R. v. Genest

R. v. Genest
Collection
Supreme Court Judgments
Date
1989-01-26
Report
[1989] 1 SCR 59
Case number
20101
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Quebec
Subjects
Constitutional law
Evidence
Notes
SCC Case Information: 20101
Decision Content
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 warra