R. v. Genest, [1989] 1 SCR 59

R. v. Genest, [1989] 1 S.C.R. 59

 

Michel Genest                    Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. genest

 

File No.:  20101.

 

1988:  January 29; 1989:  January 26.

 

Present:  Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux-Dubé JJ.

 

on appeal from the court of appeal for quebec

 

    Constitutional law -- Charter of Rights  -- Admissibility of evidence ‑‑ Bringing administration of justice into disrepute -- Weapons found following search at the accused's house -- Search warrant defective -- Use of excessive force in carrying out the search -- Accused's right against unreasonable searches infringed -- Accused acquitted following trial judge's exclusion of evidence pursuant to s. 24(2)  of the Canadian Charter of Rights and Freedoms   -- Whether admission of evidence would bring the administration of justice into disrepute -- Whether trial judge properly excluded the evidence pursuant to s. 24(2)  of the Charter  -- Whether Crown's appeal involved a question of law alone.

 

    Evidence -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Weapons found following search at the accused's house -- Search warrant defective -- Use of excessive force in carrying out the search -- Accused's right against unreasonable searches infringed -- Accused acquitted following trial judge's exclusion of evidence pursuant to s. 24(2)  of the Canadian Charter of Rights and Freedoms  ‑‑ Whether admission of evidence would bring the administration of justice into disrepute.

 

    The police obtained a warrant to search the accused's house for drugs. A large party of police raided the house and broke open the door with a ram without any advance warning. The police did not locate any drugs but found three weapons. The accused, who was alone at the house at the time of the search, was arrested and charged with two counts of possession of illegal weapons and one count of illegal possession of a restricted weapon. This was the second time the accused's house was searched in a similar manner in less than five weeks.

 

    At trial, the police explained that the main ground for seeking the search warrant was an informer's tip that the accused used the house as his base for supplying drugs. The presence of motorcyclists at the accused's house the night before the search and some unspecified background information collected from other sources were also given as reasons for the search warrant.  The accused had a long criminal record, including convictions for violent crimes, but the police gave no evidence in testimony as to any fears that the accused was expected to be dangerous or that the police searchers would be endangered.  There also appeared to be no factual foundation to account for the means used by the police on both searches.

 

    The trial judge found that the search warrant was invalid, that the search was in violation of s. 8  of the Canadian Charter of Rights and Freedoms  and that the evidence should be excluded under s. 24(2)  of the Charter . As there was no other evidence, the accused was acquitted.  The majority of the Court of Appeal set aside the acquittal and ordered a new trial.  The Court found that the trial judge failed to consider the second requirement of s. 24(2) -- namely, that the administration of justice would be brought into disrepute by the admission of the evidence.  The Court considered the second requirement and concluded that the evidence should have been admitted. The accused appealed to this Court as of right.  The Crown conceded that there was an illegal search of the accused's house which violated s. 8  of the Charter  and did not challenge the trial judge's conclusion that the evidence was obtained in a manner that infringed or denied a Charter  right, which is the first requirement for exclusion under s. 24(2)  of the Charter .  The sole issue in this appeal is whether the admission of the evidence so obtained would bring the administration of justice into disrepute.

 

    Held:  The appeal should be allowed.

 

    The trial judge, when his decision as a whole is examined, did consider both requirements of s. 24(2)  of the Charter  and correctly concluded that the evidence should be excluded. The infringement of s. 8  of the Charter  was so serious in this case that it leads ineluctably to the conclusion that the admission of the evidence would bring the administration of justice into disrepute.  Because of the defects in the warrant, the search was not authorized by law.  The defects were serious and apparent on the face of the warrant and the police should have noticed them.  While it is not to be expected that police officers be versed in the minutiae of the law concerning search warrants, they should be aware of those requirements that the courts have held to be essential for the validity of a warrant.  The naming requirement of s. 10(2) of the Narcotic Control Act is one such requirement.  The complete absence of times of execution or a listing of the objects to be searched for is another indication of the warrant's worthlessness. These defects may not be enough in themselves to justify exclusion of the evidence, but they suggest carelessness on the part of the police officers.  A police officer should be put on his guard by a warrant that contains as many blank spaces as the one in this case.  Common sense suggests that if a form is used, it should be properly filled out, especially when the form itself states that certain details are to be inserted in the blanks.

 

    Further, the search was carried out with excessive force, disregarding the limits established by the common law. Fears for the safety of the searchers and the possibility of violence can be reasons for the use of force in the execution of a search warrant.  But the consideration of the possibility of violence must be carefully limited.  It should not amount to a carte blanche for the police to ignore completely all restrictions on police behaviour.  The greater the departure from the standards of behaviour required by the common law and the Charter , the heavier the onus on the police to show why they thought it was necessary to use force in the process of an arrest or a search.  The evidence to justify such behaviour must be apparent in the record, and must have been available to the police at the time they chose their course of conduct.  The Crown cannot rely on ex post facto justifications. Here, no attempt was made to justify the large number of police involved, the amount of force used or to explain  why they broke into the house without giving the normal warnings the common law requires.  There was also nothing in the record to suggest the police knew of the weapons before they sought the search warrant.  There is strong reason to believe that this search was part of a continuing abuse of search powers, given the fact that it so closely followed the pattern set in the first search five weeks earlier. While the purpose of s. 24(2) is not to deter police misconduct, the courts should be reluctant to admit evidence that shows the signs of its being obtained by an abuse of common law and Charter  rights by the police.

 

Cases Cited

 

    Applied:  R. v. Collins, [1987] 1 S.C.R. 265; referred to:  Re Goodbaum and The Queen (1977), 38 C.C.C. (2d) 473; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Lundrigan (1985), 19 C.C.C. (3d) 499; R. v. Rao (1984), 12 C.C.C. (3d) 97; R. v. Wray, [1971] S.C.R. 272; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Landry, [1986] 1 S.C.R. 145; Campbell v. Clough (1979), 23 Nfld. & P.E.I.R. 249; R. v. Davidson (1982), 40 N.B.R. (2d) 702; R. and Attorney General of Canada v. Newson (1985), 41 Alta. L.R. (2d) 375.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .

 

Criminal Code, R.S.C. 1970, c. C-34, ss. 443, 444.

 

Narcotic Control Act, R.S.C. 1970, c. N-1, s. 10(1), (2).

 

Authors Cited

 

Fontana, James A.  The Law of Search and Seizure in Canada, 2nd ed.  Toronto:  Butterworths, 1984.

 

MacFarlane, Bruce A.  Drug Offences in Canada.  Toronto:  Canada Law Book, 1979.

 

Polyviou, Polyvios G.  Search and Seizure:  Constitutional and Common Law.  London:  Duckworth, 1982.

 

    APPEAL from a judgment of the Quebec Court of Appeal, [1986] R.J.Q. 2944, 4 Q.A.C. 261, 32 C.C.C. (3d) 8, 54 C.R. (3d) 246, allowing the Crown's appeal from the accused's acquittal and ordering a new trial.  Appeal allowed.

 

    Francis Brabant, for the appellant.

 

    Gilles Lahaie, for the respondent.

 

//The Chief Justice//

 

    The judgment of the Court was delivered by

 

    THE CHIEF JUSTICE -- The important, but conflicting, interests vying in this appeal are well expressed by Polyvios G. Polyviou in a passage from the Preface to his book Search and Seizure:  Constitutional and Common Law (1982), at p. vii:

 

    The privacy of a man's home and the security and integrity of his person and property have long been recognised as basic human rights, enjoying both an impressive history and a firm footing in most constitutional documents and international instruments.  But much as these rights are valued they cannot be absolute. All legal systems must and do allow official power in various circumstances and on satisfaction of certain conditions to encroach upon rights of privacy and security in the interests of law enforcement, either to investigate an alleged offence or to apprehend a lawbreaker or to search for and seize evidence of crime. The interests at stake are compelling.  On the one hand the security and privacy of a person's home and possessions should not be invaded except for compelling reasons.  On the other hand society, represented by its organised institutions, also has an undeniable and equally powerful interest in effectively investigating crime and punishing wrongdoers.  The task of balancing these conflicting interests is a matter of great importance and of considerable difficulty; but it must be attempted, and so far as possible, for the health of civil liberty and law enforcement alike, satisfactorily performed.

 

    This case concerns the validity of a search of the dwelling house of the appellant and the exclusion of evidence obtained as a result.  The search in question was conducted on June 21, 1984.  An earlier search executed on May 15, 1984 is relevant to understanding the actions of the police, but the fruits of that search are not at issue in this appeal.  The appellant was charged with two counts of possession of illegal weapons, "un poing américain" (brass knuckles), a nanchakou (a weapon consisting of two sticks connected by a chain or cord) and one count of illegal possession of a restricted weapon (a .22 pistol).  The trial judge, in an unreported judgment rendered August 2, 1984, found the search to be in violation of s. 8  of the Canadian Charter of Rights and Freedoms  and excluded the evidence under s. 24(2).  Since there was no other evidence, the appellant was acquitted.  The Quebec Court of Appeal set aside the acquittal in a judgment by Owen J.A. (Beauregard J.A. concurring), LeBel J.A. dissenting:  [1986] R.J.Q. 2944, 4 Q.A.C. 261, 32 C.C.C. (3d) 8, 54 C.R. (3d) 246 (hereinafter cited to R.J.Q.)  The appellant appealed to this Court as of right.  The Crown admits that there was an illegal search of the appellant's dwelling house which violated s. 8  of the Charter .  The only issue is the exclusion of the evidence.  All lower court decisions and the appellant's factum were completed prior to the Supreme Court decision in R. v. Collins, [1987] 1 S.C.R. 265.

 

                                                                            I

 

The Question in Issue

 

    The parties agree that the question in issue is:

 

    [TRANSLATION]  Did the Court of Appeal, in view of the trial judge's findings of fact, err in defining and applying the rules governing ss. 8  and 24(2)  of the Canadian Charter of Rights and Freedoms , by deciding that admission of the evidence seized at the appellant's residence would bring the administration of justice into disrepute?

 

                                                                           II

 

The Applicable Legislation

 

The Canadian Charter of Rights and Freedoms 

 

    8.  Everyone has the right to be secure against unreasonable search or seizure.

 

    24. (1) ...

 

    (2)  Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

    8.  Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives.

 

    24. (1) ...

 

    (2)  Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s'il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l'administration de la justice.

 

Narcotic Control Act, R.S.C. 1970, c. N-1 (in Force at the Time of the Events at Issue and as yet Unamended by S.C. 1985, c. 19, s. 200(1))

 

10. (1)   A peace officer may, at any time,

 

(a)  without a warrant enter and search any place other than a dwelling-house, and under the authority of a writ of assistance or a warrant issued under this section, enter and search any dwelling-house in which he reasonably believes there is a narcotic by means of or in respect of which an offence under this Act has been committed;

 

(b) search any person found in such place; and

 

(c)  seize and take away any narcotic found in such place, any thing in such place in which he reasonably suspects a narcotic is contained or concealed, or any other thing by means of or in respect of which he reasonably believes an offence under this Act has been committed or that may be evidence of the commission of such an offence.

 

                            (2)  A justice who is satisfied by information upon 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 his hand authorizing a peace officer named therein at any time to enter the dwelling-house and search for narcotics.

 

                                                                          III

 

The Facts

 

    In February of 1984, the appellant, Michel Genest, took up residence at 3045 chemin Oka, in the town of Ste-Marthe-sur-le-Lac, Quebec.  He had recently completed a two-month prison term for possession of narcotics for the purpose of trafficking.  Once he was installed at that address, there was a great deal of coming and going of many people, several of them motorcyclists.  The appellant explained in his testimony at trial that he had several friends who often slept over after parties, or after using the moto-cross trail that was close to the house.

 

    Upon discovering the identity of the new resident, the municipal police of Ste-Marthe-sur-le-Lac began to keep a watch on the house.  Then on May 15, 1984, at approximately 07:35 a.m., the police came to the house armed with two warrants:  the first warrant issued by the Court of Sessions of the Peace at Sherbrooke for the arrest of the accused on unrelated charges, and the second a search warrant issued by a local justice of the peace to search for stolen property.  The exact number of police officers present at that search is not clear from the record and the trial judge did not make a finding of fact on the point.  One of the police officers testified that there were [TRANSLATION] "several police officers, several police forces also", while another testified that:  [TRANSLATION] "When we got there, we were alone in a van with officer Beaudoin:  Mr. Caron [another police officer], myself and a police officer from St‑Eustache who was driving."  For his part, when asked how many police cars were present, the appellant replied:  [TRANSLATION] "On the morning of May 15, I saw perhaps fifteen or twenty."

 

    Both the police and the appellant testified that the police were very quiet as they approached the house on the morning of May 15.  The appellant saw the police coming, but went back to bed.  The police officers did not give any preliminary demand for admittance, but went directly to the back door of the house, which they broke open with a battering ram in thirty or forty seconds.  The appellant described the entry of his house thus:  [TRANSLATION] ". . . they broke it down, they screamed like crazy, they burst in, they broke everything".  When asked why the police had thought it necessary to break open the door with a ram, Officer Janelle responded:  [TRANSLATION] "Because the door was bolted".  As far as he could remember, neither he nor any of the other officers called out "Police" or gave any similar warning until they were already in the house.  At that point the appellant called out "O.K., O.K."  The appellant and one other person were in the house.  The police did not find the stolen goods that they had expected to find at the house, but they did find a credit card made out in the name of another person, and a 35 mm camera with zoom lens that had been stolen some months before.  They arrested the appellant and took possession of these items.  The appellant was released on bail later that day.

 

    The officer in charge of the investigation, Officer Desjean, was asked to explain the reasons for the May 15 search.  He explained that a person suspected of breaking and entering had told the police that they would find certain stolen property at the house.  Desjean had applied for the search warrant on that basis.

 

    On June 21, 1984, there was another early morning search of the house at 3045 chemin Oka, this time for drugs.  The appellant was alone in his house at the time.  The police on this occasion were not quiet in their arrival, as described by the appellant in his testimony:

 

[TRANSLATION]  A.  When I got home it was about 4:30 or 5:00 a.m., and at some point I heard shouting outside, it was about 7:00 a.m., I went to look through the window, I saw police coming, they were running, shouting, they acted like they were crazy, they tore down the door frames.

 

Q.  Did they knock first?

 

A.They burst in as they pushed down the door.

 

Q.Did anyone show you a document at any time regarding the search?

 

A.They gave it to me when I came out of the house at some point, and the one I had in my hands was not even the right one, it was for another address.

 

The trial judge noted that this search was [TRANSLATION] "a full-scale search".  The municipal police of Ste-Marthe-sur-le-Lac were assisted in this search by the "escouade tactique de la Sûreté du Québec" (the "TACTIC squad"), and also by some members of the municipal police of St-Eustache. The trial judge found that the members of the TACTIC squad simply broke open the door to the house without any advance warning.  The appellant was alone in the house.  The police did not locate any drugs in this search, but they did find the three weapons mentioned.  They seized these weapons and arrested the appellant in consequence.

 

    Officer Desjean was asked what reasons he had for the search on June 21.  He explained that he had been informed by the same suspect as on the previous occasion that the appellant had supplied him with drugs at the house.  In addition, on the evening of June 20, several people had arrived at the house.  Officer Desjean could not say how many people exactly, but he counted 10 motorcycles in front of the house.  He explained in cross-examination:

 

[TRANSLATION]

 

Q.Is that the reason you submitted to Mrs. Tyte [the Justice of the Peace] asking that [the warrant] be issued at that time, on June 21?  I am not talking about May 15.

 

A.It was with the movement of these motorcyclists.

 

BY THE COURT:

 

Q.Which in two words was the main reason given?  There was certainly one.

 

A.A tip by a breaking and entering suspect.

 

BY THE DEFENCE:

 

Q.I am not speaking of May 15.  I am speaking of June 21.  Was that the reason, because there was a meeting of motorcyclists at this location on the previous evening, and you decided to submit this to Mrs. Tyte asking for a warrant?

 

A.The main reason.

 

Q.Was that it?

 

A.The main reason was the suspect who gave a tip at some point to the effect that he was being resupplied there, plus what we already had, and it was enough.

 

                                                                          . . .

 

BY THE COURT:

 

Q.Never mind the objections, reservations, please, give me a break.  Please repeat your last answer because I did not hear it.

 

A.A tip from a suspect, Your Honour.

 

Q.For June 21, not May 15.  We are only talking about June 21.

 

A.That's right, who said he was being resupplied there.  Now in addition to the observations we had already made ourselves, we figured it was time to strike, to go, also in view of the assembly the day before, for drugs.

 

    BY THE DEFENCE:

 

Q.You had an assembly the day before, so then this was a reason for you.

 

    The other reason, you were saying, is that you received information from someone on June 21 or 20.  Did you receive the information before the meeting at this address or afterwards?

 

A.No, no.  We were still working on the drugs.  I was getting there gradually.

 

My investigation was proceeding.  I already had enough information.

 

Officer Desjean stated that his inquiry had gone on for several months.  He apparently decided that the combination of the information he had from other sources, the tip from the informer that the appellant used the house as his base to supply drugs, and the assembly of motorcyclists that night, warranted a search in the morning.  He appeared in front of the justice of the peace at 7 a.m. on June 21 to obtain the search warrant.  In addition to the search warrant for the appellant's house, he obtained warrants to search two other buildings, which were executed simultaneously with the search at 3045 chemin Oka.

    There are three other facts which have some relevance to the decision in this case.  The first concerns the appellant's dogs.  It seems that on May 15, 1984, at least, he had two pit bulls and two rottweilers.  He explained that he had these dogs at the house since his arrival in February.  Neither the police in testimony nor the trial judge in his reasons for judgment referred to these dogs.

 

    The second factor that is relevant is what might be called the "Hell's Angels" connection.  Throughout the transcript there are references to motorcyclists and motorcycles.  There are also three references to the Hell's Angels.  The first reference was by Officer Desjean, who explained that the former inhabitant of 3045 chemin Oka moved out, [TRANSLATION] "On February 19 another member of the Hell's moved into 3045," which was clearly a reference to the accused.  Defence counsel objected to the phrase and the trial judge agreed that he would take no notice of it.  Officer Desjean later testified that he and the other police officers kept the house under observation.  They saw several motorcyclists coming and going, and on the night of June 20 [TRANSLATION] "There were members of the Hell's Angels who turned up there from time to time".  Defence counsel did not object to this statement.  Finally, the accused was asked to explain the comings and goings at the house:

 

                            [TRANSLATION]

 

A.. . .  the visitors -- there were a lot of people who came -- there were Hell's Angels brothers who sometimes came from Vancouver, who came to sleep, there was no room to sleep, I took them to sleep at our place.  That's why there were comings and goings.

 

The trial judge did not refer to these comments in his reasons.

 

    Finally, the accused was questioned at trial about his criminal record.  In the five years prior to the searches, he had been convicted of rape, assault with intent to cause bodily harm, possession of a firearm for a dangerous purpose, possession of narcotics, disturbing the peace, breach of probation, and finally, possession of narcotics for the purposes of trafficking.  The police had originally found out the appellant's identity from the criminal information service.

 

    The police gave no evidence in testimony as to any fears that Genest would be dangerous or that the police searchers would be endangered.  At trial, quite apart from the fact that the police may have been on an initial fishing expedition, there appears to be no factual foundation to account for the means used by the police on either May 15 or June 21.

 

    In summary, the ground for the search warrant of June 21, the warrant at issue in this appeal, was a tip by a suspect in a break and enter case that Genest was resupplying drugs.  There was evidence of a gathering of motorbikes at Genest's house the night before the entry and some unspecified background information.  The purpose of the search was to look for drugs.  To carry out this purpose, a small army of police came to the home of the appellant. They smashed in the door, seemingly to the point of tearing out the door frame. They shouted but gave no warning or knock beforehand.  The result was that no drugs were found but three weapons were located, resulting in the charges at issue in this appeal.

 

                                                                          IV

 

The Search Warrant of June 21, 1984

 

    Judge Claude Lamoureux of the Court of Sessions of the Peace, judge of first instance, described the search warrant in these terms:

 

    [TRANSLATION] On June 21, 1984, Officer Roland Desjean of the Ste‑Marthe Sûreté Municipale obtained from a Justice of the Peace a search warrant which read as follows:  "To the peace officers in the district ..." no name given, "whereas it appears on the oath of Roland Desjean, police officer, 3,000 chemin Oka, Ste‑Marthe-sur-le-Lac, that in the town of Ste‑Marthe, district of Terrebonne, on or about June 20, 1984, an offence was committed contrary to the provisions of s. 3(1) of the Narcotic Control Act and s. 41 of the Food and Drugs Act, to wit having in his possession without lawful excuse a restricted narcotic and/or drug which on reasonable grounds suggests that it may provide evidence regarding the perpetration of the said offence".  And the pre‑printed text went on:  "And the said things or parts thereof are found in or near to the house at 3045 chemin Oka, Ste‑Marthe-sur-le-Lac district.  This is, therefore, to authorize you to enter ..." indicate time, but no time indicated, "... into the premises and to search for the said things ...."  But no things were described.  "And to bring the same before me or any other Justice of the Peace for the district ...."  This was left blank.  "Given under my hand in the district of Terrebonne on June 21, 1984" and signed   -- I think -- B. Pitt.

 

    The warrant does not mention whether it is issued under s. 446  of the Criminal Code  or under s. 10 of the Narcotic Control Act, but as it refers to the Narcotic Control Act I assume that the warrant is under that Act.  In any case, only a warrant under the Narcotic Control Act permits entry to a dwelling house to seize narcotics or drugs.  It is mentioned in both the Narcotic Control Act and the Drugs Act, the sections are almost identical.

 

I shall have more to say about the search warrant in the upcoming discussions.

 

                                                                           V

 

The Decisions of the Courts of Quebec

 

1.  Court of Sessions of the Peace

 

    The accused moved at trial on the charges resulting from the search of June 21, 1984 to have the search warrant quashed, alleging various errors apparent on the face of the warrant.  The trial judge denied this motion, stating that he did not have jurisdiction to sit in appeal from the justice of the peace who issued the warrant.  The correct approach to set the warrant aside would be to apply for certiorari from a superior court judge.  The trial judge held, however, that he had jurisdiction to consider the validity of the search warrant for the purpose of evaluating the search in light of s. 8  of the Charter .

 

    The main basis of the challenge to the warrant was that it did not name the officer who was to execute it, as required by s. 10(2) of the Narcotic Control Act.  Lamoureux J.S.P. gave oral judgment.  He decided that the warrant was purportedly issued under the authority of s. 10(2) of the Narcotic Control Act, and not under s. 443  of the Criminal Code , since the warrant specifically referred to narcotics.  Relying on Bruce A. MacFarlane, Drug Offences in Canada (1979), and on Re Goodbaum and The Queen (1977), 38 C.C.C. (2d) 473 (Ont. C.A.), he held that s. 10(2) of the Narcotic Control Act is a complete code for searches for narcotics and a warrant cannot be issued under s. 443 of the Code to authorize a narcotics search.  The judge quoted the following two passages from the Goodbaum case, at pp. 478-79:

 

Section 10 of the Narcotic Control Act is a code for search, seizure and forfeiture for the purposes of those who enforce the provisions of the Act, and of significance, it protects the citizen by limiting the use of those powers to those peace officers named therein.  In my opinion, a warrant for the purpose of search and seizure of narcotics can only be issued under the provisions of the Narcotic Control Act and the warrant in issue here is invalid.

 

                                                                          . . .

 

    Even if the warrant here was one that purported to have been issued pursuant to s. 10 of the Narcotic Control Act, it was fatally defective as it was not issued to a peace officer named therein.

 

The warrant therefore had to comply with the requirements of s. 10(2), including the requirement that the warrant name the officer who was to execute the search.  There was no mention of the hours of execution, nor of the objects to be searched for, nor the district of the justice of the peace who issued the warrant and to whom the officers were to bring anything found in the search.  Lamoureux J.S.P. decided that the warrant in this case was void ab initio.

 

    Lamoureux J.S.P. went on to consider whether the evidence seized in the search should be excluded under s. 24(2)  of the Charter .  He stated that the availability of a civil remedy was not relevant to the question of exclusion in penal proceedings and added:

 

    [TRANSLATION]  Since Rothman, supra, and since the adoption of the Charter , the courts have recognized that a trial judge has the power to dismiss evidence if that evidence is such as to bring the administration of justice into disrepute.  This must be done in keeping with and consistent with the facts of each case, it is not a general rule, but I think here that I must consider the facts presented in the case at bar.

 

He then examined the means by which the search was carried out.  He stated that he agreed that there was reasonable and probable cause to believe the accused had narcotics in the house and that a valid warrant could have been issued.  Lamoureux J.S.P. then considered the large numbers of police that had been present June 21, the absence of any preliminary announcement of their presence or request to enter, and the fact that the police simply broke in the door as soon as they arrived.  Lamoureux J.S.P. referred to the decision of this Court in Eccles v. Bourque, [1975] 2 S.C.R. 739, and the common law requirement that the police must announce their presence prior to entry, absent exigent circumstances.  He noted that the police had called out "police" once they entered.  He said that he had been struck during the hearing by the fact that no drugs had been found during the search.  He then stated:

 

    [TRANSLATION] It seems to me, and I do not state it categorically, but I am under the impression that the police attended at the accused's premises in order to search not only for drugs, but also to search generally, or rather, to use the popular expression, to go on a fishing expedition.  This obviously repudiates the Act and the case law.

 

A factor that guided the judge's decision was that this was the second search of the accused's home, executed in the same manner.  Taking all of the facts together, the judge concluded that the seized objects should be excluded under s. 24(2)  of the Charter .  He said:

 

    In view of the particular evidence in the case at bar I think that, taking into account the fact that initially no one was authorized to enter the accused's house, the warrant was void ab initio, and given the scope of this search, I feel I must apply the provisions of s. 24(2)  of the Canadian Charter of Rights and Freedoms , and exclude from the evidence the items found therein . . .

 

Since a conviction was impossible without the weapons, the judge acquitted the accused on the three charges.

 

2.  Quebec Court of Appeal

 

    The Crown appealed to the Quebec Court of Appeal, composed of Owen, Beauregard, and LeBel JJ.A.  The Crown conceded that the search had violated the accused's right under s. 8  of the Charter , and only challenged the exclusion of the evidence under s. 24(2).  Genest argued that the exclusion of evidence was not a question of law alone, and that the Court of Appeal could not review the question of exclusion without re-assessing the facts found by the trial judge.  Alternatively, he argued that the trial judge had properly excluded the evidence.

 

    Owen J.A., with whom Beauregard J.A. concurred, held that the appeal did raise a question of law alone.  With respect, I agree.  See R. v. Lundrigan (1985), 19 C.C.C. (3d) 499 (Man. C.A.), at p. 509; R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), at p. 127.  Owen J.A. stated that the Court of Appeal would accept the facts found by the trial judge with respect to the issuance and execution of the warrant and decide on those facts whether the search and seizure were unreasonable. Owen J.A. accepted that the accused's right under s. 8 had been infringed, since the warrant had been improperly issued.  The only question was whether the evidence had been properly excluded.

 

    Owen J.A. then considered s. 24.  He stated that s. 24(1) contains a general remedy for all those whose Charter  rights have been infringed, and authorizes a wide variety of remedies, including traditional civil remedies against the person who infringed the Charter  right.  Section 24(2) provides a narrow specific remedy of the exclusion of evidence, available only when the evidence was to be obtained in a manner that infringes or denies a Charter  right or freedom and its admission into evidence would bring the administration of justice into disrepute.  Owen J.A. noted that the accused did not seek any remedy under s. 24(1)  between the search of his house and the date of the trial.

 

    Owen J.A. then considered the origin and purpose of s. 24(2), as well as different theories of interpretation.  He rejected what he termed the two extremes of interpretation, the one, that s. 24(2) is an automatic rule of exclusion and, the other, an exceptional provision that is to be exercised rarely.  The automatic exclusionary rule of the United States evolved in a social atmosphere of police brutality and racial hatred.  Section 24(2) was not adopted in the same social atmosphere as the American rule and Canadian courts should not follow the American approach.

 

    The correct interpretation of s. 24(2), in Owen J.A.'s view, is that it is a restricted remedy for those whose rights have been infringed, while s. 24(1) is the general remedy.  Section 24(2) is not intended to deter police from violating Charter  rights and is not a means for judicial control of the police.  Nor should evidence be excluded under s. 24(2) on the ground that exclusion of evidence is the only effective remedy for a breach of Charter  rights.

 

    Owen J.A. then discussed the trial judge's decision to exclude the evidence.  He interpreted Lamoureux J.S.P. as saying simpliciter that if evidence was obtained in a manner that infringed a Charter  right, it had to be excluded.  Owen J.A. thought that the trial judge had failed to consider the second requirement of s. 24(2), namely, that the administration of justice would be brought into disrepute by the admission of the evidence.  This amounted to an automatic rule of exclusion, which was an error in law.

 

    Since the trial judge erred, Owen J.A. went on to consider whether the admission of the evidence would bring the administration of justice into disrepute.  If the evidence were admitted, the appellant would stand trial on the merits of the accusation, with full opportunity to make a defence.  It might be that he would be convicted, or he might be acquitted if the Crown failed to establish possession on the facts of the case.  If the evidence were excluded, the appellant would have been acquitted because of a defective search warrant.  Owen J.A. made little or no reference to the manner in which the search was carried out. He focussed almost entirely on the defects in the search warrant, and, in his view, to exclude evidence in this case because of a defective search warrant would bring the administration of justice into disrepute.  Owen J.A. thought that such an acquittal without any consideration of the evidence on the merits would be far more likely to bring the administration of justice into disrepute than would the admission of the evidence.  He concluded that the evidence should have been admitted.  He set aside the acquittal, and ordered a new trial.  He stated his conclusions as follows at p. 2947:

 

    1.  the present appeal by the Crown involves a question of law alone and the Respondent's preliminary objection is unfounded;

 

    2.  the search and seizure in virtue of the second warrant issued 20 June 1984 were unreasonable ("abusives") and infringed Genest's right under s. 8  of the Charter ;

 

    3.  the three weapons seized in virtue of the later warrant should not have been excluded as evidence on the ground that they were obtained in a manner that would bring the administration of justice into disrepute (s. 24 par. 2  Charter ), but rather they should have been admitted as evidence on the ground that their admission would not bring the administration of justice into disrepute.

 

    LeBel J.A. dissented.  He gave a broader interpretation of s. 24(2) than Owen J.A. and concluded that the circumstances justified exclusion.  He did not characterize the warrant as simply technically defective, but as a nullity that was executed in an unjustified fashion.  He agreed that the reasons of Lamoureux J.S.P. did not clearly show that he had considered the two requirements of s. 24(2) separately.  LeBel J.A. therefore thought it necessary to re-examine the case as a whole.  He noted that s. 24(2) had changed the old common law position on the exclusion of illegally obtained evidence, as set out in R. v. Wray, [1971] S.C.R. 272, but it did not create an automatic exclusionary rule.  After reviewing decisions of the Courts of Appeal of Ontario and British Columbia, LeBel J.A. concluded that s. 24(2) provides a remedy in addition to that of s. 24(1).  It is not enough that there be an infringement of a Charter  right.  The additional requirement of s. 24(2) must be met.  The trial judge must consider all of the facts of the case and the way the evidence was obtained.  The existence of other remedies should not affect the availability of the remedy of exclusion under s. 24(2).  The section requires the judge to make a value judgment in light of all the circumstances.  The seriousness of the infringement is an important factor to consider, as Wilson J. pointed out in Clarkson v. The Queen, [1986] 1 S.C.R. 383.  A flagrant denial of a Charter  right by the police is far more likely to result in exclusion of evidence than other breaches.  Not every breach of a Charter  right, particularly technical or minor ones, will support the exclusion of evidence.

 

    LeBel J.A. then considered the facts of the case.  He held that there had been more than a simple technical defect in the search warrant.  He pointed out that the trial judge had considered the manner of execution of the search as well, the facts of which had not been contested.  In addition to the invalid search warrant, there was a massive deployment of police, early in the morning, who broke into the house without any advance warning.  LeBel J.A. stated that there could easily be imagined cases of urgency or danger where such a way of proceeding could be justified without difficulty, but there was nothing in the file before the court to suggest that such circumstances existed in this case.  In the absence of any such proof, the way the police carried out the search was itself abusive.  LeBel J.A. concluded that the illegality of the search, combined with the abusive fashion it was carried out, required the exclusion of the evidence.  The following two passages at pp. 2962-63 encapsulate his reasoning:

 

[TRANSLATION]  This is not only a case of violation of technical rules for the issuance of a warrant.  At the time of the search, which was carried out on June 21, 1984, the warrant allegedly issued pursuant to the Narcotic Control Act, was void, as no authorized officer was designated therein.  The guarantee against unreasonable search and seizure was violated.  In itself, if that had been all there was, despite the legal importance of the violation of the right, it would just be a case of a defect of a technical nature in the search, even though the police should have known that the warrant which authorized them to act was a nullity.

 

    However, the judgment sets out other circumstances:  . . . Early in the morning, without notice, without warning, a large number of police officers surrounded the building where the respondent was found.  No valid explanation was advanced to justify either the size of this deployment or the very manner of proceeding.  One can imagine situations of necessity, of danger, or of urgency, which would justify recourse to such drastic methods.  The evidence does not indicate the existence of such a situation.  In the absence of such justification, the manner in which the police operation was carried out had an abusive character in this case in that the police intervention was apparently explained by the possibility of the offence of illegal possession of drugs having been committed . . .   It [the wrongful entry into the residence] was carried out without the necessary warnings or notice being given.  The illegality of the search and the nature of the methods employed in carrying out the search, required, if we intend to ensure that the legal system is respected, that the evidence obtained be excluded.  A refusal to give effect to the legal guarantees would bring the administration of justice into disrepute just as much as an overly technical or finicky application of these guarantees, even in the case of minor violations.

 

LeBel J.A. would therefore have dismissed the appeal.

 

                                                                          VI

 

Section 24 and the Exclusion of Evidence

 

1.  Submissions of the Parties

 

    The respondent Crown does not challenge Lamoureux J.S.P.'s conclusion that the search violated s. 8  of the Charter .  Nor does the respondent challenge his conclusion that the evidence was obtained in a manner that infringed or denied a Charter  right, which is the first requirement for exclusion under s. 24(2).  As I have indicated, the sole issue for the Court in this case is whether the admission of the evidence so obtained would bring the administration of justice into disrepute.

 

    The appellant submits that Owen J.A. misunderstood the basis of the argument that the appeal did not raise a question of law alone, which was that the trial judge's decision was based in part on the impression the extent of the search made on him. Appellant argues that in overturning Lamoureux J.S.P.'s decision the Court of Appeal re-assessed his findings about the motives of the police.  The appellant also argues that because of the seriousness of the violations caused by the invalid warrant and the way the search was carried out, the evidence ought to be excluded.

 

    The respondent Crown argues that the Court of Appeal correctly set aside Lamoureux J.S.P.'s decision because he failed to consider the effects of the admission of the evidence on the administration of justice.  The respondent agrees with Owen J.A.'s conclusion that Lamoureux J.S.P. simply held that the evidence had been obtained in a manner that infringed a Charter  right and therefore was to be excluded as a matter of course, which was an error of law.  Alternatively, the respondent argues that under the principles set out by this Court in R. v. Collins, supra, the evidence should be admitted.

 

2.  Tests Applied by Lamoureux J.S.P.

 

    The first question which arises is whether Lamoureux J.S.P. correctly applied both stages of s. 24(2) in his decision to exclude the evidence.  The text of s. 24(1) and (2) makes it clear that more than a violation of a Charter  right is necessary before evidence will be excluded.  The evidence must additionally have been "obtained in a manner that infringed or denied any rights or freedoms" guaranteed by the Charter , and it must be established that the admission of the evidence "would bring the administration of justice into disrepute."  Owen J.A. pointed out that in his conclusion, Lamoureux J.S.P. stated:  [TRANSLATION] "I would exclude from the evidence the seizure and the items unlawfully obtained in circumstances that would bring the administration of justice into disrepute"  (Emphasis added).  Owen J.A. understood Lamoureux J.S.P. to be saying that evidence must be excluded if obtained in a manner that infringed a Charter  right. Owen J.A. held that this approach amounted to an automatic exclusionary rule, which would be an error of law.  The respondent supports Owen J.A.'s interpretation of the judgment and argues that the acquittal was properly set aside for that reason alone.

 

    The reasons of Lamoureux J.S.P. are not as clear as they might be, but the reasons were given orally and I think it is important not to focus too closely on the concluding passage of the judgment;  the conclusion must be considered in the context of the entire judgment.  As LeBel J.A. pointed out, Lamoureux J.S.P. began his discussion of the exclusion of evidence by referring to s. 24(2) and stating that evidence obtained by a Charter  violation could be excluded if it was likely to bring the administration of justice into disrepute.  He then went on to say, in the passage just quoted, that the decision to exclude must be made in light of the circumstances of each case, rather than as a general rule.  Lamoureux J.S.P. then referred to the invalidity of the warrant, the large number of police used to search one house for narcotics, and his impression that the police were "on a fishing expedition," as factors that led him to his conclusion that he had to exclude the evidence.  Like LeBel J.A.,  looking at the whole of his decision, I think Lamoureux J.S.P. did consider both requirements of s. 24(2) before concluding that the evidence should be excluded.  Unless he was wrong on his decision to exclude, it would have been improper for the Court of Appeal to set aside the acquittal.  It was therefore necessary for Owen J.A. to review the admission of the evidence himself, as he did in his judgment, and it is necessary for this Court to review his decision.

 

    In his analysis of the effect the admission of the evidence would have on the administration of justice, Owen J.A. considered the effect of excluding it and the effect of admitting it.  He pointed out that exclusion of the evidence would mean an automatic acquittal, while admission would mean a trial on the merits with the possibility of an acquittal if the facts of the case warranted it.  Elsewhere in his judgment, as I have indicated, he emphasised that the accused had not sought any remedy under s. 24(1), which he considered to be the primary remedial section of the Charter .  In these circumstances, Owen J.A. concluded that exclusion of the evidence would be likely to bring the administration of justice into disrepute.

 

    With respect, I think that such an approach would mean that in almost every case evidence would be admitted.  Any time evidence is excluded there is a strong chance of an acquittal without a trial on the merits.  If Owen J.A.'s approach were followed, exclusion of evidence under s. 24(2) would be very rare, probably only in those cases where a conviction was likely in any event.  While the purpose of the rule is not to allow an accused to escape conviction, neither should it be interpreted as available only in those cases where it has no effect at all on the result of the trial.  The consideration whether to exclude evidence should not be so closely tied to the ultimate result in a particular case.  Lamer J. for the majority in Collins, supra, held that courts should consider the effect on the administration of justice of excluding evidence, but that factor alone should not decide the case.

 

    Again, with respect, I do not think that Owen J.A. was correct to emphasise the accused's failure to seek a remedy under s. 24(1).  As Lamer J. pointed out in Collins, supra (which of course was not available to Owen J.A.), the existence of other remedies is irrelevant to the decision whether to exclude the evidence under s. 24(2). 

 

3.  Test Established by Collins

 

a)Fairness of the Trial

 

    In Collins, supra, Lamer J. for the majority listed a variety of factors to consider in deciding if the admission of evidence would bring the administration of justice into disrepute.  He divided these factors into three broad groups.  The first group concerns the effect the admission of the evidence would have on the fairness of the trial.  Would the admission of the evidence change the balance of the trial because of the nature of the particular Charter  infringement in that case?  Lamer J. held that the use of an incriminating statement obtained after the denial of the right to counsel would be an example of an unfair effect, but also held that the admission of real evidence obtained from violation of a Charter  right would not be likely to affect the fairness of the trial.

 

    One factor to consider in assessing the fairness of a trial is whether an accused is forced to assist the Crown to build the case against himself or herself.  The common law has recognised that it is up to the Crown to prove the case entirely, and that it is unfair to conscript accused persons against themselves.  In this case, the appellant seeks to have real evidence excluded.  The evidence was not created by the breach of a Charter  right, nor was it found by forcing the appellant to participate in the illegal search or to identify the objects seized in the search.  On the facts of this case, I do not think that the admission of the evidence would have an unfair effect on the trial.

 

b)Seriousness of the Charter Violation

 

    Lamer J.'s second group of factors relate to the seriousness of the violation and the reasons for it, which are important considerations in assessing the effect admission would have on the administration of justice.  He quoted the following passage from Le Dain J.'s reasons in R. v. Therens, [1985] 1 S.C.R. 613, at p. 652:

 

The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant.  Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence.  [Emphasis added.]

 

To these factors, Lamer J. would add that the availability of other investigatory techniques would make the Charter  violation more serious, since the police could have proceeded properly and reached the same result without infringing the Charter .

 

    In this case, the trial judge held that the warrant was invalid and the search illegal.  While the respondent does not challenge that conclusion, it is necessary to examine the nature of the defects and the way the search was carried out to assess the effect admitting the evidence would have on the admission of justice.

 

    The respondent describes the defect in the warrant as simply technical and argues that there was no evidence that the defect was intentional on the part of the police.  The respondent argues that the breach of the Charter  right was not a serious one and that the evidence can be admitted without bringing the administration of justice into disrepute.  Owen J.A. was of the same opinion, saying that exclusion of evidence would mean the accused would be acquitted because of a defect in the warrant.

 

    I do not agree that the defects in the warrant can be described as simply technical.  The major defect was that the warrant did not name the officer who was to execute the warrant, as required by s. 10(2) of the Narcotic Control Act.  That requirement is an important one.  It is a special condition for drug searches of dwelling-houses. It is not found in the general Criminal Code  search provisions.  To ignore this special Parliamentary directive for searches of dwellings is not merely a technical defect.  Parliament has stated that searches of dwellings for drugs are special. The complete absence of times of execution or a listing of the objects to be searched for is a further indication of the worthlessness of the warrant in this case.  I think it could be said that the justice of the peace issued a fishing licence, not a search warrant.  The power to search a dwelling-house under a s. 10(2) warrant is significantly broader than the search power granted by a warrant under s. 443  of the Criminal Code , as several courts have noted.  A narcotic search warrant can be executed at any time, unlike a Criminal Code  warrant which normally must be executed during the day (s. 444).  There is no requirement that the goods seized be taken to the justice who issued the s. 10(2) warrant, unlike the Criminal Code  warrant (s. 443(1)).  The naming requirement has been consistently interpreted by the courts as an important part of the search warrant provisions of the Narcotic Control Act, emphasising the seriousness of a search of a dwelling-house and the extent of the powers granted by the warrant.  In Eccles v. Bourque, supra, this Court said at pp. 746-47:

 

    Except in exigent circumstances, the police officers must make an announcement prior to entry.  There are compelling considerations for this. An unexpected intrusion of a man's property can give rise to violent incidents.  It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance.  No precise form of words is necessary.  In Semayne's Case it was said he should "signify the cause of his coming, and to make request to open doors".  In Re Curtis, nine of the judges were of opinion that it was sufficient that the householder have notice that the officer came not as a mere trespasser but claiming to act under a proper authority, the other two judges being of opinion that the officers ought to have declared in an explicit manner what sort of warrant they had.  In Burdett v. Abbott, Bayley J. was content that the right to break the outer door should be preceded simply by a request for admission and a denial. The traditional demand was "Open in the name of the King".  In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.  Minimally they should request admission and have admission denied although it is recognized there will be 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.

 

The same point was made by La Forest J. (dissenting) in the later case of R. v. Landry, [1986] 1 S.C.R. 145, at p. 167:

 

    The sanctity of the home is deeply rooted in our traditions.  It serves to protect the security of the person and individual privacy.  The same thought was expressed as early as 1604 in the language of the day in the first proposition of the celebrated Semayne's Case (1604), 5 Co. Rep. 91 a, at p. 91 b, 77 E.R. 194 at p. 195 as follows:

 

    1.  That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ....

 

    In his book The Law of Search and Seizure in Canada (2nd ed. 1984), James A. Fontana states at p. 44:

 

A higher duty of propriety in execution seems to rest traditionally with an officer who is about to conduct a search of a dwelling house more than with one about to conduct a search of other types of premises such as warehouses, depots, garages and public buildings.

 

    And further, on the same page, he writes:

 

    Clearly, where the place to be searched is a dwelling house there must first be made a formal demand to open before the officer is entitled to effect entry or use force.  This applies to all search warrants executed upon a dwelling house, unless the authorizing statute clearly says that no such demand need first be made.

 

    The naming requirement ensures that there is at least one officer who is responsible for the search, who must be personally present and must supervise the search.  Because of the greater infringement of the individual's interests caused by the extensive power to search a dwelling-house, some officer must be accountable for the way the search is carried out.  The courts have consistently held that a failure to name the officer in a s. 10(2) warrant means that the warrant is invalid:  Re Goodbaum and The Queen, supra;  Campbell v. Clough (1979), 23 Nfld. & P.E.I.R. 249 (P.E.I.S.C.);  R. v. Davidson (1982), 40 N.B.R. (2d) 702 (Q.B.T.D.); and R. and Attorney General of Canada v. Newson (1985), 41 Alta. L.R. (2d) 375 (Q.B.)  Officer Desjean was not even on the property of the appellant when the dwelling was broken into.

 

    While it is not to be expected that police officers be versed in the minutiae of the law concerning search warrants, they should be aware of those requirements that the courts have held to be essential for the validity of a warrant.  The naming requirement of s. 10(2) is one such requirement.  In addition, a police officer should be put on his guard by a warrant that contains as many blank spaces as the one in this case.  Common sense suggests that if a form is used, it should be properly filled out, especially when the form itself states that certain details are to be inserted in the blanks.

 

    In conclusion on this point, the defects in the search warrant were serious and the police officers should have noticed them.  I do not think the respondent can argue that the police error was inadvertent.  The warrant is defective on its face whether it was issued under the Narcotic Control Act or the Criminal Code .  These defects may not be enough in themselves to justify exclusion of the evidence, but at the least they suggest carelessness on the part of the police officers.  The defence argues that the defect illustrates more than carelessness, but an established pattern of conduct by the police with regard to the appellant.  The serious defects in the warrant must be borne in mind when considering the way the search was carried out.

 

    The appellant also argues that the way the search was executed is relevant to the assessment of the seriousness of the violation.  In this case, the appellant argues that the extremely large number of police involved in the search, the failure to give any warning beforehand, and the amount of force used to break into the house, all suggest that the search was unreasonable.  The appellant also suggests that the police actions show a pattern of abuse, since they used very similar tactics only the month before.  He also points out that the trial judge believed that the police were "on a fishing expedition."  He argues that the search in this case was so abusive that the evidence should be excluded.

 

    Counsel for the respondent did not refer to this argument in his factum, concentrating instead on the defects in the warrant, but in oral argument he referred to the appellant's record which included several convictions for violent crimes.  He pointed out that the police had knowledge that the appellant had two pit bulls and two Rottweilers on the premises, dogs that have a reputation for viciousness.  He also referred to the large number of motorcyclists that had been present the night before the search, as well as the suggestions in the evidence that the appellant was a member of the Hell's Angels.  He argued that these facts justified the use of a large number of police in a sudden raid.  Finally, he pointed out that the weapons in question had been found in positions of easy access and that they suggested the accused was of a violent nature.  Counsel for the respondent argued that the amount of force used to carry out the search had to be weighed against the possibility of violence on the part of the accused.

 

    In the passage from Therens quoted earlier, Le Dain J. made the point that the assessment of the seriousness of a constitutional violation must take into account the reasons for the conduct.  He gave the example of a situation of urgency, where rapid action is necessary to prevent the loss or destruction of evidence.  To this I would add another factor that can be considered, whether the circumstances of the case show a real threat of violent behaviour, whether directed at the police or third parties.  Obviously, the police will use a different approach when the suspect is known to be armed and dangerous than they will in arresting someone for outstanding traffic tickets. The consideration of the possibility of violence must, however, be carefully limited.  It should not amount to a carte blanche for the police to ignore completely all restrictions on police behaviour.  The greater the departure from the standards of behaviour required by the common law and the Charter , the heavier the onus on the police to show why they thought it necessary to use force in the process of an arrest or a search.  The evidence to justify such behaviour must be apparent in the record, and must have been available to the police at the time they chose their course of conduct.  The Crown cannot rely on ex post facto justifications.

 

    As I have said, counsel for the respondent refers to the weapons found in the house as justification for the amount of force used in the search.  This factor would have been an important one if it had been known to the police in advance, for example if the search warrant had been issued to allow the police to seize the weapons.  There is nothing in the record to suggest that the police knew of the weapons before they sought the search warrant;  Officer Desjean made no mention of weapons as one of the factors that persuaded him to apply for the warrant.  I do not think that the respondent can rely on the weapons seized in the search to justify the amount of force used, unless it can also show that the police had reasonable and probable grounds to suspect those weapons would be found.

 

    Defence counsel cross-examined Officer Desjean extensively on his reasons for applying for the search warrant.  Defence counsel sought repeatedly to get Desjean to admit that the primary reason he sought the search warrant was because of the presence of the motorcyclists in the house the night before.  Officer Desjean insisted that his primary motivation was the information that he had received from his informer.  On the issue of the amount of force used in the search, the police witnesses at no point gave any explanation for the reason they thought it necessary to use force, or why they broke into the house without giving the normal warnings the common law requires.  No mention was made of why the TACTIC squadron of the Sûreté du Québec was called to assist in breaking open the door.  There is an onus on the police, in these circumstances, to explain why they have thought it necessary to depart from the common law restrictions on searches.

 

    I agree with LeBel J.A. that fears for the safety of the searchers and the possibility of violence are reasons for the use of force in the execution of a search warrant, but no attempt was made by the police at trial to lay the factual foundation to support this approach.

 

    I would not wish to be taken to say that the Crown must prove a tendency to violence beyond a reasonable doubt, nor that the Crown cannot refer to past conduct as influencing their decision as to the amount of force thought necessary to carry out a search.  The assessment of the amount of force, like the motives for the search in the first place, need not be proven on the same standard of guilt as when proving the elements of an offence.  The Crown must, however, lay the evidentiary framework to support the conclusion that there were grounds to be concerned about the possibility of violence.  The important point is that the justification for the amount of force used must be made clear at the beginning, at trial.  The Crown cannot try to rehabilitate its case later on appeal.

 

    The trial judge, who heard the witnesses, did not mention the possibility of violence in his summary of events.  Instead, he emphasised that he formed the impression of a police fishing trip, a general search to seize whatever evidence of crimes they could.  That assessment of the motive for the search must be given very careful attention by an appellate court, since the reason for the search in this case is of crucial importance in assessing the seriousness of the violation.

 

    Overall, in my opinion the search in this case was a serious breach of s. 8.  Not only did the police have a facially defective warrant, they used an excessive amount of force to carry out the search.  Well-established common law limitations on the powers of the police to search were ignored.  No attempt was made to justify the amount of force used.  There is strong reason to believe that this search is part of a continuing abuse of the search powers, since it follows so closely the pattern set the previous month.  While the purpose of s. 24(2) is not to deter police misconduct, the courts should be reluctant to admit evidence that shows the signs of being obtained by an abuse of common law and Charter  rights by the police.  The infringement of s. 8 in this case was serious enough to lead ineluctably to the conclusion that the admission of the evidence would bring the administration of justice into disrepute.

 

    c)Effects of Exclusion

 

    The third set of factors identified by Lamer J. in Collins, supra, balances the effect of excluding evidence against the effect of admitting it.  As Lamer J. pointed out in Collins, excluding evidence necessary for a conviction because of a minor Charter  breach could bring the administration of justice into disrepute, just as much as admitting evidence obtained from a flagrant, intentional breach of a guaranteed right.  In this case, however, the breach was not merely technical or minor.

 

                                                                          VII

 

Summary and Conclusion

 

    Because of the defects in the warrant, the search was not authorized by law.  The defects were apparent on the face of the warrant and the police should have noticed them.  The search was carried out with excessive force, disregarding the limits established by the common law. The search breached s. 8  of the Charter .  The evidence was obtained as the result of a Charter  breach and on the facts of this case its admission would bring the administration of justice into disrepute.

 

    I would allow the appeal, set aside the order for a new trial, and restore the acquittal entered at trial.

 

    Appeal allowed.

 

    Solicitors for the appellant:  Leithman, Goldenberg & Associés, Montréal.

 

    Solicitor for the respondent:  Gilles Lahaie, St-Jérôme.