R. v. Grant

R. v. Grant
Collection
Supreme Court Judgments
Date
1993-09-30
Report
[1993] 3 SCR 223
Case number
23075
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 23075
Decision Content
R. v. Grant, [1993] 3 S.C.R. 223
Her Majesty The Queen Appellant
v.
David Angelo Grant Respondent
and
Robert Wallace Wiley Intervener
Indexed as: R. v. Grant
File No.: 23075.
1993: April 2; 1993: September 30.
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 warra