R. v. Sieben

Lamer J.‑‑Police officers searched the appellant's apartment under the authority of a writ of assistance issued to one of them under s. 10(3) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, as amended, as it stood prior to the amendments of December 1985. As a result of the search, the police officers found and seized small amounts of cannabis resin and cocaine, sixteen plastic sacs containinig cannabis, a set of scales, and $13,750 in cash. The appellant was charged with possession of cannabis resin and cocaine and possession of cannabis for the purpose of trafficking. At the trial, she sought to have the evidence of what was found in her apartment excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms , arguing that the search was unreasonable and as such in violation of her rights under ss. 7 and 8 of the Charter and that the use of the evidence in the proceedings would bring the administration of justice into disrepute.

Searches under the Narcotic Control Act are governed by s. 10 of the Act, which provided in part at the relevant time:

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.

The search of a dwelling‑house is thus authorized only where 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 argued that the search here was unreasonable because writs of assistance are unconstitutional as offending ss. 7 and 8 of the Charter , and the police officers did not have a search warrant. The unreasonableness of the search for those reasons alone was the only ground urged upon the trial judge for the exclusion of the evidence. The manner in which the search was carried out, which may be relevant to the unreasonableness of a search and to the decision whether to exclude evidence, was not invoked by the appellant. This is understandable because nothing in the evidence reveals any improper conduct on the part of the police officers.

The trial judge dismissed the application, the evidence was admitted and the appellant was convicted. Her appeal was dismissed, as will, for reasons briefly set out herewith, her appeal to this Court.

McIntyre J. in this Court stated the following constitutional question:

Are the provisions of s. 10(1)(a) and s. 10(3) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, in so far as they authorize the entry and search of a dwelling‑house under the authority of a writ of assistance, inconsistent with the provisions of ss. 7 and 8 of the Constitution Act, 1982 , and thereby inoperative or of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982 ?

It is not, strictly speaking, necessary to answer this question because s. 10(3) and the reference in s. 10(1)(a) to writs of assistance have been repealed (S.C. 1985, c. 19, s. 200). However, for the purposes of this appeal, it is necessary to decide whether the search was reasonable. 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 we should thus assume for the purposes of this appeal that writs of assistance are constitutionally inadequate. As a result, because the officers did not have a search warrant, we must also assume that the search was unreasonable.

The sole issue then is whether the admission of the evidence would bring the administration of justice into disrepute. In deciding this issue, I rely upon the principles, rules, and remarks in my judgment rendered this same day in R. v. Collins, [1987] 1 S.C.R. 265. It is obvious to me that the use of this evidence in the proceedings would in no way cause the trial to be unfair. The appellant seeks the exclusion of the evidence on the ground that the police officers carried out the search under a writ of assistance when a search warrant was necessary. This breach is made more serious by the fact that the search took place in a dwelling‑house. However, I do not consider the breach to be sufficiently serious that the admission of the evidence would bring the administration of justice into disrepute. The trial judge held that one of the police officers had reasonable grounds to enter and search the premises, thus satisfying an obviously desirable requirement of the statute. The only reason that they did not obtain a search warrant is that they believed in good faith that a writ of assistance was sufficient. At that time, the statute authorizing a search under a writ of assistance had not been declared to be inconsistent with the Charter . Finally, there was no suggestion that the police officers had carried out the search in an unreasonable manner.

Under these circumstances and for the reasons given in R. v. Collins, supra, this appeal fails.

The following are the reasons delivered by

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