R. v. Evans [1996] 1 S.C.R. 8: Search and seizure -- Admissibility of evidence seized -- Police sniffing marijuana at house door -- Arrests made, premises secured, and search warrant for premises then obtained and executed -- Marijuana plants seized -- Whether or not "sniffing" for marijuana at house door a "search" under s. 8 of Charter -- If so, whether or not that search "reasonable"

Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law -- Charter of Rights -- Search and seizure -- Admissibility of evidence seized -- Police sniffing marijuana at house door -- Arrests made, premises secured, and search warrant for premises then obtained and executed -- Marijuana plants seized -- Whether or not "sniffing" for marijuana at house door a "search" under s. 8 of Charter -- If so, whether or not that search "reasonable" -- Whether or not search conducted pursuant to warrant violating s. 8 -- Whether or not evidence obtained in violation of s. 8 must be excluded pursuant to s. 24(2) -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Plain clothes police officers, during the course of a, to that point, fruitless investigation occasioned by an anonymous tip, knocked on the appellants' door, identified themselves, smelled marijuana and immediately arrested the appellants. They secured the premises, including several marijuana plants. A search warrant was then sought and executed. The appellants were convicted of possession of marijuana for the purpose of trafficking and their appeal was dismissed. At issue here was: (1) whether or not the conduct of the police in "sniffing" for marijuana at the door to the appellants' house constituted a "search" within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms; (2) if so, whether or not that search was "reasonable" within the meaning of s. 8; (3) whether the second search of the house, conducted after a warrant had been obtained, violated s. 8 of the Charter; and (4) whether or not any evidence obtained in violation of s. 8 must be excluded pursuant to s. 24(2).

Held: The appeal should be dismissed.

Per Sopinka, Cory and Iacobucci JJ.: Individuals have a reasonable expectation of privacy in the approach to their home which is waived for the purpose of facilitating communication with the public. Where members of the public (including police) exceed the terms of this waiver, and approach the door for some unauthorized purpose, they exceed the terms of the implied invitation to knock and approach the door as intruders. As a result, the police, where they approach a residential dwelling to secure evidence against the occupant, are engaged in a "search" of the occupant's home. The constitutional permissibility of such a "search" accordingly depends on whether or not the search is "reasonable" within the meaning of s. 8 of the Charter.
A warrantless search is presumed to be unreasonable unless the party seeking to justify the search can rebut this presumption. The presumption was not rebutted here. Although the police conducted their warrantless search in a reasonable manner, their actions in approaching the appellants' house and searching for marijuana were not "authorized by law".

Warrants based solely on information gleaned in violation of the Charter are invalid. Where, however, the warrant was issued partially on the strength of tainted evidence and partially on properly obtained evidence, the court must consider whether the warrant would have been issued absent the improperly obtained evidence. Here, the warrant was invalid because the only untainted "evidence" supporting it was an unconfirmed anonymous tip. This tip was clearly insufficient to justify a warrant. As a result, the search conducted under the warrant was unreasonable within the meaning of s. 8 of the Charter.

The admission of the impugned evidence would not render the appellants' trial unfair. The evidence was real evidence that existed irrespective of a Charter violation and the appellants were in no way conscripted against themselves in creating it. The violation of s. 8 was not particularly grave and the police acted in good faith. Excluding the evidence would tarnish the image of the administration of justice much more than admitting it.

Per La Forest J.: Notwithstanding substantial agreement with Sopinka J., the issues were approached from a different perspective and additional comments were made reflecting this. Though the illegality here expressly arose out of s. 10 of the Narcotic Control Act, that would have been so at common law in any event because the courts considered such a power unreasonable. The sanctity of the home has long constituted a bulwark against state intrusion. The fact that the manner in which the police conducted themselves was not otherwise abusive does not alter the basic inconsistency of their act with this fundamental constitutional principle. Our society simply cannot accept police wandering about or "sniffing" around our homes. It is for Parliament, not the courts, to make exceptions to the rule, subject to the courts' power to review whether Parliament's action is constitutional.

Per Gonthier and Major JJ.: The common law recognizes an implied licence to approach and knock for a lawful purpose. The residents of the home may refuse permission and may also explicitly revoke this implied licence. Once lawfully at the door, however, sensory observations made from the door do not constitute searches within the meaning of s. 8 of the Charter. This conclusion follows both general principles of interpretation and the established law of search and seizure.

The public's interest in being left alone by government must be balanced against the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. This balance must be considered not only in determining whether or not a search was reasonable, but also at the threshold stage of determining whether a particular investigative technique used by the police constitutes a search at all within the meaning of s. 8.

Every investigatory method used by the police constitutes a "search" in some measure. Section 8, however, only protects individuals against police conduct which violates a reasonable expectation of privacy. To hold that every police inquiry or question constitutes a search under s. 8 disregards entirely the public's interest in law enforcement in favour of an absolute but unrealistic right of privacy of all individuals against any state incursion however moderate. The police conduct here did not constitute a search within the meaning of s. 8 of the Charter. The officers properly exercised their implied licence and merely made observations of what was in plain view at the door.

The officers approached the house openly, in broad daylight, and the appellants retained choice and control over whether or not to open the door. In exercising that choice, they took the risk that whoever was standing there would use their senses, in the same way that choosing to speak to someone is an assumption of the risk that they will repeat what has been said.

Per L'Heureux-Dubé J.: The reasons and results of Major J. were agreed with. However, it was not necessary and would be obiter to decide whether state intrusion would constitute a search of a home in circumstances where the implied licence to knock was revoked since that was neither an issue nor was it argued.

| Return to Topic Menu | Return to Main Menu |