R. v. Plant, [1993] 3 S.C.R. 281
Robert Scott Plant Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Plant
File No.: 22606.
1992: November 5; 1993: September 30.
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Cultivation of marihuana ‑‑ Police conducting perimeter search without a warrant and checking computerized records of electrical utility ‑‑ Whether warrantless perimeter search or check of computerized electrical records 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 search of perimeter 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 an anonymous tip that marihuana was being grown in the basement of a house within a specific city block. One of the officers conducted a reconnaissance and ascertained the exact street address of the house described. He then used a terminal linked to the electrical utility's computer that allowed police to check electrical consumption at a specified address after entering a password and determined that consumption at that address was four times the average of two other comparably sized residences over the same period. Later that day he and another officer entered the property. They observed that two basement windows were covered in something opaque and discovered that a vent was plugged with a plastic bag. The police then prepared an information to obtain a search warrant which included the tip received, the observations made during the perimeter search and the results of the electricity bill comparison. On the basis of this information, a search warrant was issued pursuant to s. 12 of the Narcotic Control Act ("NCA"). On execution of the warrant, the police discovered over a hundred seedling marihuana plants. The accused was arrested and charged with unlawful cultivation of marihuana and possession of marihuana for the purposes of trafficking. He was convicted of the cultivation charge but acquitted on the charge of possession for the purposes of trafficking. The Court of Appeal dismissed his appeal from conviction. This appeal is to determine whether the warrantless perimeter search or the search under warrant violated s. 8 of the Canadian Charter of Rights and Freedoms, whether the police check of computerized electrical records violated s. 8, and whether, if any s. 8 violation occurred, the evidence should be excluded under s. 24(2) of the Charter.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ.: The perimeter search was unreasonable and violated s. 8 of the Charter, since there is nothing to suggest that any exigent circumstances existed to justify a search without a warrant, so that there was no legal basis for a warrantless search pursuant to s. 10 NCA. The information obtained could therefore not be relied on in obtaining the warrant. The police check of computerized records was not unreasonable, however. In view of the nature of the information, the relationship between the accused and the electrical utility, the place and manner of the search and the seriousness of the offence under investigation, it cannot be concluded that the accused held a reasonable expectation of privacy in relation to the computerized electricity records which outweighed the state interest in enforcing the laws relating to narcotics offences. While they reveal the pattern of electricity consumption in the residence, the records do not reveal intimate details of the accused's life. Since the search does not fall within the parameters of s. 8 of the Charter, this information was available to the police to support the application for a search warrant. Coupled with the anonymous tip, it was sufficient to constitute reasonable grounds for the issuance of the warrant. The search authorized by the search warrant was therefore reasonable. While there was a sufficient temporal connection between the warrantless perimeter search and the obtaining of the evidence to trigger s. 24(2) of the Charter, the evidence should not be excluded. The admission of real evidence does not tend to bring the administration of justice into disrepute. Moreover, the police acted in good faith. They were entitled to rely on the law as it was at the time and therefore to presume that warrantless perimeter searches were constitutionally valid pursuant to s. 10 NCA. The seriousness of the offence also militates in favour of admission of the evidence.
Per McLachlin J.: Sopinka J.'s reasons were agreed with, subject to certain comments on the right of the police to search the computerized records of public utilities. The evidence here discloses a sufficient expectation of privacy to require the police to obtain a warrant before eliciting the information. The information was not public, since there is no evidence suggesting it was available to the public and the police obtained access only by means of a special arrangement. The records are capable of telling much about one's personal lifestyle and about what is happening inside a private dwelling, the most private of places. A reasonable person would conclude that the records should be used only for the purpose for which they were made, and not divulged to strangers without proper legal authorization. Computers may and should be private places, where the information they contain is subject to the legal protection arising from a reasonable expectation of privacy. While the evidence obtained as a result of the computer search should not have been used, there was sufficient other evidence to support the issuance of the warrant.
Cases Cited
By Sopinka J.
Applied: R. v. Grant, [1993] 3 S.C.R. 000; R. v. Wiley, [1993] 3 S.C.R. 000; distinguished: R. v. Kokesch, [1990] 3 S.C.R. 3; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; Katz v. United States, 389 U.S. 347 (1967); R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wong, [1990] 3 S.C.R. 36; United States v. Miller, 425 U.S. 435 (1976); Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Cave, B.C. Prov. Ct. Quesnel, No. 14705, December 13, 1992; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Donaldson (1990), 58 C.C.C. (3d) 294; R. v. Collins, [1987] 1 S.C.R. 265.
By McLachlin J.
Referred to: R. v. Dyment, [1988] 2 S.C.R. 417; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Criminal Code, R.S.C., 1985, c. C‑46, s. 489 [rep. & sub. c. 27 (1st Supp.), s. 72].
Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 4(2), 6(1), 10 [rep. & sub. c. 27 (1st Supp.), s. 199], 12.
United States Constitution, Fourth Amendment.
APPEAL from a judgment of the Alberta Court of Appeal (1991), 116 A.R. 1, upholding the appellant's conviction on a charge of unlawful cultivation of marihuana. Appeal dismissed.
Terry Sturgeon, for the appellant.
M. David Gates and Ronald C. Reimer, for the respondent.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by
Sopinka J. -- This appeal raises similar issues to those dealt with in R. v. Wiley, [1993] 3 S.C.R. 000, and R. v. Grant, [1993] 3 S.C.R. 000, reasons for judgment in which are released concurrently herewith. My reasons in Wiley explain the procedural history of these appeals in this Court. In addition to the issues of the validity of perimeter searches and a search pursuant to a warrant, this appeal addresses the question as to whether a police check of computerized information in the possession of a public institution constitutes a search.
I. The Facts
The appellant was convicted of unlawful cultivation of marihuana contrary to s. 6(1) of the Narcotic Control Act, R.S.C., 1985, c. N-1 ("NCA"), but acquitted of the charge of possession of marihuana for the purposes of trafficking under s. 4(2) of that Act. On March 9, 1990, the Calgary Police Service received an anonymous Crime Stoppers tip which indicated that marihuana was being grown in the basement of a "cute house" beside a house with a lot of windows on 26th Street between two consecutive cross avenues in Calgary. Acting on this tip, Constable Fair, a member of the Calgary Police Service drug unit, conducted a reconnaissance which included travelling to the reported street, searching out the house described and ascertaining the exact street address of the house which appeared to match the premises identified by the informant: 2618-26th Street S.W., Calgary. Constable Fair, being satisfied that this was the house described, noted the full address.
After determining the correct address, on March 9, 1990 Constable Fair used a terminal in the Calgary Police Service Detective Division which was linked to the city of Calgary utility main frame and was designed to allow the police to check electrical consumption at a specified address after entering a password. Constable Fair, upon comparison of the electrical consumption at 2618-26th Street S.W. over the prior six-month period with two other comparably sized residences in the city of Calgary, determined that consumption at that address was four times the average of the other two over the same period.
Later on March 9, 1990, Constable Fair and another member of the Calgary Police Service, Constable Hettler, entered the property at 2618-26th Street S.W. and knocked on one door, received no answer and went around to the back door. The two officers observed that two basement windows were covered in something opaque and they sniffed at what appeared to be the outside vent for the dryer. As they smelled nothing, they looked inside the vent and discovered that it was plugged with a plastic bag. The two officers were chased from the premises by a resident who returned home.
Constable Fair then returned to the detachment and prepared a search warrant and an information to obtain a search warrant pursuant to ss. 10 and 12 NCA. The information included the tip received on March 8, 1990, the observations made during the perimeter search of March 9, 1990 and the results of the electricity bill comparison. The information implied that the informant had identified the exact street address of the premises to be searched, rather than only having provided more general information pertaining to the block in which the residence was located. Further, Constable Fair indicated that the blocked windows and electricity consumption were consistent with other hydroponic marihuana operations and use of high voltage grow lights. On the basis of this information, a search warrant was issued pursuant to s. 12 NCA which authorized eight named peace officers to search the premises at 2618-26th Street S.W., Calgary, Alberta between the hours of 11:30 a.m. and 6:00 p.m. on March 9, 1990. The police then attended at the appellant's residence and gave him a copy of the search warrant. On execution of the warrant, the police discovered 112 seedling plants at the appellant's residence which were later proven to be marihuana. The appellant was arrested and notified of his right to counsel by Constable Hettler.
At trial, the appellant was found guilty of the charge under s. 6(1) NCA, but was acquitted of the charge of possession for the purposes of trafficking contrary to s. 4(2) of that Act. His appeal from conviction to the Court of Appeal of Alberta was dismissed.
II. Judgments Below
A. Court of Queen's Bench of Alberta (Perras J.)
Perras J. held that the appellant was guilty as charged with respect to s. 6(1) NCA, but determined that he was not convinced beyond a reasonable doubt with respect to the charge under s. 4(2) of the Act. In reaching the decision to convict, Perras J. concluded that he was satisfied as to the appellant's guilt on the first count on the basis of the seizure of 112 seedling marihuana plants and various other items associated with hydroponic growth of marihuana from the residence which numerous documents demonstrated the appellant to have occupied. The trial judge found that there were reasonable grounds for issuance of the warrant since the issuing justice could rely on the electricity consumption record check, the observations made during the perimeter search and the information revealed by the informant. He determined that there were sufficient grounds for issuance of the warrant even with the misstatement removed from the information and noted that the check of the hydro records probably did not amount to a search or seizure since the records did not belong to the accused.
B. Court of Appeal of Alberta (1991), 116 A.R. 1
In a unanimous decision, the Court of Appeal of Alberta dismissed the appellant's appeal from conviction. The court held that the search warrant under which the evidence was seized was valid, so that the evidence was properly admitted at trial. Although the court determined that the officers had missed identifying a step on the information by stating the address in such a manner as to imply that the informant had given them the entire address, rather than stating that the informant had given them part of the address and through reconnaissance they had determined the exact address, the court found that even without the complete street address, the Provincial Court judge would still have issued the search warrant.
The Court of Appeal held that the computer search did not violate s. 8 of the Canadian Charter of Rights and Freedoms. The court found that in order to ground a claim under s. 8, the appellant would have had to demonstrate that a privacy issue was at stake. It was determined that unlike the privacy expected with regard to confidential information in client/lawyer and patient/doctor relationships, the information in the case at bar was created in the context of a commercial transaction. Further, the information belonged to the Calgary Utilities Commission (the "Commission") rather than to the appellant since the records were created for the purposes of billing rather than for customer use. The Court of Appeal determined that the fact that the same city paid the police and sold the electricity was not relevant to the s. 8 issue. Finally, the Court of Appeal found that no alternative evidence was offered to explain why the appellant's utility bill should be quadruple that of other similar residences in the area and was satisfied by the officer's sworn statement as to high electricity consumption being associated with a hydroponic grow operation.
The Court of Appeal concluded that the police did not violate s. 8 of the Charter by conducting the warrantless perimeter search. It was determined that the police were operating under the statutory authority of s. 10 NCA when they conducted the perimeter search. Since s. 10 authorizes conduct of a warrantless search of a place other than a dwelling house, the police were justified in relying on that power to search the grounds surrounding the appellant's residence so long as no search of the house itself was involved. The court differentiated the case at bar from R. v. Kokesch, [1990] 3 S.C.R. 3, on the basis that in this case the officers conducting the search had reasonable grounds rather than mere suspicion as to the presence of a narcotic.
On this basis, the Court of Appeal determined that all of the information relied upon for issuance of the search warrant was legally admissible and none of it had been obtained in contravention of the Charter. Further, the court indicated that if it were wrong in the assessment as to whether a Charter right had been breached, it concluded that exclusion of the evidence would bring the administration of justice into disrepute. The court found that the evidence discovered through the perimeter search was real and pre-existing and would likely have been discovered even without a constitutional violation. Further, it was determined that examination of the electricity bills by the police constituted a search permissible pursuant to s. 10 NCA since the electricity was an item which aided in the illegal cultivation and thus constituted an item "in respect of which an offence ... has been committed". The Court of Appeal indicated that s. 489 of the Criminal Code, R.S.C., 1985, c. C-46, also permitted seizure of the electrical records. Finally, even if such seizure were not authorized by statute, the court concluded that the related evidence should nonetheless be admitted because to exclude it would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter.
III. The Issues
This appeal is brought by leave of this Court and raises the following questions of law:
1. Did the warrantless perimeter search violate s. 8 of the Charter?
2. Did the search under warrant issued pursuant to s. 12 NCA violate s. 8 of the Charter?
3. Did the police check of computerized electrical records violate s. 8 of the Charter?
4. If any s. 8 violation occurred, should the evidence be excluded pursuant to s. 24(2) of the Charter?
IV. Pertinent Legislation
Canadian Charter of Rights and Freedoms
8. Everyone has the right to be secure against unreasonable search or seizure.
24. ...
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Narcotic Control Act, R.S.C., 1985, c. N-1
10. A peace officer may, at any time, without a warrant enter and search any place other than a dwelling-house, and under the authority of a warrant issued under section 12, enter and search any dwelling-house in which the peace officer believes on reasonable grounds there is a narcotic by means of or in respect of which an offence under this Act has been committed.
12. A justice who is satisfied by information on oath that there are reasonable grounds for believing that there is a narcotic, by means of or in respect of which an offence under this Act has been committed, in any dwelling-house may issue a warrant, under the hand of the justice, authorizing a peace officer named therein at any time to enter the dwelling-house and search for narcotics.
V. Analysis
A. Did the Searches Violate s. 8 of the Charter?
There are two searches to be considered: the warrantless perimeter search and the search pursuant to the search warrant issued under s. 12 NCA. Different considerations apply to each. It is also alleged that the police check of computerized records also constitutes a search.
1. Perimeter Search
With respect to the perimeter search, in view of the conclusion reached in Grant, this search was unreasonable and violated s. 8 of the Charter. There is nothing to suggest that any exigent circumstances existed to justify a perimeter search without a warrant. The information obtained could not, therefore, be relied on in obtaining the warrant. See Grant and Wiley, supra. With respect to the search pursuant to the warrant, it is necessary to determine whether, with the excision of the information obtained as a result of the perimeter search, there remained reasonable grounds for the warrant to issue. The answer to this question depends on whether the check of computerized information constitutes a search and, if so, whether it was unreasonable and, therefore, in violation of s. 8 of the Charter.
2. Computerized Records
The purpose of s. 8 is to protect against intrusion of the state on an individual's privacy. The limits on such state action are determined by balancing the right of citizens to have respected a reasonable expectation of privacy as against the state interest in law enforcement. See Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60. Section 8 protects people and not property. It is, therefore, unnecessary to establish a proprietary interest in the thing seized. See Hunter, supra, at p. 158; R. v. Dyment, [1988] 2 S.C.R. 417, per La Forest J., at pp. 426‑27; Katz v. United States, 389 U.S. 347 (1967). In this respect, I must disagree with the Court of Appeal which relied on the absence of a proprietary interest on the part of the appellant in the computer information.
In balancing the reasonable expectation of privacy of the individual with the interests of the state in law enforcement, this Court has determined that electronic taping of private communication by state authorities violates the personal sphere protected by s. 8: R. v. Duarte, [1990] 1 S.C.R. 30. Similarly, such investigative practices as videotaping of events in a private hotel room (R. v. Wong, [1990] 3 S.C.R. 36) and seizure by state agents of a blood sample taken by medical personnel for medical purposes (Dyment, supra) have been found to run afoul of the s. 8 right against unreasonable search and seizure in that the dignity, integrity and autonomy of the individual are directly compromised. While this Court has considered the possibility of violations of s. 8 in relation to informational privacy (Dyment, supra, at p. 429), we have not previously considered whether state inspection of computer records implicates s. 8 of the Charter.
Some indication of the parameters of the protection afforded by s. 8 with respect to informational privacy can be derived from the following passage from the reasons of La Forest J. in Dyment, supra, at pp. 429-30, commenting on the Report of the Task Force on Privacy and Computers:
In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.
Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated allows* for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement. It is, then, necessary to apply this contextual approach to the facts of the case at bar.
The United States Supreme Court has limited application of the Fourth Amendment (the right against unreasonable search and seizure) protection afforded by the United States Constitution to situations in which the information sought by state authorities is personal and confidential in nature: United States v. Miller, 425 U.S. 435 (1976). That case determined that the accused's cheques, subpoenaed for evidence from a commercial bank, were not subject to Fourth Amendment protection. While I do not wish to be taken as adopting the position that commercial records such as cancelled cheques are not subject to s. 8 protection, I do agree with that aspect of the Miller decision which would suggest that in order for constitutional protection to be extended, the information seized must be of a "personal and confidential" nature. In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. The computer records investigated in the case at bar while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of the appellant's life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence.
The nature of the relationship between the appellant and the Commission cannot be characterized as a relationship of confidence. The Commission prepared the records as part of an ongoing commercial relationship and there is no evidence that it was contractually bound to keep them confidential. This is not to suggest that records prepared in a commercial context can never be subject to the privacy protection afforded by s. 8 of the Charter. If commercial records contain material which meets the "personal and confidential" standard set out above, the commercial nature of the relationship between the parties will not necessarily foreclose a s. 8 claim.
In any event, the transaction records which were maintained as a result of the commercial relationship in the case at bar cannot be characterized as confidential communications which Duarte, supra, and Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, indicated were protected by s. 8. Although it has been indicated that some utilities commissions have developed policies against releasing consumption information to police (R. v. Cave, B.C. Prov. Ct., Quesnel Registry No. 14705, December 13, 1992 (unreported)), it was clearly the policy of the Calgary Commission to permit police access to the computer data bank, albeit through a computer password. Further, it is generally possible for an individual to inquire with respect to the energy consumption at a particular address, so that this information is subject to inspection by members of the public at large. The accessibility of the information to the public is, in my view, more relevant to the issue than the policy of release developed by the Calgary Commission since the primary concern in this analysis is the expectation of privacy held by the person whose information was released rather than the manner in which the body releasing the information categorized it. Nevertheless, I do not view the relevant relationship in the case at bar as one which is reasonably characterized as confidential.
The place and manner in which the information in the case at bar was retrieved also point toward the conclusion that the appellant held no reasonable expectation of privacy with respect to the computerized electricity records. The police were able to obtain the information on-line by agreement of the Commission. Accessing the information did not involve intrusion into places ordinarily considered private, as was the case in Duarte, supra, and Wong, supra. Nor did it involve invasion by state agents in personal computer records confidentially maintained by a private citizen. While the requirement that the police use a password to access the information may suggest some element of privacy in the manner in which the search was conducted, it may equally suggest that the password was merely intended to ensure that on-line information was available only to the police. In any event, the search was not conducted in an intrusive or high-handed manner, so that on balance, I would conclude that the place and manner of the search were in keeping with what could reasonably have been expected by the appellant.
In addition to the fact that the manner and place of the search are indicative of a minimally intrusive search, the seriousness of the offence militates in favour of the conclusion that the requirements of law enforcement outweigh the privacy interest claimed by the appellant. As this Court previously concluded in Kokesch, supra, while participation in the illicit trade of marihuana may not be as serious as the trade in other narcotics such as cocaine, it remains an offence which is taken seriously by law enforcement agents.
Overall, I have concluded from the nature of the information, the relationship between the appellant and the Commission, the place and manner of the search and the seriousness of the offence under investigation, that the appellant cannot be said to have held a reasonable expectation of privacy in relation to the computerized electricity records which outweighs the state interest in enforcing the laws relating to narcotics offences. As such, the appellant has failed to bring this search within the parameters of s. 8 of the Charter. This information was, therefore, available to the police to support the application for a search warrant. I will consider, next, the sufficiency of the information in support of the issue of the search warrant.
3. Reasonable Grounds for Issuance of the Search Warrant
The appellant alleged that the warrant issued in this case was invalid in that it was issued on the basis of an information containing improperly obtained and misstated facts. This Court has determined that peace officers cannot benefit from their own illegal acts by including in informations sworn to obtain warrants facts which were retrieved through searches without lawful authority. See Grant and Kokesch, supra. As such, in order to assess whether the search and seizure conducted under warrant in the case at bar were in violation of s. 8, it is necessary to determine whether the officers can be said to have had reasonable grounds to believe that a narcotic was contained in the appellant's residence in contravention of the NCA in the absence of the observations made during the warrantless perimeter search. See reasons in Grant and Wiley, supra.
In the case at bar, the officers relied in their sworn information on the tip of an unknown informant, the electricity records check and observations made during the warrantless perimeter search as evidence of reasonable grounds to believe that a narcotic was contained in the appellant's residence in contravention of the NCA. As I have indicated, the observations made during the warrantless perimeter search must be eliminated given that they were obtained in contravention of the Charter. With respect to the other elements of the sworn information, the appellant has alleged that the anonymous tip relied upon by the police was not sufficiently reliable to have constituted a reasonable ground for believing that a narcotics offence had been committed in the appellant's residence. In addition, the appellant claimed that the misstatement by the officer with respect to the address given by the anonymous informant invalidated the warrant issued. I will consider each of these submissions in turn.
The Anonymous Tip
In R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168, this Court determined that the reliability of the tip of an informant depends on an assessment of the totality of the circumstances and specified three areas of concern:
First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?
While that case related to the decision of the police to conduct a warrantless search pursuant to the tip of a known informant, the factors enunciated demonstrate principled concerns with the use of informants in general and are equally applicable to the anonymous tip in the case at bar. The information given by the anonymous informant was compelling in that it identified the location of the cultivation operation and located the appellant's house in a fairly specific geographic region, albeit without specifying an exact street address. It is impossible to determine whether the source was credible except by reference to the fact that the information was subsequently corroborated by a police reconnaissance which resulted in identification of the exact address of the residence described by the informant. The tip itself, therefore, was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exact address of the appellant's residence and corroborate the report of the informant. I conclude that the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant. Therefore, I would not excise that piece of evidence from the warrant.
Misstatement in the Information
Although the information sworn in support of the application for a search warrant indicated that an anonymous Crime Stoppers informant had reported that marihuana was being cultivated "at the residence of 2618 26 Street S.W.", the informant had in fact only identified the residence as being a "cute house" located within the 2600 block of 26th Street near a house with many windows. As a result, the information gave the impression that the informant had supplied more detailed facts than was actually the case.
Although the British Columbia Court of Appeal in R. v. Donaldson (1990), 58 C.C.C. (3d) 294, determined that a search warrant must be quashed should a deliberate deception by police be proven, neither the trial judge nor the Court of Appeal found any deliberate attempt to mislead the issuing justice in the case at bar. Furthermore, the appellant has not pointed to new evidence which would indicate that the misstatement by the officer was anything more than a good faith, albeit erroneous, attempt to draft the information concisely by omitting reference to the step between the general tip and the conclusion as to the exact address of the residence identified.
In considering the material that was properly before the authorizing judge, however, only the information actually obtained from the tipster should be included. In addition, this information could be amplified by reference to the fact that the police were able to locate a residence matching the description which they were given. This information, coupled with the results of the computer check, were, in my opinion, sufficient to constitute reasonable grounds for the issue of the warrant. As noted by the trial judge, there was evidence to show that excessive hydro consumption at one residence as compared to another may be a general indicator of the hydroponic growth of marihuana. The Court of Appeal concluded that this evidence was sufficient to constitute reasonable grounds for issuance of the warrant. The trial judge reached the same result, albeit for different reasons since he did not consider the constitutional validity of the perimeter search which formed a part of the reasonable grounds asserted by the officers.
The result of this conclusion is that the search which was authorized by the search warrant was reasonable. Since no issue is taken with the manner in which the search was conducted, the search was reasonable and not in violation of the Charter. As in Grant and Wiley, supra, however, this does not end the matter and it is necessary to consider whether s. 24(2) is triggered because the warrantless perimeter search violated s. 8, and therefore I must determine whether the evidence was obtained in a manner that violated the Charter.
B. Exclusion Under s. 24(2)
In my view, the perimeter search was an integral part of the investigation which included the search conducted pursuant to the search warrant. Accordingly, there was a sufficient temporal connection to the obtaining of the evidence to trigger s. 24(2). I agree with the conclusion reached by the Court of Appeal that the evidence should not be excluded. I find no error in their application of the relevant factors, nor is their conclusion unreasonable. This is, however, a case close to the line and my brief review of the relevant factors confirms the conclusion reached by the Court of Appeal.
In R. v. Collins, [1987] 1 S.C.R. 265, this Court concluded that in determining whether information obtained in contravention of the Charter ought to be excluded from evidence three factors ought to be considered: (i) the effect of admission of the evidence on the fairness of the trial, (ii) the seriousness of the violation of the Charter and (iii) the effect of exclusion on the repute of the administration of justice. The evidence which the Crown tendered is real evidence of the marihuana and various cultivation implements which were discovered in the search pursuant to a valid warrant and which existed prior to and independent of the Charter violation. Unlike the admission of self-incriminatory evidence, the admission of this sort of real evidence does not tend to bring the administration of justice into disrepute in that the evidence does not depend for its existence on the Charter violation.
In assessing the seriousness of the Charter violation, the good faith of the officers conducting the search is relevant. Subsequent to the warrantless search conducted in this case, I indicated in Grant, supra, that s. 10 NCA had to be read down to apply only to situations involving exigent circumstances which rendered obtaining prior judicial authorization impracticable. However, the police were entitled to rely on the law as it was at the time when the warrantless perimeter search was conducted and therefore to presume that warrantless perimeter searches were constitutionally valid pursuant to s. 10 NCA: Kokesch, supra, at pp. 33-34. In this case, the police had the necessary reasonable grounds to conclude that they could resort to the use of s. 10 NCA. I agree with the Court of Appeal that the police acted in good faith. This is not a case such as Kokesch, supra, where the officers operated on mere suspicion. Thus, with regard to the warrantless perimeter search, I would conclude that the police acted in good faith in reliance on powers granted them by Parliament in s. 10 NCA. Before entering the dwelling, they had obtained a warrant that was legally and constitutionally valid. There was, therefore, no flagrant violation of the Charter.
With respect to the third factor to be considered, I have concluded that the administration of justice would not be brought into disrepute should the evidence be admitted. The guilt of the appellant with respect to cultivation of marihuana contrary to s. 6(1) NCA is clearly established on the real evidence. Further, as previously indicated, the offence is a serious one punishable by imprisonment for a maximum of seven years. Exclusion of the evidence would result in the absence of evidence by which the appellant could be convicted. In these circumstances, the seriousness of the offence militates in favour of the admission of the evidence: see Collins, supra, per Lamer J. (as he then was), at p. 286. I agree with the Court of Appeal that, on balance, exclusion of the evidence would have a greater negative effect on the repute of justice than would its admission.
After considering the relevant factors, I conclude that the evidence was properly admitted by the trial judge, despite the s. 8 violation which resulted from the warrantless perimeter search.
In the result, the appeal is dismissed.
The following are the reasons delivered by
McLachlin J. -- I agree with the reasons and the disposition as proposed by Justice Sopinka, save for certain comments on the right of the police to search the computerized records of public utilities.
I agree with my colleague that the question of whether records are protected centres on a person's reasonable expectation of privacy. As La Forest J. stated in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 429-30:
... situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.
The question in each case is whether the evidence discloses a reasonable expectation that the information will be kept in confidence and restricted to the purposes for which it is given. Although I find the case of electricity consumption records close to the line, I have concluded that the evidence here discloses a sufficient expectation of privacy to require the police to obtain a warrant before eliciting the information. I conclude that the information was not public, since there is no evidence suggesting that this information was available to the public and the police obtained access only by reason of a special arrangement. The records are capable of telling much about one's personal lifestyle, such as how many people lived in the house and what sort of activities were probably taking place there. The records tell a story about what is happening inside a private dwelling, the most private of places. I think that a reasonable person looking at these facts would conclude that the records should be used only for the purpose for which they were made -- the delivery and billing of electricity -- and not divulged to strangers without proper legal authorization.
I disagree with my colleague's assertion that "[t]he computer records investigated in the case at bar while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of the appellant's life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence" (p. 000). The very reason the police wanted these records was to learn about the appellant's personal lifestyle, i.e. the fact that he was growing marihuana. More generally, electricity consumption records may, as already noted, reveal how many people live in a house and much about what they do. While not as revealing as many types of records, they can disclose important personal information.
My colleague notes that the relationship between the appellant and the electricity commission was not one of confidence. It seems to me that the question is not so much whether the relationship is one of confidence, so much as whether the particular records disclose a reasonable expectation of confidence. Moreover, as my colleague points out, this Court in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, has held that commercial records may be characterized in some circumstances as confidential.
My colleague states that the information was generally available to the public. This, with respect, does not accord with the evidence, which as noted, suggests that the records were not open to the public, and that the police were able to access them only by using a special computer number which they had been given in confidence. This is an important factor; had I been able to conclude that the records were open to the public, I might well have concluded with my colleague that the appellant had no expectation of privacy in the records.
My colleague also argues that the place and manner in which the information was retrieved belie a reasonable expectation of privacy, emphasizing that the police did not have to intrude into "places ordinarily considered private" like a house or hotel room to get the information. But, again with respect, this begs the question. Computers may and should be private places, where the information they contain is subject to the legal protection arising from a reasonable expectation of privacy. Computers may contain a wealth of personal information. Depending on its character, that information may be as private as any found in a dwelling house or hotel room.
My colleague finally argues that the seriousness of the offence outweighs any privacy interest in the records. I confess to reservations about a case-by-case balancing approach to whether a warrant is required or not to obtain information. In each case, the police would have to ask themselves: is the offence serious enough to outweigh the suspect's privacy interest? If the answer is yes, they would take the evidence without a warrant. The courts would then have to review their exercise of judgment. In my view, such a regime would provide little comfort to the person whose privacy interest is at stake, and would breed uncertainty and litigation. Such considerations may have a place in determining whether improperly obtained evidence may be admitted under s. 24 of the Canadian Charter of Rights and Freedoms, but are problematic at the earlier stage of determining whether rights have been violated. The test must remain the individual's reasonable expectation of privacy. If that test is met, a search without a warrant will constitute a violation, even where the suspected offence is a serious one.
Although I conclude that the evidence obtained as a result of the computer search was improperly obtained and should not have been used in obtaining the warrant which is at issue here, I am satisfied that there was sufficient other evidence to support the issuance of the warrant. Accordingly, I would dispose of the appeal as proposed by Sopinka J.
Appeal dismissed.
Solicitors for the appellant: Lord, Russell, Calgary.
Solicitor for the respondent: John C. Tait, Ottawa.