R. v. Wiley [1993] 3 S.C.R. 263: Cultivation of marihuana -- Police conducting perimeter search of accused's property without a warrant -- Whether warrantless perimeter search violated s. 8 of Canadian Charter -- Whether evidence should be excluded

Constitutional law -- Charter of Rights -- Admissibility of evidence

Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Cultivation of marihuana -- Police conducting perimeter search of accused's property without a warrant -- Whether warrantless perimeter search violated s. 8 of Canadian Charter of Rights and Freedoms -- Narcotic Control Act, R.S.C., 1985, c. N-1, s. 10.

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Police conducting perimeter search of accused's property without a warrant -- Search warrant later obtained partly on basis of information gathered during perimeter search -- Warrantless perimeter search violating accused's right to be secure against unreasonable search and seizure -- Whether search pursuant to warrant reasonable -- Whether evidence should be excluded -- Canadian Charter of Rights and Freedoms, s. 24(2).

The police received a tip from an informant indicating that marihuana was being cultivated in a hydroponic grow lab at a certain residence. Two officers went to determine the exact location of the reported residence. They entered onto the property and noted vents on the outside of the house with condensation on them and the smell of fresh marihuana emanating from them. On returning to their detachment they ascertained that the residence whose perimeter had been searched belonged to the accused. An information was sworn which included the observations of the informant as well as those made during the perimeter search. A search warrant was issued pursuant to s. 12 of the Narcotic Control Act ("NCA"). On execution of the warrant, a grow lab containing marihuana plants and related cultivation equipment were located. The trial judge acquitted the accused on charges of unlawful cultivation of marihuana and possession of marihuana for the purposes of trafficking. He concluded that the evidence seized by means of the warrant should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms since the warrant had been issued on the basis of information obtained through a warrantless perimeter search which was contrary to s. 8 of the Charter. The Court of Appeal allowed the Crown's appeal and ordered a new trial.

Held: The appeal should be dismissed.

The warrantless perimeter search of the accused's residence was unreasonable and therefore in violation of s. 8 of the Charter. A warrantless search to be reasonable must be authorized by law. The only plausible legal authorization in the present case is s. 10 NCA and that section is constitutionally applicable to warrantless searches only in situations where exigent circumstances render it impracticable to obtain prior judicial authorization, and no evidence was led to establish such circumstances here.

The warrant and the search and seizure conducted pursuant to it are nonetheless legally valid. The warrant was issued on the basis of five pieces of evidence, namely two tips by an informant, observations made during a police reconnaissance, police inquiries at the station house as to the ownership of the accused's residence and observations made during the warrantless perimeter search. The tips were relevant and reliable and properly taken into account by the issuing justice. Even without the observations made during the warrantless perimeter search, the other facts in the information, taken together, were sufficiently compelling that the warrant would still have been issued. While there is a sufficient temporal connection between the evidence obtained as a result of the search pursuant to the warrant and the warrantless perimeter search to trigger the operation of s. 24(2) of the Charter, the trial judge erred in excluding the evidence. The police acted in good faith relying on s. 10 NCA and the Court of Appeal's decision in R. v. Kokesch, even though that decision was later overturned by this Court. Furthermore, the evidence was real in nature and was essential to establishing the occurrence of these relatively serious offences.

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