Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Cultivation of marihuana ‑‑ Police conducting perimeter searches of accused's property without a warrant ‑‑ Narcotic Control Act authorizing warrantless searches of places other than dwelling‑houses ‑‑ Whether provision violates s. 8 of Canadian Charter of Rights and Freedoms ‑‑ Narcotic Control Act, R.S.C., 1985, c. N‑1, s. 10.
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Police conducting perimeter searches of accused's property without a warrant ‑‑ Search warrant later obtained partly on basis of information gathered during perimeter searches ‑‑ Warrantless perimeter searches violating accused's right to be secure against unreasonable search and seizure ‑‑ Whether search pursuant to warrant reasonable ‑‑ Whether evidence should be excluded ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
Criminal law ‑‑ Search warrant ‑‑ Validity ‑‑ Search warrant relating to investigation of offence under Narcotic Control Act issued pursuant to Criminal Code ‑‑ Whether search warrant valid ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 487 ‑‑ Narcotic Control Act, R.S.C., 1985, c. N‑1, s. 12.
In a routine roadblock check, a truck driven by the accused was found to contain several items consistent with a marihuana growing operation. The police were later told by a known and previously reliable informant that the accused had been on his way to set up such an operation at the time. They conducted two warrantless perimeter searches of the residence used by the accused, and determined through inquiries of the public utility that recent electrical consumption there had been unusually high. Based on an information that included the information received from the informant, the inquiries made of the electrical utility and the observations made during the two warrantless perimeter searches, the police obtained search warrants pursuant to s. 487 of the Criminal Code which authorized "peace officers" to search the residence and an apartment in which the accused was residing. The accused was arrested and charged with unlawful cultivation of marihuana and possession of marihuana for the purposes of trafficking. On execution of the warrants, the police seized 80 marihuana plants as well as growing equipment, drug‑related paraphernalia and documents. The trial judge excluded the evidence seized on the ground that the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms had been violated and acquitted the accused. The Court of Appeal, in a majority judgment, upheld the acquittals.
Held: The appeal should be allowed.
Section 10 of the Narcotic Control Act ("NCA"), which authorizes a warrantless search of a place other than a dwelling‑house where a peace officer has reasonable grounds to believe that it contains a narcotic by means of or in respect of which an offence under the NCA has been committed, should be read down to restrict its availability to situations in which exigent circumstances make it impracticable to obtain a warrant. Exigent circumstances will generally be 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. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for such conveyances. To the extent that s. 10 purports to authorize searches and seizures on a wider basis, it is in breach of s. 8 of the Charter and inoperable.
The search warrant in this case was validly issued under s. 487 of the Criminal Code . As a result of the addition of the words "or any other Act of Parliament" in 1985, it is clear that the section applies to proceedings under any federal statute, regardless of whether or not the statute in question also contains search and seizure provisions. This is supported by s. 34 of the Interpretation Act . Section 487 of the Code and s. 12 NCA thus operate simultaneously and provide separate avenues through which police officers may seek prior authorization with regard to narcotic search and seizure operations.
The warrantless perimeter searches in this case were unreasonable and therefore in violation of s. 8 of the Charter . A warrantless search to be reasonable must be authorized by law, but s. 10 NCA is available only in exigent circumstances, and there were none here. There was no indication that the officers who conducted the searches were unable to obtain a warrant, or that they had a reasonable concern that the narcotics in the residence would be lost, destroyed or removed or would disappear.
There was sufficient information to support the issuance of the warrant in this case quite apart from the information obtained through the warrantless perimeter searches. Further, the search executed under the warrant was conducted reasonably within the meaning of s. 8 of the Charter . There is a sufficient temporal connection between the warrantless perimeter searches and the evidence ultimately offered at trial by the Crown, however, to require a determination as to whether the evidence should be excluded under s. 24(2) of the Charter . Given that the impugned evidence is real in nature, its admission would not tend to render the trial unfair. Moreover, the police officers acted in good faith, in that they were operating under the assumption that s. 10 NCA provided statutory authority for the warrantless perimeter searches conducted. The violations were serious ones in a number of respects, since they involved trespass by state agents onto private residential property, there was no urgency or necessity to preserve evidence and alternative investigative means were available, but the negative effect of the exclusion of the evidence and the good faith of the officers outweigh the seriousness of the violations, and on balance militate in favour of admission of the evidence.
Cases Cited
Distinguished: R. v. Kokesch, [1990] 3 S.C.R. 3, rev'g (1988), 46 C.C.C. (3d) 194; referred to: R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Nishikihama, B.C.S.C. New Westminster, No. X02971, November 14, 1991; R. v. Wiley (1991), 9 B.C.A.C. 271, aff'd [1993] 3 S.C.R. 000; R. v. Rao (1984), 12 C.C.C. (3d) 97; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Simmons, [1988] 2 S.C.R. 495; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Baron v. Canada, [1993] 1 S.C.R. 416; Eccles v. Bourque, [1975] 2 S.C.R. 739; Colet v. The Queen, [1981] 1 S.C.R. 2; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. D. (I.D.) (1987), 38 C.C.C. (3d) 289; Schachter v. Canada, [1992] 2 S.C.R. 679; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Strachan, [1988] 2 S.C.R. 980; Re Goodbaum and The Queen (1977), 38 C.C.C. (2d) 473; Campbell v. Clough (1979), 23 Nfld. & P.E.I.R. 249; R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Sismey (1990), 55 C.C.C. (3d) 281; R. v. Donaldson (1990), 58 C.C.C. (3d) 294; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Brick (1989), 19 M.V.R. (2d) 15; R. v. Langdon (1992), 74 C.C.C. (3d) 570; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Greffe, [1990] 1 S.C.R. 755.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 443 [am. 1985, c. 19, s. 69].
Criminal Code , R.S.C., 1985, c. C‑46 , s. 487 [am. c. 27 (1st Supp.), s. 68].
Interpretation Act , R.S.C., 1985, c. I‑21 , s. 34 .
Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 4(2), 6(1), 10 [rep. & sub. c. 27 (1st Supp.), s. 199], 11, 12, 14.
APPEAL from a judgment of the British Columbia Court of Appeal (1992), 73 C.C.C. (3d) 315, 14 C.R. (4th) 260, 11 C.R.R. (2d) 159, 14 B.C.A.C. 94, 26 W.A.C. 94, affirming the respondent's acquittal by Millward J. on charges of unlawful cultivation of marijuana and possession of marijuana for the purposes of trafficking. Appeal allowed.
S. David Frankel, Q.C., for the appellant.
David M. Rosenberg and Paul Rosenberg, for the respondent.
Greg Cranston, for the intervener.
The judgment of the Court was delivered by
Sopinka J. -- This narcotic search and seizure case concerns the constitutional legitimacy of the warrantless search of a place other than a dwelling‑house and specifically whether s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N‑1 ("NCA") in so far as it authorizes warrantless searches of places other than dwelling‑houses violates s. 8 of the Canadian Charter of Rights and Freedoms . This case also addresses the issue as to whether warrants issued under s. 487 of the Criminal Code , R.S.C., 1985, c. C-46 , are available in the investigation of narcotic offences and, if they are, whether the standards for obtaining such warrants are sufficient to meet the requirements of s. 8 of the Charter . Finally, in the event that s. 8 has been violated, it must be decided whether evidence obtained, either directly or indirectly in contravention of s. 8, ought to be excluded pursuant to s. 24(2) of the Charter .
I. The Facts
The respondent, David Grant, was acquitted of charges of unlawful cultivation of marihuana and possession of marihuana for the purposes of trafficking contrary to ss. 6(1) and 4(2) NCA. The acquittal resulted from the exclusion from evidence of a number of items seized during a search conducted under a warrant issued pursuant to s. 487 of the Criminal Code . The basis for exclusion was that statements made in the information sworn in order to ground the warrant request included information obtained during warrantless perimeter searches of the residence used by the respondent. The trial judge found these warrantless searches to be in violation of s. 8 of the Charter .
In a routine roadblock check conducted on April 29, 1989, a truck driven by the respondent, who purported to reside in an apartment in Victoria, British Columbia, was found to contain a number of items consistent with a marihuana growing operation. On May 23, 1989, a police officer had received information from what he claimed to be a previously reliable but confidential informant that at the time of the roadblock, the respondent had been on his way to set up a marihuana growing operation and that he was part of an organization cultivating marihuana on south Vancouver Island.
The police later conducted two warrantless perimeter searches of the residence used by the respondent, a two‑storey building at 11110 Trillium Place, Sidney, British Columbia. On September 7, 1989, two officers entered onto the property looking for signs of marihuana cultivation. During a search of the perimeter, they observed several things which would have been impossible to have observed without entering onto the property. They noted covered windows on the lower floor, heard what they described as the sound of electric motors or fans emanating from inside the residence and noticed two air vents which looked recently installed. Later that day, the police observed the respondent leave the Trillium Place residence and followed him to an apartment in Victoria. On September 20, 1989, the respondent was observed carrying what appeared to be fertilizer or weed sprayer from the Victoria apartment to the Trillium Place residence.
On September 21, 1989, two police officers conducted a second perimeter search of the Trillium Place property and noted that the basement windows appeared to be sealed with plastic and were wet with condensation. The police officers testified, and it was admitted by the respondent, that they had reasonable grounds to believe that the Trillium Place residence constituted a dwelling‑house which contained a narcotic in respect of or by means of which a narcotics offence had been committed, prior to the first entry onto the property. Further, the police conducted inquiries of B.C. Hydro and were able to determine that recent electrical consumption at the Trillium Place property had been unusually high compared with other similar area residences.
Based on an information that included the pieces of information gleaned in May, 1989, the inquiries made of B.C. Hydro, as well as the observations made during the two warrantless perimeter searches, on September 22, 1989 the R.C.M.P. obtained search warrants pursuant to s. 487 of the Criminal Code . These warrants authorized "peace officers" to search the Trillium Place address and the Victoria apartment. The respondent was arrested at his business, advised of his rights and given copies of the warrants. On execution of the warrants, the police discovered 80 plants which were later identified as marihuana, a variety of growing equipment at the Trillium Place address and a small amount of marihuana, drug‑related paraphernalia and documents at the Victoria apartment.
The respondent was acquitted of the charges referred to above when the evidence obtained in the searches and seizures was excluded by reason of a violation of s. 8 of the Charter .
II. Judgments Below
A. Supreme Court of British Columbia
In a ruling on a voir dire with respect to the admissibility of the evidence obtained during the search under a warrant issued pursuant to s. 487 of the Criminal Code , Millward J. held that the s. 8 rights of the respondent had been violated and excluded the evidence pursuant to s. 24(2) of the Charter . Millward J. found that the premises searched constituted a "dwelling‑house" within the meaning of s. 12 NCA and concluded that the proper course of action would have been for the officers to seek a warrant pursuant to that section rather than under the Criminal Code provisions. Although he found that the wording of s. 487(1), which allows for issuance of a search warrant with regard to "a building, receptacle or place", was broad enough to encompass a dwelling‑house, Millward J. concluded that where the offence suspected to have been committed was one under the NCA, the specific statutory provisions for a warrant pursuant to that Act ought to be followed. On that basis, he held that the warrant under which the search had been conducted was invalid.
He further concluded that the fact that there was no specific evidence indicating that the police had acted in anything other than good faith was not relevant to his decision and he did not decide whether the warrantless perimeter search itself constituted a breach of s. 8 of the Charter . Millward J. further concluded that the police were not operating under any time pressures or in an emergency situation and as such ought to have pursued the appropriate warrant under s. 12 NCA. He held that to the extent that the warrant received was invalid, the search of the premises was not legally authorized and thus was unreasonable contrary to s. 8 of the Charter and excluded the evidence obtained pursuant to s. 24(2) of the Charter . The evidence that remained was insufficient and the respondent was acquitted.
B. Court of Appeal for British Columbia (1992), 73 C.C.C. (3d) 315
(1) Reasons of the Majority (Legg J.A., Wood J.A. concurring)
Legg J.A., writing for a majority of the court, concluded that the warrantless perimeter searches of the residence conducted by the police officers on September 7, 20 and 21, 1989 constituted unreasonable searches which thus violated s. 8 of the Charter and agreed with the trial judge that the evidence ought to be excluded pursuant to s. 24(2). He noted that the decision of this Court in R. v. Kokesch, [1990] 3 S.C.R. 3, stated that the burden was upon the Crown to demonstrate that a search conducted by police without prior authorization was reasonable. He concluded that the Crown in the case at bar had failed to reveal any circumstances indicating time pressures, the existence of an emergency or sound policy reasons for the failure of the police to seek and obtain a search warrant pursuant to s. 12 NCA. As such, the perimeter searches constituted a breach of the respondent's s. 8 Charter rights.
Legg J.A. considered the validity of the search warrant issued pursuant to s. 487 of the Criminal Code to be relevant to the determination of whether the information gained through the warrantless perimeter searches ought to be excluded pursuant to s. 24(2) of the Charter . He concluded that the search warrant with respect to the Trillium Place residence ought to have been issued pursuant to s. 12 NCA rather than under s. 487 of the Criminal Code . He determined that interpreting s. 487 of the Criminal Code to allow for warrants to issue with respect to narcotic related offences would be to impliedly repeal s. 12 NCA. Legg J.A. indicated that the requirement of naming the peace officer who may execute the warrant pursuant to s. 12 NCA was necessary in wake of the expanded powers available to peace officers in conducting a search pursuant to a warrant issued under the NCA. Legg J.A. concluded that Parliament could not have intended to repeal this requirement by amending s. 487 of the Criminal Code to include warrants relating to investigations for any offence identified in a federal statute and read the decision of this Court in R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, as not intending such a conclusion. As such, he found that the search warrants were invalidly issued.
In assessing whether the evidence ought to have been excluded pursuant to s. 24(2) of the Charter , Legg J.A. referred to the factors set out by this Court in R. v. Collins, [1987] 1 S.C.R. 265, and Kokesch, supra. He found that the impugned evidence constituted real evidence which existed irrespective of the Charter breach, so that its admission would not tend to render the trial unfair. Legg J.A. determined that the Crown had failed to establish that the police had acted in good faith since no explanation was offered as to why search warrants were not obtained prior to the perimeter searches given that the officers already had reasonable grounds to believe an offence was being committed. Further, Legg J.A. determined that the violation was serious since there was no urgency involved which necessitated the warrantless perimeter search and other investigative techniques, such as a search warrant pursuant to s. 12 NCA, were available. He concluded that the seriousness of the offences involved militated in favour of exclusion of the evidence. On balance, Legg J.A. considered the breach of s. 8 of the Charter to have been so serious that the court would be seen to be sanctioning unlawful police behaviour were it to allow the evidence to be admitted so that exclusion of the evidence under s. 24(2) of the Charter was necessary in order to avoid bringing the administration of justice into disrepute. Therefore, the acquittals were affirmed.
(2) Dissenting Reasons (Southin J.A.)
Southin J.A. did not deal with whether the searches conducted constituted searches of a dwelling‑house within the meaning of s. 12 NCA, since this issue was not argued by the Crown. She concluded that the warrants under s. 487 of the Criminal Code were validly issued in that a plain reading of the 1985 amendment of that provision indicates that warrants may be issued pursuant to s. 487 with respect to any offence against an Act of Parliament. In so far as the police remained within the limited powers available pursuant to a s. 487 warrant, she concluded that the search was conducted under valid statutory authority.
However, Southin J.A. assumed that a s. 8 violation had occurred when the police trespassed on the respondent's property without a warrant. She determined that the temporal link between the s. 8 violation (at least with regard to the warrantless search of September 21, 1989) and the retention of the search warrants was sufficient to engage s. 24(2) of the Charter . In so determining, she relied on the judgment of Dickson C.J. in Kokesch, supra. After applying the three-part test with respect to s. 24(2) which was set out by this Court in R. v. Jacoy, [1988] 2 S.C.R. 548, Southin J.A. held that the admission of the evidence would not bring the administration of justice into disrepute. She concluded that the impugned evidence was real evidence and thus its admission would not affect the fairness of the trial.
Southin J.A. found that the two violations with respect to the perimeter search of the Trillium Place property were not serious in that it was not anyone's home, but a "forcing house" which was searched given that the respondent actually resided in an apartment in Victoria. Further, she found that the manner of the perimeter searches was reasonable in that they were conducted in broad daylight, unlike the case of Kokesch, supra. In determining that the officers had conducted the perimeter searches in good faith, Southin J.A. relied on the decisions of the British Columbia Supreme Court in R. v. Nishikihama, New Westminster No. X02971, November 14, 1991, and R. v. Wiley (1991), 9 B.C.A.C. 271, aff'd [1993] 3 S.C.R. 000, for the finding that the applicable appellate law upon which the officers were entitled to rely was that of the British Columbia Court of Appeal in R. v. Kokesch (1988), 46 C.C.C. (3d) 194, which indicated that such a search was legal. Furthermore, the decision of this Court in Kokesch, supra, was distinguished on the basis that in that case, the officers conducting the search only suspected that an offence was being committed, while in the case at bar, the officers in question had reasonable grounds to believe an offence was being committed which would have been sufficient to obtain a search warrant.
In view of the fact that the respondent appeared to be "plainly guilty, and the impugned evidence [was] required for a conviction", as set out by this Court in Kokesch, supra, at p. 34, Southin J.A. concluded that the administration of justice would be brought into disrepute by exclusion of the evidence, especially given the good faith demonstrated by the officers. On that basis, she held that the evidence ought to have been admitted and a new trial ordered.
III. The Issues
On December 22, 1992, the following constitutional questions were stated by order of the Chief Justice:
1. Is s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, to the extent that it authorizes a search without a warrant of any place other than a dwelling house, inconsistent with the right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms and, to that extent, inoperative and of no force and effect?
2. Is s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, to the extent that it may authorize the perimeter search of a dwelling house without a warrant inconsistent with the right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms and, to that extent, inoperative and of no force and effect?
The constitutional questions and other issues which were raised on appeal require consideration of the following points:
(i)Did the perimeter searches violate s. 8 of the Charter ?
(a) Were they authorized by s. 10 NCA?
(b) If (a) is answered in the affirmative, is s. 10 NCA inconsistent with s. 8 of the Charter and of no force and effect to the extent that it authorizes the warrantless search of a place other than a dwelling‑house and more specifically, the perimeter of a dwelling‑house?
(c) Were the perimeter searches executed in an unreasonable manner?
(ii)Did the subsequent search warrants and searches conducted thereunder violate s. 8 of the Charter ?
(a) May search warrants relating to the investigation of offences under the NCA be issued pursuant to s. 487 of the Criminal Code ?
(b) If (a) is answered in the affirmative, did the issuance of the search warrants nevertheless violate s. 8 due to the insufficiency of information in support of the search warrants?
(iii)Should the evidence tendered at trial by the Crown be excluded pursuant to s. 24(2) of the Charter ?
IV. Pertinent Legislation
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.
Criminal Code, R.S.C., 1985, c. C-46
487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,
(b) anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act or any other Act of Parliament, or
(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant,
may at any time issue a warrant under his hand authorizing a person named therein or a peace officer
(d) to search the building, receptacle or place for any such thing and to seize it, and
(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.
(2) Where the building, receptacle or place in which anything mentioned in subsection (1) is believed to be is in any other territorial division, the justice may issue his warrant in like form modified according to the circumstances, and the warrant may be executed in the other territorial division after it has been endorsed, in Form 28, by a justice having jurisdiction in that territorial division.
(3) A search warrant issued under this section may be in the form set out as Form 5 in Part XXVIII, varied to suit the case.
(4) An endorsement that is made on a warrant as provided for in subsection (2) is sufficient authority to the peace officers or the persons to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with section 489.1 or as otherwise provided by law.
V. Analysis
A. Perimeter Searches
(1) Applicability of Section 10 NCA
The only plausible statutory authority upon which the police could have relied in conducting the warrantless perimeter searches is s. 10 NCA. To paraphrase, s. 10 provides that police officers may undertake the warrantless search of a place other than a dwelling‑house if they have reasonable grounds to believe that it contains a narcotic by means of or in respect of which an offence contrary to the NCA has been committed. The section thus limits perimeter searches in two fundamental ways. First, the search conducted must only involve the perimeter and not the dwelling‑house. Second, there must be reasonable grounds to believe that there are narcotics in the place to be searched: the perimeter itself and not the dwelling‑house.
It was submitted that the actions of the police in this case could not be brought within s. 10 NCA due to the two specified limitations. This is an issue that was not addressed in Kokesch, supra, and remains unresolved. In the argument before this Court this issue received little attention by reason of the concession by the Attorney General of Canada that s. 10 should be read down to restrict its availability to circumstances in which it is impracticable to obtain a warrant. Since it was not contended that such circumstances existed in this case, the question as to whether the section would otherwise have authorized the perimeter searches was not pursued by the parties. Only the intervener Wiley addressed the issue in argument. In view of my conclusion that s. 10 is inoperable to authorize the perimeter searches because it must be restricted as conceded by the Attorney General, it is unnecessary for me to deal with this issue further. It is preferable that it be finally resolved in an appeal in which it is fully argued. Moreover, we have been advised that s. 10, along with other parts of the NCA, are being amended by Parliament and therefore this issue may be specifically addressed in the revised legislation.
(2) Constitutional Limitations of Section 10
This issue is whether s. 10 authorizes unreasonable searches and seizures contrary to s. 8 of the Charter if it permits a warrantless search of private property absent exigent circumstances which would render it impracticable to obtain a warrant. As I have stated, the Attorney General of Canada conceded that, to the extent that the section authorizes such a search in circumstances in which it is practicable to obtain a warrant, it should be read down. In my opinion, this was a proper concession on the part of the Crown. In this regard, I am in agreement with the conclusion reached by Martin J.A. in R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.). Martin J.A.'s review of the history of searches and seizures, the legislation and jurisprudence is so complete that my reasons can be confined to an attempt at defining with as much precision as possible the constitutional limitations of the section and how they relate to the facts of this case.
In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court indicated that prior authorization was necessary to ensure the broadest protection of s. 8 rights. In this regard, Dickson J. (as he then was) stated, at pp. 160-61 and 168, that s. 8:
. . . 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.
A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. . . .
I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals' expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure.
. . .
In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter , for authorizing search and seizure. [Emphasis in original.]
Some exceptions have been developed with respect to the strict application of the requirement for prior authorization in Hunter, supra. In situations where an individual can be said to have a lower expectation of privacy, such as in passing through customs at border crossings (R. v. Simmons, [1988] 2 S.C.R. 495) or where a search is conducted in connection with a known and ongoing regulatory scheme (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, and R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627), this Court has indicated that a less rigorous application of the pre‑authorization criterion is appropriate. Nevertheless, this Court remains vigilant with respect to searches conducted in relation to criminal investigations, given that the liberty of individuals is ultimately at stake: Baron v. Canada, [1993] 1 S.C.R. 416. Furthermore, it was indicated in Simmons, supra, that exceptions to the general rule ought to remain "exceedingly rare" in the face of a strong common law rule against warrantless intrusions onto private property: Eccles v. Bourque, [1975] 2 S.C.R. 739, Colet v. The Queen, [1981] 1 S.C.R. 2.
The present searches arose in the context of criminal investigations and must be assessed in strict accordance with the approach set out in Hunter, supra, especially given the serious penal consequences which may flow from conviction for these offences pursuant to the NCA. Cautious protection of the right against unreasonable search and seizure is also warranted in wake of the formidable search powers available to police pursuant to the NCA. Not only may police intrude into places where individuals may have very high expectations of privacy, officers may break down walls and doors, seize a wide variety of evidence and search the person of individuals found in the place searched. (See ss. 10, 11 and 14 NCA.)
As such, the three criteria identified by this Court in Hunter, supra, must be met in order to find that s. 10 NCA is reasonable within the meaning of s. 8 of the Charter . It is clear from the express wording of the statute that reasonable grounds to believe a narcotic is contained in contravention of the NCA in the place to be searched are necessary before a warrantless search of a place other than a dwelling‑house will be permissible pursuant to s. 10 NCA. This statutory requirement satisfies the first criterion for constitutionality pursuant to Hunter.
The second and third criteria identified in Hunter, namely, prior authorization by an independent and neutral arbiter and evidence on oath of the grounds for issuance of the warrant, are not a requirement under s. 10 and were clearly absent in the case at bar in relation to the perimeter searches.
This Court has stated that in criminal proceedings, deviations from the Hunter standards will rarely be permitted. Nevertheless, warrantless searches of private property have on occasion been upheld by Canadian courts, including this Court. In determining the extent of the constitutional validity of s. 10, it is necessary to balance two interests: the reasonable expectation of privacy of individuals with respect to the free enjoyment of property against the societal interest in effective law enforcement.
The common law has long demonstrated a respect for freedom from trespass on private property by state authorities, especially where the homes of individuals are involved. That respect for privacy in the home has been expanded by this Court to include other areas in which individuals expect a high degree of privacy, including the office (Hunter, supra) and to a lesser degree even a motor vehicle in some cases: see R. v. Wise, [1992] 1 S.C.R. 527, and R. v. Mellenthin, [1992] 3 S.C.R. 615. 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 . To the extent that s. 10 NCA authorizes a search in the absence of the limiting circumstances, it is invalid. In these circumstances, it is unnecessary to consider s. 1 . See Baron, supra, at p. 452.
This exception to the general rule which proscribes warrantless searches must be narrowly construed. In general, the test will only be satisfied where there exists an imminent danger of the loss, removal, destruction or disappearance of the evidence sought in a narcotics investigation if the search or seizure is delayed in order to obtain a warrant. See R. v. D. (I.D.) (1987), 38 C.C.C. (3d) 289, per Sherstobitoff J.A.
Exigent circumstances will often be created by the presence of narcotics on a moving conveyance such as a motor vehicle, a water vessel or aircraft. However, I do not favour a blanket exception for this species of private property. Such an exception does exist under the American Constitution. In Rao, supra, Martin J.A. pointed out the justification for the American exception was that vehicles, vessels and aircraft may move away quickly and frustrate an investigation. While I accept this fact, I must also be mindful of the fact that this Court has recognized the existence of an expectation of privacy in respect of motor vehicles, albeit on a lower scale than that which exists in relation to a dwelling or a private office. In Wise, supra, the installation of a tracking device in a motor vehicle was held to be an unreasonable search in circumstances in which it would have been practicable for the police to have obtained a search warrant. The capability of these conveyances to move rapidly away will not in all circumstances create a situation in which it is impracticable to obtain a warrant and in which the criteria I have set out above will be present. I agree with the statement of Sherstobitoff J.A. in R. v. D. (I.D.), supra, who, in refusing to recognize a blanket exemption in respect of searches of vehicles under the Saskatchewan Liquor Act, set out what I consider to be the proper approach (at p. 297):
. . . there is no basis in either s. 8 or in Hunter v. Southam to found a blanket exception for vehicle searches. The limits to the exception will be delineated on a case by case basis because they will depend on the facts of each case.
To sum up on this point, s. 10 may validly authorize a search or seizure without warrant in exigent circumstances which render it impracticable to obtain a warrant. Exigent circumstances will generally be 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. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for such conveyances.
To the extent that s. 10 purports to authorize searches and seizures on a wider basis, it is in breach of s. 8 of the Charter and inoperable. It is necessary to consider next what the appropriate remedy should be.
(3) Remedy
In Schachter v. Canada, [1992] 2 S.C.R. 679, Lamer C.J., for the Court, set out the range of remedies and the basic approach to their selection, at pp. 695-96:
A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only "to the extent of the inconsistency". Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. . . . In choosing how to apply s. 52 . . . a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration.
The Crown has admitted that s. 10 NCA is unreasonable in so far as it authorizes warrantless searches of places other than a dwelling‑house in circumstances in which it would be practicable to obtain a warrant. The Crown further suggested that the appropriate remedy in the circumstances would be to "read down" s. 10 so as not to authorize warrantless searches where it is feasible to obtain a warrant. I am satisfied that this remedy is the appropriate one considering that the concerns generally associated with "reading down" do not arise in the case at bar. In this regard, I find the reasoning of Martin J.A. in the following passage in Rao, supra, at p. 125, persuasive:
I have, for the reasons which I have set forth, concluded that the search of an office without a warrant where the obtaining of a warrant is not impracticable, is unreasonable and, to that extent, s. 10(1)(a) [now s. 10] is of no force or effect. On the other hand, the search of an office without a warrant in circumstances where it is not practicable to obtain a warrant may be entirely reasonable. Further, a warrantless search of vehicles, vessels or aircraft, which may move quickly away, may be reasonable where there are reasonable grounds for believing that such contains a narcotic.
Section 10(1)(a) does not, on its face, necessarily clash with s. 8 of the Charter although in some circumstances a warrantless search authorized by that subsection may, in fact, infringe the constitutional requirement of reasonableness secured by s. 8 of the Charter , depending upon the circumstances surrounding the particular search. The statute is inoperative to the extent that it authorizes an unreasonable search.
In Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, this Court determined, at p. 104, that the remedy fashioned for a Charter violation ought to include application of "the measures that will best vindicate the values expressed in the Charter ", while "refrain[ing] from intruding into the legislative sphere beyond what is necessary". In that decision, this Court concluded at p. 104 that "[r]eading down may in some cases be the remedy that achieves the objectives to which [the Court] alluded while at the same time constituting the lesser intrusion into the role of the legislature."
Assessment of the objective of Parliament and the means chosen to achieve that objective is necessary in determining whether application of the "reading down" remedy would unduly interfere in the parliamentary sphere. In the case at bar, the most basic view of the objective behind s. 10 NCA is to ease enforcement of the law related to narcotics offences by specifically authorizing warrantless searches of premises other than dwelling‑houses. In "reading down" the provision this Court should not be seen to be interfering with that objective, but to be balancing legitimate concerns for effective law enforcement with the Charter right to security against unreasonable search and seizure. Reading the provision down to authorize warrantless searches only where obtaining a warrant would be impracticable recognizes the legitimate parliamentary objective of assuring that in exigent circumstances, where evidence is likely to be lost, destroyed, removed or hidden, warrantless searches of property other than dwelling‑houses remain a law enforcement option. The remedy of "reading down" far from usurping the legislative role of Parliament preserves the objectives of Parliament in so far as is possible within constitutional parameters.
Further, the remedy of "reading down" leads to results quite different from those which might be anticipated should this Court strike down the portion of s. 10 relating to warrantless searches. The effect of such a remedy would be to eliminate all warrantless searches. This would remove from the NCA one of the most effective weapons in the battle against the drug trade. The distinction in effect between the remedy of a partial declaration of invalidity and "reading down" strengthens the position that the latter would more effectively preserve the objectives of Parliament while maintaining the integrity of s. 8 of the Charter .
B. Validity of Section 487 Warrants in Narcotics Investigations
The respondent alleged, and both courts below agreed, that the search warrant was issued improperly under s. 487 of the Criminal Code in that a warrant to search for a narcotic related to an offence committed contrary to the NCA can only be issued pursuant to s. 12 NCA. I must respectfully disagree with this position on the basis of a plain reading of the section and the decision of this Court in Multiform, supra. While I agree that there are significant distinctions between warrants issued under s. 487 of the Code and those issued pursuant to s. 12 NCA, the restrictions on NCA warrants relate expressly to the extended powers granted state agents acting pursuant to them. Without these additional powers, there is no need for similar caution under a Code warrant. The differences between the two sources of warrants were identified by this Court in R. v. Genest, [1989] 1 S.C.R. 59, and R. v. Strachan, [1988] 2 S.C.R. 980. Dickson C.J., writing for a majority of this Court in Strachan, indicated the following distinctions, at pp. 996-97:
A warrant issued under s. 10(2) [now s. 12] of the Narcotic Control Act to search a dwelling place for narcotics is significantly wider in scope than a normal search warrant issued under s. 443 [now s. 487] of the Criminal Code . For example, a narcotic search warrant can be executed "at any time," while a warrant under s. 443 can normally be executed only during the day (s. 444). In addition, things seized under a Criminal Code warrant must be taken by the police officer to a justice for disposition (s. 443(1)), but there is no such requirement under s. 10(2). The requirement that the officer be named in the warrant to search for narcotics, first enacted in s. 10(2) of the Narcotic Control Act, S.C. 1960‑61, c. 35, is an important restriction that appears to have been added to counterbalance the wider scope of a search warrant issued under the section. There must be some person responsible for the way the search is carried out.
This requirement is met when the officer or officers named in the warrant execute it personally and are responsible for the control and conduct of the search. The use of unnamed assistants in the search does not violate the requirement of s. 10(2) so long as they are closely supervised by the named officer or officers. It is the named officers who must set out the general course of the search and direct the conduct of any assistants. If the named officers are truly in control, participate in the search, and are present throughout, then the use of assistants does not invalidate the search or the warrant.
In so far as police officers act pursuant to a Criminal Code warrant, they are restricted in the extent of search powers which they may employ. As such, the need for greater specificity in the search warrant itself is negated. In this way, any policy reason against the application of the more liberal provisions of a Criminal Code warrant to narcotics offences is eliminated.
Further, the legislative history of s. 487 of the Criminal Code supports the interpretation that this section is meant to permit warrants to issue in relation to any offence prohibited by an Act of Parliament. Prior to 1985, s. 443, the precursor of s. 487, did not expressly authorize issuance of warrants in relation to offences other than those identified in the Criminal Code . At that point, s. 443(1)(a) read as follows:
443. (1) A justice who is satisfied by information upon oath . . . that there is reasonable ground to believe that there is in a building, receptacle or place
(a) anything upon or in respect of which any offence against this Act has been or is suspected to have been committed, [Emphasis added. ]
In keeping with the lack of express authorization for warrants to issue in relation to reasonably apprehended breaches of the NCA pursuant to s. 443 of the Code, certain courts concluded that search warrants related to narcotics should issue pursuant to s. 12 NCA only: Re Goodbaum and The Queen (1977), 38 C.C.C. (2d) 473 (Ont. C.A.), Campbell v. Clough (1979), 23 Nfld. & P.E.I.R. 249 (P.E.I.S.C.). The latter decision emphasized the distinctions between the warrants issued pursuant to the two statutory provisions and concluded that in view of the extreme powers of search and seizure available under the NCA, the NCA requirement to name the officer who is authorized to execute the warrant was an important one which should not be evaded by issuance of a warrant under the Code provision. Whatever the merits of those decisions, it seems reasonable to conclude that the 1985 amendment of the provision demands a different interpretation.
443. (1) A justice who is satisfied by information upon oath . . . that there is reasonable ground to believe that there is in a building, receptacle or place
(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, [Emphasis added.]
The effect of the 1985 amendment was noted by Lamer C.J. who wrote for the Court in Multiform, supra, at p. 631:
In 1985, the words "or any other Act of Parliament" were added to paras. (a) and (b) of s. 443(1) [now s. 487] of the Code. On a plain reading, s. 443 would thus apply to proceedings under any federal statute, regardless of whether or not the statute in question also contains search and seizure provisions. The use of the word "any" unambiguously shows that every single Act of Parliament could fall within the ambit of these paragraphs. [Emphasis added.]
In Multiform this Court concluded that warrants could legitimately be issued pursuant to s. 487 of the Code in relation to offences suspected to have been committed under the Bankruptcy Act, R.S.C. 1970, c. B‑3, in spite of the fact that s. 6 of the Bankruptcy Act contained a pre‑authorization provision. This approach is supported by s. 34 of the Interpretation Act , R.S.C., 1985, c. I-21 , which provides:
34. . . .
(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.
As such, even if s. 487 of the Criminal Code were silent with respect to its application to offences under other Acts of Parliament, s. 34(2) of the Interpretation Act indicates that the s. 487 warrant provisions would still be applicable. In so far as the offences alleged in the case at bar constitute offences under any Act of Parliament and reasonable grounds are provided on oath, search warrants may issue pursuant to s. 487.
Finally, I would note that to interpret s. 487 of the Code and s. 12 NCA as overlapping is not to conclude that s. 12 is impliedly repealed by the amendment to s. 487. In fact, the two operate simultaneously and provide separate avenues through which police officers may seek prior authorization with regard to narcotic search and seizure operations. The choice of invocation is left to the police. They are, however, bound by the powers specified under whichever statutory framework they have chosen to apply for a search warrant.
Both a plain reading of the amended provisions of s. 487 of the Criminal Code and the decision of this Court in Multiform, supra, support the conclusion that issuance of a warrant to search a dwelling‑house in relation to a narcotics investigation is permissible either under s. 487 of the Code or under s. 12 NCA. As such, I have concluded that the warrant in the case at bar was validly issued pursuant to s. 487 of the Criminal Code .
C. Conclusion Regarding Validity of Searches
I have examined the legal principles applicable to the perimeter searches and the search pursuant to the search warrant issued under s. 487 of the Criminal Code . It is necessary to now consider whether, applying these principles, any of the searches were unreasonable and, therefore, contrary to s. 8 of the Charter and what effect any such breach has on the reception of the evidence.
The searches in this case fall into two categories:
(1) perimeter searches without warrant;
(2) search pursuant to a s. 487 warrant.
No issue was or could be taken that each of these constitutes a search so as to attract the provisions of s. 8 of the Charter . The remaining issue is whether they were unreasonable and therefore in violation of s. 8.
With respect to the first category, the perimeter searches, a warrantless search to be reasonable must satisfy three criteria: (i) it must be authorized by law, (ii) the law must be reasonable and (iii) the manner of the search must be reasonable. See R. v. Collins, supra. The searches in this case fail the first criterion. The legal authority relied on by the police was s. 10 NCA, which I have found is available only in exigent circumstances. There were none here. No argument was presented which would indicate that the officers who conducted the warrantless perimeter searches were unable to obtain a warrant due to exigent circumstances. No evidence was presented which would indicate a reasonable concern that the narcotics contained within the residence would be lost, destroyed, removed or would disappear. In fact, it was admitted that the officers had reasonable grounds sufficient to obtain a warrant before the first warrantless search occurred, and this was certainly the case before the second warrantless search was undertaken. As such, I would conclude that the warrantless perimeter searches in the case at bar were not conducted in accordance with the constitutional limits of s. 10 NCA and were therefore unreasonable within the meaning of s. 8 of the Charter .
With respect to the search pursuant to the warrant issued under s. 487, the respondent submitted that excluding the information obtained by means of the perimeter searches, there was insufficient information to justify the warrant.
The constitutional test for the sufficiency of information underlying a warrant was stated by this Court in R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452, as follows:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
In Kokesch, supra, this Court determined that evidence obtained during a search under warrant had to be excluded under s. 24(2) of the Charter where the warrant was procured through an information which contained facts solely within the knowledge of police as a result of a Charter violation. However, in circumstances such as the case at bar where the information contains other facts in addition to those obtained in contravention of the Charter , it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra. In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event. Accordingly, the warrant and search conducted thereunder in the case at bar will be considered constitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional perimeter searches been excised from the information. It has been admitted that the police had reasonable grounds for the issuance of a warrant before undertaking either of the perimeter searches. This admission on the part of the respondent is eminently proper given the following independent reasonable grounds identified in the information sworn to obtain the warrant.
(1) The respondent had been stopped in a routine roadblock and a large amount of potting soil, plastic tubing and large plastic drums had been seen in his truck;
(2) The police had received a tip from a previously reliable confidential informer that the respondent had, when stopped at the roadblock, been on his way to set up a marihuana growing operation and was part of a marihuana growing organization;
(3) The police had seen the respondent enter 11110 Trillium Place on September 7, 1989, where he had stayed for one and one‑half hours; and
(4) The police had found that the power service at 11110 Trillium Place was in the name of Denise A. Grant and that the recent electrical consumption at the address was unusually high.
Furthermore, between the time of the first and second perimeter searches, on September 20, 1989, the police saw the respondent leave the other residence that was searched, pick up a large garden sprayer, go to the 11110 Trillium Place residence, stay there for an hour and return later that day for four more hours. In combination, these independent pieces of information must be held to have constituted sufficient grounds to believe that a restricted narcotic was contained in the Trillium Place residence in contravention of the NCA. As such, even expunged of the information gained through the warrantless perimeter searches, the information was sufficient to sustain issuance of a search warrant under the test identified in Garofoli, supra.
However, the respondent further proposed that the warrants ought to be quashed on the basis that the police officer did not mention the warrantless perimeter search of September 7, 1989 in his information. As this Court indicated in Garofoli, supra, at p. 1452, "the existence of fraud, non‑disclosure, misleading evidence and new evidence" are all relevant to a determination as to whether an information expunged of offending data could properly result in issuance of a search warrant. In the case at bar, however, there is no evidence to support the allegation of bad faith on the part of the officer in question. Unlike the situations in R. v. Sismey (1990), 55 C.C.C. (3d) 281 (B.C.C.A.) and R. v. Donaldson (1990), 58 C.C.C. (3d) 294 (B.C.C.A.), there is no information to suggest anything other than that the officer inadvertently failed to include mention of the warrantless perimeter search and certainly nothing to suggest a purposeful attempt to deceive the issuing justice.
Section 487 of the Code requires that there be reasonable and probable grounds, given on oath, to believe that there is material within the place, building or receptacle to be searched which relates to the commission of an offence against any Act of Parliament before a search warrant may be issued. This statutory requirement meets the constitutional standard set out in Hunter, supra, in that prior authorization by a judicial arbiter will not be permitted unless information based on reasonable grounds and given upon oath is put before the issuing justice.
Finally, there is no allegation that the search conducted pursuant to the warrant was conducted in anything but a reasonable manner. The search of 11110 Trillium Place was executed in broad daylight and there is no indication of unreasonable force having been employed. As such, I have concluded that the search executed under the s. 487 warrant was conducted reasonably within the meaning of s. 8 of the Charter .
I have concluded that quite apart from the information obtained through the warrantless perimeter searches, there was sufficient information before the issuing justice to allow for the issuance of the search warrant in question. Furthermore, there is no evidence to support the allegation that the officer deliberately omitted data relating to the warrantless perimeter search from his sworn information. Finally, I have concluded that the searches executed under warrant were conducted reasonably, in accordance with the constitutional standards established by this Court in Hunter, supra. On this basis, the warrants issued properly and the searches conducted under them did not violate s. 8 of the Charter . However, this does not eliminate the possibility that the entire search process was tainted by the warrantless perimeter searches which violated s. 8, so the possibility of excluding that evidence under s. 24(2) of the Charter must be considered.
D. Application of Section 24(2) of the Charter
(1) Is Section 24(2) Triggered?
The Crown argued that to the extent that the searches were reasonable within the meaning of s. 8 of the Charter , in that the issuing justice could properly have allowed the warrant to issue even without the information gleaned through the warrantless perimeter searches, there should be no consideration of exclusion pursuant to s. 24(2) of the Charter . I disagree with that submission on the basis that an infringement of s. 8 of the Charter has occurred in the investigatory process in the case at bar, quite apart from the fact that a reasonable search was undertaken subsequently pursuant to a valid warrant.
Although there was a time lag between the Charter violation and the gathering of the impugned evidence, s. 24(2) has nevertheless been triggered by the initial s. 8 violation in the perimeter searches. In Strachan, supra, at pp. 1005-6, Dickson C.J., following the reasons of Le Dain J. in R. v. Therens, [1985] 1 S.C.R. 613, at p. 649, indicated that s. 24(2) will be triggered by the gathering of evidence following the violation.
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 .
In Kokesch, supra, at p. 19, this test was applied to exclude evidence obtained by means of a search warrant which was preceded by an invalid perimeter search.
In the case at bar, there is a sufficient temporal connection between the warrantless perimeter searches and the evidence ultimately offered at trial by the Crown to require a determination as to whether the evidence should be excluded. The warrantless searches, while perhaps not causally linked to the evidence tendered, were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question. It is unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence. Furthermore, to find otherwise would be to ignore the possible tainting effect which a Charter violation might have on the otherwise legitimate components of searches by state authorities. The temporal and tactical connections between the warrantless perimeter searches and the evidence finally offered at trial were sufficient to warrant the conclusion that the evidence was obtained in a manner that violated the constitutional rights of the respondent so as to attract the provisions of s. 24(2) of the Charter . Accordingly, I now turn to consider whether the impugned evidence ought to be excluded.
(2) Standard for Reconsideration of a Section 24(2) Determination
In R. v. Mellenthin, supra, this Court indicated that provincial appellate courts should not interfere readily with the decisions of trial judges with respect to the application of s. 24(2). Unless the trial judge makes an unreasonable finding of fact or legal error in applying s. 24(2), the issue should not be reopened. With respect, it would appear that the trial judge in the case at bar erred in the application of s. 24(2). After finding that s. 8 had been violated, the trial judge excluded the impugned evidence without consideration of the factors set out in Collins, supra, almost as if a violation of s. 8 led automatically to exclusion under s. 24(2). As has been indicated by at least two provincial courts of appeal, the application of s. 24(2) as a rule of automatic exclusion amounts to a reversible error: R. v. Brick (1989), 19 M.V.R. (2d) 158 (Alta. C.A.), R. v. Langdon (1992), 74 C.C.C. (3d) 570 (Nfld. C.A.). Further, the trial judge concluded that the good faith of the police was "by the way" with respect to the s. 24(2) determination, which conflicts with the conclusion of this Court in Collins, supra, that the good faith of state authorities is relevant to the s. 24(2) decision. On this basis, it would appear that the Court of Appeal acted properly in reviewing the s. 24(2) determination de novo.
In R. v. Duguay, [1989] 1 S.C.R. 93, at p. 98, and R. v. Greffe, [1990] 1 S.C.R. 755, at p. 783, this Court determined that it would not interfere with the findings of the courts below on s. 24(2) unless there had been "some apparent error as to the applicable principles or rules of law, or . . . a finding that is unreasonable". With respect, I find that the Court of Appeal was in error with regard to the determination that the warrant and searches conducted thereunder violated s. 8 of the Charter . The Court of Appeal relied relatively equally on the two components of the search which it viewed to be in violation of s. 8 in making the s. 24(2) determination, so that it would be difficult to resolve what decision that court might have reached had the majority made a similar s. 8 determination. Given the fact that I have determined that only the warrantless perimeter searches constituted a violation of s. 8, I find that it is necessary to reconsider the s. 24(2) determination in its entirety. Further, in my opinion, Legg J.A. for the Court of Appeal erred in overturning the trial judge's finding that there was no evidence that the police acted in other than good faith and in deciding that the seriousness of the offence militated in favour of exclusion under the third "factor" of the s. 24(2) analysis. As indicated by this Court in Collins, supra, the correct principle is that if the offence is serious and the impugned evidence is real in nature, it militates in favour of admission since exclusion would lead to acquittal and tend to bring the administration of justice into disrepute. For these reasons I intend to canvass the s. 24(2) determination fully.
(3)Application of Section 24(2)
In Collins, supra, this Court enumerated what have come to be referred to as three sets of "factors" relevant to the determination as to whether evidence ought to be excluded pursuant to s. 24(2) of the Charter . These were methodically set out as follows in Jacoy, supra, at pp. 558-59:
First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" [Collins, supra, at p. 284]. One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.
The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.
Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible. [Emphasis in original.]
The impugned evidence discovered in a sequence of investigative activity following the warrantless perimeter searches was real evidence, similar to that found in Kokesch, supra. As Lamer J. (as he then was) in Collins, supra, indicated at p. 284: "Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone." As such, I find that given that the impugned evidence is real in nature, its admission would not tend to render the trial unfair.
The "good faith" of the officers involved is a relevant consideration with respect to the seriousness of the Charter violation: Kokesch, supra. The trial judge made the following findings that are relevant to the officers' good faith:
The fact that the police may have acted reasonably and in accordance with policy, and I take that expression to mean policy of some officers superior in the organization to the officers attempting to implement the programme, that in itself is neither here nor there.
There is nothing to suggest on the material before me that the police have acted other than in good faith or they have in any way singled out the accused Mr. Grant for special treatment, but again that is by the way.
In contrast to the officers who this Court determined not to have acted in good faith in Kokesch, supra, the officers in the case at bar relied on what appeared to have been express statutory authority in the form of s. 10 NCA. In Kokesch, supra, at pp. 33-34, this Court reflected on the instances in which officers have been considered to have acted in good faith pursuant to the s. 24(2) determination.
In each of those cases, the police acted pursuant to express statutory authority that rendered the particular search lawful. The police are entitled, indeed they have a duty, to assume that the search powers granted to them by Parliament are constitutionally valid, and to act accordingly. The police cannot be expected to predict the outcome of Charter challenges to their statutory search powers, and the success of a challenge to such a power does not vitiate the good faith of police officers who conducted a search pursuant to the power.
Accordingly, the officers in the case at bar could not have been expected to anticipate that s. 10 NCA would be declared unconstitutional in so far as it permits warrantless searches to occur in situations where getting a warrant would be practicable.
Further, it was admitted by the respondent that the officers had reasonable grounds for issuance of a warrant before they ever entered onto the property. As such, the conduct of these officers is distinguishable from those in Kokesch, supra, who held only a mere suspicion that an offence had been committed prior to conducting a warrantless perimeter search. It might have been expected, on the basis of the Ontario Court of Appeal decision in Rao, supra, that police officers in Ontario would have recognized that warrantless perimeter searches in circumstances where it was practicable to obtain prior authorization constituted a violation of s. 8 of the Charter . However, the officers in the case at bar were entitled to rely on the express statutory authority of s. 10 until such time as a court with jurisdiction over the law in British Columbia rendered a similar decision. As this Court indicated in Wise, supra, at p. 544:
Bad faith has been found in situations where there has been a blatant disregard for the Charter rights of an accused or where more than one Charter right has been violated . . . . Good faith has been established in situations where the violation stemmed from police reliance upon a statute or from the following of a procedure which was later found to infringe the Charter (see R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Simmons, [1988] 2 S.C.R. 495).
The case at bar fits the latter category in that the police officers were operating under the assumption that s. 10 NCA provided statutory authority for the warrantless perimeter searches conducted. As such, I have concluded that the officers acted in good faith.
There are, however, other factors which render the violation more serious. As was the case in Kokesch, supra, the warrantless perimeter search in the case at bar involved trespass by state agents onto private residential property. Given the protection of private property interests which the common law has ordinarily offered, the nature of the trespass is "far from trivial or minimal": Kokesch, supra, at p. 29. Further, there was no urgency or necessity to preserve evidence and alternative investigative means were available. It was admitted by the Crown that the police had reasonable grounds to obtain a search warrant before the first perimeter search was conducted. The fact that the officers proceeded with the search without a warrant, even though they had the grounds necessary to obtain one, renders the violation more serious than it would otherwise be. However, the violation was not flagrant, since it was ostensibly authorized by statute and the manner of its execution was quite distinct from the surreptitious night‑time search conducted by the officers in Kokesch, supra.
The third "factor" to be considered in the s. 24(2) determination is the effect which exclusion of the evidence would have on the repute of the administration of justice. I agree with the analysis of Southin J.A. with regard to the effect of the seriousness of the offence. The more serious the offence in question, the greater the likelihood that the administration of justice would be brought into disrepute by the exclusion of the evidence, especially where the evidence is crucial to a conviction. Possession for the purposes of trafficking contrary to s. 4(2) NCA and cultivation of marihuana contrary to s. 6(1) of the same Act are both indictable offences. The former is punishable by a maximum of life imprisonment and conviction for the latter may result in imprisonment for up to seven years. These are serious offences, as is reflected in the respective penalties associated with them. There exists an important social interest in convicting those involved in the illicit drug trade. Exclusion of the impugned evidence in this case renders conviction an impossibility.
While the violations were serious ones in a number of respects, the negative effect of the exclusion of the evidence and the good faith of the officers outweigh the seriousness of the violations, and on balance militate in favour of admission of the evidence. The passage from this Court's decision in Kokesch, supra, at p. 34, which was quoted by Southin J.A. in her dissenting reasons is particularly apposite.
The appellant would seem to be plainly guilty, and the impugned evidence is required for a conviction. It cannot be denied that the administration of justice could suffer some degree of disrepute from the exclusion of this evidence.
As such, I conclude that the administration of justice would not be brought into disrepute by the admission of the evidence in these proceedings, notwithstanding that the legislation under which the Crown has attempted to justify the perimeter searches is in part unconstitutional.
E. Disposition
The appeal is therefore allowed, the acquittals are set aside and a new trial is ordered. The constitutional questions are answered as follows:
1. Is s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, to the extent that it authorizes a search without a warrant of any place other than a dwelling house, inconsistent with the right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms and, to that extent, inoperative and of no force and effect?
Answer:Yes, to the extent that it authorizes such searches in circumstances other than in exigent circumstances where it would be impracticable to obtain a warrant.
2. Is s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, to the extent that it may authorize the perimeter search of a dwelling‑house without a warrant inconsistent with the right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms and, to that extent, inoperative and of no force and effect?
Answer:Yes, to the extent that it authorizes such searches in circumstances other than in exigent circumstances where it would be impracticable to obtain a warrant.
Appeal allowed.
Solicitor for the appellant: John C. Tait, Ottawa.
Solicitors for the respondent: Rosenberg & Rosenberg, Vancouver.
Solicitor for the intervener: Greg Cranston, Vancouver.
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