R. v. Silveira [1995] 2 S.C.R. 297: 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

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.

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