R. v. Silveira

R. v. Silveira
Collection
Supreme Court Judgments
Date
1995-05-18
Report
[1995] 2 SCR 297
Case number
24013
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 24013
Decision Content
R. v. Silveira, [1995] 2 S.C.R. 297
Antonio Silveira Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Silveira
File No.: 24013.
1994: November 9; 1995: May 18.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Exigent circumstances ‑‑ Admissibility of real evidence if search unlawful ‑‑ Police entering house to protect real evidence while waiting for issuance of search warrant ‑‑ Search conducted and evidence seized only after warrant issued ‑‑ Whether or not search and seizure contrary to s. 8 of Charter ‑‑ If so, whether admission of evidence would bring administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) ‑‑ Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 10, 12.
The police arrested appellant during an undercover drug operation which had indicated that a cache of cocaine for trafficking purposes was located in appellant's house. The police delayed obtaining a search warrant for the house until after the arrest in order, they said, not to be accused of presenting stale information to the justice of the peace. To prevent the destruction or the removal of the evidence between the time of the arrest and the arrival of the search warrant, officers attended at appellant's house, knocked, identified themselves, and entered without an invitation with guns drawn. They then checked the premises for weapons, holstered their weapons, confined the occupants to the house and advised them to continue with their activities. The judicial officer issuing the warrant was not informed of the occupation of the house by the police. Cocaine and cash, some of it marked money used by the undercover police to buy cocaine on earlier occasions, were discovered on the search and seized, but no weapons were found.
Appellant, when in police custody, was told that the house had been occupied. He was not allowed to contact his lawyer, however, until he provided police with the combination of the locked bag where the drugs and drug money were found.
The entry into the house was conceded on appeal to be in violation of the s. 8 Charter right to freedom from unreasonable search and seizure. Both the trial judge and the Court of Appeal decided that admission of this evidence would not bring the administration of justice into disrepute and was therefore admissible under s. 24(2) of the Canadian Charter of Rights and Freedoms . At issue here was whether this determination was wrong.
Held (La Forest J. dissenting): The appeal should be dismissed.
Per Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The warrantless entry by the police to secure the premises and prevent the destruction of evidence was, notwithstanding their good intentions, a form of search which was not authorized by law and infringed the appellant's s. 8 Charter rights. No artificial division could be drawn between the entry into the home by the police and the subsequent search of the premises made pursuant to the warrant because the two actions were so intertwined in time and in their nature.
R. v. Kokesch was distinguishable. The illegal entry by the police here was to protect real evidence and was not analogous to the perimeter search conducted in R. v. Kokesch, which resulted in the acquisition of enough evidence by the police to obtain a search warrant.
The three primary factors which should guide the consideration of a court in determining whether evidence should be excluded under s. 24(2) of the Charter are: (a) the effect of the admission of the evidence on the fairness of the trial; (b) the seriousness of the Charter breach; and (c) the effect of excluding the evidence on the justice system's repute. Findings of the courts below pertaining to s. 24(2) issues should not be overturned absent some apparent error as to applicable principles or rules of law or unless those findings are unreasonable.
Section 24(2) of the Charter should not be used as a matter of course to excuse conduct which has in the past been found to be unlawful. The entry and search of a dwelling-house without a warrant is a very serious breach of the Narcotic Control Act and the historic inviolability of a dwelling-house. In the future, even if such exigent circumstances exist, the evidence would likely be found inadmissible under s. 24(2) .
Here, the evidence seized as a result of the search was real evidence that existed in the appellant's residence. It would inevitably have been discovered in a search of those premises. Its admission cannot conceivably be thought to affect the fairness of the trial adversely.
For the police to enter a dwelling‑house without a warrant flies in the face of the provisions of the Narcotic Control Act and denies the historical and fundamental importance of a person's home. Yet, exigent circumstances did exist: the nature of the crime, the public arrests near the dwelling‑house and the belief by the police that they needed to enter the house in order to preserve the evidence while they awaited the search warrant which they believed to be on the way. The Charter violation was rendered less serious in light of the particular facts of this case.
If the urgent emergency circumstances are such that the police are required to enter a dwelling without a warrant to preserve evidence, the question as to whether or not the serious nature of the breach would render the evidence obtained in a subsequent search inadmissible will have to be carefully considered on a case-by-case basis. Such evidence will in future be admitted only in rare cases. It would be preferable for the police to obtain a search warrant prior to the arrest even if it was on more limited information. An explanation to the trial court concerning the need for speed in searching the premises may often satisfactorily answer any allegations that the warrant is so stale‑dated as to be ineffective. Now the police may be able to obtain a search warrant by telephone by making use of s. 487.1 of the Criminal Code .
Drug trafficking is a serious crime and the evidence seized was vital to the proof of the case against the appellant. The admission of the evidence would not have an adverse effect upon the reputation of the administration of justice.
Per L'Heureux‑Dubé J.: No violation of s. 8 of the Charter occurred given the exigent circumstances. The police not only had reasonable and probable cause for the arrest of the appellant but also had reasonable and probable grounds to believe that they would find drugs in his house. The police acted reasonably upon entry of the premises and were not found to have acted in bad faith. Moreover, the search of the premises did not start, nor was one attempted, before a search warrant was obtained. In fact, the police entered the appellant's dwelling-house not for the purpose of searching for narcotics but rather for securing the premises while awaiting a search warrant.
Concessions of law are not binding on courts. The concession made here, that the entry infringed s. 8 of the Charter , was unacceptable and constituted an error of law. Exigent circumstances, both under the common law and under the Charter , constitute an exception to the ancient maxim "a man's home is his castle" which underlies the finding of a serious s. 8 Charter violation. The Crown bears the onus of demonstrating that exigent circumstances justified the entry by the police.
An inquiry into the common law is required in this regard because s. 10 of the Narcotic Control Act neither eliminates the common law exceptions relative to exigent circumstances nor deals with entries into private dwellings under exigent circumstances. Neither s. 10 nor the common law precludes warrantless police entries in exigent circumstances. A warrantless entry into a private dwelling, be it under the common law or under the Charter , requires lawful justification and the exigent circumstances that were clearly found to have existed justified the entry here. The entry accordingly did not infringe s. 8 of the Charter .
A lower expectancy of privacy exists in the workplace. The level of expectation of privacy in the context of the business of trafficking in drugs is no different from that of a legitimate business, whether it be conducted from the home or on business premises. The Charter was not intended to protect blindly privacy interests claimed in the context of criminal activities played out within one's home. Given his criminal activities, the accused had an objectively low expectation of privacy within his dwelling.
If a Charter violation had occurred, the evidence should not be excluded under s. 24(2) of the Charter .
Per La Forest J. (dissenting): The Crown properly conceded that the appellant's constitutional right to be secure against an unreasonable search and seizure had been breached. The very statute the police were attempting to enforce made it abundantly clear that the police may only enter a dwelling "under authority of a warrant" issued by a justice. It thus violated s. 8 of the Charter . The police action of securing the entire household constituted a search, or at the very least, a seizure. It is difficult to see on what authority the police could hold the occupants of the house under "house arrest" in their own home with or without a search warrant and they had no reasonable grounds to believe any of them were involved in the crime under investigation.
The distinction between the initial police entry to secure the house and the subsequent search after the search warrant was granted and produced at the house is unrealistic. The seizure of the house and the ensuing search were part of a single operation aimed at finding evidence to confirm the previously monitored drug transactions.
The objective expectation of privacy of the appellant was high. The fact that one is not home does not reduce but rather reinforces the notion that the police cannot be permitted unauthorized powers of entry. More than the opportunity to destroy the evidence was lost -- appellant, and society, lost the security guaranteed by the Charter that the police will not invade a private house without conforming to the established law.
Absent clear statutory language, the police have no power to enter a dwelling-house to conduct a search without a warrant. The search therefore violated both the s. 10 of the Narcotic Control Act and s. 8 of the Charter .
The presence of exigent circumstances was not a relevant consideration under s. 8 . Urgent situations may, along with other circumstances, be considered in assessing the seriousness of the Charter breach in the course of considering whether evidence gathered as a result of such breach should be admitted into evidence under s. 24(2) of the Charter but an examination under that provision presupposes a Charter breach. The "exigent circumstances" here arose solely out of the manner in which the police chose to structure the operation; they created their own.
The findings of the courts below regarding s. 24(2) issues are ordinarily accorded considerable deference. That is not so, however, where such findings flow from errors in the applicable principles.
There was a sufficient temporal connection between the warrantless search and the evidence ultimately obtained to require an analysis under s. 24(2) of the Charter . The Charter violation occurred in the course of obtaining the evidence. The initial entry, the seizure of the house and its occupants and the finding of the evidence can only be seen as part of one continuous transaction.
A number of criteria can be examined in determining whether the admission of evidence obtained in violation of a Charter right should be rejected as tending to bring the administration of justice into disrepute. These are frequently grouped as: (1) those affecting the fairness of the trial; (2) those relating to the seriousness of the Charter violation; and (3) those relating to the effect on the reputation of justice. The evidence should be rejected if its admission would result in an unfair trial. It may also be rejected if the breach is serious even without causing the trial to be unfair. The most important criteria in this case concern the good faith of the police, the circumstances of urgency, and the availability of other investigative techniques.
At best, without engaging in an ex post facto analysis, it can be assumed that the evidence would probably have been found. While the admission of the real evidence of the cocaine and drug money would be unlikely to affect the fairness of the trial, buttressing this conclusion with hindsight is indicative of precarious logic.
The right to privacy in one's home is one of a fundamental nature and was seriously breached by the police when they entered without a warrant. The exceptional and rare indicia that might permit the admission of evidence obtained through such a breach are not present.
The trial judge made no finding that the police acted in good faith, and considerable evidence indicates the contrary. The officers seemed, at best, ill-informed about the extent of their authority and ought to have known both that a warrantless entry was "highly unorthodox" and that the Charter guaranteed the right to be secure from unwarranted police entry. Their conduct was so lax to be unacceptable. The manner in which the police procured the warrant is open to serious criticism in that information about the police occupation of the house should not have been withheld from the judicial officer issuing the warrant. The seriousness of the breach was further exacerbated by the attempt by police to have the appellant incriminate himself while he was in custody and had not yet had an opportunity to speak to a lawyer. By informing the appellant that police were inside his house in order to solicit a confession or further evidence to buttress the warrant they had yet to acquire, the police unacceptably manipulated the fears and concerns of the appellant for the members of his family who were present in the house. The denial of the appellant's right to telephone counsel from the time of his arrival at the police station until after he had provided the combination to the locked gym bag containing the cocaine and drug money was yet another component in a continuing pattern of disregard for the rights of the appellant.
A reasonable way of proceeding with the request for the warrant would have been to alert the issuing justice before the arrests that additional information relevant to the proposed search might be gained during the apprehension of the suspects. The police would then supply this information to the justice as soon as possible. Absent true exigent circumstances, the Narcotic Control Act and the Charter mandate that it is the only way to proceed. This conclusion is reinforced by Parliament's provision in the Criminal Code for telewarrants. The fact that the police had available permissible and practical techniques for conducting their investigation in conformity with the Charter , but chose instead to sequence their operations in a manner that seriously offended fundamental liberty interests, further exacerbates the severity of the Charter breach. The cumulative evidence of a poorly managed operation, a glaring pattern of disregard for Charter -protected interests and an ignorance of the necessity to apprise a judicial officer fully of all relevant information when seeking a warrant were striking.
Urgency is a factor affecting the seriousness of the Charter breach to be weighed under s. 24(2) of the Charter . Here, the exigency existed as the direct result of the manner in which the police chose to structure their operation. The police could have sought a warrant before the take-down but instead created their own exigency in their sequencing of the arrests. Public arrests are not an unusual occurrence justifying a claim of exigent circumstances.
The attempt to link drugs automatically to the possible presence of firearms so as to ground a claim of exigent circumstances as justification for pre-warrant securing of premises should be resisted. Officers who enter a house without a warrant cannot be in a better position to ensure their safety than if they enter with a warrant. A general suspicion that firearms may be present should not be used to bolster a claim of urgency.
The illicit drug trade is odious and poses a grave threat to society. All reasonable steps must therefore be taken to eradicate it. But the desirability of these efforts, no matter how grave the threat, cannot make the courts deviate from their high duty to ensure that those who wield power on behalf of the state do so within the limits of the Charter . To consider constitutional guarantees as bothersome technicalities is far more destructive in the long term than the momentary evil sought to be prevented. The evidence of the drugs and money must be excluded. To apply a less exacting standard concerning the exclusion of evidence for crimes involving drugs than for other offences would not enhance the reputation of justice.
The concept of exigent circumstances allows the courts, on rare occasions, to permit the admission of evidence despite its being obtained through a breach of the Charter . That uncommon departure cannot be permitted to operate where it is feasible to obtain prior judicial authorization for a search. To expand exigent circumstances to include police created emergencies, whether arising from bad faith or gross ineptitude, is to undermine seriously the requirement that judicial authorization is required before an entry onto private premises can be made. The long term impact of allowing police practices creating exigent circumstances where minimal foresight could have avoided them dictates that the evidence in this case must be excluded. To admit this evidence would bring the administration of justice into disrepute; it must be excluded under s. 24(2) of the Charter .
Cases Cited
By Cory J.
Considered: Segura v. United States, 468 U.S. 796 (1984); United States v. Mabry, 809 F.2d 671 (1987); distinguished: R. v. Kokesch, [1990] 3 S.C.R. 3; referred to: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Strachan, [1988] 2 S.C.R. 980.
By L'Heureux‑Dubé J.
Considered: Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Macooh, [1993] 2 S.C.R. 802; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Rao (1984), 12 C.C.C. (3d) 97; distinguished: Colet v. The Queen, [1981] 1 S.C.R. 2; referred to: R. v. Duguay, [1989] 1 S.C.R. 93; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Elshaw, [1991] 3 S.C.R. 24; Semayne's Case (1604), 5 Co. Rep. 91, 77 E.R. 194; Lyons v. The Queen, [1984] 2 S.C.R. 633; Texas v. Brown, 103 S.Ct. 1535 (1983); Segura v. United States, 468 U.S. 796 (1984); United States v. Edwards, 602 F.2d 458 (1979); Commonwealth v. Amaral, 450 N.E.2d 656 (1983); United States v. Mabry, 809 F.2d 671 (1987); United States v. Riley, 968 F.2d 422 (1992); R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wiley, [1993] 3 S.C.R. 263; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. L. (D.O.), [1993] 4 S.C.R. 419.
By La Forest J. (dissenting)
R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Kokesch, [1990] 3 S.C.R. 3; Semayne's Case (1604), 5 Co. Rep. 91, 77 E.R. 194; Entick v. Carrington (1765), 19 St. Tr. 1029; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Thompson, [1990] 2 S.C.R. 1111; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Collins, [1987] 1 S.C.R. 265; Colet v. The Queen, [1981] 1 S.C.R. 2; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Wiley, [1993] 3 S.C.R. 263; R. v. Hebert, [1990] 2 S.C.R. 151; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Dyment, [1988] 2 S.C.R. 417; Olmstead v. United States, 277 U.S. 438 (1928); R. v. Wise, [1992] 1 S.C.R. 527; R. v. Genest, [1989] 1 S.C.R. 59; United States v. Santana, 427 U.S. 38 (1976); Segura v. United States, 468 U.S. 796 (1984); R. v. Burlingham, [1995] 2 S.C.R. 206 ; Elkins v. United States, 364 U.S. 206 (1960); R. v. Young (1993), 79 C.C.C. (3d) 559.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Criminal Code, R.S.C., 1985, c. C-46, s. 487.1 [ad. c. 27 (1st Supp.), s. 69 ].
Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 4(1), (2), 10 [rep. & sub. R.S.C., 1985, c. 27 (1st Supp.), s. 199], 12.
United States Constitution, Fourth Amendment.
Authors Cited
Halsbury's Laws of England, vol. 10, 3rd ed. London: Butterworths, 1955.
Hentoff, Nat. "Profiles: The Constitutionalist", The New Yorker, March 12, 1990, 45.
APPEAL from a judgment of the Ontario Court of Appeal (1994), 16 O.R. (3d) 786, 88 C.C.C. (3d) 61, 69 O.A.C. 296, 20 C.R.R. (2d) 161, dismissing an appeal from conviction by Ewaschuk J. Appeal dismissed, La Forest J. dissenting.
Paul B. Rosen, for the appellant.
Robert W. Hubbard and Scott K. Fenton, for the respondent.
The following are the reasons delivered by
1 La Forest J. (dissenting) -- This appeal concerns the sanctity of the home against state intrusion. In particular, it deals with whether exigent circumstances will permit the police to enter a dwelling-house to search for narcotics before first obtaining a judicially authorized search warrant. It also raises the issue whether, in the circumstances of this case, evidence obtained pursuant to a warrant but following a warrantless entry should be rejected under s. 24(2) of the Canadian Charter of Rights and Freedoms as bringing the administration of justice into disrepute, and in particular the role exigent circumstances may play in that determination.
Facts
2 A proper appreciation of the issues in this case requires a meticulous examination of the facts. The appellant, Antonio Silveira, was charged with having in his possession a narcotic for the purpose of trafficking, contrary to s. 4(1) and (2) of the Narcotic Control Act, R.S.C., 1985, c. N-1. With a view to establishing this offence, the police entered the home of the appellant and his family, without a search warrant, to secure evidence they feared might otherwise be destroyed. They placed the occupants of the house, the appellant's mother, father, two brothers, sister, and two small children, under "house arrest" for an hour and a quarter while a search warrant was obtained. This is the principal, but by no means the only police conduct, that gives rise to concern in this appeal.
3 On September 10, 14 and 18, 1990, an undercover police officer made three separate purchases of cocaine from a co-accused, Daniel Scinocco, at a community centre in Trinity Park, Toronto. The police paid cash in advance for each purchase. On each occasion Scinocco was seen making contact with the appellant. The appellant was then observed being driven by another co-accused, Antonio Barbosa, to 486 Dufferin Street, the residence of the appellant's family. The appellant would enter the house and leave after a short time to meet Scinocco. Each time, Scinocco returned to the location of the undercover officer and gave him approximately 25 grams of cocaine in rock form.
4 At 5:00 p.m., September 18, 1990, two police surveillance teams held a meeting to discuss an imminent "take-down" of the drug trafficking organization. The operation was headed by veteran police officers, who were familiar with the procedural requirements of search warrants and had experience with the difficulties involved in entering premises without a warrant. Officer Clifford was in charge of the main surveillance team which had monitored the appellant's drug transactions. Before the take-down meeting, he had already undertaken the task of preparing a search warrant to effect a legal entry and search of the appellant's home. Another surveillance team, headed by Officer Smart, provided further officers to ensure that there was sufficient personnel to complete the anticipated arrests.
5 Moments after the third sale, the police coordinated arrests of Scinocco, Barbosa, and the appellant in separate locations in the neighbourhood of the appellant's house. The appellant was arrested at approximately 7:10 p.m., charged, read his rights and then placed in a police car to be taken to the police station.
6 Clifford intercepted the police car transporting the appellant to the police station and spoke privately with Silveira. At trial, Clifford testified that while he believed he already had sufficient evidence to obtain a search warrant, he thought the appellant, if cooperative, could assist in gathering further information to strengthen both the application for the warrant and the case itself. To achieve these ends, Clifford advised the appellant that police officers were at his house. Clifford testified that he did not actually know whether the police were inside the appellant's home at the time or merely at the location, but that he lied to facilitate the appellant's cooperation. On being told that officers were present at his home, the appellant confessed that there was cocaine there but that it was his alone and that he did not want his family involved.
7 The appellant was then taken to a police station where he requested the use of a telephone. The request was delayed by an Officer Pyke in order to protect the safety of the officers at the appellant's house. Pyke testified that denying access to a telephone in these circumstances was a policy of his own rather than of the police department.
8 Six members of the police went directly to the appellant's home at 486 Dufferin Street and arrived there at approximately 7:30 p.m. The police announced their presence by knocking on the door, and when the door was opened, they rushed into the premises with firearms drawn. The police occupied the kitchen, the living room, the upstairs portion of the house and the front porch. They explained to the occupants that they believed there was cocaine and marked money there. The police did not have a search warrant, but advised the occupants that they were in the process of acquiring one and explained that, until the search warrant arrived, everyone would be confined to various rooms in the house. The police required the appellant's sister, mother and father to remain in the kitchen, while the appellant's brother and his sister's children were ordered to remain in the living room. The occupants were informed that they could continue with their dinner preparations. During this time, the police monitored the occupants and kept the premises secure. Although the police looked around the house to ensure their own safety, they did not begin to search for evidence until the arrival of the search warrant.
9 Another brother of the accused arrived home shortly after the police arrived; he was directed to remain in the living room. The brother testified that he had no knowledge of his brother's arrest until he was told by the police occupying the house. The police, however, testified that the brother stated that he had returned home because he had heard of his brother's arrest. There was no evidence that the brother was implicated in any way in the appellant's drug trading.
10 Officer Smart testified that because the three drug arrests had been made publicly in the vicinity that evening, there was a concern that this fact would be communicated to the occupants of 486 Dufferin Street and that evidence would be destroyed. He further testified that the police secured the premises to ensure the safety of the officers who would later execute the warrant to avoid a risk of firearms.
11 After having intercepted the appellant, Officer Clifford went about the task of obtaining a search warrant. Of note is that in the sworn information presented to the justice, Clifford failed to disclose that police were already present at the premises to be searched, an omission the trial judge later found not to be material. The search warrant was issued at 8:30 p.m. and produced at the appellant's residence at approximately 8:45 p.m. By then, we saw, the members of the appellant's family had been under effective house arrest for an hour and fifteen minutes.
12 A search for the cocaine and money was then commenced and a gym bag with a combination lock was found in the appellant's room. One of the officers involved in executing the search warrant sought the combination for the lock and telephoned Officer Pyke, who had remained with the appellant at the police station. On Pyke's request, the appellant provided the combination number. He was then allowed to use the telephone for the first time after being in police custody for more than an hour and a half.
13 When opened, the gym bag was found to contain 286.56 grams of cocaine and $9,535 in Canadian currency. A large part of the money was in marked bills from the earlier cocaine purchases. The recovery and opening of the gym bag was accomplished within five minutes of the arrival of the search warrant. The post warrant search of the house was completed within fifteen minutes of the production of the search warrant at the appellant's residence. No firearms were found.
14 During the course of his trial, the appellant applied to exclude the evidence found as a result of the search and seizure at his residence, but following a voir dire, the trial judge held that s. 8 of the Charter had not been infringed and that, in any event, the admission of the evidence could not bring the administration of justice into disrepute.
15 The appellant was convicted of three counts of trafficking in, and one count of possession of cocaine for the purposes of trafficking. He was sentenced to imprisonment for three years. The Court of Appeal for Ontario by majority dismissed the appeal. Abella J.A., dissenting, would have allowed the appeal on the grounds that the appellant's rights under s. 8 of the Charter were violated, that the violation was serious and that the admission of the evidence would bring the administration of justice into disrepute.
Judicial History
Ontario Court of Justice (General Division)
16 The trial judge, Ewaschuk J., granted a motion made on behalf of the appellant to exclude the inculpatory statements made to the police concerning the presence of cocaine on the premises and the combination to the gym bag containing the drugs and money. He held the Crown had failed to prove beyond a reasonable doubt that the statements were made voluntarily and ruled them inadmissible.
17 The trial judge then considered a second motion under ss. 8 and 24(2) of the Charter to determine whether the evidence obtained by the search and seizure at the appellant's residence was admissible. On this motion, he held that the drugs and money should be admitted. He first considered the entry by the police before going on to the issue of the search warrant. The entry, it was conceded, could not be authorized retrospectively by the subsequent issue of a search warrant. However, Ewaschuk J. found the Crown could justify the entry on the basis of the exigent circumstance that the drug evidence could be destroyed. The police had made three public arrests close by and were concerned that the occupants of the appellant's house might destroy any evidence on the premises. As such, the police were justified in entering the premises to prevent the occupants from doing so. Ewaschuk J. held that the police acted reasonably in the circumstances.
18 The judge then considered the manner and timing of the search. The police, he held, did not begin to search for cocaine until after the search warrant arrived. It was reasonable for them in the circumstances to search for occupants before the arrival of the warrant in order to protect themselves and to prevent the destruction of evidence. The police had knocked on the door and introduced themselves to the occupants. They had only used firearms momentarily, and he found this was justified because of the connection between hard drugs and guns in Toronto.
19 Turning to the reasonableness of the issuance of the search warrant, the judge found the police should not have told the justice that the appellant had indicated that there was a further quantity of cocaine at his premises as that statement was involuntary. He then discussed the failure of the police to inform the issuing justice that the police had already occupied the premises which were the subject of the search warrant, but found that the informant, Officer Clifford, had not thereby intended to mislead the justice. As well, Ewaschuk J. found this omission to be non-material. He was satisfied that the facts were so compelling that any justice acting reasonably would have issued the warrant notwithstanding the non-disclosure.
20 Finally, Ewaschuk J. concluded that even assuming a s. 8 Charter breach had occurred, the Crown had satisfied him that the admission of the evidence seized could not bring the administration of justice into disrepute.
Court of Appeal for Ontario (1994), 16 O.R. (3d) 786
Griffiths J.A. (for the Majority)
21 An appeal was then launched to the Court of Appeal of Ontario. Griffiths J.A., for the majority, first considered whether there was a material non-disclosure leading to the issuance of the search warrant. He concluded that the facts in the information were clearly sufficient to justify the granting of a search warrant. The failure to mention that the police were already on the premises, he stated, was found by the trial judge to be unintentional and thought to be non-material by the police officer. Griffiths J.A. stated that when Clifford swore the information, he did not know as a fact that the police were inside the house.
22 Griffiths J.A. then canvassed whether the initial entry of the police violated the appellant's rights under s. 8 of the Charter . He noted, at p. 797, that the Crown conceded a s. 8 violation based on the fact that the appellant has a "reasonable expectation of privacy", citing R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627. However, he stated that he had some difficulty in finding that the initial entry was a search and as such a violation of s. 8 of the Charter since the trial judge accepted that no search or seizure for narcotics was attempted before the arrival of the warrant. Griffiths J.A. had no doubt, however, that the initial entry was a trespass and an unwarranted invasion of the privacy of the occupants. Since the Crown had conceded the breach of s. 8 , he was prepared to deal with the s. 24(2) analysis on the assumption that such a breach existed. Despite his doubts about the police conduct's constituting a search, he concluded that, to the extent that the police were looking for individuals or things other than drugs, it could be said in a very narrow sense that the police were conducting a search.
23 Even though the initial unlawful entry was not made for the purpose of obtaining evidence, Griffiths J.A. found that there was a sufficient connection between the entry and the seizure to require a determination whether the evidence should be excluded under s. 24(2) of the Charter . However, despite the unlawfulness of the initial entry, he held that the finding of the trial judge supported the conclusion that the police were acting in good faith in attempting to secure the evidence. He found it a matter of judgment of experienced police officers that there was a potential for the destruction of evidence unless the premises were secured because word might have spread about the arrests.
24 Griffiths J.A. rejected the argument that the police acted in an abusive manner towards the occupants of the house given that the trial judge found as a fact that the conduct of the police was reasonable in the circumstances. As well, he noted, at pp. 799-800, the appellant was not in the house at the time and "it is only the Charter rights of the appellant and the alleged violation of these Charter rights with which we are concerned".
25 In determining whether the police could have obtained the search warrant earlier, Griffiths J.A. held, at p. 800:
In my view, it was not unreasonable for the police to delay the application for the search warrant until they had completed their surveillance and obtained all of the necessary evidence and made the arrests to support the charges. The question of when the police should have moved to obtain the warrant is a matter to be left to their professional judgment. I find nothing unreasonable in the manner in which they exercised that judgment in the circumstances of this case. Certainly there is nothing in the evidence to suggest that the time lapse of approximately one hour and 20 minutes from the time of the arrest of the appellant to the issue of the search warrant was unreasonable.
26 Griffiths J.A. applied s. 24(2) of the Charter as follows, at pp. 800-801:
. . . I am of the view that the police were acting in good faith, having regard to the findings of the trial judge. Their conduct in entering the house was for the bona fide purpose of securing the evidence which they, on reasonable grounds, believed might be destroyed. The trial judge found that, even assuming a s. 8 Charter breach, the Crown had satisfied him that the admission of the evidence seized at the residence could not bring the administration of justice into disrepute.
27 Griffiths J.A. noted, citing R. v. Grant, [1993] 3 S.C.R. 223, that an appellate court should not readily interfere with the decision of the trial judge respecting s. 24(2) of the Charter . He then followed the three factors relevant to determining the admissibility of evidence under s. 24(2) of the Charter as set out in that case.
28 With respect to the first factor, effect on trial fairness, he held that where evidence is real and has not been produced as a result of the Charter breach, it would not tend to render the trial unfair.
29 As to the second factor, Griffiths J.A. concluded that the Charter violation was not sufficiently serious to warrant the exclusion of evidence. First, it was a borderline case of a "search" within the meaning of s. 8 of the Charter . As well, the police had reasonable grounds to believe the evidence would be destroyed. Although the police wrongfully trespassed and violated the occupants' right to privacy, the entry preceding the issuance of the warrant had no adverse impact on the appellant except to the extent that others were prevented from destroying the evidence. In his view, it was inevitable that the house would be searched and the narcotics and money found. Whatever might be said of the rights of the occupants, the violation of the appellant's Charter rights was minimal and the objective expectation of privacy was low. The violation was not sufficiently serious to warrant exclusion of the evidence.
30 Turning to the third factor, Griffiths J.A. noted that the introduction into evidence of the seized drugs and money was crucial to convictions on serious charges. Thus, exclusion of the evidence would unfavourably impact on the repute of the justice system, citing R. v