R. v. Hamill

Lamer J.‑‑The appellant is before this Court as of right because the Court of Appeal for British Columbia set aside the acquittal entered by the trial judge on the charge of possession of cannabis resin for the purpose of trafficking and ordered a new trial.

The Facts

On September 17, 1982, Corporal Alford, who had received "confidential information" relating to the appellant and his place of residence which he felt to be "true and accurate", searched the apartment of the appellant under the authority of a writ of assistance. He was accompanied by Constable Gillis and two other RCMP officers. Constable Gillis knocked on the door. As soon as the appellant turned the knob, Constable Gillis forced the door open, shouted "police" and put the appellant up against the wall, grabbing him by the throat for a matter of seconds to subdue him. Constable Gillis testified that he grabbed the appellant by the throat not to facilitate a search of the appellant's mouth but as an instinct resulting from his training. The appellant had not raised his hands, made a threatening gesture, or in any way performed an aggressive act towards Constable Gillis. Constable Gillis further stated that he had used this type of hold before but not in regard to a search.

Under examination‑in‑chief, Constable Gillis also testified that he had grabbed the appellant by the throat, in part, because of a "background" police computer check on the appellant. When Constable Gillis indicated that the "background" check involved the obtaining of a computer print‑out supplied to the police by the RCMP CPIC Centre in Ottawa and relating to the gathering of people's criminal records, counsel for the appellant objected. This objection was sustained by the learned trial judge.

Illicit drugs and other related paraphernalia were found and the appellant was charged with possession of cannabis resin for the purpose of trafficking.

Legislation

Narcotic Control Act, R.S.C. 1970, c. N‑1, as amended, as it stood prior to the amendments of December 1985:

10. (1) A peace officer may, at any time,

(a) without a warrant enter and search any place other than a dwelling‑house, and under the authority of a writ of assistance or a warrant issued under this section, enter and search any dwelling‑house in which he reasonably believes there is a narcotic by means of or in respect of which an offence under this Act has been committed;

...

(2) A justice who is satisfied by information upon 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 his hand authorizing a peace officer named therein at any time to enter the dwelling‑house and search for narcotics.

(3) A judge of the Federal Court of Canada shall, upon application by the Minister, issue a writ of assistance authorizing and empowering the person named therein, aided and assisted by such person as the person named therein may require, at any time, to enter any dwelling‑house and search for narcotics.

Canadian Charter of Rights and Freedoms

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(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.

The Judgments

The Trial Judge

The Provincial Court judge found that writs of assistance are inconsistent with ss. 7 and 8 of the Charter , and he declared ss. 10(1)a) and 10(3) of the Act "to the extent of the inconsistency, of no force and effect". He then excluded the evidence under s. 24(2) of the Charter . A reading of his judgment makes it clear to me, as it was for the Court of Appeal, that the decision to exclude the evidence was predicated entirely and solely on the findings that writs of assistance are inconsistent with ss. 7 and 8 of the Charter and that there was a nexus between the use of the writ and the finding of the evidence, and that the use of the evidence would therefore bring the administration of justice into disrepute.

The Court of Appeal

In a unanimous judgment written by Esson J.A., and reported at (1984), 14 C.C.C. (3d) 338, the Court of Appeal held that the Narcotic Control Act provisions were not inconsistent with the Charter . The court also stated that holding that the Act was constitutional would not normally end the investigation of whether the search was reasonable. However, in this case, the appellant did not put in issue the police officers' reasons for the search or their conduct as a ground for a finding of unreasonableness; only the unconstitutionality of the section was urged upon the court. The court concluded that the search was reasonable.

Furthermore, the court noted that the police officers' reasons and conduct were not grounds upon which the appellant argued for exclusion of the evidence under s. 24(2). Here again only the unconstitutionality of the writ was raised. The Court of Appeal therefore found that while the "background" information on the suspect was relevant to both issues, "reasonableness of the search [given their finding of constitutionality] and exclusion", the judge, given the issues before him, was right in excluding that evidence. The court then went on and said, at p. 358:

...that the decision to exclude the evidence was based entirely on the finding that writs of assistance are inconsistent with s. 8 of the Charter . On the basis of the conclusion that there is no such inconsistency, it follows that the trial judge's basis for applying s. 24 was wrong. But even if the writ was inconsistent with the Charter , that by itself could not be a sufficient ground to exclude the evidence, particularly in a case where the search took place at a time when no court had held s. 10(1)(a) to be unconstitutional or inoperative in whole or in part.

The gist of the court's reversal of the judge's exclusion of the evidence is contained in this passage of the judgment, at p. 360:

In this case, there was evidence of a choke hold having been used by an officer and of the accused being handcuffed and required to remain seated, clad only in shorts, on a couch while the search was being carried out. There was some conflicting evidence. As the trial judge did not consider that evidence in relation to the question whether the administration of justice would be brought into disrepute by admitting the evidence of the finding of the narcotics and paraphernalia, this court cannot determine whether there were grounds which would have justified exclusion. On the grounds upon which the exclusion order was based, it was wrong in law.

The Court of Appeal then quashed the acquittal and ordered a new trial.

The Law

Section 10(1)(a) of the Narcotic Control Act authorizes the search of a dwelling‑house only when the peace officer has a writ of assistance issued under s. 10(3) or a search warrant issued under s. 10(2). The appellant has challenged writs of assistance as inadequate under ss. 7 and 8 of the Charter on the ground that there is no prior judicial authorization for the search. The Crown in its factum states that it does not intend to uphold the validity of s. 10(1)(a) and s. 10(3) in so far as they relate to writs of assistance, and those provisions have since been repealed (S.C. 1985, c. 19, s. 200). It thus is no longer necessary to answer the constitutional question stated by the Chief Justice relating to the constitutionality of those provisions. However, for the purposes of this appeal, we should assume that writs of assistance are constitutionally inadequate for the search of a dwelling‑house under s. 10(1)(a) . As a result, because the police officers did not have a search warrant, we must conclude that the search was unreasonable.

The only issue before us, and it is a narrow one, is whether the trial judge erred when he found on the sole fact that the search was carried out under the authority of a writ of assistance rather than a search warrant, that admission of the evidence obtained as a result thereof would bring the administration of justice into disrepute.

I agree with the Court of Appeal that a new trial should be ordered. Applying the guidelines which I set out in R. v. Collins, [1987] l S.C.R. 265, to the facts of this case as those facts now stand and the grounds advanced by the appellant at trial, I would conclude that the evidence should not have been excluded. First, there is no suggestion in the record that the admission of this evidence had any bearing on the fairness of the trial. Furthermore, while it is true that the object of the unreasonable search was a dwelling‑house, which renders the violation more serious, the search was alleged to be unreasonable only because the police officers relied on a writ of assistance when a search warrant was required. The officers proceeded under a writ of assistance rather than a search warrant because they believed in good faith that they could rely on a writ of assistance, as such writs had not yet been challenged under the Charter . It is worth underlining, too, that this is a narcotics case where, as the Court of Appeal observed, special enforcement techniques have been utilized throughout the world. The appellant did not question the police officers' grounds for the search and the trial judge, because of his disposition of the case, did not make a finding as to whether the officers had reasonable grounds as required by the statute. This question should be resolved at the new trial. Finally, the conduct of Constable Gillis in grabbing the appellant by the throat was not a ground upon which the appellant argued for exclusion of the evidence. As a result, the violation of the Charter was not sufficiently serious to justify excluding the evidence.

This is not to say that the application for exclusion could not have succeeded had the appellant advanced other grounds, such as the manner in which the search was carried out. But this the appellant is estopped from arguing here because of his objection to the adduction of the most relevant facts relating to the reason for the violence of the entry and handling of the appellant. That ground could be raised at the new trial, but it might then make this information relevant and admissible. If the information the constable had was that the appellant is a violent person who has assaulted peace officers when arrested on previous occcasions, I cannot see what then in the manner the search was carried out would have the admission of the evidence bring the administration of justice into disrepute.

I would therefore dismiss this appeal.

The following are the reasons delivered by

McIntyre J.‑‑ I agree that this appeal should be dismissed.