R. v. Evans (C.R.) (1996), 69 B.C.A.C. 81 (SCC);
113 W.A.C. 81
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Cheryl Rae Evans and Robert Arthur Evans (appellants) v. Her Majesty The Queen (respondent)
(24359)
Indexed As: R. v. Evans (C.R.) et al.
Supreme Court of Canada
La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ.
January 25, 1996.
Summary:
The accused were convicted of possession of marijuana for the purpose of trafficking. The accused appealed, claiming an unreasonable search and seizure contrary to s. 8 of the Charter.
The British Columbia Court of Appeal, Rowles, J.A., dissenting in part, in a judgment reported 49 B.C.A.C. 264; 80 W.A.C. 264, dismissed the appeal. There was an unreasonable search and seizure under s. 8 of the Charter, but the evidence obtained was not to be excluded under s. 24(2). The accused appealed.
The Supreme Court of Canada dismissed the appeal. Sopinka, Cory, Iacobucci and La Forest, JJ., agreed that there was a violation of s. 8, but that the evidence was admissible. Major, Gonthier and L’Heureux-Dubé, JJ., concluded that there was no violation of s. 8, because the police conduct did not constitute a “search”.
Civil Rights – Topic 1508
Property – Expectation of privacy – The Supreme Court of Canada stated that the public (including police) had an implied licence to approach the door of a residence and knock to facilitate communication – The invitation to knock waived any privacy interest – However, “where the police … 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” – Police lacked sufficient grounds to obtain a search warrant, but suspected a homeowner of growing marijuana in the residence – They approached and knocked with the intention not only to communicate, but also to “sniff” for marijuana when the door opened – The court held that the police acted outside the bounds of the invitation to knock and were engaged in a search – See paragraphs 1 to 25.
Civil Rights – Topic 1642
Property – Search and seizure – Search – What constitutes – [See
Civil Rights – Topic 1508
].
Civil Rights – Topic 1646
Property – Search and seizure – Unreasonable search and seizure defined – Police suspected the accused of growing marijuana in their residence, but lacked sufficient grounds to obtain a search warrant – They approached the residence and knocked on the door, with an intention to “sniff” for marijuana when the door was opened – They smelled marijuana, arrested the accused and used this information to obtain a search warrant – The Supreme Court of Canada held that the sniffing was a “search” and was unreasonable contrary to s. 8 of the Charter – However, the court affirmed the accuseds’ convictions for possession for the purpose of trafficking, because the evidence obtained was not to be excluded under s. 24(2) of the Charter where its admission would not bring the administration of justice into disrepute.
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – [See
Civil Rights – Topic 1646
].
Narcotic Control – Topic 2068
Search and seizure – Warrantless searches – “Knock on” technique – [See
Civil Rights – Topic 1508
].
Cases Noticed:
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 4].
R. v. Tricker (R.) (1995), 77 O.A.C. 1; 21 O.R.(3d) 575 (C.A.), refd to. [para. 6].
R. v. Bushman (1968), 4 C.R.N.S. 13 (B.C.C.A.), refd to. [para. 8].
R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322; 53 C.C.C.(3d) 1; 65 D.L.R.(4th) 240; 74 C.R.(3d) 281; 45 C.R.R. 278, refd to. [para. 11].
R. v. Wiggins, [1990] 1 S.C.R. 62; 103 N.R. 118, refd to. [para. 11].
R. v. Campbell (S.) (1993), 36 B.C.A.C. 204; 58 W.A.C. 204 (C.A.), refd to. [para. 12].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 16].
R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207; 1 C.R.(4th) 62; [1991] 1 W.W.R. 193; 51 B.C.L.R.(2d) 157; 50 C.R.R. 285, refd to. [para. 19].
R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 19].
R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [para. 21].
R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385, refd to. [para. 22].
R. v. Colet, [1981] 1 S.C.R. 2; 35 N.R. 227; 57 C.C.C.(2d) 105, refd to. [para. 28].
R. v. Landry, [1986] 1 S.C.R. 145; 65 N.R. 161; 14 O.A.C. 241, refd to. [para. 29].
Robson v. Hallett, [1967] 2 All E.R. 407 (D.C.), refd to. [para. 37].
R. v. Johnson (B.B.) (1994), 45 B.C.A.C. 102; 72 W.A.C. 102 (C.A.), refd to. [para. 38].
R. v. Sandhu (K.S.) (1993), 28 B.C.A.C. 203; 47 W.A.C. 203; 82 C.C.C.(3d) 236 (C.A.), refd to. [para. 42].
R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250; 60 C.C.C.(3d) 460, refd to. [para. 49].
Statutes Noticed:
Canadian Charter of Rights and Freedom, 1982, sect. 8 [para. 41].
Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 10, sect. 12 [para. 17].
Authors and Works Noticed:
Gellhorn, Walter, Individual Freedom and Governmental Restraint (1956), p. 40 [para. 29].
LaFave, W.R., Search and Seizure: A Treatise on the Fourth Amendment (2nd Ed. 1987) (1995 Supp.), vol. 1, p. 320 [para. 48].
Oxford English Dictionary (2nd Ed. 1989), vol. 14 [para. 45].
Counsel:
G.D. McKinnon, Q.C., for the appellants;
S. David Frankel, Q.C., for the respondent.
Solicitors of Record:
G.D. McKinnon, Q.C., Vancouver, British Columbia, for the appellants;
George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
This appeal was heard on May 4, 1995, before La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On January 25, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
Sopinka, J. (Cory and Iacobucci, JJ., concurring) – see paragraphs 1 to 25;
La Forest, J. – see paragraphs 26 to 29;
Major, J. (Gonthier, J., concurring) – see paragraphs 30 to 55;
L’Heureux-Dubé, J. – see paragraphs 56 to 58.
