R. v. Evans, [1996] 1 S.C.R. 8
Cheryl Rae Evans and Robert Arthur Evans Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Evans
File No.: 24359.
1995: May 4; 1996: January 25.
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.
Cases Cited
By Sopinka J.
Referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Tricker (1995), 21 O.R. (3d) 575; R. v. Bushman (1968), 4 C.R.N.S. 13; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62; R. v. Campbell (1993), 36 B.C.A.C. 204; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Burlingham, [1995] 2 S.C.R. 206.
By La Forest J.
Referred to: Colet v. The Queen, [1981] 1 S.C.R. 2; R. v. Tricker (1995), 21 O.R. (3d) 575; R. v. Landry, [1986] 1 S.C.R. 145.
By Major J.
Referred to: Robson v. Hallett, [1967] 2 All E.R. 407; R. v. Bushman (1968), 4 C.R.N.S. 13; R. v. Johnson (1994), 45 B.C.A.C. 102; R. v. Sandhu (1993), 82 C.C.C. (3d) 236; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wong, [1990] 3 S.C.R. 36.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 10, 12.
Authors Cited
Gellhorn, Walter. Individual Freedom and Governmental Restraints. Baton Rouge, La.: Louisiana State University Press, 1956.
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vol. 1, 2nd ed. St. Paul, Minn.: West Publishing Co., 1987 & 1995 Supp.
The Oxford English Dictionary, vol. XIV, 2nd ed. Prepared by J. A. Simpson and E. S. C. Weiner. Oxford: Clarendon Press, 1989, "search".
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 93 C.C.C. (3d) 130, 24 C.R.R. (2d) 94, 49 B.C.A.C. 264, 80 W.A.C. 264, dismissing an appeal from conviction by Saunders J. Appeal dismissed.
G. D. McKinnon, Q.C., for the appellants.
S. David Frankel, Q.C., for the respondent.
The following are the reasons delivered by
1 La Forest J. -- I am in substantial agreement with my colleague, Justice Sopinka, but I approach some of the issues from a somewhat different perspective, and I propose to add a few words to reflect some of the more important nuances that flow from this.
2 I fully agree that the police went on the accused persons' premises to search. They had no other business there. I add that, if the police found what they went for, this would almost inevitably lead to a more intrusive search of the dwelling, and in fact it did. Which leads me to the question of whether the search was reasonable.
3 My colleague holds that the search was unreasonable because it was illegal. I think it was illegal because it was unreasonable. In the specific case with which we are dealing, a drug case, the illegality expressly arises out of s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1. But that would be the case at common law in any event; see Colet v. The Queen, [1981] 1 S.C.R. 2. And that can only be because the courts considered such a power unreasonable in the kind of society we live in. The sanctity of the home has constituted a bulwark against the intrusion of state agents for hundreds of years. 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. As noted, the seemingly minor intrusion here would almost inevitably lead, and in fact did lead, to a more intrusive search. Attempts by police to enforce the law at people's dwellings frequently leads to confrontations that can have far more serious consequences than the evil sought to be dealt with. The recent case of R. v. Tricker (1995), 21 O.R. (3d) 575 (C.A.), where the police shot and killed a suspect in the course of an altercation following upon a police investigation of an alleged speeding infraction at the suspect's home, illustrates this point once again. This underlines the need of proceeding by warrant wherever possible as the law requires.
4 I realize that the police may have considerable difficulty in bringing to justice persons engaged in cultivating marijuana in their homes. If the issue is sufficiently serious, it is for Parliament to amend the law. Parliament is in a better position to obtain evidence supporting the need for a change and to assess the extent to which the change may affect householders who are not guilty of any crime. Judges are not in a position to receive such evidence, and they deal with specific cases that ordinarily involve people who have broken the law, a fact that does not encourage the broader perspective that should be brought to the issue. When Parliament has dealt with the issue, the courts can then consider whether its action is justifiable under the Canadian Charter of Rights and Freedoms. I have elsewhere set forth in more detail my views on the proper function of Parliament and of the courts in this area, and shall not repeat them at length here; see, inter alia, R. v. Landry, [1986] 1 S.C.R. 145, at pp. 187-88. But I simply wish to add that a judicially created restriction to a rule has a tendency to expand into other areas where the restriction is not compelling, and thus lead to a gradual erosion of the rule, which in this case has long been considered necessary to the protection of our freedom. As Walter Gellhorn has put it (Individual Freedom and Governmental Restraints (1956), at p. 40) "small restrictions [on our freedom] accumulate into large restrictions and, in the process, may become as habitual as, before, freedom was". (The passage is cited at greater length in Landry, supra, at p. 188.)
The following are the reasons delivered by
I. L'Heureux-Dubé J. -- I agree with the reasons of my colleague Justice Major and with the result he reaches, subject to the following comment.
II. It is not necessary to decide whether State intrusion would constitute a search of a home if its occupants chose "to revoke this implied licence explicitly, for example by installing a locked gate at the entrance to the property, or posting signs to that effect" (para. 42 of Major J.'s opinion), or when "[t]he prohibition could be a sign, a verbal instruction or some other indicia arising on the particular facts" (para. 49). Since these issues do not arise in this appeal and were not argued before us, they are strictly obiter and I prefer to leave them for another day.
III. Accordingly, I would dispose of the appeal in the manner proposed by Major J.
The judgment of Sopinka, Cory and Iacobucci JJ. was delivered by
1 Sopinka J. -- Four issues are raised in this appeal. First, the Court must determine whether or not the conduct of the police in "sniffing" for marijuana at the door to the appellants' home constituted a "search" within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms. Second, if the Court concludes that the conduct in question was a search for constitutional purposes, the Court must move on to decide whether or not that search was "reasonable" within the meaning of s. 8. Third, the Court must consider whether the second search of the Evans' home, conducted after a warrant had been obtained, violated s. 8 of the Charter. Finally, the Court must determine whether or not any evidence obtained in violation of s. 8 in the instant case must be excluded pursuant to s. 24(2).
I. Was the Police Conduct a "Search"?
2 The first issue raised in this appeal is whether or not the conduct of the police in the instant case constituted a "search" within the meaning of s. 8. The conduct in question consisted of approaching the door to the Evans' home and knocking, with the intent of "sniffing for marijuana" when the occupant opened the door. According to my colleague Justice Major, the conduct in question was not a search. With respect, I disagree.
3 I agree with Major J. that not every investigatory technique used by the police is a "search" within the meaning of s. 8. In particular, I agree with Major J.'s view that the Court must inquire into the purposes of s. 8 in determining whether or not a particular form of police conduct constitutes a "search" for constitutional purposes.
4 What then is the purpose of s. 8 of the Charter? Previous decisions of this Court make it clear that the fundamental objective of s. 8 is to preserve the privacy interests of individuals. As this Court stated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160, the objective of s. 8 of the Charter is "to protect individuals from unjustified state intrusions upon their privacy". Clearly, it is only where a person's reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a "search" for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a "search" within the meaning of s. 8.
5 Given the foregoing definition of a "search" for constitutional purposes, it becomes necessary to determine whether the conduct of the police in the present case, namely "sniffing" for marijuana at the appellants' front door, intruded upon some reasonable privacy interest of the appellants. If the conduct in question did intrude upon the appellants' "reasonable expectations of privacy", then the conduct is a search within the meaning of s. 8, and is subject to the requirements of that section. In assessing the appellants' expectation of privacy, I agree with my colleague Major J. that it is necessary to consider the "invitation to knock" that individuals are deemed to extend to members of the public, including police. If the conduct of the police in approaching the Evans' home and sniffing for marijuana is a form of activity contemplated by the invitation to knock, then no violation of any privacy interest can be made out. Clearly, an individual's expectations of privacy cannot be infringed by conduct that has been authorized by the individual in question.
6 I agree with Major J. that the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock. As the Ontario Court of Appeal recently stated in R. v. Tricker (1995), 21 O.R. (3d) 575, at p. 579:
The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling. This proposition was laid down by the English Court of Appeal in Robson v. Hallett, [1967] 2 All E.R. 407, [1967] 2 Q.B. 939.
As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock. Where the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling.
7 If one views the invitation to knock as a waiver of the occupier's expectation of privacy in the approach to his or her home, it becomes necessary to determine the terms of that waiver. Clearly, under the "implied licence to knock", the occupier of a home may be taken to authorize certain persons to approach his or her home for certain purposes. However, this does not imply that all persons are welcome to approach the home regardless of the purpose of their visit. For example, it would be ludicrous to argue that the invitation to knock invites a burglar to approach the door in order to "case" the house. The waiver of privacy interests that is entailed by the invitation to knock cannot be taken to go that far.
8 In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind the purpose of the implied invitation. According to the British Columbia Court of Appeal in R. v. Bushman (1968), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant. As the Court in Bushman stated, at p. 19:
The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who has lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant.
I agree with this statement of the law. In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The "waiver" of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence to knock". Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.
9 In the present case, I am of the view that the actions of the police went beyond the forms of conduct permitted by the implied licence to knock. Although I accept that one objective of the police in approaching the Evans' door was to communicate with the occupants of the dwelling in accordance with the implied licence to knock, the evidence makes it clear that a subsidiary purpose of approaching the Evans' door was to attempt to "get a whif [sic] or a smell" of marijuana. As a result, the police approached the Evans' home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them. Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.
10 As noted above, my colleague Major J. would hold that the conduct of the police in the present case did not constitute a search within the meaning of s. 8 of the Charter. In his view, the police were merely acting on the implied invitation to knock when approaching the Evans' door for the purpose of seeking evidence against the appellants. In Major J.'s opinion, the fact that the police intended to "sniff" for marijuana once the Evans' door was opened does not affect the validity of the officers' conduct. Simply put, Major J. would hold that the underlying purpose or intent of the police in approaching the Evans' door "does not affect the right to knock on the door".
11 Despite the difficulties involved in proving police "intention" when they approach a person's home, I disagree with Major J. that the intention of the police is irrelevant in assessing the legality of their actions. As stated above, the implied licence to knock extends only to activities for the purpose of facilitating communication with the occupant. Anything beyond this "licensed purpose" is not authorized by the implied invitation. In my view, an analogy can be drawn between the present case and the decisions of this Court in R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Wiggins, [1990] 1 S.C.R. 62. In those cases, it was held that "participant surveillance" through the electronic recording of a private conversation constitutes a "search" within the meaning of s. 8. According to the majority in Duarte (at p. 46), "privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself". Thus, while an individual may explicitly "invite" another to engage in private conversation, the invitation cannot be extended to authorize an activity with a different purpose, namely, the surreptitious recording of what is said. Where the person purporting to act on the "invitation to converse" exceeds the bounds of that invitation, the activity in question may constitute a "search" for constitutional purposes. Similarly, where the police, as here, purport to rely on the invitation to knock and approach a dwelling for the purpose, inter alia, of securing evidence against the occupant, they have exceeded the bounds of any implied invitation and are engaging in a search of the occupant's home. Since the implied invitation is for a specific purpose, the invitee's purpose is all-important in determining whether his or her activity is authorized by the invitation.
12 This was the conclusion reached in R. v. Campbell (1993), 36 B.C.A.C. 204. In that case, the police knocked on the accused's door in order to investigate the possession of stolen property. The police had received an anonymous tip regarding stolen furniture. They did not have reasonable and probable grounds to obtain a search warrant. When the door was answered, the officers could see what appeared to be one of the items of stolen furniture. At that point, the occupant was arrested and the police then obtained a search warrant based on this further evidence. The police seized other items which were stolen. Just as in the case at bar, it was acknowledged that the purpose of going to the residence was to make inquiries as a follow-up to the tip and to see if any stolen furniture was visible through the open front door when the occupant answered the knock. The trial judge found this to be an unreasonable search and no issue was taken with that finding on appeal. However, it was held that the police acted in good faith believing that the "knock on" search was lawful and so the evidence was admitted.
13 In my view, there are sound policy reasons for holding that the intention of the police in approaching an individual's dwelling is relevant in determining whether or not the activity in question is a "search" within the meaning of s. 8. If the position of my colleague is accepted and intention is not a relevant factor, the police would then be authorized to rely on the "implied licence to knock" for the purpose of randomly checking homes for evidence of criminal activity. The police could enter a neighbourhood with a high incidence of crime and conduct surprise "spot-checks" of the private homes of unsuspecting citizens, surreptitiously relying on the implied licence to approach the door and knock. Clearly, this Orwellian vision of police authority is beyond the pale of any "implied invitation". As a result, I would hold that in cases such as this one, where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the accused through "knocking on the door", the police have exceeded the authority conferred by the implied licence to knock.
14 For these reasons, I conclude that individuals in the position of the Evans have a reasonable expectation of privacy in the approach to their home, an expectation that 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 implied invitation and approach the door as intruders. As a result, where the police, as here, approach a residential dwelling for the purpose of securing evidence against the occupant, the police are engaged in a "search" of the occupant's home. The constitutional permissibility of such a "search" will accordingly depend on whether or not the search is "reasonable" within the meaning of s. 8.
II. Reasonableness
15 Having determined that the police were engaged in a search when they approached the Evans' home to "sniff" for marijuana, it becomes necessary to decide whether or not that search was "reasonable" within the meaning of s. 8 of the Charter.
16 When the police approached the Evans' home to knock on the door and sniff for marijuana, they were doing so without prior authorization. According to this Court in Hunter, supra, a warrantless search is prima facie unreasonable. In other words, a warrantless search is presumed to be unreasonable unless the party seeking to justify the search can "rebut this presumption of unreasonableness" (Hunter, supra, at p. 161). According to this Court in R. v. Collins, [1987] 1 S.C.R. 265, at p. 278, in order to rebut the presumption of unreasonableness the Crown must establish three things, namely (1) that the search was authorized by law, (2) that the law authorizing the search was reasonable, and (3) that the manner in which the search was carried out was reasonable. Only where these three criteria are met is the "presumption of unreasonableness" rebutted: in all other cases, a warrantless search infringes s. 8 of the Charter.
17 In the instant case, the manner in which the police conducted their search was clearly reasonable. The police attended the Evans' home based on reasonable suspicions and did nothing more than "sniff" for marijuana. Despite the reasonableness of the officers' actions, however, I must nonetheless hold that the presumption of unreasonableness has not been rebutted. Clearly, the actions of the police in approaching the Evans' home and searching for marijuana were not "authorized by law" within the meaning of this Court's decision in Collins. By virtue of ss. 10 and 12 of the Narcotic Control Act, R.S.C., 1985, c. N-1, a search warrant is required in order to search a dwelling in connection with an investigation of an alleged offence under that Act. These provisions would take precedence over any common law right to search based on the "knock on" principles. But even if the statutory provisions in ss. 10 and 12 of the Narcotic Control Act were subject to the "knock on" principles, the implied invitation at common law would not extend to authorize an olfactory search.
18 As a result, the first and second prerequisites to rebut the presumption of unreasonableness, namely (1) that the search was authorized by law, and (2) that the law in question was reasonable, are not satisfied in this case. The inquiry into "reasonableness" ends there. As the conduct of the police lacked any form of prior authorization, it cannot be upheld as "reasonable" within the meaning of s. 8. The conduct of the police was therefore a "search" which was "unreasonable", and accordingly ran afoul of s. 8 of the Charter.
III. The Warrant
19 Following their initial search of the Evans' home, the police obtained a warrant based in part on the odour of marijuana that was detected when Mr. Evans opened his door. Some of the evidence supporting this warrant (i.e., the odour of marijuana) would not have been obtained had the police abided by the constitutional restrictions on their powers of search and seizure. As this Court pointed out in R. v. Kokesch, [1990] 3 S.C.R. 3, warrants based solely on information gleaned in violation of the Charter are invalid. However, where the warrant was issued only partially on the strength of tainted evidence, and partially on evidence that was properly obtained, the court must "consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant" (R. v. Grant, [1993] 3 S.C.R. 223, at p. 251). As the Court stated in Grant, at pp. 251-52:
In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event. Accordingly, the warrant and search conducted thereunder ... will be considered constitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional ... searches been excised from the information.
In the case at bar, the only untainted "evidence" supporting the warrant was an unconfirmed tip provided by an anonymous "Crime Stoppers" informant. As Rowles J.A. pointed out in the court below, the police viewed this evidence as "slim" and had some doubts as to its validity prior to "sniffing" the marijuana at the Evans' front door. Indeed, Saunders J. of the British Columbia Supreme Court explicitly found that all of the officers agreed that, before the unauthorized search of the Evans' home, "they had insufficient information to obtain a search warrant or an authorization of electronic surveillance". In my view, the officers' doubts as to the sufficiency of their information were correct. As a result, I would hold that the warrant on which the officers relied in the second search of the Evans' home was invalid, and that the search conducted thereunder was accordingly unreasonable within the meaning of s. 8 of the Charter.
20 Having determined that all of the evidence gathered through the searches of the Evans' home was obtained in a manner that violated the Charter, it becomes necessary to consider whether or not that evidence must be excluded pursuant to s. 24(2). If the evidence is excluded, the Crown has no basis upon which to proceed against the appellants.
IV. Section 24(2) of the Charter
21 The test for determining whether or not evidence obtained in breach of the Charter must be excluded under s. 24(2) was set out by this Court in Collins, supra, and summarized in the following passage from R. v. Jacoy, [1988] 2 S.C.R. 548, at pp. 558-59:
First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" [Collins, supra] (p. 284). One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.
The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.
Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible. [Emphasis in original.]
22 In the instant case, I would find that the admission of the impugned evidence would not render the appellants' trial unfair. The evidence in question is real evidence that existed irrespective of a Charter violation. Moreover, the appellants were not conscripted against themselves in the creation of the evidence, as the evidence pre-existed the violation of s. 8. Any participation of the accused persons in the discovery of this evidence involving a breach of their Charter rights was minimal at best. The evidence at issue in this appeal was clearly "discoverable" without recourse to a Charter violation. Several lawful investigatory techniques were available to the police, including surveillance of the appellants' house, searches through the appellants' garbage, overhead infra red photography or a further inquiry to B.C. Hydro. To borrow the language of this Court in R. v. Burlingham, [1995] 2 S.C.R. 206, at p. 293, the marijuana plants at issue in this appeal "pre-existed the state action which is called into question, and were there to be discovered by investigative means not involving the accused". As this evidence was real, discoverable evidence within the meaning of previous judgments of this Court, the trial would not be rendered unfair by its admission.
23 Turning next to the seriousness of the Charter violation, I would not characterize the violation of s. 8 in the instant case as particularly grave. The good faith of the police in the present case cannot be questioned: the trial judge expressly found that the police were aware of this Court's decision in Kokesch and felt that their actions in approaching the Evans' door were consistent with that decision. As a result, although the initial "olfactory" search of the Evans' home has now been found to have been constitutionally impermissible, the police were unaware that the search was beyond their investigatory powers. The subsequent search of the Evans' home was undertaken in reliance on a warrant. Although I have found that the warrant was invalid, the police (who at all times believed that they were acting in an appropriate manner), had no reason to doubt the validity of the warrant at the time that the search of the Evans' home was conducted. This warrant was produced to the appellants before the search had progressed very far.
24 Finally, I would note that the exclusion of the evidence in this case would tarnish the image of the administration of justice to a much greater extent than would its admission. The cultivation of a narcotic is a serious offence, often leading to other social evils. The evidence obtained in violation of s. 8 is necessary to substantiate the charges against the appellants: simply put, if the evidence is excluded, the perpetrators of a very serious crime will go unpunished. As a result, I would hold that the evidence obtained by the Charter violation in this case must not be excluded pursuant to s. 24(2). To hold otherwise would certainly lessen the esteem in which the public holds the administration of justice.
V. Conclusion and Disposition
25 Although the evidence at issue in this appeal was gathered in a manner that violated the Charter, the admission of this evidence would not bring the administration of justice into disrepute within the meaning of s. 24(2). As a result, the evidence was properly admitted against the appellants. I would dismiss the appeal.
The reasons of Gonthier and Major JJ. were delivered by
26 Major J. -- This appeal addresses the scope of police investigative powers. The issue is whether the police were conducting a search within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms by knocking on the door of a dwelling house in order to make an enquiry, and while in the course of that activity making observations of the party who answered the door and other observations arising normally from the door's being opened. It is my conclusion that they were not.
27 The appellants were convicted at the Supreme Court of British Columbia of possession of marijuana for the purpose of trafficking. The trial judge found that there had been no violation of s. 8 of the Charter. The Court of Appeal dismissed the appeal and upheld the conviction, Rowles J.A. dissenting: (1994), 93 C.C.C. (3d) 130. Southin J.A., writing for herself and Proudfoot J.A., concluded that there had been a violation of s. 8 of the Charter, but the evidence should nonetheless be admitted pursuant to s. 24(2) of the Charter. Rowles J.A. dissented, finding that s. 8 had been violated and the evidence should be excluded. This appeal comes to this Court as of right.
28 The facts of this case are straightforward. The police received an anonymous phone tip that the appellants had marijuana growing in their home. The police acted on this information by checking criminal records, electricity consumption, and a visual perimeter search of the dwelling house from public property. These steps disclosed nothing.
29 The police decided to conclude the investigation by knocking on the front door of the dwelling house and if opened, questioning the residents.
30 The evidence of the police officer was:
A ...
At this particular point, we decided that we would conclude this file by going to the residence and questioning the occupant regarding this particular complaint that we had received, just as I would do in any other investigation and patrol, be it an assault investigation or a stolen property investigation. We felt that we had this one last obligation to perform, so it was decided that we would go and question the occupant.
and again:
AInstead of just concluding the file at this point, I felt obliged to go and ask the occupant if in fact he was growing marijuana in his house and after doing so, I would conclude the file. There were many possibilities of things that may have happened, and we discussed them. Perhaps no one would be home at that particular time, perhaps he would deny such a thing, or another thing that we did talk about was while we were speaking to the occupant, if somebody did answer the door and if in act he was cultivating marijuana in the residence, we could get a whif [sic] or a smell might come out at us. So we talked about that as well, and we talked about what we would do if this occurred.
QWhat did you discuss about what you would do if there was no one home or if there was no smell?
AWell, that would be the end of the complaint. We would ask him -- I mean, he might have invited us in to show us that there was no operation going on. So he might have said, "come on in." We did not know at this particular time. But those were the things that were discussed.
31 The police officers approached the front door of the appellants' home in plain clothes. When the door was opened by the appellant Robert Evans, they identified themselves. They smelled marijuana, and arrested the appellants immediately. They entered the dwelling house to secure the premises and ensure there was no one else inside. In doing so, one police officer went into the basement and found a room containing marijuana plants. Another of the officers left the house to obtain a search warrant, and when he returned the warrant was executed and the house was searched. Forty-one marijuana plants were found, as well as other drug-related paraphernalia and growing equipment.
32 The appellants assert that this conduct constituted an unreasonable search and seizure contrary to s. 8 of the Charter. Their submission is that when the police approached the house they did not have reasonable and probable grounds to obtain a search warrant. Their olfactory observations constituted a search, and since they had no search warrant it was presumptively unreasonable. The appellants, it was submitted, had a reasonable expectation of privacy in their home, and this expectation was violated by the "knock on" activity conducted by the police officers.
33 It is my opinion that these arguments fail. Police officers, like any other citizen, are not prohibited from entering onto an individual's property to knock on the door. The common law has long recognized an implied licence to approach and knock for a lawful purpose. In Robson v. Hallett, [1967] 2 All E.R. 407, Lord Parker, C.J., said at p. 412:
What is said in this case, and this is really the foundation of counsel for the appellants' argument, is that all three police officers were trespassers ab initio; having arrived at the garden gate, although up till then they were acting in the execution of their duty, making inquiries into an offence committed that night, yet the moment when they set foot onto the steps leading up to the front door they were all three trespassers. For my part, it is no doubt true that the law is sometimes said to be an ass, but I am happy to think that it is not an ass in this respect, because I am quite satisfied that these three police officers, like any other members of the public, had implied leave and licence to walk through that gate up those steps and to knock on the door of the house. We are not considering for this purpose the entering of private premises in the form of a dwelling-house, but of the position between the gate and the front door. There, as it seems to me, the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house. [Emphasis added.]
34 This principle has been recognized in Canadian courts: see R. v. Bushman (1968), 4 C.R.N.S. 13 (B.C.C.A.); R. v. Johnson (1994), 45 B.C.A.C. 102. Robson, stands for the simple proposition that no trespass is committed when an individual, including a police officer, crosses the threshold of property in order to seek permission to enter by knocking on the door. No one in modern society can remain entirely isolated from the outside world.
35 While it is well recognized that the home is granted the highest degree of protection from unwanted state intrusions, that protection is not absolute, and not all intrusions will constitute a search within the meaning of s. 8 of the Charter. A reasonable expectation of privacy does not encompass complete and total insulation from acquaintances, salespeople, strangers who need assistance, or police officers conducting an investigation. All of these people are entitled to seek permission to enter or to speak to the residents of a dwelling house by knocking at the door, as is anyone with a legal and legitimate purpose. Obviously, the residents of the home may refuse permission. They retain a full measure of choice and control over who may enter and who may not, whom they will speak to and whom they will ignore. They may also choose to revoke this implied licence explicitly, for example by installing a locked gate at the entrance to the property, or posting signs to that effect.
36 Once lawfully at the door, however, the question remains as to whether sensory observations made from that position constitute searches within the meaning of s. 8 of the Charter. They do not. This conclusion follows both general principles of interpretation and the established law of search and seizure.
37 Section 8 of the Charter states:
8. Everyone has the right to be secure against unreasonable search or seizure.
38 The meaning and scope of the word "search" in this provision has never been precisely delineated. In most cases there is no dispute that the impugned police conduct constitutes either a search or a seizure, and the resolution of the constitutional issue will turn on the reasonableness of the conduct. Rowles J.A., in dissent, for the British Columbia Court of Appeal, adopted the following definition of search at p. 153 from an earlier judgment of Southin J.A. in R. v. Sandhu (1993), 82 C.C.C. (3d) 236, at p. 247:
"Search" is a common English word. We speak of a search for a person as in a search for a child who is lost. We speak of a search for a culprit seen running from the scene of a crime and lost sight of. But in this section of the Charter, I think the word is about looking for things (and in this context I use the word "things" to include words spoken) to be used as evidence of a crime.
39 Part of the conduct to which Southin J.A. referred involved three police officers surreptitiously placing their ears against a closed apartment door to attempt to overhear the conversation taking place inside. In that light, the conclusion that this constituted a search appears reasonable. However, if the words of Southin J.A. are read literally, without regard to the particular circumstances, and without regard to the purpose and meaning of s. 8 itself, any conceivable police investigatory techniques would be included. This goes against the interpretation which has been accorded s. 8. Dickson J. (as he then was) in Hunter v. Southam Inc. [1984] 2 S.C.R. 145, stated at pp. 159-60:
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. [Emphasis by underlining in original; italics added.]
40 This balance between individual and state interests 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.
41 The word "search" is defined by The Oxford English Dictionary (2nd ed. 1989), vol. XIV as: "1. a. The action or an act of searching; examination or scrutiny for the purpose of finding a person or thing....Also, investigation of a question; effort to ascertain something." In this sense, every investigatory method used by the police will in some measure constitute a "search". However, the scope of s. 8 is much narrower than that, and protects individuals only against police conduct which violates a reasonable expectation of privacy. To hold that every police inquiry or question constitutes a search under s. 8 would disregard 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. This is not the intent or the effect of s. 8. If the police officers had gone to the appellant's door simply to ask for directions or the use of the telephone, no one would suggest a search had occurred at that stage. Similarly, if the officers saw evidence of a crime when the door was opened in response to that request for directions (such as a corpse or a weapon), that observation would not constitute a search. The only difference between that situation and the circumstances of the case on appeal is the underlying purpose of the police officers in approaching the door. That different purpose does not affect the right to knock on the door.
42 The right to knock on a door of a residence in today's society is an implied right that arises at common law and continues unless the occupier acts in a way to prohibit it. The prohibition could be a sign, a verbal instruction or some other indicia arising on the particular facts. In this appeal there was no such prohibition.
43 The police conduct in this case did not constitute a search within the meaning of s. 8 of the Charter. In approaching the front door of the residence in broad daylight and knocking at the door, the police officers were exercising an implied licence at common law. When the door was opened, the observations made by the police officers from this position were simply that: observations of what was in plain view. The appellants could not have any reasonable expectation that no one, including police officers, would ever lawfully approach their home and observe what was plainly discernible from a position where police officers and others were lawfully entitled to be.
44 It is worth noting that this approach is consistent with the position adopted in the United States. As stated in a leading treatise on search and seizure, W. R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd. ed. 1987 & Supp. 1995), vol. 1, at p. 320:
As a general proposition, it is fair to say that when a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used, that detection does not constitute a "search" within the meaning of the Fourth Amendment.
45 Finally, the argument that the approach outlined here amounts to a form of "risk analysis" should be addressed. The risk analysis approach was rejected by this Court in R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Wong, [1990] 3 S.C.R. 36. In Duarte, a majority of this Court concluded that "participant" electronic surveillance violated s. 8 of the Charter. An apartment used by an undercover police officer had been equipped with hidden audio-visual recording equipment. A meeting took place between the undercover police officer and the appellant Duarte, among others, and this meeting was recorded without Duarte's knowledge. He was later charged with the offence of conspiracy to import a narcotic.
46 The Ontario Court of Appeal upheld the legality of participant surveillance, noting that there was always a risk that the person to whom one spoke would disclose the contents of that conversation to the police. The risk that these conversations would also be recorded was not significantly different, and therefore was not protected by any reasonable expectation of privacy. La Forest J. characterized the risk analysis argument as follows, at pp. 41-42:
In summary, the risk analysis that is at the heart of the Court of Appeal's judgment rejects the notion that any distinction grounded on constitutional concerns should be drawn between evidence gained through the testimony of a participant to a conversation, and evidence gained through a surreptitious electronic recording of that conversation.... In effect, the court chose to treat the risk that an interlocutor will divulge one's words and the risk that he will make a permanent electronic recording of them at the behest of the state as being of the same order of magnitude.
47 La Forest J., for a majority of the Court, rejected this argument, finding that the protection against unreasonable search and seizure must include the reasonable expectation that our words will be heard only by the person to whom they are directed, and will not be surreptitiously recorded. The risk analysis adopted by the Court of Appeal in that case, if taken to its logical conclusion, might eliminate all expectations of privacy.
48 In coming to this conclusion, however, the Court did not find that all "risks" faced by individuals subject to police investigation were constitutionally suspect. Clearly, there must be some room left for valid and legitimate investigatory techniques. La Forest J. recognized that when he stated, at p. 48:
I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them. These risks are of a different order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. They involve different risks to the individual and the body politic. In other words, the law recognizes that we inherently have to bear the risk of the "tattletale" but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words. [Emphasis added.]
49 In my view, the "risk" that growing marijuana will be smelled by police officers standing at the front door while lawfully entitled to do so is of the same order as the risk that someone is a "tattletale".
50 Both Duarte and Wong dealt with police officers making secret, permanent recordings of activity conducted by individuals who had no idea they were under surveillance. In this appeal, 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 others is an assumption of the risk that they will repeat what has been said.
51 I conclude that there is no violation of s. 8 of the Charter because the conduct of the police did not constitute a search within the meaning of that provision. I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellants: G. D. McKinnon, Vancouver.
Solicitor for the respondent: George Thomson, Ottawa.