S.C.R. 206 ; Elkins v. United States, 364 U.S. 206 (1960); R. v. Young (1993), 79 C.C.C. (3d) 559.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .
Criminal Code , R.S.C., 1985, c. C-46 , s. 487.1 [ad. c. 27 (1st Supp.), s. 69].
Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 4(1), (2), 10 [rep. & sub. R.S.C., 1985, c. 27 (1st Supp.), s. 199], 12.
United States Constitution, Fourth Amendment.
Authors Cited
Halsbury's Laws of England, vol. 10, 3rd ed. London: Butterworths, 1955.
Hentoff, Nat. "Profiles: The Constitutionalist", The New Yorker, March 12, 1990, 45.
APPEAL from a judgment of the Ontario Court of Appeal (1994), 16 O.R. (3d) 786, 88 C.C.C. (3d) 61, 69 O.A.C. 296, 20 C.R.R. (2d) 161, dismissing an appeal from conviction by Ewaschuk J. Appeal dismissed, La Forest J. dissenting.
Paul B. Rosen, for the appellant.
Robert W. Hubbard and Scott K. Fenton, for the respondent.
The following are the reasons delivered by
1 La Forest J. (dissenting) -- This appeal concerns the sanctity of the home against state intrusion. In particular, it deals with whether exigent circumstances will permit the police to enter a dwelling-house to search for narcotics before first obtaining a judicially authorized search warrant. It also raises the issue whether, in the circumstances of this case, evidence obtained pursuant to a warrant but following a warrantless entry should be rejected under s. 24(2) of the Canadian Charter of Rights and Freedoms as bringing the administration of justice into disrepute, and in particular the role exigent circumstances may play in that determination.
Facts
2 A proper appreciation of the issues in this case requires a meticulous examination of the facts. The appellant, Antonio Silveira, was charged with having in his possession a narcotic for the purpose of trafficking, contrary to s. 4(1) and (2) of the Narcotic Control Act, R.S.C., 1985, c. N-1. With a view to establishing this offence, the police entered the home of the appellant and his family, without a search warrant, to secure evidence they feared might otherwise be destroyed. They placed the occupants of the house, the appellant's mother, father, two brothers, sister, and two small children, under "house arrest" for an hour and a quarter while a search warrant was obtained. This is the principal, but by no means the only police conduct, that gives rise to concern in this appeal.
3 On September 10, 14 and 18, 1990, an undercover police officer made three separate purchases of cocaine from a co-accused, Daniel Scinocco, at a community centre in Trinity Park, Toronto. The police paid cash in advance for each purchase. On each occasion Scinocco was seen making contact with the appellant. The appellant was then observed being driven by another co-accused, Antonio Barbosa, to 486 Dufferin Street, the residence of the appellant's family. The appellant would enter the house and leave after a short time to meet Scinocco. Each time, Scinocco returned to the location of the undercover officer and gave him approximately 25 grams of cocaine in rock form.
4 At 5:00 p.m., September 18, 1990, two police surveillance teams held a meeting to discuss an imminent "take-down" of the drug trafficking organization. The operation was headed by veteran police officers, who were familiar with the procedural requirements of search warrants and had experience with the difficulties involved in entering premises without a warrant. Officer Clifford was in charge of the main surveillance team which had monitored the appellant's drug transactions. Before the take-down meeting, he had already undertaken the task of preparing a search warrant to effect a legal entry and search of the appellant's home. Another surveillance team, headed by Officer Smart, provided further officers to ensure that there was sufficient personnel to complete the anticipated arrests.
5 Moments after the third sale, the police coordinated arrests of Scinocco, Barbosa, and the appellant in separate locations in the neighbourhood of the appellant's house. The appellant was arrested at approximately 7:10 p.m., charged, read his rights and then placed in a police car to be taken to the police station.
6 Clifford intercepted the police car transporting the appellant to the police station and spoke privately with Silveira. At trial, Clifford testified that while he believed he already had sufficient evidence to obtain a search warrant, he thought the appellant, if cooperative, could assist in gathering further information to strengthen both the application for the warrant and the case itself. To achieve these ends, Clifford advised the appellant that police officers were at his house. Clifford testified that he did not actually know whether the police were inside the appellant's home at the time or merely at the location, but that he lied to facilitate the appellant's cooperation. On being told that officers were present at his home, the appellant confessed that there was cocaine there but that it was his alone and that he did not want his family involved.
7 The appellant was then taken to a police station where he requested the use of a telephone. The request was delayed by an Officer Pyke in order to protect the safety of the officers at the appellant's house. Pyke testified that denying access to a telephone in these circumstances was a policy of his own rather than of the police department.
8 Six members of the police went directly to the appellant's home at 486 Dufferin Street and arrived there at approximately 7:30 p.m. The police announced their presence by knocking on the door, and when the door was opened, they rushed into the premises with firearms drawn. The police occupied the kitchen, the living room, the upstairs portion of the house and the front porch. They explained to the occupants that they believed there was cocaine and marked money there. The police did not have a search warrant, but advised the occupants that they were in the process of acquiring one and explained that, until the search warrant arrived, everyone would be confined to various rooms in the house. The police required the appellant's sister, mother and father to remain in the kitchen, while the appellant's brother and his sister's children were ordered to remain in the living room. The occupants were informed that they could continue with their dinner preparations. During this time, the police monitored the occupants and kept the premises secure. Although the police looked around the house to ensure their own safety, they did not begin to search for evidence until the arrival of the search warrant.
9 Another brother of the accused arrived home shortly after the police arrived; he was directed to remain in the living room. The brother testified that he had no knowledge of his brother's arrest until he was told by the police occupying the house. The police, however, testified that the brother stated that he had returned home because he had heard of his brother's arrest. There was no evidence that the brother was implicated in any way in the appellant's drug trading.
10 Officer Smart testified that because the three drug arrests had been made publicly in the vicinity that evening, there was a concern that this fact would be communicated to the occupants of 486 Dufferin Street and that evidence would be destroyed. He further testified that the police secured the premises to ensure the safety of the officers who would later execute the warrant to avoid a risk of firearms.
11 After having intercepted the appellant, Officer Clifford went about the task of obtaining a search warrant. Of note is that in the sworn information presented to the justice, Clifford failed to disclose that police were already present at the premises to be searched, an omission the trial judge later found not to be material. The search warrant was issued at 8:30 p.m. and produced at the appellant's residence at approximately 8:45 p.m. By then, we saw, the members of the appellant's family had been under effective house arrest for an hour and fifteen minutes.
12 A search for the cocaine and money was then commenced and a gym bag with a combination lock was found in the appellant's room. One of the officers involved in executing the search warrant sought the combination for the lock and telephoned Officer Pyke, who had remained with the appellant at the police station. On Pyke's request, the appellant provided the combination number. He was then allowed to use the telephone for the first time after being in police custody for more than an hour and a half.
13 When opened, the gym bag was found to contain 286.56 grams of cocaine and $9,535 in Canadian currency. A large part of the money was in marked bills from the earlier cocaine purchases. The recovery and opening of the gym bag was accomplished within five minutes of the arrival of the search warrant. The post warrant search of the house was completed within fifteen minutes of the production of the search warrant at the appellant's residence. No firearms were found.
14 During the course of his trial, the appellant applied to exclude the evidence found as a result of the search and seizure at his residence, but following a voir dire, the trial judge held that s. 8 of the Charter had not been infringed and that, in any event, the admission of the evidence could not bring the administration of justice into disrepute.
15 The appellant was convicted of three counts of trafficking in, and one count of possession of cocaine for the purposes of trafficking. He was sentenced to imprisonment for three years. The Court of Appeal for Ontario by majority dismissed the appeal. Abella J.A., dissenting, would have allowed the appeal on the grounds that the appellant's rights under s. 8 of the Charter were violated, that the violation was serious and that the admission of the evidence would bring the administration of justice into disrepute.
Judicial History
Ontario Court of Justice (General Division)
16 The trial judge, Ewaschuk J., granted a motion made on behalf of the appellant to exclude the inculpatory statements made to the police concerning the presence of cocaine on the premises and the combination to the gym bag containing the drugs and money. He held the Crown had failed to prove beyond a reasonable doubt that the statements were made voluntarily and ruled them inadmissible.
17 The trial judge then considered a second motion under ss. 8 and 24(2) of the Charter to determine whether the evidence obtained by the search and seizure at the appellant's residence was admissible. On this motion, he held that the drugs and money should be admitted. He first considered the entry by the police before going on to the issue of the search warrant. The entry, it was conceded, could not be authorized retrospectively by the subsequent issue of a search warrant. However, Ewaschuk J. found the Crown could justify the entry on the basis of the exigent circumstance that the drug evidence could be destroyed. The police had made three public arrests close by and were concerned that the occupants of the appellant's house might destroy any evidence on the premises. As such, the police were justified in entering the premises to prevent the occupants from doing so. Ewaschuk J. held that the police acted reasonably in the circumstances.
18 The judge then considered the manner and timing of the search. The police, he held, did not begin to search for cocaine until after the search warrant arrived. It was reasonable for them in the circumstances to search for occupants before the arrival of the warrant in order to protect themselves and to prevent the destruction of evidence. The police had knocked on the door and introduced themselves to the occupants. They had only used firearms momentarily, and he found this was justified because of the connection between hard drugs and guns in Toronto.
19 Turning to the reasonableness of the issuance of the search warrant, the judge found the police should not have told the justice that the appellant had indicated that there was a further quantity of cocaine at his premises as that statement was involuntary. He then discussed the failure of the police to inform the issuing justice that the police had already occupied the premises which were the subject of the search warrant, but found that the informant, Officer Clifford, had not thereby intended to mislead the justice. As well, Ewaschuk J. found this omission to be non-material. He was satisfied that the facts were so compelling that any justice acting reasonably would have issued the warrant notwithstanding the non-disclosure.
20 Finally, Ewaschuk J. concluded that even assuming a s. 8 Charter breach had occurred, the Crown had satisfied him that the admission of the evidence seized could not bring the administration of justice into disrepute.
Court of Appeal for Ontario (1994), 16 O.R. (3d) 786
Griffiths J.A. (for the Majority)
21 An appeal was then launched to the Court of Appeal of Ontario. Griffiths J.A., for the majority, first considered whether there was a material non-disclosure leading to the issuance of the search warrant. He concluded that the facts in the information were clearly sufficient to justify the granting of a search warrant. The failure to mention that the police were already on the premises, he stated, was found by the trial judge to be unintentional and thought to be non-material by the police officer. Griffiths J.A. stated that when Clifford swore the information, he did not know as a fact that the police were inside the house.
22 Griffiths J.A. then canvassed whether the initial entry of the police violated the appellant's rights under s. 8 of the Charter . He noted, at p. 797, that the Crown conceded a s. 8 violation based on the fact that the appellant has a "reasonable expectation of privacy", citing R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627. However, he stated that he had some difficulty in finding that the initial entry was a search and as such a violation of s. 8 of the Charter since the trial judge accepted that no search or seizure for narcotics was attempted before the arrival of the warrant. Griffiths J.A. had no doubt, however, that the initial entry was a trespass and an unwarranted invasion of the privacy of the occupants. Since the Crown had conceded the breach of s. 8, he was prepared to deal with the s. 24(2) analysis on the assumption that such a breach existed. Despite his doubts about the police conduct's constituting a search, he concluded that, to the extent that the police were looking for individuals or things other than drugs, it could be said in a very narrow sense that the police were conducting a search.
23 Even though the initial unlawful entry was not made for the purpose of obtaining evidence, Griffiths J.A. found that there was a sufficient connection between the entry and the seizure to require a determination whether the evidence should be excluded under s. 24(2) of the Charter . However, despite the unlawfulness of the initial entry, he held that the finding of the trial judge supported the conclusion that the police were acting in good faith in attempting to secure the evidence. He found it a matter of judgment of experienced police officers that there was a potential for the destruction of evidence unless the premises were secured because word might have spread about the arrests.
24 Griffiths J.A. rejected the argument that the police acted in an abusive manner towards the occupants of the house given that the trial judge found as a fact that the conduct of the police was reasonable in the circumstances. As well, he noted, at pp. 799-800, the appellant was not in the house at the time and "it is only the Charter rights of the appellant and the alleged violation of these Charter rights with which we are concerned".
25 In determining whether the police could have obtained the search warrant earlier, Griffiths J.A. held, at p. 800:
In my view, it was not unreasonable for the police to delay the application for the search warrant until they had completed their surveillance and obtained all of the necessary evidence and made the arrests to support the charges. The question of when the police should have moved to obtain the warrant is a matter to be left to their professional judgment. I find nothing unreasonable in the manner in which they exercised that judgment in the circumstances of this case. Certainly there is nothing in the evidence to suggest that the time lapse of approximately one hour and 20 minutes from the time of the arrest of the appellant to the issue of the search warrant was unreasonable.
26 Griffiths J.A. applied s. 24(2) of the Charter as follows, at pp. 800-801:
. . . I am of the view that the police were acting in good faith, having regard to the findings of the trial judge. Their conduct in entering the house was for the bona fide purpose of securing the evidence which they, on reasonable grounds, believed might be destroyed. The trial judge found that, even assuming a s. 8 Charter breach, the Crown had satisfied him that the admission of the evidence seized at the residence could not bring the administration of justice into disrepute.
27 Griffiths J.A. noted, citing R. v. Grant, [1993] 3 S.C.R. 223, that an appellate court should not readily interfere with the decision of the trial judge respecting s. 24(2) of the Charter . He then followed the three factors relevant to determining the admissibility of evidence under s. 24(2) of the Charter as set out in that case.
28 With respect to the first factor, effect on trial fairness, he held that where evidence is real and has not been produced as a result of the Charter breach, it would not tend to render the trial unfair.
29 As to the second factor, Griffiths J.A. concluded that the Charter violation was not sufficiently serious to warrant the exclusion of evidence. First, it was a borderline case of a "search" within the meaning of s. 8 of the Charter . As well, the police had reasonable grounds to believe the evidence would be destroyed. Although the police wrongfully trespassed and violated the occupants' right to privacy, the entry preceding the issuance of the warrant had no adverse impact on the appellant except to the extent that others were prevented from destroying the evidence. In his view, it was inevitable that the house would be searched and the narcotics and money found. Whatever might be said of the rights of the occupants, the violation of the appellant's Charter rights was minimal and the objective expectation of privacy was low. The violation was not sufficiently serious to warrant exclusion of the evidence.
30 Turning to the third factor, Griffiths J.A. noted that the introduction into evidence of the seized drugs and money was crucial to convictions on serious charges. Thus, exclusion of the evidence would unfavourably impact on the repute of the justice system, citing R. v. Kokesch, [1990] 3 S.C.R. 3.
31 Like the trial judge, therefore, Griffiths J.A. concluded that the evidence should be admitted. "The only detriment suffered by the appellant with respect to the initial unlawful entry", he stated, at p. 803, "was a loss of opportunity to destroy the evidence subsequently seized."
Abella J.A. (dissenting)
32 Abella J.A., dissenting, found the evidence should have been excluded under s. 24(2) of the Charter . She reviewed the facts and noted that the appellant had been under surveillance for several days before the search. The police entered the home knowing there was no search warrant, even though they anticipated one would issue. As well, she noted, the sworn information had been substantially completed before the arrest of the appellant. She observed that while Officer Clifford had questioned the appellant about the cocaine and had told him the police were at his house, he neglected to mention this fact when appearing before the justice to obtain a warrant.
33 Abella J.A. cited ss. 10 and 12 of the Narcotic Control Act where Parliament has clearly stated that the police require a warrant to enter a dwelling-house. She remarked that the exceptions to the requirement for prior authorization for entering a dwelling-house remain exceedingly rare given that the liberty of individuals is at stake. She noted that this Court in Grant, supra, has concluded that a warrantless search would only survive Charter scrutiny where exigent circumstances made the obtaining of a warrant impracticable. Otherwise, a warrantless search violates s. 8 of the Charter .
34 Abella J.A. found that, in the present case, the trial judge's finding of exigent circumstances was necessary to his conclusion that the initial search was reasonable. On the appeal, however, the Crown conceded that the initial entry was an unreasonable search. It was thus no longer open to the Crown to rely on alleged exigent circumstances; they were merely factors to be considered in weighing the good faith of the police.
35 Abella J.A. stated, at p. 806, that the police sequenced their tactics as follows:
In this case, the police entered a dwelling house knowing that a warrant was required. They chose to enter while the accused was under arrest at the police station, keeping his mother, sister, and two small children under "house arrest" as they anticipated what they considered to be the inevitable arrival of authority to search. They unquestionably had enough information, well before the appellant's arrest, to obtain a search warrant prior to entering the home. They chose, instead, to arrest first, enter second, and obtain authority last. While the police must undoubtedly be allowed strategic latitude, they should not be able to use it in knowing defiance of the law where a lawful alternative is available in the circumstances.
36 Abella J.A. then observed that s. 10 of the Narcotic Control Act prevents unauthorized searches of a dwelling-house. She stated, at p. 806:
The circumstances outlined by the police were easily foreseeable and could have been used to obtain an earlier authorization for entry and search of the dwelling. To permit the police to avoid the requirements of s. 10 by an ex post facto validation through a subsequent authorization which yields "real evidence", is to render the Charter 's privacy protection porous.
The notion that the news of public arrests could justify the police in immediately protecting the evidence, she noted, could arise in a multitude of situations. In her view, at p. 807, the presumptive protections of s. 10 of the Narcotic Control Act and the Charter would have to be displaced by "more than mere police convenience or conjecture".
37 Abella J.A. considered that the events of that evening were all part of a single investigatory process that could not be severed into two searches, one illegal and the other legal. She found a clear nexus between the unlawful search and the seizure of the evidence.
38 Abella J.A. was also of the view that the police had not acted in good faith. In Grant, supra, the evidence was admitted because the police had been acting in good faith in accordance with what they thought to be the law. Here no such explanation was available. The police knew a search warrant was required and they ignored the requirements of s. 10 of the Narcotic Control Act. Moreover, in obtaining the warrant the police did not reveal to the authorizing justice the fact that the police were already at the premises. While this fact would not have affected the granting of the authorization, she found, at p. 807, that it was "inconsistent with the good faith requirement".
39 Abella J.A. concluded, at p. 807, as follows:
The infringement was serious, the expectation of privacy was exceptionally high, the illegal intrusion was far from minimal, and alternate, lawful means of obtaining the evidence were available. All of these factors lead me to the conclusion that this is a serious violation of a Charter right, and that the admission of the evidence obtained as a result of the violation would bring the administration of justice into disrepute.
She would have allowed the appeal, set aside the convictions and entered a verdict of acquittal.
40 Notice to appeal to this Court was then filed on behalf of the appellant.
Analysis
Application of Section 8 to the Securing of a Dwelling-House
41 I note at the outset that the Crown has conceded that the appellant's constitutional right to be secure against an unreasonable search and seizure has been breached; it recognizes that the appellant had a reasonable expectation of privacy in his home. In my view, the Crown was perfectly right in making this concession, although the matter was apparently the source of some confusion in the courts below. It is surprising that nearly four hundred years after Semayne's Case (1604), 5 Co. Rep. 91, 77 E.R. 194, there should be any debate about the matter. That case firmly enunciated the principle that "a man's home is his castle", and that even the King himself had no right to invade the sanctity of the home without the authority of a judicially issued warrant. That principle has remained ever since as a bulwark for the protection of the individual against the state. It affords the individual a measure of privacy and tranquillity against the overwhelming power of the state; see also Entick v. Carrington (1765), 19 St. Tr. 1029. It is a fundamental precept of a free society. The apparent confusion in the courts below is all the more disturbing since in the very statute the police were attempting to enforce, the Narcotic Control Act (ss. 10 and 12), it is made abundantly clear that a police officer may only enter a dwelling "under authority of a warrant" issued by a justice.
42 I fail to see how there could be any doubt that a search occurred in the present case when the police took possession of the appellant's home. To maintain otherwise involves drawing untenable and artificial distinctions. The following ruling of the trial judge captures the disorder that results from trying to maintain that a search was not commenced until the warrant arrived:
I am satisfied that the police did not begin to search the premises for cocaine and money until after the Search Warrant arrived.
Furthermore the police were entitled to enter each room to search for occupants prior to the arrival of the Search Warrant . . .
43 It would be strange indeed to hold that the police entry into the appellant's house should not be classified as a search when one considers that in Kokesch, supra, this Court was unanimous in finding that a far less intrusive invasion of the appellant's privacy ‑‑ a perimeter examination of premises ‑‑ constituted a search for the purposes of s. 8 of the Charter . If an exterior examination of a building can constitute a search, then surely it would be untenable to deny that the unwarranted entry of six armed police officers into the living room, kitchen, upstairs, and porch of a house is also a search, or at the very least, a seizure. The comparative severity of the intrusion involved in a mere perimeter examination and the type of unauthorized entry that occurred in this case appears so obvious as to be hardly worthy of mention.
44 The very reason the police entered the appellant's house was to control it so as to secure and protect evidence. The movements of the residents were monitored and restricted by the occupying officers specifically so none of the evidence of the police observed drug transactions that might have been in the appellant's house would be destroyed. Not knowing precisely where the anticipated evidence might be concealed, the police took control, seized the entire house and all of its belongings and detained its occupants as well. Accordingly, I have no difficulty in finding that securing an entire household constitutes a seizure. I add parenthetically that I wonder where the police thought they derived the power to hold the occupants of the house under "house arrest" in their own home with or without a search warrant. They did not even have reasonable grounds to believe any of these people were in any way involved in the crime they were investigating.
45 The courts below made a distinction between the initial police entry to secure the house and the subsequent search after the search warrant was granted and produced at the house. I find this distinction unrealistic. The placing of police officers in the house was undertaken to facilitate the drug search that followed. The seizure of the house and the ensuing search were simply part of a single operation aimed at finding evidence to confirm the previously monitored drug transactions. I note that my colleague, Justice Cory, has taken a similar approach in his reasons.
46 I am also concerned by the majority opinion in the Court of Appeal regarding when s. 8 interests are to be protected. I respectfully cannot agree with its conclusion that the objective expectation of privacy of the appellant was low, or with its view that the police's entry had no adverse effect on the appellant except to the extent that others were prevented from disposing of the evidence on his behalf. It seems to me unusual to maintain that one has a low expectation of privacy in one's home merely because one is not present when the police enter. The fact that one is not home, if anything, reinforces the notion that the police cannot be permitted unauthorized powers of entry. I do not accept that all the appellant lost was the opportunity to destroy the evidence. This reasoning involves an ex post facto determination that, as Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 160-61, has held, is unacceptable. What the appellant lost ‑‑ and what we all lose when such intrusions take place ‑‑ is the security guaranteed by the Charter that the police will not invade our homes without conforming to the established rule that constitutes the cornerstone of our liberties.
47 Nor do I agree with the majority's view that the violation of the Charter rights of the appellant's family is irrelevant. It may, I suppose, be argued that, in strictness, only the appellant's privacy rights are directly raised, though I would have thought one's privacy interest extended to one's family. More generally, the broader impact of the Charter breach cannot be ignored. It is relevant to the serious consequences of the breach and points to the fact that the danger from breaches of Charter rights extends beyond the particular individual. The Charter guarantees exist for the protection of all of us. Section 8 makes it clear that everyone has the right to be secure against unreasonable search or seizure. The serious intrusion of the legitimate high expectations of privacy in one's home cannot be ignored in assessing the situation.
48 This Court has already set forth its views on this matter. In R. v. Thompson, [1990] 2 S.C.R. 1111, Sopinka J., speaking for the majority, had this to say, at p. 1143:
In my view, the extent of invasion into the privacy of these third parties is constitutionally relevant to the issue of whether there has been an "unreasonable" search or seizure. To hold otherwise would be to ignore the purpose of s. 8 of the Charter which is to restrain invasion of privacy within reasonable limits. A potentially massive invasion of the privacy of persons not involved in the activity being investigated cannot be ignored simply because it is not brought to the attention of the court by one of those persons.
The dissenting judges, Wilson J. (at pp. 1156-57) and myself (at p. 1179), expressed similar views. Even earlier, in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 521-22, I observed that the rationale for requiring a warrant to search the premises of a corporation for its business documents was that (contrasted with a mere demand for such documents) such a search invaded the privacy of the individuals who worked in the premises.
Exigent Circumstances
49 The existence of exigent circumstances appears to have dominated the thinking of the courts below. It, therefore, becomes important to review briefly the relevant law as it has thus far developed. Simply stated it is this: absent clear statutory language authorizing such a course, the police have no power to enter a dwelling-house to conduct a search without a warrant. Section 10 of the Narcotic Control Act makes this clear. It follows that the search also violated s. 8 of the Charter . Urgent situations, it is true, may, along with other circumstances, be considered in assessing the seriousness of the Charter breach in the course of considering whether evidence gathered as a result of such breach should be admitted into evidence under s. 24(2) of the Charter (see R. v. Collins, [1987] 1 S.C.R. 265), but an examination under that provision of course presupposes a Charter breach.
50 The principle that a search of a dwelling-house without a warrant is unjustifiable is firmly entrenched in the common law. It goes back at least 230 years, when in Entick v. Carrington, supra, it was flatly stated that if state authorities enter a house without the express permission of Parliament or the common law, they commit a trespass. No exception to this principle has since been made to permit a search in exigent circumstances or otherwise. The principle has in recent years been restated in Colet v. The Queen, [1981] 1 S.C.R. 2, where this Court unanimously held that police who enter and search a dwelling-house without a warrant are trespassers, and that specific statutory authority is required to alter this rule. Moreover, Ritchie J. made it clear that any such provision would be narrowly interpreted, concluding, at p. 10, that "any provision authorizing police officers to search and enter private property must be phrased in express terms" (emphasis added). The terms of ss. 10 and 12 of the Narcotic Control Act are clear. They authorize entry into a dwelling-house only under the authority of a warrant. No exception is made for exigent circumstances; there is thus no "specific statutory authority" to use the words of Ritchie J. There is no mention of exigent circumstances as a ground for an unwarranted police entry to search a dwelling-house. The common law since Entick v. Carrington has created no such justification, and it would require a marked departure from the law as set forth in Colet v. The Queen to do so, one that would involve a consideration of whether this conformed to s. 8 of the Charter .
51 This Court in Grant, supra, has, it is true, recognized that a warrantless search of the perimeter of a dwelling-house may be effected under the Narcotic Control Act and is permissible under s. 8 of the Charter where there are exigent circumstances necessitating immediate police action such as (at pp. 241-42) "an imminent danger of the loss, removal, destruction or disappearance of the evidence . . . if the search or seizure is delayed". It is noteworthy, however, that from the very first paragraph Sopinka J. confines his reasons to places other than a dwelling-house.
52 Reference was also made to some cases where the Supreme Court of the United States has taken a more permissive approach. It must be remembered, however, that this Court has generally adopted a more protective attitude towards individual privacy than its American counterpart in recent years. As well, in making a comparative analysis with United States jurisprudence in this area, it should not be forgotten that that country's judiciary has chosen to develop techniques of justification for allowing the use of evidence, which it may be unnecessary to import into the Canadian context given the balancing mechanism provided by s. 24(2) of the Charter . As Dickson J. (as he then was) has reminded us in Hunter v. Southam Inc., supra, caution should be exercised in using American techniques too liberally without an awareness of the context out of which they arose.
53 Even if exigent circumstances could be used as a justification for police searches of a dwelling-house without a warrant, I do not think such circumstances existed in this case. The facts here were such that the police could have obtained a warrant before beginning their operation. The exigent circumstances here arose solely out of the manner in which the police chose to structure the operation, i.e., they created their own exigent circumstances. In Grant, supra, Sopinka J. made it clear that exigent circumstances could only be relied on where obtaining a search warrant was impracticable. This point will come out more clearly in my discussion of the issue of urgency under s. 24(2), which (in view of my holding that exigent circumstances have no role to play in this case) is the appropriate context to consider it.
54 I conclude, therefore, that there was a search and a seizure in breach, indeed serious breach, of s. 8 of the Charter in a manner plainly prohibited by the clear language of ss. 10 and 12 of the Narcotic Control Act. The presence of exigent circumstances is, therefore, not a relevant consideration and there were, in any event, no circumstances here that could properly be considered as exigent.
Section 24(2) of the Charter
55 While it is well established that the findings of the courts below regarding s. 24(2) issues are ordinarily accorded considerable deference, that is not so where such findings flow from errors in the applicable principles, as I think was the case here.
56 The first determination that must be made in a s. 24(2) analysis is whether a Charter violation occurred in the course of obtaining the evidence. As Sopinka J. noted in Grant, supra, there need only be a sufficient temporal connection between the warrantless search and the evidence ultimately obtained to require an analysis under s. 24(2) of the Charter . That case confirmed the position taken in R. v. Strachan, [1988] 2 S.C.R. 980, where it was held that a causal connection is not required. Rather, one must focus on the entire chain of events during which the Charter violation occurred. At pages 1005-6 of Strachan, Dickson C.J. stated:
Accordingly, 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, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. The presence of a temporal connection is not, however, determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter .
57 In Grant, supra, Kokesch, supra, and R. v. Wiley, [1993] 3 S.C.R. 263, the Court found that there was a sufficient temporal link between warrantless perimeter searches made in breach of s. 8 of the Charter and the subsequent discovery of the evidence pursuant to a valid search to warrant examination under s. 24(2). Even where a perimeter search was not essential to the search conducted pursuant to the warrant, the Court held, the actions all form "component parts of an ongoing investigation and thus are not sufficiently remote from one another to diminish their temporal connection"; see Wiley, at p. 278.
58 Here, as in Grant, at p. 254, the s. 8 violation occurred during "the investigatory process . . . quite apart from the fact that a reasonable search was undertaken subsequently pursuant to a valid warrant". There is no issue that there was not a sufficient temporal connection between the unwarranted entry and the finding of the evidence. The initial entry, the seizure of the house and its occupants, and the finding of the evidence can only be seen as part of one continuous transaction. This point is obvious: the police purposefully timed their warrantless entry into the house, together with the warranted search for drugs, as one continuous transaction so that there would be no removal or destruction of the evidence they suspected was in the appellant's house. I note that the Crown effectively conceded this point on appeal and I am in agreement with Cory J.'s holding, at p. 363, that
there can be no artificial division between the entry into the home by the police and the subsequent search of the premises made pursuant to the warrant. The two actions are so intertwined in time and in their nature that it would be unreasonable to draw an artificial line between them in order to claim that, although the initial entry was improper, the subsequent search was valid.
59 However, in my view, my colleague later departs from this reasoning when, in attempting to distinguish this Court's decision in Kokesch, he states at p. 365: "This case is very different. No evidence was obtained as a result of the illegal entry onto the premises." With all respect I disagree. As I see it, the first of these passages dictates otherwise: the illegal entry, the occupation of the house and the recovery of the evidence cannot be artificially separated.
The Factors to be Considered
60 In Collins, supra, at pp. 283-84, Lamer J., as he then was, set forth a number of criteria to be examined in determining whether the admission of the evidence obtained in violation of a Charter right should be rejected as tending to bring the administration of justice into disrepute, namely:
-what kind of evidence was obtained?
-what Charter right was infringed?
-was the Charter violation serious or was it of a merely technical nature?
-was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?
-did it occur in circumstances of urgency or necessity?
-were there other investigatory techniques available?
-would the evidence have been obtained in any event?
-is the offence serious?
-is the evidence essential to substantiate the charge?
-are other remedies available?
The most important of these questions in terms of this appeal concern the good faith of the police, the circumstances of urgency, and the availability of other investigative techniques. These factors are frequently grouped under three general headings: (1) those affecting the fairness of the trial; (2) those relating to the seriousness of the Charter violation; and (3) those relating to the effect on the reputation of justice. I add that the evidence should be rejected if its admission would result in an unfair trial. But that does not end the matter. It may also be rejected if the breach is serious even without causing the trial to be unfair; see R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 207-8, per Sopinka J.
Trial Fairness
61 This Court has warned against the dangers of an ex post facto analysis in Hunter v. Southam Inc., supra. This counsel must be considered when determining the effect of the admission of evidence upon the fairness of a trial. It can always be maintained that when the police enter a house without a warrant and incriminating evidence is found, there has been no prejudice to the appellant as the evidence could have been found anyway. Can we be sure that the evidence would have been found, absent destruction and removal, had the police waited for the warrant before entering the house? At best, without engaging in an ex post facto analysis, we can only assume that the evidence would probably have been found. While I agree that the admission of the real evidence of the rock cocaine and drug money would be unlikely to affect the fairness of the trial, buttressing this conclusion with hindsight is indicative of precarious logic.
Seriousness of the Charter Violation
62 As mentioned, the right infringed, the right to privacy in one's home, is one of the most cherished rights in our society; see Eccles v. Bourque, [1975] 2 S.C.R. 739, R. v. Landry, [1986] 1 S.C.R. 145, and Colet v. The Queen, supra. Cory J. has rightly noted the fundamental nature of this right and found that the police seriously breached the appellant's right of privacy by entering his home without a warrant. In my view, the exceptional and rare indicia that might justify such a breach are not present.
Good Faith
63 I have serious concerns about the conduct of the police. It betrays a pattern of disregard for the rights of the appellant that further aggravates the seriousness of the s. 8 Charter breach; see R. v. Greffe, [1990] 1 S.C.R. 755. There was no finding by the trial judge that the police acted in good faith, and considerable evidence to indicate the contrary.
64 I am initially troubled by the fact that the s. 8 violation was committed by officers who, to put the best possible face on it, seemed ill-informed about the extent of their authority. I do not find it reassuring that the police believed they had the right to enter the house to preserve the evidence. As Sopinka J. stated in Kokesch, supra, at p. 32:
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". . . .
Similarly in R. v. Dyment, [1988] 2 S.C.R. 417, where there was no evidence that the respondent's rights were knowingly breached, this Court made it clear, at p. 440, that such lax police procedures could not be condoned.
65 The police surely knew, or ought to have known, that a warrantless entry was, to say the least, highly unorthodox. That they had largely prepared the required information before their strategic take-down meeting demonstrates that they were well aware that a warrant was required to permit entry into the house. It would be alarming if they were not so apprised; s. 10 of the Narcotic Control Act, the statute under which they were operating, says so in so many words. Further, the police knew, or ought to have known, that the Charter has enshrined the right to be secure against unwarranted police entry into a dwelling, a right that has been regarded as fundamental for some 400 years. The following remarks of Sopinka J. in Kokesch, at pp. 33-34, are instructive here:
Any doubt [the police] 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, 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. . . .
66 As is unfortunately often the case when one encounters a serious Charter breach, it was accompanied by other highly questionable police conduct. Thus the manner in which they procured the warrant is open to serious criticism. One of the senior officers in charge of the operation, Clifford, failed to inform the issuing justice that six police officers with weapons drawn had already entered and occupied the house for which the warrant permitting entry was being sought. With respect, I find it surprising that the trial judge accepted that the officer believed such information to be "non-material". The officer's oversight is particularly troubling when one considers that, less than an hour before, he had purposely lied to the appellant, telling him that police occupation of the house already had been effected, which he had not yet confirmed, so as to encourage the appellant to tell the police whether there was cocaine in the house. In light of the evidence, I am satisfied that the justice would probably have issued the warrant even if he had known. But that is not the point. The fact withheld seems obviously relevant, and it was up to the justice, not the police, to decide whether it was material. The protection afforded a dwelling-house by the requirement to obtain a search warrant from an impartial judicial officer before the police can search it could become an empty formality unless the judicial officers were apprised of all relevant information. All these actions compound a mounting unfavourable impression of the way in which the warrant was sought. But that does not end the litany of questionable conduct.
67 The seriousness of the breach was further exacerbated by Clifford's attempt to have the appellant incriminate himself while he was in custody and had not yet had an opportunity to speak to a lawyer in order to strengthen the grounds supporting the request for the search warrant. By informing the appellant that police were inside his house in order to solicit a confession or further evidence to buttress the warrant they had yet to acquire, the police manipulated the fears and concerns of the appellant for the members of his family who were present in the house. This type of behaviour is unacceptable. The resulting evidence was properly rejected. I see no reason why the police should think they could use it for the purposes of obtaining a search warrant.
68 The denial of the appellant's right to telephone counsel from the time of his arrival at the police station until after he had provided the combination to the locked gym bag containing the cocaine and drug money is yet another component in a continuing pattern of disregard for the rights of the appellant. The police officer who made the decision to deny the appellant access to a telephone, cited concern for the safety of the officers in control of the Dufferin Street house and that evidence might be destroyed. His testimony, that it was his policy, and not that of the police department, to deny accused persons access to the telephone is indicative of a general nonchalance on the part of this police investigation team of the need to operate within the confines of established patterns of conduct. This seems to be precisely the type of zealous, well meaning, but insidious encroachment that Brandeis J. long ago identified as the greatest danger to liberty; see Olmstead v. United States, 277 U.S. 438 (1928), at p. 479, cited in Dyment, supra, at pp. 436-37, and in R. v. Wise, [1992] 1 S.C.R. 527, at pp. 575-76.
69 My concerns with the police conduct in this investigation are in no way assuaged by the fact that the search warrant would almost certainly have issued. Rather than engaging in ex post facto rationalizations, what we should be considering is why, if there was already more than sufficient evidence, a warrant was not requested before the take-down. If the warrant had been sought and granted immediately prior to the take-down (as all seem agreed it would), then with coordination between the officers making the arrests and those conducting the search, none of the police-created exigencies concerning the feared destruction of evidence would have arisen. The search would have been completed within a matter of minutes and there would have been no reason to hold innocent people under house arrest for well over an hour. If the judicial officer had deemed that there was insufficient evidence to grant a warrant, then the search should not have been made. The police would have been free to continue their investigation until sufficient evidence was available.
70 Cory J. in his reasons rightly points out that a reasonable way of proceeding with the request for the warrant would have been to alert the issuing justice before the arrests that additional information relevant to the proposed search might be gained during the apprehension of the suspects, which the police would then supply to the justice as soon as possible. I fully agree with my colleague that a reviewing court would have little sympathy for any argument that the police would have been operating under an outdated warrant had they followed such a procedure, diligently conforming with the procedural warrant requirements mandated by law. My colleague believes this was perhaps the best way to proceed. In this case I would go further: absent true exigent circumstances, the Narcotic Control Act and the Charter mandate that it is the only way to proceed. This conclusion is reenforced when it is remembered that Parliament has made it easier for the police to avoid exigent entries in s. 487.1 of the Criminal Code , R.S.C., 1985, c. C-46 , by providing for telewarrants; see especially, s. 487.1(5). This is a rapid and readily available means by which warrant requirements can be met when it is impracticable for a police officer to appear before a justice. The fact that the police had available such permissible and practical techniques for conducting their investigation in conformity with the Charter , but chose instead to sequence their operations in a manner that seriously offended fundamental liberty interests, further exacerbates the severity of the Charter breach; see Collins, at p. 285.
71 Despite this clear pattern of disregard for the rights of the appellant and his family, the Court of Appeal confirmed the trial judge's finding that the entry and search of the home was conducted reasonably. Quite simply, this is not a finding of fact but rather an opinion to which no deference should be given. When the police conduct is examined cumulatively, it is plain that there was nothing reasonable in the manner in which their entire operation was conducted.
72 Finally, any temptation to diminish the seriousness of the s. 8 infringement, because the police were in this instance correct in that they found drugs and marked bills and that a brother who returned to the house may have been aware of the appellant's arrest, should, as this Court has in the past counselled, be strongly resisted; see Hunter v. Southam Inc., supra, and R. v. Genest, [1989] 1 S.C.R. 59. In Hunter v. Southam Inc., Dickson J., at p. 160, gave guidance that bears repeating:
Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. [Emphasis in original.]
73 In sum, I am struck by the cumulative evidence of a poorly managed operation, a glaring pattern of disregard for Charter protected interests of the appellant and his family, and, at best, an inexplicable ignorance of the necessity to apprise a judicial officer fully of all relevant information when seeking a warrant. I have no hesitation in concluding that this extremely serious Charter violation was in no way mitigated by police good faith.
Urgency
74 As set forth in the s. 8 analysis, urgency or exigency faced by the police did not authorize them to enter and search a dwelling without a warrant though, as I there indicated, it is a factor affecting the seriousness of the Charter breach to be weighed under s. 24(2) of the Charter in considering the admissibility or non-admissibility of evidence gathered as a result of the search.
75 In the present case, the police maintain that they entered the appellant's home because they feared the public arrests they had just made could prompt occupants of the house, or other interested parties, to get rid of incriminating evidence. While there was no evidence that such a fear was justified, one can empathize with this general type of plight the police may face. The problem in this appeal is that the very circumstances that led to their conclusion that an exigency existed were the direct result of the manner in which they chose to structure their operation. Abella J.A., in her dissent in the Court of Appeal, aptly summarized the sequencing of events by the police: "They chose . . . to arrest first, enter second, and obtain authority last."
76 The police testimony at trial conclusively shows there was no need to proceed in this way. The appellant and the co-accused had, without their knowledge, been closely monitored by the police for several days. A group take-down meeting of the main police surveillance squad and assisting team of police was held at 5:00 p.m. on September 18, 1990, some two hours before the public arrests were made. At that preparatory strategy session, one of the squad leaders, Officer Clifford, was assigned the task of acquiring the requisite search warrant. Clifford testified that, by that time, he had already largely completed the preparation of the information necessary to be presented to a judicial officer, whom Parliament alone, by s. 12 of the Narcotic Control Act has vested with the authority to grant or deny the police power to enter a dwelling-house. It is not contested, and it is clear from the record, that, at the time of that take-down meeting, the police had already gathered enough information concerning the drug trading activities of the appellant that a search warrant would inevitably have been granted had it been sought before the arrests. However, the police delayed obtaining a warrant and chose instead to make public arrests. Upon making the arrests, they suddenly became concerned that their actions might have been noticed. The police then, not surprisingly, found themselves facing the possibility that the occupants of the house might be notified to destroy the evidence before a search warrant could be acquired. It was this possibility that prompted the police to occupy the appellant's home and control its occupants for an hour and a quarter before the warrant arrived.
77 The pronouncement of this Court in Grant as to when searches of a place other than a dwelling-house without a warrant may be made bears repeating. There Sopinka J., for the Court, underlined the limited character of this exception. He stated, at p. 241:
. . . I have concluded that warrantless searches pursuant to s. 10 NCA must be limited to situations in which exigent circumstances render obtaining a warrant impracticable. Warrantless searches conducted under any other circumstances will be considered unreasonable and will necessarily violate s. 8 of the Charter . [Emphasis added.]
The requirements for the search of a dwelling-house should be more stringent still, and I think it is relevant in considering the issue of urgency in relation to warrantless searches of dwelling. In this case, was it impracticable to obtain a warrant in this situation? Clearly not. The police could have sought a warrant before the take-down. To put it another way, they could have delayed the operation until the warrant had been granted. Instead they created their own exigency in their sequencing of the arrests. If they did not know that public arrests, anticipated and planned well in advance, could create an exigent situation if a warrant was not already in place, then they certainly ought to have known.
78 The exceptional character of a warrantless search in criminal matters is evident from the paucity of authority. We have been directed to no case, either in Canada or in England, where the courts have allowed a police practice of securing a dwelling-house when the police could have structured their investigation so as to conform to the law's requirement to obtain a search warrant. One would like to think the reason for this is that the police know better. I have, however, alluded to the fact that in the United States exigent circumstances have exceptionally been held to authorize a warrantless search, even of a dwelling-house. Even in the different context of the United States, however, the permissive attitude displayed in some of the cases was the product of a sharply divided Supreme Court where the dissents of the rightly celebrated civil libertarians on that court are more consonant with our own traditions of liberty. I shall briefly review these cases.
79 United States v. Santana, 427 U.S. 38 (1976), though not constituting as serious an infringement, closely parallels the present situation. There an undercover police officer, Gilletti, purchased drugs from an intermediary, McCafferty, in a car outside the house of the apparent supplier, Santana. The police then drove McCafferty a very short distance and publicly arrested her. The police immediately returned to the suspected house, made a warrantless entry into her house, arrested Santana, and seized the drug money used in the transaction with McCafferty. An officer explained the alleged exigent circumstances necessitating a warrantless entry in this way (at p. 47): "We were a block and a half from [Santana's] home when the arrest [of McCafferty] was made. I am sure that the word would have been back within a matter of seconds or minutes."
80 A majority of the Supreme Court held the search valid. For my part, however, I adopt, as the appropriate stance to be taken in Canada, the following remarks from the dissenting reasons of Marshall J. (Brennan J. concurring) who, in the course of considering the argument that news of the arrest would quickly spread and so give rise to exigent circumstances, stated at pp. 47-49:
That is undoubtedly a reasonable conclusion to draw from the facts of the arrest; and the danger that the evidence would be destroyed and the suspects gone before a warrant could be obtained would ordinarily justify the police's quick return to Santana's home and the warrantless entry and arrest. . . .
I do not believe, however, that these exigent circumstances automatically validate Santana's arrest. The exigency that justified the entry and arrest was solely a product of police conduct. Had Officer Gilletti driven McCafferty to a more remote location before arresting her, it appears that no exigency would have been created by the arrest; in such an event a warrant would have been necessary. . . . When an arrest is so timed that it is no more than an attempt to circumvent the warrant requirement, I would hold the subsequent arrest or search unlawful. [Emphasis added.]
81 As in United States v. Santana, any exigencies that existed in the present case were caused solely by the conduct of the police. In United States v. Santana the police did not have to make their arrest so public as to create an urgent situation. In this appeal, the police did not have to make the arrests until the search warrant was granted by the issuing justice. By doing so the police created their own exigent circumstances and should not be permitted to use them as justification for circumventing the law laid down by Parliament and by the Constitution itself. These requirements, let it not be forgotten, reflect our common law heritage which guarantees the sanctity of the home against public intrusion. The police should not be permitted to sidestep this critically important right by simply ignoring its mandate in their planning.
82 Segura v. United States, 468 U.S. 796 (1984), cited by Cory J., bears a superficial resemblance to the present appeal, though there are important differences worth examining. The officers in Segura v. United States arrested members of a drug organization and were informed at that time by the arrested persons that drugs could be found in a certain apartment. The officers, concluding that they had probable cause to search the mentioned premises, sought advice from the United States Attorney's office who told them that it was too late in the evening to obtain a search warrant, and that they should go to the apartment, and "secure the premises" pending the issuance of the warrant. On the basis of this information the police occupied the apartment until the warrant was issued. Quite apart from the more extreme facts in the present case, the persuasive authority of Segura v. Unites States is further weakened by the fact that the United States Supreme Court split 5-4 on the issue.
83 The difficulty with finding that exigent circumstances justified a warrantless entry in this case is that the conditions are far from unique, as Abella J.A. correctly noted in her dissent. Public arrests are not unusual, and narcotics, by their very nature, are often easily removable or destructible. To maintain that anytime a public arrest occurs there could be exigent circumstances giving rise to the fear that evidence will be destroyed, thereby justifying a warrantless police entry into a suspect's home to preserve that evidence, would be to set at nought the attempt made in s. 10 of the Narcotic Control Act, which identifies a dwelling-house as deserving of special protection. I add that such an approach is by no means peculiar to narcotic offences. The same reasoning would apply to a vast array of other crimes.
84 Such a broad approach to exigent circumstances would give the police little incentive to acquire a warrant in advance. The facts in United States v. Santana, supra, serve as an illustration. Had the police driven McCafferty out of sight of Santana's house before arresting her, they would then have been forced to go through the inconvenience of seeking a search warrant for the supplier's house. In that light, the public arrest of McCafferty near Santana's house was quite advantageous: it created an automatic exigency requiring a prompt unwarranted entry. The situation here is similar.
85 Finally, the view that the police should not be able to rely on exigent circumstances to permit entry when the exigency complained of is a direct result of the manner in which the police choose to structure their operation (which had been planned in advance) receives support from a very recent case in this Court, R. v. Burlingham, [1995] 2 S.C.R. 206. There this Court reconfirmed, in the context of a denial of the appellant's right to counsel, that the police cannot rely on an exigency of their own making to deny an accused Charter protection. Iacobucci J. noted, at p. 240, "there was no element of urgency. Indeed, . . . the police actually created an artificial situation of urgency". In a planned and calculated procedure such as was undertaken by the police in the present case, the police must act in a manner that minimizes any unnecessary intrusion on constitutionally protected rights.
86 The fact that the police had available a permissible and practical technique of conducting their investigation in conformity with the Charter , but chose instead to sequence their operations in a manner that seriously offended fundamental liberty interests, further exacerbates the severity of the intrusion; see Collins, supra, at p. 285. I conclude, therefore, that there were no exigent circumstances justifying the police to enter the house of the appellant.
87 I turn finally to the attempt to link drugs automatically to the possible presence of firearms so as to ground a claim of exigent circumstances as justification for pre-warrant securing of premises. That attempt should, in my view, be resisted. The police testified at trial that they were concerned that there might be firearms on the premises, which created an exigency. To begin with, I do not quite see how officers who enter a house without a warrant can be in a better position to ensure their safety than if they enter with a warrant. If officers are legitimately in danger from firearms in a dwelling-house, a pre-warrant entrance will not advance their security. Moreover, many serious crimes, by their very nature, involve firearms. Does that mean that a search warrant can be avoided every time it is thought firearms may be involved? Surely not. In this appeal, there was no evidence prior to the entry that firearms were present in the appellant's house, and indeed, as it turned out, there were none. All we are told is that firearms were frequently involved with the drug trade in Toronto. The law does not permit the police to effect warrantless entry into a house simply because they may have reason to suppose there is a connection between drugs and firearms. Genest, supra, has already spoken to this. This Court there found that only if the police had prior knowledge that there were firearms in the house at the time they chose their course of conduct would that be a relevant consideration. To accept that mere suspicion that there may be firearms based on the connection between drugs and guns justifies a warrantless entry would be to obliterate effectively s. 10 of the Narcotic Control Act and the protections afforded by s. 8 of the Charter . For in any serious police investigation involving drugs, the spectre of firearms could always be raised. Such a drastic departure from the clear terms of the Narcotic Control Act should come from Parliament. Certainly, in the absence of such legislative direction, I reject any implicit suggestion that a general suspicion that firearms may be present can be used to bolster a claim of urgency.
Repute of the Administration of Justice
88 In this Court's very recent decision in Burlingham, supra, Iacobucci J. directs an approach to the issue of the repute of the administration of justice from which, in my view, we should not stray. He stated at p. 242:
. . . we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter . Short-cutting or short-circuiting those rights affects not only the accused but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2).
89 I see no reason why this rationale should not be applied in this appeal. While I share the concerns of my colleagues regarding the debilitating effects of the drug trade on Canadian society, it would be difficult to argue that the illicit activities engaged in by the present appellant are any worse than the sexual offence and brutal murder the accused was alleged to have committed in Burlingham. To apply less exacting a standard would scarcely enhance the repute of the administration of justice.
90 In my opinion, there is no question that the evidence of the drugs and money must be excluded. I acknowledge that such an approach is distasteful. No one likes to see individuals who are clearly guilty of serious offences, harmful to Canadian society, remain unpunished. But there are excellent reasons why it must be done. The United States Supreme Court, in a less permissive time, explained, in Elkins v. United States, 364 U.S. 206 (1960), at p. 217, why evidence found in the process of a violation of its Fourth Amendment must be excluded:
The rule is calculated to prevent, not to repair. Its purpose is to deter ‑‑ to compel respect for the constitutional guaranty in the only effectively available way ‑‑ by removing the incentive to disregard it.
91 The same logic applies to serious unmitigated Charter breaches in Canada. The only effective way of discouraging serious Charter violations is if the evidence taken as a result of the Charter breach is not admitted into evidence. It is easy to wax eloquent about the sanctity of the home and other Charter based rights. It is far more difficult to take the distasteful steps necessary to ensure their preservation. But, in my view, it must be done. Without that disincentive, the lax elements among our police can only be encouraged to assume that Charter guarantees are mere platitudes that both they and the courts will ignore when convenient. The Ontario Court of Appeal put it well in R. v. Young (1993), 79 C.C.C. (3d) 559, at pp. 566-67:
In terms of the effect upon the administration of justice, someone might characterize the conduct of the police in this case as misdirected, but none the less reflecting a keen attention to their perceived roles in investigating a crime in pursuit of "getting their man". The appellant is in truth guilty of the offences in question and should be punished. To exclude the evidence is to that extent a disservice to the administration of justice.
That characterization is, in my view, more than offset in this case by the necessity to assure that the courts do not condone conduct which represents a real threat to all persons, whether innocent or guilty, from wilful abuse of police powers.
It cannot be disputed that the drug trade is odious, and poses a grave threat to society. And I therefore agree that all reasonable steps must be taken to eradicate it. But we cannot allow the desirability of these efforts to make the courts deviate from their high duty to ensure that those who wield power on behalf of the state must do so within the limits the Charter dictates for the benefit of the individual. No matter how grave the threat, law enforcement must operate in conformity with the enshrined protections of the Charter .
92 Constitutional guarantees can seem to be bothersome technicalities to be brushed aside in the interests of justice in the particular case. However, such sentiments, while understandable, are ultimately far more destructive in the long term than the momentary evil sought to be prevented. As the great American jurist Brennan J., speaking of their United States counterparts, has reminded us (see Nat Hentoff, "Profiles: The Constitutionalist", The New Yorker, March 12, 1990, 45, at p. 65), "those guarantees [are basic to a free society] and this Court exists to see that [they] are faithfully enforced". He then continued:
They are not technicalities! And no matter how awful may be the one who is the beneficiary time and time again, guarantees have to be sustained, even though the immediate result is to help out some very unpleasant people. They're there to protect all of us.
93 Similarly, this Court exists to see that the rights and freedoms guaranteed by the Charter are faithfully enforced. The Charter breach in this case was very serious. It was aggravated by sloppy police practices and a disturbing pattern of disregard for the rights not only of the appellant but also of his family against which there was no evidence in any way implicating them in the offences in question. Most importantly, the Charter violation was entirely avoidable; a prior request for the search warrant, it is accepted, would have been granted. The house could then have been lawfully searched, and the consequent arrests would then not have created any exigent need to avoid the destruction of evidence. Section 10 of the Narcotic Control Act and s. 8 of the Charter require no less.
94 The concept of exigent circumstances is an understandable technique to allow the courts, on rare occasions, to permit the admission of evidence despite its obtention through a breach of these legislative and constitutional requirements. But that uncommon departure cannot be permitted to operate where it is feasible to obtain prior judicial authorization for a search, a rule set down as early as Hunter v. Southam Inc., supra. To expand exigent circumstances to include police created emergencies, whether arising from bad faith or gross ineptitude, is to undermine seriously the requirement that judicial authorization is required before an entry onto private premises can be made. The long term impact of allowing police practices creating exigent circumstances where minimal foresight could have avoided them dictates that the evidence in this case must be excluded. I have no doubt that to admit this evidence would bring the administration of justice into disrepute and it must be excluded under s. 24(2) of the Charter .
Disposition
95 Apart from the impugned evidence, there may well be sufficient evidence to warrant the conviction of the appellant. Accordingly, I would allow the appeal, quash the conviction, and order a new trial.
The following are the reasons delivered by
96 L'Heureux-Dubé J. -- The issue raised by this appeal concerns police authority to enter a private dwelling in exigent circumstances in order to prevent the destruction or removal of evidence.
97 Following the arrest of the appellant and other co‑accused on drug‑trafficking charges, the police entered the dwelling‑house owned by the appellant not, as it is suggested, for the purpose of searching for narcotics, but rather for securing the premises while awaiting a search warrant. My colleague Justice Cory's analysis as did the Court of Appeal's, starts from the premise that such an entry constituted a violation of the search and seizure provisions of s. 8 of the Canadian Charter of Rights and Freedoms . In the end, Cory J. arrives at the conclusion that the real evidence subsequently gathered should not be excluded under s. 24(2) of the Charter . In view of the exigent circumstances revealed by the evidence in this case, I am of the opinion that no such violation occurred, although I agree with my colleague Cory J.'s disposition of the appeal.
98 My colleague has recounted the facts and there is no need for me to repeat them here. Suffice it to emphasize that, as my colleague points out within the framework of his s. 24(2) analysis, the police here not only had reasonable and probable cause for the arrest of the appellant, but also had reasonable and probable grounds to believe that they would find drugs in the appellant's home. The police were not found to be in bad faith and acted reasonably upon entry of the premises. Moreover, the search of the premises did not start, nor was one attempted, before a search warrant was obtained. I note that these facts are not in dispute, and are accepted by both the trial judge and the Court of Appeal, and by my colleague Cory J. as well.
99 While the trial judge concluded that, in light of these circumstances, there was no Charter violation here, the majority of the Court of Appeal, not without some hesitation, was prepared to decide the case on the assumption that such a violation had occurred on the basis of the Crown's concession that s. 8 of the Charter was infringed by the police entry into the appellant's dwelling‑house. My colleague Cory J. adopts the same approach. I, however, am not prepared to do so.
100 As has been noted on numerous occasions, concessions of law are not binding on courts (R. v. Duguay, [1989] 1 S.C.R. 93; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Elshaw, [1991] 3 S.C.R. 24). In the case at hand, such a concession is totally unacceptable in my view, and in fact constitutes an error of law, as I will attempt to demonstrate hereafter.
Exigent Circumstances Under the Common Law and the Charter
101 As a starting point, I note that the onus lies upon the Crown to demonstrate that there were exigent circumstances justifying the police entry and find that the Crown has discharged itself of this onus. Cory J. himself, albeit within the context of his 24(2) analysis, agrees that the situation here was one of exigent circumstances. More particularly, he observes at p. 369 that "[t]here was strong and persuasive evidence upon which the trial judge and majority of the Court of Appeal could properly find that there were exigent circumstances which justified the police entry into the home of the appellant". In this respect, I note that the trial judge, Ewaschuk J., did not in any way infer that the police conducted its operation in an improper fashion. Rather, having regard to all the facts, Ewaschuk J. found that the police had legitimate reasons to believe that the drug evidence would be destroyed and emphasized that the police had acted reasonably given such circumstances. Moreover, these findings were confirmed by the majority of the Court of Appeal.
102 Exigent circumstances, both under the common law and under the Charter , have always been held to constitute an exception to the ancient maxim "a man's home is his castle" upon which my colleague Cory J. relies in finding that a serious s. 8 Charter violation has occurred in the case at hand.
103 Before addressing the exigent circumstances exception at greater length, however, I wish to discuss, at the outset, the significance that my colleague attaches to the warrant requirement imposed by s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N‑1 (hereinafter NCA), in the context of police entries into dwelling‑houses. In my view, s. 10 of the NCA should not be afforded greater significance than that which is afforded to the general common law approach regarding such entries, as neither s. 10 of the NCA nor the common law preclude warrantless police entries in exigent circumstances.
104 In fact, s. 10 of the NCA is reflective, in general terms, of the common law itself to the extent that, absent exigent circumstances, warrantless entries into private dwellings will generally be held to be unlawful. Absent exigent circumstances, the statutory authorization requirement for a police entry onto private premises, as stated in Colet v. The Queen, [1981] 1 S.C.R. 2, thus stands. However, the situation here is altogether different from that in Colet v. The Queen. More particularly, the existence of exigent circumstances was not a consideration in that case, and the position taken by the Court in that instance can in no way be held to have overruled the recognized common law limitations to the principle of the sanctity of the home. It must be again stressed that exigent circumstances have been held to exist here by both the trial judge and the majority of the Court of Appeal, as well as by my colleague Cory J., and the present case must be addressed in light of this finding.
105 Section 10 of the NCA does not eliminate the common law exceptions relative to exigent circumstances. Be it under the NCA or the common law, situations of urgency will always permit police entries, such as in the case of a hot pursuit or of a person in danger of death or injury within private premises. Nothing in the NCA indicates that Parliament has opted to extinguish the common law exception of exigent circumstances. Therefore, as s. 10 of the NCA does not deal with entries into private dwellings under exigent circumstances, an inquiry into the common law in this regard is required. (See, regarding this approach: Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Macooh, [1993] 2 S.C.R. 802.)
106 The common law limitations to the principle of the sanctity of the home were addressed by this Court in the pre‑Charter case of Eccles v. Bourque, supra. In that case, a claim in damages for trespass was instituted against three police officers who had entered the appellant's dwelling in order to apprehend a third person against whom warrants had been issued in other jurisdictions. At issue was whether the police had the authority to commit a trespass in such circumstances. As nothing in the Criminal Code dealt with this situation, Dickson J. (as he then was) held that one had to look to the applicable common law principles in this regard. To this end, Dickson J. observed, at p. 743, and the Court was unanimous on this point, that the Semayne's Case (1604), 5 Co. Rep. 91, 77 E.R. 194, which stands for the principle that "a man's home is his castle", also provided that exceptions to this principle should prevail in certain circumstances:
... there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed. The criminal is not immune from arrest in his own home nor in the home of one of his friends. So it is that in Semayne's Case a limitation was put on the "castle" concept and the Court resolved that:
In all cases when the King is party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K.'s process, if otherwise he cannot enter.
(See also Halsbury's Laws of England (3rd ed. 1955), vol. 10, at pp. 354 et seq.)
107 Further in Eccles v. Bourque, supra, Dickson J. added that the right of entry in search of an offender could only be lawfully exercised if (i) there were reasonable and probable grounds for the belief that the person sought was within the premises and (ii) proper announcement was made prior to entry (at p. 744). With respect to the latter requirement, Dickson J. noted, at p. 747, that it need not be satisfied under exigent circumstances, these circumstances being "occasions on which, for example, to save someone within the premises from death or injury or to prevent destruction of evidence or if in hot pursuit notice may not be required" (emphasis added). Dickson J. thus decided in Eccles that the principle of the sanctity of the home was not an immutable one and that in the case of a "hot pursuit", for instance, exception must be made to it. The Eccles case therefore illustrates that the maxim "a man's home is his castle" has always been subject to exceptions.
108 The Eccles case was cited by this Court in Landry, supra, as well as in the case of Macooh, supra, both post‑Charter cases. In Landry, Dickson C.J. (Chouinard, Lamer and Wilson JJ. concurring), on the basis of his reasoning in Eccles, concluded that in hot pursuit circumstances, the police were authorized to enter private premises in order to arrest an offender regardless of whether a warrant had been issued or not. In concurring reasons, Estey J. added in Landry (Beetz and McIntyre JJ. concurring), at p. 166, that the ancient principle of the inviolability of the home "must yield to the legitimate requirements of law enforcement" and went on to cite the following passage from the case of Lyons v. The Queen, [1984] 2 S.C.R. 633, where for the majority he wrote (at p. 657):
The home is not a castle in isolation; it is a castle in a community and draws its support and security of existence from the community. The law has long recognized many compromises and outright intrusions on the literal sense of this concept. . . . [Emphasis added.]
Similarly, Lamer C.J., on behalf of the Court, confirmed in Macooh that cases of hot pursuit constitute an exception traditionally recognized by the common law to the principle of the sanctity of the home.
109 It is interesting to note that in Macooh, Lamer C.J. discussed the justifications for the hot pursuit exception to the sanctity of the home principle. Amongst the justifications suggested by Lamer C.J., at p. 816, was the fact that without such an exception authorizing police entry into private dwellings, "evidence of the offence leading to the pursuit or a related offence may be lost". This particular justification regarding the need to limit the principle of the sanctity of the home is relevant here as exigent circumstances are often described as being circumstances where there is a risk of imminent destruction, removal or loss of evidence. (See, in particular, R. v. Grant, [1993] 3 S.C.R. 223.)
110 Exceptions to the principle of the sanctity of the home under exigent circumstances have also been recognized by the American courts. I agree with Martin J.A. of the Ontario Court of Appeal who noted in R. v. Rao (1984), 12 C.C.C. (3d) 97, at p. 120, (cited with approval in Grant, supra) that the American jurisprudence in this regard "can be valuable, particularly the articulation by the Supreme Court of the United States of the "common sense" exceptions to the warrant requirement of the Fourth Amendment". The case referred to by Martin J.A. (at p. 116) is that of Texas v. Brown, 103 S.Ct. 1535 (1983), where Rehnquist J. (as he then was) of the Supreme Court of the United States, with Burger C.J. and White and O'Connor JJ. concurring, stated at p. 1539:
Our cases hold that procedure by way of a warrant is preferred, although in a wide range of diverse situations we have recognized flexible, common‑sense exceptions to this requirement. See, e.g., Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) (hot pursuit); United States v. Jeffers, 342 U.S. 48, 51‑52, 72 S. Ct. 93, 95‑96, 96 L. Ed. 59 (1951) (exigent circumstances); United States v. Ross, ‑‑ U.S. ‑‑ 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (automobile search). . . . We have also held to be permissible intrusions less severe than full‑scale searches or seizures without the necessity of a warrant. See, e.g., Terry v. Ohio, [392 U.S. 1] (stop and frisk).... [Emphasis added.]
111 In fact, the American cases cited by my colleague Cory J. are to the same effect. More particularly, in the case of Segura v. United States, 468 U.S. 796 (1984), Burger C.J. states, at p. 798, that "[t]he Court of Appeals affirmed the District Court's holding that there were no exigent circumstances to justify the warrantless entry into petitioners' apartment". A contrario, this passage illustrates that exigent circumstances constitute an exception to the principle of the sanctity of the home and that such circumstances will serve to authorize police entries made in order to preserve evidence.
112 Finally, with respect to the American case law, Martin J.A. observed at p. 119 of Rao that a number of American appellate courts have specifically found that an entry and search of premises to prevent the removal or destruction of illicit drugs fall within the "exigent circumstances" exception. (See United States v. Edwards, 602 F.2d 458 (1st Cir. 1979); Commonwealth v. Amaral, 450 N.E.2d 656 (Mass. 1983); for more recent examples, see United States v. Mabry, 809 F.2d 671 (10th Cir. 1987); United States v. Riley, 968 F.2d 422 (5th Cir. 1992).) It therefore appears that exigent circumstances are described by American case law in the same way as they have been defined by this Court, i.e., in terms of imminent loss of evidence, amongst others, notably in the cases of Eccles, Macooh and more recently in Grant, supra.
113 The case of Grant is noteworthy as it deals with exigent circumstances in the context of the Charter , such circumstances having been held to constitute the constitutional threshold according to which warrantless searches will be permissible. More particularly, in Grant, which dealt with s. 10 of the NCA in the context of warrantless searches of a place other than a dwelling‑house and warrantless perimeter searches of a dwelling‑house, Sopinka J. stated, at p. 241, that such searches will survive Charter scrutiny in situations where exigent circumstances make it impracticable to obtain a warrant:
Protection against unreasonable search and seizure is maximized by the requirement that entries by state authorities be pre‑authorized by a judicial arbiter. On the other hand, this Court must also consider the societal interest in law enforcement, especially with regard to the illicit drug trade. This pernicious scourge in our society permits sophisticated criminals to profit by inflicting suffering on others. In attempting to strike a balance between these two sets of interests, I have concluded that warrantless searches pursuant to s. 10 NCA must be limited to situations in which exigent circumstances render obtaining a warrant impracticable. Warrantless searches conducted under any other circumstances will be considered unreasonable and will necessarily violate s. 8 of the Charter . [Emphasis added.]
(See also: R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wiley, [1993] 3 S.C.R. 263.)
114 Sopinka J. reiterated in Grant, at pp. 241‑42, that exigent circumstances have generally been held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. Although the case in Grant dealt with warrantless perimeter searches as opposed to warrantless entries into dwelling‑houses, I am of the view that the same reasoning must apply in all cases of exigent circumstances.
115 In the end, what must be stressed here is that a warrantless entry into a private dwelling, be it under the common law or under the Charter , requires lawful justification and that such justification may be found in exigent circumstances. In exigent circumstances, a warrantless police entry is reasonable. Given that exigent circumstances were in fact found to have existed in the case at hand by the trial judge, the majority of the Court of Appeal and my colleague Cory J., I therefore conclude that the police's entry into the appellant's home did not infringe s. 8 of the Charter . Simply put, the police entry was not unreasonable under the circumstances. To hold otherwise is to negate a basic "common sense" exception which was recognized under both the common law and the Charter in Canada and the United States.
Reasonable Expectation of Privacy
116 A subsidiary argument in the case at hand relates to the expectation of privacy of the appellant in his private dwelling. The appellant, as the evidence has amply demonstrated, was conducting his drug‑trafficking business out of his home. This is in fact what gave the police reasonable and probable cause to arrest the appellant and subsequently enter his home.
117 I note that our Court has previously discussed, with respect to the reasonableness of searches and seizures under s. 8 of the Charter , the lower expectancy of privacy in a workplace. (See Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406.) The level of expectation of privacy in the context of the business of trafficking in drugs is obviously no different from that of a legitimate business in this respect, whether it be conducted from the home or on business premises. It would in fact be perverse to conclude that an illegal enterprise enjoys a greater expectation of privacy than a legitimate business activity.
118 In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, Dickson J. made it clear that the expectation of privacy was at the forefront of a s. 8 Charter analysis. The following passage, at pp. 159‑60, from this landmark search and seizure case is noteworthy in this regard:
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original.]
119 In the case at hand, Griffiths J.A. ((1994), 16 O.R. (3d) 786) deals with the appellant's lower expectation of privacy here, although in the context of s. 24(2) of the Charter , as he concludes, at p. 802, that "the entry of the police into the dwelling house, before the issuance of the warrant, had no adverse effect on the [accused], except to the extent that others, on his behalf, were prevented from disposing of the evidence. ... [T]he violation of the Charter rights of the appellant were minimal and the objective expectation of privacy of the appellant was low" (emphasis added). The underlying idea here is that one must be mindful of the context in which privacy expectations are claimed. I am of the view that the Charter was not intended to protect blindly privacy interests claimed in the context of criminal activities which are played out within one's home. It follows that in light of the circumstances, it was not unreasonable for the police to secure the premises. Given his criminal activities, the accused had an objectively low expectation of privacy within his dwelling.
Conclusion
120 In my opinion, it is neither sound constitutional interpretation nor sound constitutional policy that s. 8 of the Charter be held to impose a warrant requirement to enter and secure an accused's dwelling‑house where exigent circumstances exist. To adopt a position that prevents state agents from attempting to preserve evidence in cases where it could otherwise be destroyed would be to sacrifice effective crime prevention. Exigent circumstances constitute a "common sense" exception to the warrant requirement otherwise imposed by s. 8 of the Charter . As I concluded in Elshaw, supra, at p. 71, "[w]e must be careful not to leave this common sense at the doorstep when we are called on to interpret the Charter ".
121 On the facts of this case, the trial judge, with the benefit of having heard the whole of the evidence regarding the circumstances which led the police to enter the appellant's private dwelling, did not find that in so doing, the police had acted in bad faith. The majority of the Court of Appeal agreed, as does my colleague Cory J., that the findings of fact made by the trial judge support the conclusion that the police acted in good faith under exigent circumstances. It is not the proper function of this Court to now second‑guess the trial judge on pure findings of fact, particularly when no error of the kind that would attract appellate intervention has been demonstrated with respect to the trial judge's findings of fact on this point (see, e.g., R. v. L. (D.O.), [1993] 4 S.C.R. 419, at p. 467). To characterise such a finding as an "opinion" only amounts to finding a way to circumvent the well‑established rule of appellate deference.
122 Given the absence of a trial finding of bad faith on the part of the police, one must as a consequence conclude that the police actions here were not structured in such a way as to circumvent the law or create self‑serving exigent circumstances. This, of course, would amount to bad faith.
123 In light of the absence of a finding of bad faith, it is not open to courts of appeal, let alone our Court, to speculate a posteriori as to other ways in which the police might have proceeded in circumstances that are impossible to assess but for hindsight. This is particularly so when one bears in mind that the police must, more often than not, act on the spot under the pressures and dangers associated with criminal activity. To decide otherwise would be tantamount to dictating police tactics and techniques in the context of investigations and arrests. This, in my view, not only are courts not entitled to do but also should refrain from doing. This being said, had bad faith on the part of the police been found by the trial judge, such a finding would have obviously entailed different considerations.
124 In the circumstances, I would therefore hold that s. 8 of the Charter was not violated because of exigent circumstances and an objectively low expectation of privacy on the part of the appellant. In the absence of a Charter violation, there is no need to decide whether or not the admission of the evidence would bring the administration of justice into disrepute. However, had I found a Charter violation here, I would have agreed with my colleague Cory J.'s conclusion that the evidence should not be excluded under s. 24(2) of the Charter .
125 For all these reasons, I would dismiss the appeal.
The judgment of Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
126 Cory J. -- At issue on this appeal is whether the evidence, secured as a result of a search that was conceded to be unreasonable, should be excluded pursuant to the provisions of s. 24(2) of the Canadian Charter of Rights and Freedoms . As is so often the case, the factual background and the findings of the courts below will have a profound effect upon the result.
Factual Background
127 On August 28, 1990, the members of a drug squad of the Metropolitan Toronto Police commenced an investigation into the sale of cocaine. On that same date, an officer, working undercover, purchased a gram of cocaine from Antonio Scinocco for $600. On September 10, 14 and 18, an undercover officer made further purchases of cocaine from Scinocco at a community centre in Trinity Park, Toronto. On each occasion, the amount purchased was an ounce and the sum paid in advance was $2,000. On each of these occasions, the police officers observed the following pattern of events. Scinocco would meet with the appellant, Antonio Silveira. Silveira would then be driven by another co‑accused to his residence at 486 Dufferin Street. The appellant would then go inside and leave after a short time to meet, once again, with Scinocco. Scinocco would then return to the undercover officer and give him the approximately 1 ounce or 25 grams of cocaine in rock form. At about 7:10 p.m. on the 18th, shortly after the third sale was made, the appellant was arrested, as were two co‑accused. All the arrests took place in the vicinity of the community centre which was close to the appellant's residence.
128 The police were concerned that the public nature of those arrests would lead to instructions being given to the residents of 486 Dufferin Street to destroy or remove any evidence that might be on the premises. The police believed that they had sufficient evidence from the purchases of cocaine and the observations of Silveira made on the 10th and 14th to obtain a search warrant for 486 Dufferin Street. Yet, they did not want to be accused of failing to present up‑to‑date information to the Justice of the Peace. It was therefore determined that further information relating to the purchase of cocaine made on the 18th would be added to the affidavit to be presented on the application for the search warrant. The police were satisfied that they had such an abundance of evidence establishing the reasonable and probable grounds for searching the premises that they would have no difficulty obtaining a search warrant. To prevent the destruction or the removal of the evidence between the time of the arrest and the arrival of the search warrant, officers attended at 486 Dufferin Street. They knocked on the door, identified themselves, and entered the premises without an invitation. Upon entering, they checked the premises for weapons and for the location of residents within the house. They then holstered their weapons and advised the occupants of the house to continue preparing dinner and watching the Blue Jays baseball game on television. They did not search the premises, but waited for the search warrant which they believed would arrive shortly.
129 The officers who secured the premises were convinced that 486 Dufferin Street was the supply base for the cocaine that was sold to the undercover officer. One of the officers had, on two previous dates, observed the appellant and others return to the address prior to the sales being made. Further, they were concerned that, in light of the public nature of the arrests made in three locations close to 486 Dufferin Street, word would get back to the residents with the result that the evidence would be destroyed or removed. This, in the opinion of the officers, was not uncommon in the case of hard drugs. It is not without significance that a brother of the accused arrived at the premises while the police were waiting for the search warrant. Although there had been no apparent phone call to him, he was aware of the arrest of his brother before he arrived at the house.
130 It was only when the search warrant arrived, a little over one hour later, that the actual search of the premises was undertaken. In the course of the search, the police found a locked duffle bag in the appellant's bedroom on the second floor of the house. When the officers opened it, they found some 285.56 grams (10 ounces) of cocaine and $9,535 in cash. The cash included substantial amounts of the marked money used by the undercover police to buy cocaine on earlier occasions.
Decisions and Factual Findings of the Courts Below
(a) Trial Judge
131 The appellant challenged the admissibility of the evidence seized in the search on three grounds, all of which were dismissed by the trial judge. First, the trial judge concluded that, although the entry by the police officers could not be authorized retrospectively by the subsequent issue of a search warrant, it was nonetheless justified on the basis of exigent circumstances. He found that the three public arrests made close to the house gave rise to a valid concern on the part of the police officers that the drugs would be destroyed if steps were not taken to preserve the evidence. He concluded that the police acted reasonably in the circumstances.
132 Second, the trial judge found that the police did not begin the search of the premises until the search warrant arrived. He concluded that, in the meantime, the police were entitled to enter each room to search for weapons and occupants in order to protect themselves and prevent the destruction of the evidence. He concluded that the momentary display of firearms by the police was justified in light of the connection he found existed in Toronto between hard drugs and guns. Further, he determined that the search was conducted by the police in a reasonable manner.
133 Third, the search warrant was alleged to be invalid because of the failure of the police to disclose material information to the Justice of the Peace. The trial judge found that the police officer did not intentionally mislead the Justice of the Peace by failing to advise that officers might be on the premises at the time the warrant was issued. Further, he found that even after deleting any reference to the appellant's statement that drugs were on the premises, which he found to be inadmissible, there was still ample evidence put forward which would justify the issuance of the search warrant.
134 Although he did not make a specific finding that there was good faith, the trial judge certainly made it clear that, in his view, there was no bad faith manifested by the police actions, and he therefore admitted the evidence discovered as a result of the search.
(b) Court of Appeal (1994), 16 O.R. (3d) 786
135 In the Court of Appeal, Griffiths J.A., writing for the majority, accepted the finding of the trial judge that the failure to mention that officers were already on the premises was unintentional and, in the eyes of the police, not material. He stated that he had some difficulty in finding that the initial entry of the police constituted a search. However, he noted that there was no doubt that the initial entry was a trespass and an unwarranted invasion of privacy and that, since the Crown had conceded that there was a breach of s. 8, he was prepared to proceed with the s. 24(2) analysis on the assumption that there had been a violation of s. 8. He held that the finding of the trial judge supported the conclusion that the police were acting in good faith in attempting to secure the evidence. In his view, the police decision that there was a potential for the destruction of evidence unless the premises were secured prior to the arrival of the warrant was an exercise of judgment that was properly undertaken by experienced officers.
136 He rejected any suggestion that the police were abusive and found that their conduct was reasonable. He went on to note that, since the appellant was not in the house, and since it was the alleged Charter rights of the appellant that were in issue, his Charter rights could not have been infringed.
137 He determined that the facts in this case met all the requisite criteria set out in R. v. Collins, [1987] 1 S.C.R. 265, and in R. v. Grant, [1993] 3 S.C.R. 223, and that the evidence was properly admitted.
138 The minority of the Court of Appeal, in clear and forceful reasons, indicated that since the Crown had conceded that the initial entry constituted an unreasonable search, the onus lay upon the Crown to demonstrate that there were exigent circumstances justifying the entry. It was noted that s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, prevents unauthorized searches of a dwelling‑house. It was determined that the actions of the police constituted an illegal search that could not be justified in the circumstances of the case and concluded that the evidence should have been found to be inadmissible.
Issue
139 The question for determination is whether the majority of the Court of Appeal erred in finding that the admission of the evidence seized from the appellant's residence could not bring the administration of justice into disrepute.
Relevant Statutory Provisions
Canadian Charter of Rights and Freedoms
8. Everyone has the right to be secure against unreasonable search or seizure.
24. . . .
(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.
Narcotic Control Act, R.S.C., 1985, c. N‑1
10. A peace officer may, at any time, without a warrant enter and search any place other than a dwelling‑house, and under the authority of a warrant issued under section 12, 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.
12. A justice who is satisfied by information on oath that there are reasonable grounds for believing that there is a narcotic, by means of or in respect of which an offence under this Act has been committed, in any dwelling‑house may issue a warrant, under the hand of the justice, authorizing a peace officer named therein at any time to enter the dwelling‑house and search for narcotics.
Did the Entry by the Police Constitute a Search?
140 In my view, the respondent very properly conceded that the entry by the police, undertaken in order to secure the premises and prevent the destruction of evidence, was indeed a form of search not authorized by law. There is no place on earth where persons can have a greater expectation of privacy than within their "dwelling‑house". No matter how good the intentions of the police may have been, their entry into the dwelling‑house without a warrant infringed the appellant's rights guaranteed by s. 8 of the Charter . Moreover, there can be no artificial division between the entry into the home by the police and the subsequent search of the premises made pursuant to the warrant. The two actions are so intertwined in time and in their nature that it would be unreasonable to draw an artificial line between them in order to claim that, although the initial entry was improper, the subsequent search was valid. It follows, then, that the question to be resolved is whether or not the admission of the cocaine and the money discovered during the search could bring the administration of justice into disrepute.
Section 24(2) of the Charter
141 This case comes down to a consideration of the balance that must be struck between the right to privacy within the home and the necessity of the police to act in exigent circumstances. On the one hand, the police, in direct contravention of s. 10 of the Narcotic Control Act, entered into a dwelling‑house without a search warrant or authorization. The Narcotic Control Act itself recognizes the age‑old principle of the inviolability of the dwelling‑house. It must be the final refuge and safe haven for all Canadians. It is there that the expectation of privacy is at its highest and where there should be freedom from external forces, particularly the actions of agents of the state, unless those actions are duly authorized. This principle is fundamental to a democratic society as Canadians understand that term. Thus, it can be argued that the unauthorized entry into a dwelling‑house is so grave a breach of a Charter right that evidence secured as a result of such an unauthorized entry should always be excluded.
142 Yet, on the other hand, the police were investigating a very serious crime, specifically the sale of a hard drug. It is a crime that has devastating individual and social consequences. It is, as well, often and tragically coupled with the use of firearms. This crime is a blight on society and every effort must be undertaken to eradicate it. It is so serious and the destruction or removal of evidence is so easy that it can be argued that the police, while awaiting a search warrant, should always have the right to enter a dwelling‑house without authority to preserve the evidence. Perhaps the solution lies somewhere between these extreme positions. Before considering the proper balance to be achieved, it is necessary to deal with a preliminary issue, namely, does the decision in R. v. Kokesch, [1990] 3 S.C.R. 3, determine the outcome of this case?
Does the Kokesch Decision Dictate the Result in this Case?
143 The appellant argued that the evidence obtained during the search should be ruled inadmissible because the illegal entry of the police into his dwelling‑house was analogous to the perimeter search conducted in Kokesch, supra. I cannot accept that submission. It will be remembered that in Kokesch, the police made a perimeter search of the premises without having either an authorization or reasonable and probable grounds for believing evidence would be found on the premises. It was as a result of this improper perimeter search that the police were able to obtain the requisite evidence to apply for the search warrant. Sopinka J., writing for the Court, pointed out that it was the initial violation of s. 8 of the Charter which led to the discovery of the evidence obtained in the search. This case is very different. No evidence was obtained as a result of the illegal entry onto the premises. The only effect of the illegal police action upon the appellant was that steps could not be taken to destroy or remove the evidence. In these circumstances, the Kokesch case should not be blindly applied so as to exclude automatically the evidence obtained in the search. The outcome of this case will have to be determined upon the weighing of the pertinent factors relating to the admission or exclusion of the evidence pursuant to s. 24(2) of the Charter .
Deferential Approach to Decisions of the Courts Below
144 At the outset it is appropriate to bear in mind that, in a series of cases, this Court has held that findings of the courts below pertaining to s. 24(2) issues should not be overturned unless there has been "some apparent error as to the applicable principles or rules of law, or . . . a finding that is unreasonable". See R. v. Duguay, [1989] 1 S.C.R. 93, at p. 98; R. v. Greffe, [1990] 1 S.C.R. 755, at p. 783; Grant, supra; and R. v. Borden, [1994] 3 S.C.R. 145. It remains to be seen whether or not such an error was made.
Factors to be Taken into Account in a Consideration of s. 24(2) of the Charter
145 In Collins, supra, at p. 284 and p. 288, Lamer J. (as he then was) set out the three primary factors which should guide the consideration of a Court in determining whether evidence should be excluded under s. 24(2) of the Charter . These are: (a) does the admission of the evidence affect the fairness of the trial, (b) how serious was the Charter breach, and (c) what would be the effect on the system's repute of excluding the evidence.
(a) The Fairness of the Trial
146 The real and tangible evidence in issue is, of course, the 285.56 grams (10 ounces) of cocaine and the money. It existed prior to the search and was located in the appellant's home. In the absence of removal or destruction, it would inevitably have been discovered upon a search of the premises. It is significant that the police did not take any steps to search the premises before the warrant arrived. Thus, the actions of the police in entering the premises without a warrant cannot be said to have jeopardized the appellant in any way unless it were to be argued that their presence prevented him from arranging for removal or destruction of the evidence. This is hardly a submission which is likely to succeed. The appellant very fairly conceded in oral argument that he was not seriously contending that the admission of the evidence would affect the fairness of the trial. He was right to make such a concession. It simply cannot be said that the admission of the evidence would affect the fairness of the trial and that aspect need no longer be considered.
(b) Seriousness of the Charter Violation
147 This is the most difficult aspect of this case. It is on this issue that the minority differed from the majority in the Court of Appeal. It is on this issue that the appellant bases his strongest submissions. In order to assess the gravity of the breach, a number of factors must be considered. They may be summarized as follows:
was the violation inadvertent or committed in good faith or was it wilful, deliberate and flagrant;
was the violation serious or merely of a technical nature;
was the violation motivated by a situation of urgency or necessity;
were there other investigative means available to the police which would not infringe the Charter .
See Collins, supra, and R. v. Strachan, [1988] 2 S.C.R. 980.
(i) Nature of the breach
148 The police, without warrant or authority, entered a dwelling‑house. This was not a simple perimeter search as in Kokesch, but an entry into the dwelling itself. It is hard to imagine a more serious infringement of an individual's right to privacy. The home is the one place where persons can expect to talk freely, to dress as they wish and, within the bounds of the law, to live as they wish. The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy. It is the denial of one of the fundamental rights of individuals living in a free and democratic society. To condone it without reservation would be to conjure up visions of the midnight entry into homes by agents of the state to arrest the occupants on nothing but the vaguest suspicion that they may be enemies of the state. This is why for centuries it has been recognized that a man's home is his castle. It is for this reason that the Narcotic Control Act prohibits entry into a private dwelling‑house without a warrant and it is for this reason that a search warrant must be obtained from a judicial officer on the basis of reasonable and proper grounds. Despite the historical importance attached to the privacy interest of an individual in his or her home, and the significance attached to a dwelling‑house by s. 10 of the Narcotic Control Act, the police entered the appellant's home without a warrant.
149 The entry onto the property by the police was thus a very serious breach of a Charter right. It remains to be seen if there are other factors which can mitigate the seriousness of the Charter violation.
(ii) Was the violation committed in good faith and was it motivated by circumstances of urgency or necessity?
150 These critical factors can, I think, be considered together. It will be remembered that the trial judge found that there were exigent circumstances which required the police to enter the premises to protect the evidence. These included, particularly, the arrest of three co‑accused all in public places which were close to the home of the appellant. The police believed that those arrests might trigger the removal of the evidence. The trial judge concluded that the police had a valid basis for their concern to preserve the evidence pending the arrival of the warrant. He observed that the search itself was conducted reasonably, as was the original entry of the police into the home. Lastly, he concluded that there was a sound basis for issuing the search warrant. These findings were all confirmed by the majority of the Court of Appeal. There are, therefore, concurrent findings in this regard. If there was no specific finding that the police had acted in good faith, there was certainly no indication that there was any evidence of bad faith on the part of the police. Further, the evidence reveals that the police considered that they had the right to enter the house to preserve the evidence and an able and experienced trial judge appeared to agree with that conclusion. The trial judge, like the police, may have been in error in reaching that conclusion for the police actions specifically breached the provisions of s. 10 of the Narcotic Control Act. Nonetheless, the circumstances of the public arrests and the need to preserve the evidence were found to constitute exigent circumstances. In those circumstances, it cannot be said that the breach of the Charter rights by the police was committed in bad faith.
151 There was strong and persuasive evidence upon which the trial judge and majority of the Court of Appeal could properly find that there were exigent circumstances which justified the police entry into the home of the appellant. That is to say that there were other factors which mitigated the seriousness of the Charter violation. It is sufficient to dispose of this issue to state that the appellant has not demonstrated that the findings of the courts below were unreasonable or that there was some error made as to the applicable principles of law.
Police Dilemma
152 Yet, the question remains, how should the police act in a situation where they have a serious and valid concern pertaining to the preservation of evidence while awaiting a search warrant. As a result of this case, police officers will be aware that to enter a dwelling‑house without a warrant, even in exigent circumstances, constitutes such a serious breach of Charter rights that it will likely lead to a ruling that the evidence seized is inadmissible.
153 In the future, this problem may disappear as a result of legislation which might, for example, amend the provisions of s. 10 of the Narcotic Control Act. However, apart from legislation, let us consider the options that are open to the police and their consequences.
154 In this case, evidence existed upon which a search warrant could have been obtained before the arrests were made. It may be that it would have been preferable for the police to have obtained a search warrant based on the earlier transactions completed prior to that made on the day of the arrests. The police could have advised the Justice of the Peace that they expected to make the arrests and that there might be further information that would be available from those arrests which could be supplied immediately after the arrest, perhaps by telephone and subsequently confirmed by a deposition. At the time of trial, if the search warrant was attacked on the grounds that it was outdated, evidence could be adduced of the difficulty of providing up‑to‑date material in circumstances like these and that, in light of the necessity of protecting the evidence, the police found it necessary to obtain a warrant based on the earlier transactions and observations. In the absence of an unreasonable delay between the observations and the application, it would be difficult to imagine that the warrant could be successfully attacked on the grounds that it was stale‑dated. That is the way the police should have proceeded.
155 Yet, that is not to say that the police forever should be prohibited from entering premises in order to secure and preserve the evidence. Situations may arise when it will be impossible for the police to proceed by means of a search warrant based on earlier observations. Undercover officers may have worked long and hard in situations of great personal danger to proceed with one very large purchase of drugs in circumstances where it is essential to preserve the evidence which the police believe on reasonable and probable grounds to be in a home. Yet, it will take time to obtain a search warrant. In those circumstances, courts will have to determine on a case-by-case basis whether or not there existed such a situation of emergency and importance that the evidence obtained may be admitted notwithstanding the warrantless search. However, I must emphasize again that after this case it will be rare that the existence of exigent circumstances alone will allow for the admission of evidence obtained in a clear violation of s. 10 of the Narcotic Control Act and s. 8 of the Charter . Otherwise, routinely permitting the evidence to be admitted under s. 24(2) of the Charter in cases where exigent circumstances exist would amount to a judicial amendment of s. 10 of the Narcotic Control Act. This was the position taken by counsel for the respondent. In his submissions, he very carefully stated that he was not seeking carte blanche for the police to enter a dwelling‑house to preserve evidence. Rather, he maintained, quite correctly I believe, that the issue should be considered on a case-by-case basis.
156 It seems that the American courts have adopted this same approach. The Fourth Amendment to the Constitution of the United States reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
157 The facts in Segura v. United States, 468 U.S. 796 (1984), are somewhat similar to those presented in this case. In Segura v. United States, New York Drug Enforcement Task Force officers had a number of persons under surveillance who were suspected of trafficking in cocaine. After two of the suspects were arrested, Task Force agents were then authorized to arrest the appellant Segura. They were told that the search warrant for Segura's apartment probably could not be obtained until the following day and that the agent should secure the apartment to prevent destruction of the evidence. Later that same evening, the agents arrested Segura, took him to his apartment, knocked on the door and, when it was opened by the appellant and co‑accused Colon, entered the apartment without requesting or receiving permission. The agents then conducted a limited security check of the apartment and, in the process, observed, in plain view, drug paraphernalia. Colon was then arrested and he and Segura were taken into custody. Two agents remained in the apartment awaiting the arrival of the warrant. However, because of "administrative delays", the warrant was not issued until some 19 hours after the entry into the apartment. When the warrant arrived, a search was conducted and the agents discovered cocaine and records of narcotics transactions.
158 Burger C.J., for the court, stated at p. 798:
Resolution of this issue requires us to consider two separate questions: first, whether the entry and internal securing of the premises constituted an impermissible seizure of all the contents of the apartment, seen and unseen; second, whether the evidence first discovered during the search of the apartment pursuant to a valid warrant issued the day after the entry should have been suppressed as "fruit" of the illegal entry. Our disposition of both questions is carefully limited.
The Court of Appeals affirmed the District Court's holding that there were no exigent circumstances to justify the warrantless entry into petitioners' apartment. That issue is not before us, and we have no reason to question the courts' holding that the search was illegal. The ensuing interference with petitioners' possessory interests in their apartment, however, is another matter. On this first question, we conclude that, assuming that there was a seizure of all the contents of the petitioners' apartment when agents secured the premises from within, that seizure did not violate the Fourth Amendment. Specifically, we hold that where officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment's proscription against unreasonable seizures. [Italics in the original, emphasis by underlining added.]
With respect to the admissibility of evidence found during the subsequent search, once the search warrant was obtained, Burger C.J. held at p. 799:
The illegality of the initial entry, as we will show, has no bearing on the second question. The resolution of this second question requires that we determine whether the initial entry tainted the discovery of the evidence now challenged. On this issue, we hold that the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as "fruit" of the illegal entry because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source for the evidence under Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
159 It can be seen that the reasons were carefully limited to the situation presented by the case.
160 Similarly, in United States v. Mabry, 809 F.2d 671 (10th Cir. 1987), the District of New Mexico Circuit held that the warrantless entry into and protective sweep of the defendant's home was justified by exigent circumstances. Specifically, the officers' contact had just been arrested and it was known that his source of supply, which was believed to be the defendants, would be suspicious if he did not return soon.
161 Thus, it can be seen that the careful case-by-case approach undertaken in the United States has resulted in the courts' admitting evidence seized during a search after premises have been secured in order to preserve evidence, if the exigent circumstances required such a measure. Although s. 10 of the Narcotic Control Act does not permit such measures in case of a dwelling‑house, a careful case-by-case approach under s. 24(2) should be taken in Canada. Notwithstanding the specific provisions in the Narcotic Control Act prohibiting entry into a dwelling‑house, and the historical importance that has always been attached to a dwelling‑house, it cannot be forgotten that there is an unfortunate connection between illicit trafficking in drugs and the use of firearms. Further, as indicated by the facts in this case, a communication network often exists which facilitates the destruction of vital evidence. Proceeding on a case-by-case basis will permit the courts to recognize and balance the fundamental importance of the right to privacy in a person's dwelling against the gravity of drug crimes and the need of the police in emergency circumstances to preserve vital evidence. In my view, such circumstances existed in this case. Further, the fact that the police entered to preserve the evidence rendered the breach less serious.
162 Yet, s. 24(2) of the Charter should not be used as a matter of course to excuse conduct which has in the past been found to be unlawful. This case has confirmed that to enter and search a dwelling‑house without a warrant constitutes a very serious breach of the Narcotic Control Act and the historic inviolability of a dwelling place. Therefore, in the future, even if such exigent circumstances exist, the evidence would likely be found inadmissible under s. 24(2). It is difficult to envisage how the admission of the evidence could not bring the administration of justice into disrepute since in subsequent cases, it will be very difficult for the police to claim that they acted in good faith if they entered the dwelling without prior judicial authorization. The police must now know that exigent circumstances do not provide an excuse for failing to obtain a warrant. It is up to Parliament to amend s. 10 if it wishes to provide for exceptions to the warrant requirement. Although I do not wish to foreclose the possibility that the evidence may still be admitted under s. 24(2), it will only occur in rare cases.
163 At the time of the unauthorized entry, the police could not reasonably have been expected to consider that there was another investigatory technique available to them that would not have infringed the Charter . As a result, no other aspect of the seriousness of the Charter violation need be considered.
(c) The Effect of the Exclusion of the Evidence
164 The last major factor to be considered in the s. 24(2) analysis is the effect the exclusion of the evidence would have on the administration of justice. The outcome of this issue was not seriously contested by the appellant. The appellant was charged with possession for the purpose of trafficking and trafficking in a hard drug in significant quantities. These are offences that can have a catastrophic effect on society and that carry with them a provision for imprisonment for life. The evidence at issue here was vitally important if not crucial to the prosecution of the case. Indeed, the respondent concedes that without this evidence there would be no possibility of obtaining a conviction on the charge of possession of cocaine for the purpose of trafficking. As well, exclusion of the impugned evidence would substantially diminish the strength of the Crown's case on the trafficking charges.
Summary with Regard to the Three Factors
(a) Fairness of the Trial
165 The evidence seized as a result of the search was real evidence that existed in the appellant's residence. It would inevitably have been discovered in a search of those premises. Its admission cannot conceivably be thought to affect the fairness of the trial adversely.
(b) Seriousness of the Breach
166 There can be no doubt that for the police to enter a dwelling‑house without a warrant flies in the face of the provisions of the Narcotic Control Act and is a denial of the historical and fundamental importance of a person's home. Yet, exigent circumstances did exist. They included the nature of the crime, the public arrests near the dwelling‑house and the belief by the police that they needed to enter the house in order to preserve the evidence while they awaited the search warrant which they believed to be on the way. As the trial judge and the majority of the Court of Appeal found, the Charter violation was rendered less serious in light of the particular facts of this case.
167 If the urgent emergency circumstances are such that the police are required to enter a dwelling without a warrant to preserve evidence, the question as to whether or not the serious nature of the breach would render the evidence obtained in a subsequent search inadmissible will have to be carefully considered on a case-by-case basis. I reiterate, however, that it would be only in rare cases that such evidence could be admitted in the future. It would be preferable for the police to obtain a search warrant prior to the arrest even if it was on the basis of more limited information than that which could be advanced after the arrest. An explanation to the trial court concerning the need for speed in searching the premises may often satisfactorily answer any allegations that the warrant is so stale‑dated as to be ineffective. Now the police may be able to obtain a search warrant by telephone by making use of the provisions of s. 487.1 of the Criminal Code .
(c) Effect of the Exclusion of the Evidence
168 Drug trafficking is a serious crime and the evidence seized was vital to the proof of the case against the appellant. The admission of the evidence would not have an adverse effect upon the reputation of the administration of justice.
169 In weighing all the factors which must be taken into account when considering s. 24(2) of the Charter , it is apparent that in this case the evidence was properly found to be admissible.
Disposition
170 The appeal is therefore dismissed.
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