R. v. Goldhart (W.) (1996), 198 N.R. 321 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty The Queen (appellant) v. William Goldhart (respondent)
(24835)
Indexed As: R. v. Goldhart (W.)
Supreme Court of Canada
Lamer, C.J.C., La Forest,
L’Heureux-Dubé, Sopinka,
Gonthier, Cory, McLachlin,
Iacobucci and Major, JJ.
July 4, 1996.
Summary:
The police obtained a search warrant following an unlawful perimeter search of a former schoolhouse. In executing the search, the police discovered a hydroponic marijuana garden. Goldhart, Slippoy and Mayer were charged with cultivation and possession of a narcotic. Goldhart pleaded not guilty and challenged the legality of the warrant. The trial court held that the search contravened s. 8 of the Charter and excluded the seized items under s. 24(2). Mayer, who had pleaded guilty and was awaiting sentencing, agreed to testify for the Crown. Goldhart submitted that Mayer’s testimony should be excluded because it too was a derivative of the unlawful search.
The Ontario Court (General Division) declined to exclude Mayer’s testimony under s. 24(2) and convicted Goldhart of cultivation and possession of marijuana contrary to ss. 4(2) and 6(1) of the Narcotic Control Act. Goldhart appealed his convictions.
The Ontario Court of Appeal, Brooke, J.A., dissenting, in a decision reported 83 O.A.C. 300, allowed the appeal, excluded Mayer’s testimony under s. 24(2) and acquitted Goldhart. The Crown appealed.
The Supreme Court of Canada, La Forest, J., dissenting, allowed the appeal and restored the convictions. The majority held that s. 24(2) had no application in that there was no temporal connection between Mayer’s viva voce evidence and the Charter breach and that any causal connection was too remote.
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – While conducting an unlawful perimeter search, the police detected a strong odour of marijuana – They obtained a search warrant and discovered a hydroponic marijuana garden – Goldhart, Slippoy and Mayer were charged with cultivation and possession of a narcotic – Goldhart pleaded not guilty and challenged the legality of the warrant – The trial court held that the search was unreasonable and excluded the seized items – However, Mayer (who had pleaded guilty and was awaiting sentencing) agreed to testify for the Crown – Goldhart submitted that Mayer’s testimony should be excluded because it too was a derivative of the unlawful search – The Ontario Court of Appeal, Brooke, J.A., dissenting, held that Mayer’s testimony should have been excluded and acquitted Goldhart – The Supreme Court of Canada, La Forest, J., dissenting, allowed an appeal and restored Goldhart’s convictions.
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – Evidence was seized under a search warrant – However, the trial court held that the search was unreasonable and contravened s. 8 of the Charter – The trial court excluded the evidence under s. 24(2) – Goldhart submitted that Mayer (another accused) should not be permitted to testify for the Crown because Mayer’s viva voce evidence also resulted from the Charter breach – The Supreme Court of Canada, La Forest, J., dissenting, held that Mayer’s testimony was admissible – The court stated that “[a]pplying the principles in Church of Scientology, supra, the trial judge concluded that s. 24(2) applied. With respect, the learned trial judge erred in concluding that the existence of a causal connection was sufficient to attract the provisions of s. 24(2). By focusing on causal connection the trial judge failed to examine the entire relationship between the evidence and the illegal search and seizure. In particular, he failed to consider whether there existed a temporal link. He failed to evaluate the strength of the connection between the impugned evidence and the breach. To the extent that the Church of Scientology decision supports this approach, it should not be followed” – See paragraph 42.
Criminal Law – Topic 4853
Appeals – Indictable offences – Grounds of appeal – Grounds raised for first time on appeal – While conducting an unlawful perimeter search, the police detected a strong odour of marijuana – They obtained a search warrant and discovered a hydroponic marijuana garden – Goldhart, Slippoy and Mayer were charged with cultivation and possession of a narcotic – A key was seized from Goldhart at the time of arrest – Goldhart pleaded not guilty and challenged the legality of the warrant – At trial, evidence regarding the key was admitted without objection – Goldhart appealed his convictions – It appeared that the Ontario Court of Appeal refused to consider the issue of the key’s admissibility – When the Crown appealed Goldhart’s subsequent acquittal, Goldhart sought to raise the admissibility of the key – The Supreme Court of Canada declined to consider the issue – See paragraph 30.
Narcotic Control – Topic 2065
Search and seizure – Warrantless searches – Perimeter search – [See first
Civil Rights – Topic 8368
].
Cases Noticed:
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, consd. [para. 11].
R. v. Church of Scientology of Toronto (No. 2) (1992), 74 C.C.C.(3d) 341 (Ont. Gen. Div.), not folld. [para. 16].
R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479; 67 C.R.(3d) 87; 56 D.L.R.(4th) 673; 37 C.R.R. 335; [1989] 1 W.W.R. 385, consd. [paras. 24, 49].
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. [paras. 26, 65].
R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, consd. [paras. 33, 49].
Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 36].
R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 37].
British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, refd to. [para. 37].
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, refd to. [para. 37].
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. 39].
R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 39].
R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 39].
United States v. Ceccolini (1978), 435 U.S. 268, consd. [paras. 44, 64].
R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 49].
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, consd. [para. 64].
Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, refd to. [para. 64].
R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 64].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2) [para. 15].
Counsel:
Scott K. Fenton, for the appellant;
Timothy E. Breen, for the respondent.
Solicitors of Record:
Department of Justice, Toronto, Ontario, for the appellant;
Rosen, Fleming, Toronto, Ontario, for the respondent.
This appeal was heard on March 27, 1996, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On July 4, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
Sopinka, J. (Lamer, C.J.C., L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., concurring) – see paragraphs 1 to 47;
La Forest, J., dissenting – see paragraphs 48 to 68.
