r. v. strachan, [1988] 2 S.C.R. 980
Joseph Colin Strachan Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. strachan
File No: 19749.
1988: January 28, 29; 1988: December 15.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Right to counsel denied while police securing potentially dangerous situation ‑‑ Real evidence seized before counsel called ‑‑ Whether or not right to counsel infringed ‑‑ Whether or not evidence should be excluded for bringing the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, ss. 8, 24(1), (2) ‑‑ Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 10(2).
Criminal law ‑‑ Search warrants ‑‑ Quickly developing situation forcing telephone authorization to change names of officers named in warrant ‑‑ Whether or not search warrant valid ‑‑ Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 10(2).
Evidence ‑‑ Evidence obtained in violation of the Charter ‑‑ Whether or not evidence should be excluded for bringing administration of justice into disrepute.
The constable in charge of the drug section at an R.C.M.P. detachment sought and obtained a search warrant under s. 10(2) of the Narcotic Control Act. The search warrant named four officers. A change in shift caused the constable in charge to seek authorization by telephone from the justice of the peace to substitute two other officers. Two officers not named in the amended warrant assisted in executing the search warrant.
When the police arrived to search the appellant's apartment appellant was arrested for possession of marijuana and read the standard police warning. Appellant attempted to telephone his lawyer but the constable in charge told appellant that he could not telephone until the police had "matters under control": the police wanted to question two other men in the apartment and to locate two registered revolvers. The drugs and paraphernalia were seized by two officers named in the warrant. Appellant was allowed to telephone his lawyer from the police station an hour and forty minutes after the search began. He had not made a further request to use the telephone after his initial request and the police did not advise him again of his right to retain counsel.
The trial judge found that appellant's right to counsel had been violated, excluded the evidence seized by the police and, absent other evidence, dismissed the charge. The Court of Appeal set aside the acquittal and ordered a new trial. The two major issues raised here were: (1) was the search invalid because it did not comply with the requirements of s. 10 of the Narcotic Control Act and therefore unreasonable under s. 8 of the Canadian Charter of Rights and Freedoms and (2) should the evidence discovered in the search have been excluded under s. 24(2) of the Charter because of the denial of the right to counsel or the alleged breach of s. 8.
Held: The appeal should be dismissed.
Per Dickson C.J. and Beetz, McIntyre, La Forest and L'Heureux‑Dubé JJ.: A warrant issued under s. 10(2) of the Narcotic Control Act for the search of a dwelling place for narcotics is significantly wider in scope than a normal search warrant issued under s. 443 of the Criminal Code. This wider scope is counterbalanced by the requirement that specific officers be named in the warrant and that they personally execute it and be responsible for the control and conduct of the search. If the named officers are truly in control, participate in the search, and are present throughout, the use of unnamed assistants who are closely supervised by them does not invalidate the search or the warrant. The naming requirement is not met by a warrant directed to a large number of peace officers.
The section 8 guarantee against unreasonable search or seizure was not breached here. The search warrant was validly issued and validly executed. Advance authorization for searches by an impartial official capable of acting judicially is important. Even if the substitution of the two officers by telephone authorization was not authorized by the Narcotic Control Act, respect for the spirit of s. 8 of the Charter and awareness of the limitations on police search powers was shown.
The police violated the appellant's right to counsel. The violation of this right did not occur when the constable in charge initially prevented him from telephoning his lawyer because of the need to ensure a potentially volatile situation was under control. The police had no reason not to allow the appellant to telephone a lawyer once the accused had been arrested, the weapons located, and the other two people had left, and the police were clearly in control. The denial of counsel began from that point.
Section 24(2) does not require a causal link between the Charter infringement and the discovery of the evidence. All evidence gathered following a violation of a Charter right should be considered as within the scope of s. 24(2). The first inquiry under s. 24(2) is to determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence, while not determinative, figures prominently in this assessment, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. A temporal connection will not suffice when the evidence is too remote.
The narcotics in this appeal were obtained in a manner that infringed the Charter. The chain of events was sufficient to clear the first branch of s. 24(2).
The factors concerning the fairness of the trial are especially important when the right to counsel has been violated because of the concern that an accused may have been incriminated by statements improperly elicited by the police. Nevertheless, s. 24(2) is not an automatic exclusionary rule: not every breach of the right to counsel will result in the exclusion of evidence. Here, the Charter breach was inadvertent and was not part of a larger pattern of disregard for Charter rights, no self‑incriminatory statements were elicited, and the accused was not mistreated. The admission of the marijuana would not render the trial unfair. Indeed, the exclusion of the evidence, not its admission, would tend to bring the administration of justice into disrepute.
Per Lamer J.: The reasons of Dickson C.J. were concurred in. To require some nexus when "evidence is obtained in a manner that infringed the Charter" is too difficult a test to apply and the approach proposed by Le Dain J. in R. v. Therens should be followed.
Per Wilson J.: Appellant's right to counsel was violated when he was denied the use of the telephone to call his lawyer upon being advised that he was under arrest. Notwithstanding the understandable concern of the police to get "matters under control", there is no internal qualification in s. 10(b) of the Canadian Charter of Rights and Freedoms permitting the police to postpone the appellant's exercise of his right to counsel. Section 10(b) uses the words "without delay". Section 1 of the Charter is the sole source of reasonable limits. These limits must be "prescribed by law" and cannot be imposed by the police in their discretion except in a case of extreme urgency or threat to their own safety. This is not such a case.
A search conducted in face of a Charter violation cannot be a reasonable search under s. 8 even if conducted pursuant to a valid search warrant. The legislation authorizing the issuance of search warrants does not expressly or by necessary implication or through its operating requirements override the citizen's s. 10(b) rights.
The admission of the evidence in this case would not, however, bring the administration of justice into disrepute.
Cases Cited
By Dickson C.J.
Applied: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; considered: R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; R. v. Cohen (1983), 1983 CanLII 232 (BC CA), 5 C.C.C. (3d) 156; distinguished: Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; referred to: R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 40 C.R. (3d) 1; R. v. Duguay (1985), 1985 CanLII 112 (ON CA), 18 D.L.R. (4th) 32; R. v. Fekete (1985), 1985 CanLII 3475 (ON CA), 44 C.R. (3d) 92; R. v. Heikel and MacKay (1984), 1984 ABCA 320, 57 A.R. 221; R. v. Lebrocq (1984), 1984 CanLII 1239 (AB KB), 35 Alta. L.R. (2d) 184; R. v. Baylis (1986), 1986 CanLII 2978 (SK QB), 47 Sask. R. 15; R. v. Goodbaum (1977), 1977 CanLII 2017 (ON CA), 1 C.R. (3d) 152; Campbell v. Clough (1979), 1979 CanLII 3830 (PE SCTD), 23 Nfld. & P.E.I.R. 249; R. v. Davidson (1982), 1982 CanLII 4165 (NB QB), 40 N.B.R. (2d) 702; R. v. Newson (1985), 1985 CanLII 1263 (AB KB), 41 Alta. L.R. (2d) 375; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495.
By Lamer J.
Referred to: R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613.
By Wilson J.
Referred to: R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 8, 9, 10, 10(b), 24(1), (2).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 443, 443(1), 444, 618(2)(a).
Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, ss. 69‑71.
Customs Act, R.S.C. 1970, c. C‑40.
Customs Act, S.C. 1986, c. 1.
Food and Drugs Act, R.S.C. 1970, c. F‑27, s. 37(2).
Interpretation Act, R.S.C. 1970, c. I‑23, s. 26(7).
Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 4(2), 10(2), (4).
Narcotic Control Act, S.C. 1960‑61, c. 35, s. 10(2).
APPEAL from a judgment of the British Columbia Court of Appeal (1986), 1986 CanLII 1281 (BC CA), 25 D.L.R. (4th) 567, 24 C.C.C. (3d) 205, 49 C.R. (3d) 289, allowing an appeal from and ordering a new trial following an acquittal found by Millward Co. Ct. J. Appeal dismissed.
David Roberts, Q.C., for the appellant.
S. David Frankel and V. Gordon Rose, for the respondent.
The judgment of Dickson C.J. and Beetz, McIntyre, La Forest and L'Heureux‑Dubé JJ. was delivered by
The Chief Justice‑‑The appellant Joseph Colin Strachan was charged with unlawfully having in his possession a narcotic, to wit, cannabis (marijuana) for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N‑1. He was acquitted at trial. The trial verdict was reversed on appeal. The appellant now appeals as of right to this Court.
This case involves evidence seized during a search of a dwelling‑house under a search warrant issued under s. 10(2) of the Narcotic Control Act. The appellant argues that the search was unreasonable, and therefore contrary to s. 8 of the Canadian Charter of Rights and Freedoms. He further submits that his right to counsel under s. 10(b) of the Charter was denied. He contends that the evidence of the drugs and drug‑related paraphernalia found in the dwelling was properly excluded by the trial judge under s. 24(2) of the Charter.
It should be noted that this case has been argued throughout on the law as it stood prior to the Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, ss. 69‑71, which amended the search warrant provisions of the Criminal Code, R.S.C. 1970, c. C‑34, ss. 443 and 444.
I
Legislation
- The relevant legislative and constitutional provisions are as follows:
Narcotic Control Act
- ...
(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.
Canadian Charter of Rights and Freedoms
Everyone has the right to be secure against unreasonable search or seizure.
Every one has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right;
- ...
(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.
II
The Facts
On September 9, 1983, Constable Bisceglia was the officer in charge of the Drug Section of the Royal Canadian Mounted Police (R.C.M.P.) Detachment in Campbell River, British Columbia. That day, a confidential source told him that the appellant had a quantity of marijuana at his apartment. Two other sources had given Constable Bisceglia the same tip within the previous few days. Early in the afternoon, Constable Bisceglia appeared before a justice of the peace and applied under s. 10 of the Narcotic Control Act for a warrant to search a dwelling for narcotics. The justice of the peace issued the search warrant. In compliance with s. 10(2) of the Act, the warrant named Constables Bisceglia, Arseneault, Clark, and Underhill, all of the R.C.M.P., as the peace officers authorized to enter and search the dwelling. The warrant was valid between 3:00 p.m. and 7:00 p.m. of that day.
The officers went to the appellant's apartment at 4:00 p.m. but no‑one was home. They did not attempt to enter but went about other duties. At approximately 6:00 p.m., Constable Arseneault learned that the appellant was at home, but was leaving shortly for Vancouver, and would not be back for two or three days. Constable Bisceglia decided to execute the warrant immediately, but Constables Clark and Underhill were about to go off duty. Constable Bisceglia telephoned the justice of the peace who had issued the search warrant, explained the circumstances, and asked if it would be possible to substitute two other officers. The justice of the peace authorized the substitution and the officers went to the appellant's apartment, arriving there around 6:20 p.m. All four were dressed in civilian clothes.
The police officers knocked on the door. The appellant answered. Two other men were in the apartment, in the living room. Constable Bisceglia gave the appellant a copy of the search warrant, showed his identification, and arrested the appellant for possession of marijuana. He then read the standard police warning, including the right to counsel guaranteed by the Charter. The appellant immediately picked up the phone and said he was going to call his lawyer, but Constable Bisceglia told him that he could not telephone until the police had "matters under control." Constable Bisceglia then asked the appellant for his full name, address and age, and for some identification. He also asked the appellant some questions concerning his marijuana usage. Constable Bisceglia then asked the other two men for their names. Approximately forty minutes after the police entered the apartment, the two men left. While Constable Bisceglia interviewed the appellant and the two men, the other officers searched the apartment. After the two men left, Constable Bisceglia assisted in the search. Constable Vanschaik and Corporal McBratney, the two substituted officers, did not seize items they discovered in the search, but pointed them out to Constables Bisceglia and Arseneault to seize. Constables Bisceglia and Arseneault together seized about 300 grams of "green plant‑like material," a set of scales, plastic bags, a "hook up" [sic] pipe, and a "huge number" of bills totalling $3,193. After the conclusion of the search, the police took the accused to the police station, arriving there around 8:00 p.m. He was then allowed to telephone his lawyer.
At the voir dire on the admission of the evidence, Constable Bisceglia was asked to explain what he had meant when he told the appellant that he could not telephone his lawyer until the officers had matters under control. Constable Bisceglia explained that he wanted to find out who were the two additional occupants of the apartment. He was also aware that the appellant had two restricted firearms at the apartment, for which the appellant had the appropriate registration certificates. Constable Bisceglia explained that he wanted to locate the two revolvers.
After his initial attempt to contact counsel, the appellant made no further request to use the telephone. The police officers did not advise him again of his right to retain counsel after the initial warnings.
III
Judgments of the British Columbia Courts
1. County Court (unreported)
A voir dire was held on the validity of the search warrant and its execution. Four issues were raised: (i) whether the warrant as originally issued complied with the requirements of s. 10(2) of the Narcotic Control Act; (ii) whether the substitution of two officers for two of the named officers invalidated the warrant; (iii) whether the participation of two officers, not named in the warrant, invalidated the search; and (iv) whether there was a breach of the accused's right to retain and instruct counsel under s. 10(b) of the Charter.
Millward Co. Ct. J., sitting without a jury, decided the first three issues against the accused. He held that the formalities of s. 10(2) had been followed when the warrant originally was issued. Without commenting on whether or not the justice of the peace had the power to substitute the two officers, Millward Co. Ct. J. held the warrant was still valid when executed. On the third point, he held that the search was not unlawful simply because unnamed officers assisted the named officer in executing the search.
Millward Co. Ct. J. then examined the Charter point. He held that the police had denied the accused his right to counsel by refusing to allow him to telephone his lawyer. He did not accept that the initial denial could be justified by either of the grounds advanced by the police, the presence of unknown third parties or the knowledge that the accused had two restricted weapons in the apartment. Even assuming that those two factors justified the denial of counsel, Millward Co. Ct. J. noted that the police had matters under control once the accused was arrested and the other two people had left. Millward Co. Ct. J. held that at that point at the latest, the accused should have been permitted to telephone his lawyer. The failure to allow him to do so was a "flagrant denial" of the right to counsel. Millward Co. Ct. J. then considered whether the evidence seized by the police should be excluded under s. 24(2). He accepted that there was no causal connection between the denial of the right to counsel and the evidence obtained by the search. Millward Co. Ct. J. considered the judgment of the Ontario Court of Appeal in R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 40 C.R. (3d) 1, another case concerning a denial of the right to counsel during a search. Although in that case there was evidence that the police grossly abused and mistreated the accused, Millward Co. Ct. J. decided that the two cases were parallel. He said:
Here, there is no suggestion that the police officers abused or mistreated the accused man in any way. Apart from that element, I find the two cases to be parallel. And it is my respectful view of the facts here that the flagrant denial to the accused person of his constitutional right to consult counsel immediately after having been informed of his right to do so by the officer cannot be condoned in a free and democratic society. And it is my further view that the admission of the evidence of search and seizure that took place following that denial would bring the administration of justice into disrepute. And so, I rule that the evidence is not admissible.
- As the Crown had no other evidence, the charge was dismissed.
2. Court of Appeal (reported at (1986), 1986 CanLII 1281 (BC CA), 25 D.L.R. (4th) 567)
The Crown appealed to the British Columbia Court of Appeal, composed of Hinkson, Craig, and Esson JJ.A. Counsel for the Crown conceded that the police had violated the accused's right to counsel when they refused to allow him to communicate with his lawyer. The issue was whether the material should have been excluded under s. 24(2), particularly in the absence of any direct causal relationship between the Charter breach and the discovery of the evidence. Esson J.A., speaking for the Court of Appeal, in a long and scholarly judgment, held that the evidence ought not to have been excluded, set aside the acquittal, and ordered a new trial.
Esson J.A. reviewed this Court's decision in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613. He concluded that the majority's decision was closely tied to the type of evidence under consideration in that case, namely, potentially incriminating evidence that the person was required by law to provide to the police. Esson J.A. considered that even if the majority in R. v. Therens interpreted s. 24(2) to allow for automatic exclusion, that interpretation was limited to the type of evidence there in issue. He thought the case left open the scope of the exclusionary rule in general. He also considered that the case did not establish that there must be a causal relationship between a Charter violation and the obtaining of evidence, but the presence or absence of a causal relationship is an important factor in the decision.
Esson J.A. then examined the trial judge's decision in this case. He disagreed with the trial judge's reliance on the R. v. Rao case, supra, since in that case there was an illegal, unreasonable search and gross mistreatment of the accused. Esson J.A. held that those were relevant considerations. He quoted the following passage, at p. 585, from the judgment of Martin J.A. in R. v. Rao:
The trial judge found, however, that the respondent was detained and, notwithstanding that he was detained, he was denied the right to communicate with a lawyer despite his request to be allowed to do so. Further, it seems clear on the facts found by the trial judge that the respondent was denied the right to communicate with his lawyer after he had been arrested. The trial judge also found that the respondent was grossly abused and mistreated by one or more officers (not Constables Sills and Lapierre) and that the police misconduct threw light on their mental attitude in denying the respondent the right to communicate with counsel. On the findings of the trial judge there was a gross abuse of power and a flagrant denial to the respondent of his constitutional rights which cannot be condoned in a free and democratic society. On the facts found by the trial judge he was entitled to hold that the admission of the evidence of the seizure of the narcotics would bring the administration of justice into disrepute and, on the facts found by him, I would have reached the same conclusion.
By contrast, Esson J.A. pointed out that there was no such illegal conduct in this case. Unlike the trial judge, he thought Constable Bisceglia had a genuine reason to be concerned about the presence of guns and strangers in the apartment and pointed out there was no challenge to the constable's good faith in advancing this reason for wanting to get things "under control." Esson J.A. also disagreed with the trial judge's characterization of the Charter violation as a "flagrant denial" of the right to counsel. While any denial of the right to counsel is a serious matter, Esson J.A. stated that some violations are more serious than others. He observed, at p. 587:
It has been said that the right to consult counsel is of such fundamental importance in criminal cases that any violation of the right must be viewed seriously. I do not disagree with that. The fact remains that some violations are more serious than others. In deciding whether to exclude evidence, regard must be had to the relative seriousness of the particular violation. This violation was towards the less serious end of the scale.
He saw nothing exceptional about this case to distinguish it from other cases where the right to counsel was denied, and thought that calling the denial "flagrant" added nothing to the analysis. Esson J.A. believed the trial judge's approach amounted to an automatic exclusion of evidence whenever the right to counsel was violated.
- Esson J.A. then went on to consider the scope of the exclusionary rule under s. 24(2). He considered the language of the section and cases in British Columbia and Ontario that had interpreted it. He also made an extensive survey of the automatic exclusion rule in the United States. He concluded that the American rule had evolved in a society much different from Canada, a society of extreme racial prejudice and brutal police misconduct. While the automatic exclusion rule may be necessary in that setting, he did not think it appropriate in Canada. He expressed himself as being in entire agreement with the reasons of Zuber J.A. dissenting in R. v. Duguay (1985), 1985 CanLII 112 (ON CA), 18 D.L.R. (4th) 32 (Ont. C.A.), and added, at p. 589:
Without repeating what he said, I wish to draw attention to certain aspects of the majority judgment which, in my respectful view, illustrate some troubling aspects which underlie the treatment of s. 24(2) as a rule of virtual automatic exclusion. One aspect is the acceptance of the American exclusionary rule as part of our law without considering whether the reasons for its adoption exist in Canada and without regard for its undoubted adverse effects. A second aspect is the tendency to treat police as being inherently untrustworthy and lacking in respect for the law, and as likely to act properly only if exposed to the risk of deterrent measures. Related to this second aspect is a tendency to treat crime as relatively insignificant and thus to regard its prevention and detection as less important to society than control of police behaviour. The two aspects are related in that they find their clearest, if not their only, support in American jurisprudence.
Esson J.A. also considered that the language of s. 24(2) made it clear that exclusion was not to be an automatic remedy for every Charter violation. He concluded that exclusion should be confined to those relatively rare cases where there is some real reason to describe a Charter violation as flagrant, and in which exclusion would not unduly prejudice the public interest in law enforcement. Esson J.A. concluded that even if there had been a causal connection in this case, there was very little in the circumstances which would justify a conclusion that the admission of the evidence would bring the administration of justice into disrepute. Since there was no causal connection, the remedy of exclusion was clearly not appropriate.
- Esson J.A. also rejected the accused's argument that the search warrant was invalid. He thought that the position was simply that only two of the four authorized officers carried out the search, with the assistance of two other officers. In such circumstances the search was lawful. Since no other challenge to the search was made, there was no breach of s. 8.
IV
Issues
The accused appeals as of right, under s. 618(2)(a) of the Criminal Code, R.S.C. 1970, c. C‑34, from the setting aside of the acquittal by the British Columbia Court of Appeal. The respondent Crown concedes the appellant's right to counsel under s. 10(b) was violated, but argues that the evidence should not be excluded. Two major issues are raised by the appeal: (1) was the search invalid because it did not comply with the requirements of s. 10 of the Narcotic Control Act and was thus unreasonable under s. 8 of the Charter and (2) should the evidence discovered in the search have been excluded under s. 24(2) of the Charter because of the denial of the right to counsel or the alleged breach of s. 8?
Counsel for the appellant alleges that the Court of Appeal erred in holding that:
(a) The incriminating evidence obtained by the police in this case should be treated differently from other classes of evidence, such as the result of a breathalyzer test, when considering whether or not it should be excluded under section 24(2) of the Charter;
(b) the admission of the evidence obtained while the rights of the Appellant under Section 10(b) of the Charter were being denied, would not bring the administration of justice into disrepute;
(c) a search conducted pursuant to a search warrant issued under section 10(2) of the Narcotic Control Act, supra, which authorized four named peace officers to search, was valid notwithstanding that the search was conducted by four peace officers, only two of whom were so named.
V
The Validity of the Search Warrant
Although the appellant's argument concentrates largely on the exclusion of evidence, he also contests the validity of the search warrant and the substitution of two unnamed officers for two of the named officers. The appellant argues that the substitution was not authorized by the Narcotic Control Act and that the search was illegal. He argues from this that the search was in breach of s. 8 of the Charter, which would be an additional reason to exclude the evidence under s. 24(2).
One of the appellant's points can be disposed of very quickly. Appellant in his factum argues that the search warrant was invalid from the start, because s. 10(2) of the Narcotic Control Act speaks of "a peace officer named therein". Appellant argues that since s. 10(2) uses the singular, it is questionable whether a warrant under s. 10(2) can name more than one peace officer. This argument is answered completely by s. 26(7) of the Interpretation Act, R.S.C. 1970, c. I‑23, which states: "Words in the singular include the plural, and words in the plural include the singular." Section 10(2) of the Narcotic Control Act authorizes a justice to name more than one officer in the warrant. The warrant in this case was validly issued.
The next question is whether the substitution of the two unnamed officers for two of the named officers affected the validity of the warrant. The appellant argues there is no authority in the Narcotic Control Act to allow the issuing justice to substitute some officers for others. The appellant argues the warrant was invalidly executed because of the improper substitution.
It is not necessary in this case to decide whether a justice can amend a warrant in the way attempted by the justice in this case. The warrant was executed by two of the four named officers. The question is whether or not those two officers could rely on the assistance of other officers, not named in the warrant, to carry out the search. If named officers can be assisted by unnamed officers, it matters not whether the purported substitution was valid.
Two provincial courts of appeal have considered whether a named officer can be assisted by unnamed officers; both have concluded that assistance is permitted. In R. v. Fekete (1985), 1985 CanLII 3475 (ON CA), 44 C.R. (3d) 92, the Ontario Court of Appeal (Martin, Zuber and Goodman JJ.A.) held that while a named officer cannot delegate the execution of the warrant to anyone else, he or she can execute the search with the assistance of unnamed officers. Zuber J.A. for the court pointed out that s. 10(4) of the Narcotic Control Act expressly authorizes the named officer to call for assistance to break open anything necessary to be searched. Zuber J.A. held that this subsection simply illustrates the power of the named officer to rely on assistants.
The Alberta Court of Appeal considered the same issue in R. v. Heikel and MacKay (1984), 1984 ABCA 320, 57 A.R. 221, in connection with a search warrant issued under the Food and Drugs Act, R.S.C. 1970, c. F‑27. Section 37(2) of that Act is equivalent to s. 10(2) of the Narcotic Control Act and requires that the officer be named in the warrant. Kerans J.A., speaking for himself, McClung and Harradence JJ.A., held that the requirement of a named officer is to ensure there is some specified person or persons responsible and accountable for the search. So long as the search and seizures are carried out under the supervision and control of the named officers the purpose of the requirement is met without undermining the rule. Mere assistance by people not named in the warrant does not make the search unlawful. See also R. v. Lebrocq (1984), 1984 CanLII 1239 (AB KB), 35 Alta. L.R. (2d) 184 (Alta. Q.B.)
It has even been said in one case that only one officer should be named in the warrant; R. v. Baylis (1986), 1986 CanLII 2978 (SK QB), 47 Sask. R. 15 (Sask. Q.B.) Dielschneider J., faced with a warrant that named thirty‑four members of the R.C.M.P. and one police service dog, "Rocky", held that the inclusion of all the names was unnecessary and unfortunate. This case was reversed on appeal on a different point.
A warrant issued under s. 10(2) of the Narcotic Control Act to search a dwelling place for narcotics is significantly wider in scope than a normal search warrant issued under s. 443 of the Criminal Code. For example, a narcotic search warrant can be executed "at any time," while a warrant under s. 443 can normally be executed only during the day (s. 444). In addition, things seized under a Criminal Code warrant must be taken by the police officer to a justice for disposition (s. 443(1)), but there is no such requirement under s. 10(2). The requirement that the officer be named in the warrant to search for narcotics, first enacted in s. 10(2) of the Narcotic Control Act, S.C. 1960‑61, c. 35, is an important restriction that appears to have been added to counterbalance the wider scope of a search warrant issued under the section. There must be some person responsible for the way the search is carried out.
This requirement is met when the officer or officers named in the warrant execute it personally and are responsible for the control and conduct of the search. The use of unnamed assistants in the search does not violate the requirement of s. 10(2) so long as they are closely supervised by the named officer or officers. It is the named officers who must set out the general course of the search and direct the conduct of any assistants. If the named officers are truly in control, participate in the search, and are present throughout, then the use of assistants does not invalidate the search or the warrant.
The concern of Dielschneider J. in R. v. Baylis seems to have been that naming too many officers may foster irresponsibility. The warrant should make it clear who is in charge of, and responsible for, the search. Several courts have held that the naming requirement is not met by a warrant directed to a particular set of peace officers: R. v. Goodbaum (1977), 1977 CanLII 2017 (ON CA), 1 C.R. (3d) 152 (Ont. C.A.); Campbell v. Clough (1979), 1979 CanLII 3830 (PE SCTD), 23 Nfld. & P.E.I.R. 249 (P.E.I.S.C.); R. v. Davidson (1982), 1982 CanLII 4165 (NB QB), 40 N.B.R. (2d) 702 (N.B.Q.B.T.D.); R. v. Newson (1985), 1985 CanLII 1263 (AB KB), 41 Alta. L.R. (2d) 375 (Alta. Q.B.) Listing an entire drug squad by name in a warrant may undermine the effectiveness of the naming requirement just as much as a failure to name anyone at all.
The facts of this case suggest that the requirement of s. 10(2) was met. Constable Bisceglia, one of the named officers, appears to have been in charge of the search. The decision when to execute the warrant was made by him, and he seems to have directed the search procedure once the police were admitted to the apartment. The respondent admits that the two unnamed officers found some of the materials seized and may have touched them, but they were taken into possession by the named officers who had the direction of the search. The validity of the search should not depend on the minor details of the actual physical process of execution. The important point is that the search was conducted under the close control and supervision of two officers named in the warrant.
The facts of this case do not suggest that s. 8 of the Charter was breached. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, the Court established the importance of advance authorization for searches by an impartial official capable of acting judicially. Faced with a suspect who was about to leave town and the loss of two of the named officers, Constable Bisceglia telephoned the justice for permission to substitute two other officers. Even if the substitution was not authorized by the Narcotic Control Act, Constable Bisceglia showed respect for the spirit of s. 8 of the Charter and awareness of the limitations on police search powers. The search warrant was validly issued and validly executed.
VI
Section 10(b) and the Right to Counsel
The respondent has conceded in this Court and in the Court of Appeal, that the police violated the appellant's right to counsel when they refused to allow him to telephone a lawyer until after he was taken to the police station. Because of that concession, it is not necessary to consider the violation of the right to counsel in depth in this case, but it is nevertheless opportune to comment on one aspect.
The trial judge rejected the argument that Constable Bisceglia needed to get the situation "under control" before allowing any telephone calls and held that the violation of the right to counsel occurred as soon as the Constable refused to let the appellant telephone his lawyer. Esson J.A. disagreed with the trial judge on this point and held that Constable Bisceglia's concern to stabilize the situation was a proper one. Although it is not necessary to decide the point in this case, I would be inclined to agree with Esson J.A. The combination of an arrest in the accused's home, the presence of two unknown people, and the knowledge that two restricted weapons were in the apartment, was a potentially volatile situation. It is true the accused had the proper registration permits for the weapons, but, notwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. In my opinion, Constable Bisceglia was justified in preventing any new factors from entering the situation until some of the unknowns had been clarified. Thus I would say that the violation of s. 10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began from that point.
VII
Section 24 and the Exclusion of Evidence
- Counsel for the Crown submitted that the narcotics should not be excluded under s. 24(2). The respondent advanced two arguments for this submission. First, the Crown contended that there was no direct relationship between the breach of the accused's right to counsel and the discovery of the drugs. Absent a causal connection, the evidence could not be said to have been obtained in a manner that infringed the Charter, and therefore s. 24(2) could not be invoked to exclude the evidence in question. Second, and in the alternative, the respondent submitted that on the test enunciated in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, for exclusion under s. 24(2), the evidence ought not to be excluded. I will consider each of these arguments in turn.
A. Was the Evidence Obtained in a Manner that Infringed the Charter?
The respondent's first argument rests on a restrictive interpretation of the scope of s. 24(2). Section 24(2) is a special remedial provision. It is set apart from s. 24(1), the general remedial section of the Charter. Section 24(2) sets out the conditions in which the exclusion of evidence may be granted in an application for a remedy under s. 24(1). In R. v. Therens and R. v. Collins, majorities of the Court held that s. 24(2) provides the sole basis for the exclusion of evidence; evidence cannot be excluded under s. 24(1) alone. The wording of s. 24(2) suggests that two conditions must be met before evidence will be excluded: (i) the evidence must be "obtained in a manner that infringed or denied any rights or freedoms guaranteed" by the Charter and (ii) the admission of the evidence in the proceedings "would bring the administration of justice into disrepute". In Crown counsel's submission, there must be a causal connection between the Charter breach and the evidence sought to be excluded. Evidence does not clear the first hurdle in s. 24(2) unless it is the product of, or derived from the exploitation of, a Charter violation.
This Court has discussed the meaning of the phrase "obtained in a manner that infringed or denied rights and freedoms guaranteed by this Charter" on only one occasion. In R. v. Therens, Le Dain and Lamer JJ. each considered the first requirement of s. 24(2). Le Dain J., speaking for himself and McIntyre J. in dissent, suggested that the first branch of s. 24(2) generally requires only a temporal connection. He rejected a more stringent interpretation calling for a causal connection between the Charter violation and the discovery of the evidence (at p. 649):
In my opinion the words "obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter" particularly when they are read with the French version, obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, do not connote or require a relationship of causation. It is sufficient if the infringement or denial of the right or freedom has preceded, or occurred in the course of, the obtaining of the evidence. It is not necessary to establish that the evidence would not have been obtained but for the violation of the Charter. Such a view gives adequate recognition to the intrinsic harm that is caused by a violation of a Charter right or freedom, apart from its bearing on the obtaining of evidence. I recognize, however, that in the case of derivative evidence, which is not what is in issue here, some consideration may have to be given in particular cases to the question of relative remoteness.
Lamer J. disagreed with the view that a temporal link is sufficient for the purposes of the first branch of s. 24(2). He was of the view that there must be some additional nexus between the Charter violation and the evidence but, he did not elaborate on what this requirement might be. Justice Estey, speaking for himself and Beetz, Chouinard and Wilson JJ., did not address the question but applied s. 24(2) to exclude breathalyser readings taken in violation of the accused's right to counsel.
In the present appeal, Esson J.A. rejected the Crown's submission that s. 24(2) requires a causal link between the Charter infringement and the discovery of the evidence. He considered R. v. Therens and held that it did not stand for the proposition that s. 24(2) requires a causal nexus. In his view the language of s. 24(2) militated against such an interpretation. If present, a causal link was one factor to take into account in the later s. 24(2) determination whether admission of the evidence would bring the administration of justice into disrepute. Esson J.A. concluded that the evidence was obtained in a manner that infringed the Charter.
I am inclined to agree with Esson J.A. and to reject the approach to the first requirement of s. 24(2) advanced by the Crown. In my view, reading the phrase "obtained in a manner" as imposing a causation requirement creates a host of difficulties. A strict causal nexus would place the courts in the position of having to speculate whether the evidence would have been discovered had the Charter violation not occurred. Speculation on what might have happened is a highly artificial task. Isolating the events that caused the evidence to be discovered from those that did not is an exercise in sophistry. Events are complex and dynamic. It will never be possible to state with certainty what would have taken place had a Charter violation not occurred. Speculation of this sort is not, in my view, an appropriate inquiry for the courts.
A causation requirement also leads to a narrow view of the relationship between a Charter violation and the discovery of evidence. Requiring a causal link will tend to distort the analysis of the conduct that led to the discovery of evidence. The inquiry will tend to focus narrowly on the actions most directly responsible for the discovery of evidence rather than on the entire course of events leading to its discovery. This will almost inevitably lead to an intellectual endeavour essentially amounting to "splitting hairs" between conduct that violated the Charter and that which did not.
An illustration of this problem may be drawn from the decision of the British Columbia Court of Appeal in R. v. Cohen (1983), 1983 CanLII 232 (BC CA), 5 C.C.C. (3d) 156. The facts of that case are very similar to those of R. v. Collins. The accused was under surveillance for possession of cocaine by the R.C.M.P. Drug Squad. As the accused left an apartment building and approached her car, an R.C.M.P. officer grabbed her and placed a choke hold on her throat. The choke hold revealed nothing. A female R.C.M.P. officer then frisked the accused and searched her purse. Several packets of cocaine were discovered inside the accused's purse. Defence counsel conceded that there were reasonable and probable grounds for believing that the accused was in possession of cocaine. The Crown conceded that the choke hold was unreasonable, the R.C.M.P. officer having testified that persons generally do not carry cocaine in the mouth.
The majority (Taggart and Craig JJ.A.) of the British Columbia Court of Appeal held that the cocaine was not obtained as a result of an unreasonable search. The majority drew a distinction between the choke hold which was unreasonable, and the subsequent frisk of the accused's person and search of her purse which did not violate s. 8. In reaching this conclusion, the majority adopted a strict causal approach to the actions that culminated in the discovery of the cocaine. They did not consider the drugs found in the accused's purse tainted in any way by the earlier choke hold. Anderson J.A. in dissent rejected this approach. He regarded as narrow and technical the Crown's contention that the drugs could only be excluded under s. 24(2) if they had been found as a direct result of choking the accused. Such an interpretation, Anderson J.A. suggested, would render almost nugatory the purposes sought to be achieved by the inclusion of s. 24(2) in the Charter. I agree with Anderson J.A. that the approach of the majority is overly narrow. In my view, directing the initial inquiry in s. 24(2) to the existence of a causal connection between the Charter violation and the evidence whose exclusion is sought will encourage this type of restrictive approach to the rights and freedoms guaranteed by the Charter.
Imposing a causation requirement in s. 24(2) would generally have the effect of excluding from consideration under that section much of the real evidence obtained following a violation of the right to counsel. Violations of the right to counsel may frequently occur in the course of a valid arrest or, as in the present appeal, in the execution of a valid search power. In these situations, real evidence discovered on the person of the accused or in the course of the search will not, subject to one exception, have a direct causal relationship with the denial of the right to counsel. Derivative evidence, obtained as a direct result of a statement or other indication made by the accused, is the only type of real evidence that may be said to be causally connected to violations of the right to counsel in these situations. With the exception of derivative evidence, infringements of the right to counsel occurring in the course of arrest or execution of a search warrant, can only be causally connected to self‑incriminating evidence. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, is a case in point. A strict causal requirement would tend to preclude real evidence discovered after a violation of s. 10(b) from being considered under s. 24(2) of the Charter.
In situations other than valid arrest or reasonable execution of a search warrant, it may be possible to argue that the presence of counsel might have prevented the discovery of real evidence. This could be the case, for example, under the personal search provisions of the Customs Act, R.S.C. 1970, c. C‑40, considered in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, or under the provisions of the new Customs Act, S.C. 1986, c. 1. These provisions permit a person about to be searched to request a second authorization before the search is conducted. Persons who are not given the opportunity to consult counsel in this situation may be unaware of their right to request a second opinion and the search may proceed without further authorization. It would be possible to argue that had the person been informed of the right to counsel, counsel would have advised the person to demand a second opinion and this might have been that a search should not be conducted. Imposing a causal requirement would result in treating violations of s. 10(b) differently depending on the role counsel could have performed and would invite idle speculation on what might have happened if the accused had exercised the right to counsel.
In my view, it is not useful to create a requirement in the first stage of s. 24(2) that would separate violations of s. 10(b) into two categories based on the role of counsel. Nor is it fruitful to read into the first stage a condition that would limit the scope of s. 24(2) to self‑incriminating or derivative evidence for certain s. 10(b) violations. Ordinarily only a few Charter rights, ss. 8, 9 and 10, will be relevant to the gathering of evidence and therefore to the remedy of exclusion under s. 24(2). So long as a violation of one of these rights precedes the discovery of evidence, for the purposes of the first stage of s. 24(2) it makes little sense to draw distinctions based on the circumstances surrounding the violation or the type of evidence recovered. A better approach, in my view, would be to consider all evidence gathered following a violation of a Charter right, including the right to counsel, as within the scope of s. 24(2).
In my view, all of the pitfalls of causation may be avoided by adopting an approach that focuses on the entire chain of events during which the Charter violation occurred and the evidence was obtained. Accordingly, the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. The presence of a temporal connection is not, however, determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter. In my view, these situations should be dealt with on a case by case basis. There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.
If a Charter violation has occurred in the course of obtaining the evidence, the analysis will proceed to the second, and in my view the more important, branch of s. 24(2), whether the admission of the evidence would bring the administration of justice into disrepute. In R. v. Collins, the Court articulated a comprehensive test for the second branch of s. 24(2). Lamer J. for the majority, identified three groups of factors to be considered in the course of this inquiry. The first group concerns the fairness of the trial. The nature of the evidence, whether it is real evidence or self‑incriminating evidence produced by the accused, will be relevant to this determination. The second group relates to the seriousness of the Charter violation. Consideration will focus on the relative seriousness of the violation, whether the violation was committed in good faith or was of a merely technical nature or whether it was willful, deliberate and flagrant, whether the violation was motivated by circumstances of urgency or necessity, and whether other investigatory techniques that would not have infringed the Charter were available. The final set of factors relates to the disrepute that would arise from exclusion of the evidence. In my view, the three groups of factors encompass aspects of the relationship between the Charter violation and the evidence at issue, thereby permitting some examination of the relationship in the course of the core inquiry under s. 24(2). The presence of a causal link will be a factor for consideration under the second branch of s. 24(2).
I conclude that the narcotics in this appeal were obtained in a manner that infringed the Charter. During the execution of a search of his apartment, the appellant was denied his right to consult counsel. Marijuana was discovered during the course of the search. In my view, this chain of events is sufficient to clear the first branch of s. 24(2). I therefore turn to consider the second branch, whether admission of the evidence would bring the administration of justice into disrepute.
B. Would the Admission of the Evidence Bring the Administration of Justice into Disrepute?
On the basis of the test in R. v. Collins, I am of the view that the evidence should not be excluded under s. 24(2). The factors concerning the fairness of the trial are especially important when the right to counsel has been violated because of the concern that an accused has been incriminated by statements improperly elicited by the police. Unlike Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, and R. v. Manninen, supra, where the breach of the right to counsel resulted in self‑incriminatory statements, no such statements were elicited in this case. Admission of the narcotics themselves would not render the trial unfair.
The second set of factors focusing on the seriousness of the Charter breach would also not militate towards exclusion of the evidence. The denial of the right to counsel does not appear to have been part of a larger pattern of disregard for Charter rights. The police did not, as in R. v. Manninen, goad the accused into talking, nor did they hold him incommunicado for over six hours. The initial reason for the denial of counsel was the desire to stabilize an uncertain situation involving two unknown individuals, two restricted weapons, and an arrest for drug offences in a person's own home. Initially, this was a valid concern. The police erred in not allowing the accused to call a lawyer once the position was stable. The error seems to have been an isolated error of judgment, however, rather than a conscious determination to take advantage of the accused before allowing him to speak to counsel. The police seem to have assumed that they could finish the search before taking the accused to the station where he could telephone a lawyer. They were wrong to assume the routine search took priority over the accused's right to counsel, but the motive seems to have been convenience rather than a desire to trap the accused into talking.
Constable Bisceglia's earlier conduct over the search warrant is an important factor to consider in judging the overall situation. When faced with a sudden change in circumstances and the possibility that the suspect would leave town, he took the time to telephone the justice for permission to substitute the two people on the warrant. That is not the action of a police officer likely to ignore or shortchange Charter rights. It is the careful action of a police officer aware of the limitations on his authority who appreciated the need for prior permission for searches. While Constable Bisceglia erred later in his denial of counsel to the accused, that denial of counsel does not appear to have been part of a pattern of abuse of Charter rights.
The final group of factors relates to the effects of exclusion on the administration of justice. Routine exclusion of evidence necessary to substantiate charges may itself bring the administration of justice into disrepute. Any denial of a Charter right is serious, but s. 24(2) is not an automatic exclusionary rule. Not every breach of the right to counsel will result in the exclusion of evidence. In this case where the breach of the right to counsel was inadvertent and where there was no mistreatment of the accused, exclusion of the evidence rather than its admission would tend to bring the administration of justice into disrepute. I am therefore of the view that the evidence of the marijuana ought not to have been excluded at trial.
VIII
Conclusion
The search in this case did not breach the requirements of s. 10(2) of the Narcotic Control Act. It was not unreasonable under s. 8 of the Charter. There was a denial of the accused's right to counsel under s. 10(b) of the Charter, but the evidence should not be excluded under s. 24(2) as its admission would not bring the administration of justice into disrepute.
The appeal should be dismissed and the order of the Court of Appeal for a new trial should be upheld.
The following are the reasons delivered by
Lamer J.‑‑I concur in the reasons of the Chief Justice. Because of what I said in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, I should like to add brief comments to what the Chief Justice has said as regards when "evidence is obtained in a manner that infringed the Charter".
With the benefit of hindsight and the observations of the Chief Justice, I am now satisfied that the approach proposed by Le Dain J. in R. v. Therens is, from a practical point of view, the better one. The requirement for some "nexus", as I suggested, would be too difficult a test to apply.
The following are the reasons delivered by
Wilson J.‑‑I have had the benefit of reading the Chief Justice's reasons for judgment and although I am in agreement with his disposition of the appeal I differ in some of my reasoning.
With respect, I cannot accept the Chief Justice's conclusion that the appellant's right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms was not violated until after the appellant had been arrested, the weapons located, and the other two people in the dwelling‑house had left.
Section 10(b) of the Charter reads:
Every one has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right;
The right to retain and instruct counsel without delay is available "on arrest or detention". In this case the appellant was arrested once Constable Bisceglia entered the dwelling‑house to conduct the search. It was at that time that the appellant was read the standard police warning including the right to counsel guaranteed under the Charter. Not surprisingly, it was at that time that the appellant demonstrated his desire to exercise his constitutional right by picking up the telephone and stating that he was going to call his lawyer.
Although it is also understandable that the police, upon entry into the dwelling‑house with knowledge that restricted weapons were located on the premises, would desire, in their words, to get "matters under control", I do not think that this allows them to deny the appellant his constitutional right to retain and instruct counsel "without delay". This seems to me to be reading a qualification or limit into s. 10(b) which is simply not there. It is to read the phrase "without delay" as "without unreasonable delay". Section 1 of the Charter is the sole source of reasonable limits and they must be "prescribed by law", not imposed by the police in their discretion: see R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 621.
The danger in reading internal limits or qualifications into the plain language and clear purpose of s. 10(b) can be readily seen in this case. After the appellant was arrested and denied his right to contact his lawyer, Constable Bisceglia proceeded to question him about his use of drugs. This kind of questioning which involves an attempt to acquire incriminating evidence in the absence of counsel is, with respect, the very mischief that s. 10(b) was designed to prevent: see R. v. Therens, supra; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; and R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233.
It apparently took approximately forty minutes for the police to get matters under control. This may very well have been necessary given the particular circumstances of this case, but is this a norm that the courts are free to substitute for the constitutional standard of "without delay"? Surely not. I think that the implication of variable limits into s. 10(b) depending on an assessment of what may be required for the police to obtain control in any particular fact situation is a slippery slope which not only removes all certainty as to the citizen's rights under s. 10(b) but is completely inconsistent with its plain words and purpose. I agree with the Chief Justice that the appellant's right to counsel was violated but I believe that the violation occurred when, upon the appellant's arrest, he was denied the right to telephone his lawyer.
If I am right in this, what is the effect of the violation of the appellant's right to counsel on the search of the appellant's premises? I agree with the Chief Justice that the search warrant was validly issued. No question arises in this case as to whether the law authorizing the search is reasonable. It clearly is. As the Chief Justice concludes, the search warrant was authorized in advance of the search by an impartial official capable of acting judicially. That does not, however, in my view conclude the inquiry as to whether the requirements of s. 8 have been met.
As I discussed in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, and R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, I do not believe that a search which is conducted in face of a violation of the citizen's Charter rights can be a reasonable search under s. 8. There is nothing in the legislation authorizing the issuance of search warrants which expressly or by necessary implication or by the operating requirements of the legislation overrides the citizen's s. 10(b) rights: see R. v. Therens, supra. There is nothing in the circumstances of this case to suggest that there was an urgent reason for the police to proceed with their investigation and attempt to obtain evidence before according the appellant his right to communicate with his counsel: see R. v. Clarkson, supra, at p. 397; R. v. Manninen, supra, at p. 1242. Accordingly, the search which was proceeded with in violation of the appellant's s. 10(b) rights was unconstitutional.
As will be apparent from the above, it is my view that the appellant's right to counsel was violated from the time that, having been informed that he was under arrest and had the right to counsel, he was denied the use of the telephone to call his lawyer. As in R. v. Simmons, supra, and R. v. Jacoy, supra, this violation of the right to counsel made the search per se unconstitutional and, accordingly, unreasonable.
The constitutional right to retain and instruct counsel without delay is, without question, an extremely important right in the administration of criminal justice. It is not surprising that it is guaranteed to persons without qualification upon detention and arrest. To my mind a continuing denial of that constitutional right during an otherwise reasonable search must prima facie render the manner in which the search was conducted unreasonable. Given the constable's explanation as to why he denied the appellant access to the telephone, I cannot accept that the situation was one of such urgency so as to justify the continued denial of the right to counsel. Permitting the appellant to telephone his lawyer would not have interfered with the police officer's efforts to locate the restricted weapons and get "matters under control". This is not to say, however, that there may not be situations in which the police for their own safety have to act in the heat of the moment to subdue the suspect and may be excused for not pausing to advise the suspect of his rights and permit him to exercise them, but this is not one of those cases. It would be unfortunate indeed if the exception were to become the rule and one of the fundamental rights of the citizen was to be so easily gainsaid.
I agree with the Chief Justice for the reasons given by him that the admission of the evidence in this case would not bring the administration of justice into disrepute.
Appeal dismissed.
Solicitor for the appellant: David Roberts, Q.C., Vancouver.
Solicitor for the respondent: Frank Iacobucci, Ottawa.
^*^ Estey and Le Dain JJ. took no part in the judgment.
