R. v. Kelsy, 2011 ONCA 605
Exigent Circumstances
[24] Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety.
(1) Imminent risk of loss or destruction of evidence
[25] In my view, the premise underlying the exigent circumstances doctrine where there is an imminent risk of loss or destruction of evidence is that, if time permitted, the police could have obtained prior authorization, usually in the form of a search warrant. Ordinarily, this means that the police would have had reasonable grounds. Therefore, in this context, exigent circumstances do not justify a warrantless search for evidence or contraband on less than grounds for obtaining a warrant. Warrantless searches on less than reasonable grounds may be recognized in other circumstances where there is a lower expectation of privacy, such as border searches, but those circumstances did not apply here.
[26] The Supreme Court of Canada has dealt with exigent circumstances in a number of situations involving the imminent risk of loss or destruction of evidence. In R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, the court considered the constitutionality of s. 10 of the former Narcotic Control Act, which authorized a warrantless search of a place other than a dwelling house on the basis of reasonable grounds to believe that the place contained narcotics. The court held that s. 10 was valid only insofar as it authorized a search in exigent circumstances, which Sopinka J. defined in these terms at pp. 241-42:
This exception to the general rule which proscribes warrantless searches must be narrowly construed. In general, the test will only be satisfied where there exists an imminent danger of the loss, removal, destruction or disappearance of the evidence sought in a narcotics investigation if the search or seizure is delayed in order to obtain a warrant.
[27] The common law power to search for evidence in exigent circumstances has largely been codified since the enactment of the Charter. As the trial judge noted, s. 487.11 of the Criminal Code authorizes a warrantless search by a peace officer if the conditions for obtaining a warrant under s. 487(1) (the normal search warrant provision) or s. 492.1(1) (the tracking warrant provision) exist “but by reason of exigent circumstances it would be impracticable to obtain a warrant”. Similar provisions exist in s. 117.02 for search and seizure of weapons and in s. 11(7) of the Controlled Drugs and Substances Act.
[28] As the trial judge noted, while these provisions do not define exigent circumstances, s. 529.3(2) of the Criminal Code does contain a definition of exigent circumstances. Section 529.3 is part of a package of amendments enacted in the wake of the Supreme Court of Canada decision in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, where the court held that an arrest warrant did not authorize entry into a dwelling-house to effect the arrest. Section 529.1 provides for the issuing of a warrant to enter a dwelling-house to arrest or apprehend a person where the conditions set out in that section are met. Section 529.3 allows an officer to enter a dwelling-house without a warrant where the conditions for issuing the warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. The definition of exigent circumstances in s. 529.3(2) refers to (a) danger to people and (b) loss of evidence and provides as follows:
For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
[29] Section 529.3(2)(b), like s. 487.11, is premised on the existence of grounds to obtain a warrant. The urgency of the situation relieves against the necessity to obtain the warrant, not the necessity for the grounds to obtain the warrant. Cases since the enactment of the Charter that have considered exigent circumstances as a basis for searching for evidence or contraband appear to have assumed that grounds to obtain a warrant were required. See R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80 (C.A.), leave to appeal to S.C.C. refused, [1984] S.C.C.A. No. 107; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297; R. v. Feeney.
[30] A distinct line of cases has developed using the Waterfield test, which I will discuss below. However, it seems to me that at least when considering the loss or destruction of evidence, the exigent circumstances doctrine should be confined to cases where the officer had grounds to obtain the prior judicial authorization but could not do so because of the risk of imminent loss or destruction of the evidence. In my view, this conclusion is also consistent with this court’s decision in R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 29 O.R. (3d) 321, aff’d 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, a case concerning search of a motor vehicle. Speaking for the court at p. 339, Doherty J.A. held that in exigent circumstances, where it is not feasible to obtain a warrant, “a police officer may search a lawfully detained motor vehicle if the officer has reasonable and probable grounds to believe that the search will disclose evidence”. He went on to state that: “[t]his exception to the general warrant requirement must, however, be narrowly construed where the search is conducted as part of a criminal investigation”.
[31] I point out that the need for this common law power may have largely disappeared in light of the statutory amendments.
(2) Public and police safety
[32] The second set of exigent circumstances that appears to have been recognized is where there is a concern for the safety of the public or the police. The parameters of the power to search without warrant in such circumstances appear somewhat vague except where they have been codified as in s. 529.3(2)(a) and this common law power has largely been overtaken by the Waterfield doctrine. In any event, even in this context, something close to reasonable grounds appear to be a prerequisite to a valid search.
[33] Thus, in a somewhat different context where exigent circumstances were invoked, in R. v. Golden, 2001 SCC 83 (CanLII), [2001] 3 S.C.R. 679, the court required reasonable grounds as a precondition to a field strip search said to be required for officer safety. Iacobucci and Arbour JJ. wrote as follows, at para. 102:
Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported to the police station. Such exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station. Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee's bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances. [Emphasis added.]
[34] I should not be taken as having held that reasonable grounds are required in other circumstances where the exigent circumstances doctrine is invoked to justify a search for the purpose of protecting the public or police officers. It may be that a lesser standard, such as articulable cause or reasonable suspicion, as codified in s. 529.3(2)(a), will be appropriate in some circumstances. Thus, see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.) at p. 759.
(3) General comments re: exigent circumstances
[35] However, whether exigent circumstances are invoked to search for evidence or to protect the public or for officer safety, it is the nature of the exigent circumstances that makes some less intrusive investigatory procedure insufficient. By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only where necessary. Sopinka J. made that point in R. v. Feeney at para. 52:
According to James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances arise usually where immediate action is required for the safety of the police or to secure and protect evidence of a crime. With respect to safety concerns, in my view, it was not apparent that the safety of the police or the community was in such jeopardy that there were exigent circumstances in the present case. The situation was the same as in any case after a serious crime has been committed and the perpetrator has not been apprehended. In any event, even if they existed, safety concerns could not justify the warrantless entry into the trailer in the present case. A simple watch of the trailer in which the police were told the appellant was sleeping, not a warrantless entry, would have sufficiently addressed any safety concerns involving the appellant. [Emphasis added.]
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