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Criminal - Warrantless Searches. R. v. Campbell [exigent circumstances]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
The court considers when a warrantless search may be justified for 'exigent circumstances', here under the Controlled Drugs and Substances Act (CDSA):(a) Legal Principles
(i) Section 11(7) of the CDSA
[111] Section 11(1) of the CDSA authorizes a justice to issue a warrant to search a place for a controlled substance and to seize it. By exception, s. 11(7) authorizes a peace officer to search the place without a warrant, if the conditions for a warrant exist but “exigent circumstances” make it “impracticable” to obtain one. Section 11(1) and (7) provides:11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that
(a) a controlled substance or precursor in respect of which this Act has been contravened,
(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code
is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
....
(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. (ii) Two Requirements Under Section 11(7)
[112] In Paterson, Brown J. interpreted s. 11(7) as having two requirements. First, it must be shown that there were “exigent circumstances”, which “denot[e] not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety” (para. 33 (emphasis in original)). Second, it must be shown that the conditions for obtaining a warrant existed, but that exigent circumstances “render[ed] it ‘impracticable’ to obtain a warrant”, meaning that it was “impossible in practice or unmanageable to obtain a warrant” (paras. 34 and 36; see also para. 28). Thus, the “exigent circumstances must be shown to cause impracticability” (para. 34). Justice Brown summarized the two requirements of s. 11(7) as follows:... for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives. [para. 37] (iii) The Evidentiary Threshold: Reasonable and Probable Grounds
[113] As urged by the Crown and the intervener Criminal Lawyers’ Association (Ontario), the police must have reasonable and probable grounds, rather than merely reasonable suspicion, for the claimed exigency under s. 11(7). The higher standard of reasonable and probable grounds helps ensure that the police are not relieved too readily of the obligation to obtain a warrant, given the privacy and liberty interests engaged when weighed against the needs of law enforcement (see R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at pp. 240-43; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 31 and 41; Tse, at para. 33; Fearon, at paras. 69-73; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 43).
[114] The standard of reasonable and probable grounds requires the Crown to establish the reasonable probability of the claimed exigency, based on the experience and expertise of the police and the relevant facts before them; it does not require the Crown to establish the exigency on the balance of probabilities (see R. v. Beaver, 2022 SCC 54, at para. 72, discussing the standard of reasonable and probable grounds for a warrantless arrest). The Crown must show that the officers’ reasonable belief in the exigency was “objectively grounded in the circumstances of the case” (R. v. Pawar, 2020 BCCA 251, 393 C.C.C. (3d) 408, at para. 73; see also para. 79; Beaver, at para. 72; Hobeika, at para. 45). The subjective views of the police must have been objectively reasonable (Beaver, at para. 72; R. v. McCormack, 2000 BCCA 57, 133 B.C.A.C. 44, at para. 25). A vague, speculative, or general concern that delaying a search to obtain a warrant would risk the loss of evidence does not meet the exigency threshold (Pawar, at para. 72).
(iv) The Standard of Appellate Review
[115] A trial judge’s assessment of the evidence and findings of fact in applying s. 11(7) attract “substantial deference” on appeal (see R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 25; Hobeika, at para. 45). But whether the facts as found by the trial judge meet the legal standard for exigency under s. 11(7) is a question of law reviewable for correctness (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para. 26; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 60). As this Court has emphasized, “[w]hether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed ‘through the “lens of hindsight”’” (Cornell, at para. 23, quoting Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45). Courts should not second‑guess reasonable operational decisions taken by the police (Hobeika, at para. 52, citing Cornell, at paras. 24 and 36).
....
[125] Finally, I accept that the police cannot devise an investigative strategy to create circumstances of exigency in order to proceed without a warrant. In some cases, “[i]f the police strategy creates the supposed urgency, the circumstances are not ‘exigent’, but are anticipated, if not planned for, by the police” (Hobeika, at para. 49, per Doherty J.A., citing R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at paras. 49-53 and 84-86, per La Forest J., dissenting, and R. v. Phoummasak, 2016 ONCA 46, 350 C.R.R. (2d) 370, at paras. 15-18). In this case, however, after Dew’s first four text messages, the police “were faced with an active, unfolding crime” (R. v. Webster, 2015 BCCA 286, 374 B.C.A.C. 129, at para. 90; see also R. v. Hunter, 2015 BCCA 428, 378 B.C.A.C. 165, at para. 30). As a result, the police responded to, but did not create, the situation of exigency. . R. v. Campbell
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the court considers warrantless search law:B. Was the Search Unreasonable?
[80] The next issue is whether the warrantless search conducted by the police was “unreasonable” and therefore contrary to s. 8 of the Charter.
[81] A warrantless search is presumptively unreasonable, shifting the burden of persuasion to the Crown to establish, on a balance of probabilities, that the search was reasonable (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278). A search is reasonable under s. 8 if it is authorized by a reasonable law and conducted in a reasonable manner (p. 278; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 10). . R. v. Guerrier
In R. v. Guerrier (Ont CA, 2024) the Ontario Court of Appeal comments on warrantless searches:[9] The police conducted a warrantless search of the appellant’s vehicle. A warrantless search is prima facie unreasonable, and the Crown is therefore required to establish on a balance of probabilities that: (1) the search was authorized by law, (2) the law authorizing the search is reasonable, and (3) the manner in which the search was conducted was reasonable: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21. . R. v. Neill
In R. v. Neill (Ont CA, 2023) the Court of Appeal considered 'exigent circumstances' as the basis for a warrantless search:[4] The appellant argues that the application judge erred in finding that exigent circumstances existed to seize the Blackberry without a warrant and in rejecting the appellant’s contention that the police “created” exigent circumstances in the sense which concerned this court in R. v. Phoummasak, 2016 ONCA 46, 346 OAC 9, at para. 14. We disagree. We agree with the application judge that this was not a situation in which it can be said that the police had grounds to obtain a search warrant, and chose not to obtain one, but instead chose to pursue other investigative steps for the purpose of creating exigent circumstances.
[5] The application judge made factual findings that amply supported his conclusion that there were exigent circumstances that authorized the warrantless seizure of the Blackberry, pursuant to s. 487.11 of the Criminal Code. ...
[6] The application judge correctly turned his mind to the legal test for a warrantless search based on exigent circumstances, referring to R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 27, and Phoummasak, at para. 12 (see also the subsequent decision of this court in R. v. Hobeika, 2020 ONCA 750, 153 OR (3d) 350, at para. 34-36, 42-43 and 54-55).
[7] The appellant does not contest that the officers had reasonable and probable grounds to seize the Blackberry, but argues that the application judge erred in finding that exigent circumstances existed. We disagree. The findings made by the application judge were open to him based on the record which was before him. This court has recognized that substantial deference must be paid to a trial judge’s findings about whether there was an imminent risk that evidence could be destroyed: Hobeika, at para. 45. In light of the application judge’s factual findings, we see no error in his conclusion that exigent circumstances existed to justify the warrantless seizure of the Blackberry, pursuant to s. 487.11 of the Criminal Code, or with his finding that this case did not involve a situation where police created exigent circumstances.
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