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

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.

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