R. v. Plant (R.S.)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: Gonthier, Cory, McLachlin and Iacobucci, JJ.
• Citation: (1993), 157 N.R. 321 (SCC),JE 93-1673,24 CR (4th) 47,17 CRR (2d) 297,[1993] 8 WWR 287,84 CCC (3d) 203,[1993] ACS no 97,12 Alta LR (3d) 305,[1993] 3 SCR 281,55 WAC 104,[1993] CarswellAlta 94,145 AR 104,1993 CanLII 70 (SCC),49 LCR 276,157 NR 321,[1993] SCJ No 97 (QL),20 WCB (2d) 591
• Date: 30 September 1993

R. v. Plant (R.S.) (1993), 157 N.R. 321 (SCC)

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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Robert Scott Plant (appellant) v. Her Majesty The Queen (respondent)

(22606)

Indexed As: R. v. Plant (R.S.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, Sopinka,

Gonthier, Cory, McLachlin

and Iacobucci, JJ.

September 30, 1993.

Summary:

Police received a tip from an anonymous informant that marijuana was being grown in a certain house. Police located the house, noted its civic address and conducted a warrantless perimeter search. They then did a computer search of the city's utility main­frame and discovered the accused's residence used four times the average amount of elec­tricity. Increased electricity use was consist­ent with a hydroponic marijuana growing operation. Police then obtained a search warrant, conducted a reasonable search and discovered marijuana seedlings. The accused was convicted of unlawfully cultivating a narcotic contrary to s. 6(1) of the Narcotic Control Act. The accused appealed, claiming violation of his right to be secure against unreasonable search and seizure (Charter, s. 8).

The Alberta Court of Appeal, in a judg­ment reported 116 A.R. 1, dismissed the appeal. The court stated that the warrantless perimeter search under s. 10 of the Narcotic Control Act was lawful, the computer search of utility bills did not violate s. 8 of the Charter, the search warrant was valid and the evidence obtained was, accordingly, admis­sible. Alternatively, if there was a violation of s. 8 of the Charter, the court stated that the evidence obtained would not be excluded under s. 24(2) of the Charter. The accused appealed.

The Supreme Court of Canada dismissed the appeal. The court held that the warrantless perimeter search violated s. 8 of the Charter and that evidence was not to be considered in determining whether there were reasonable and probable grounds to issue a search warrant. The search of the computerized utility records did not violate s. 8, accordingly, the informant's tip and the electricity usage constituted reasonable and probable grounds to issue a search warrant. The court stated that the evidence obtained following the perimeter search in violation of s. 8 would not be excluded under s. 24(2) of the Charter.

Civil Rights - Topic 1508

Property - Expectation of privacy - Com­puterized utility records - Police searched the city's computerized electricity billings and discovered the accused's residence used four times the norm, which was consistent with a hydroponic marijuana growing operation - The accused claimed a viol­ation of his s. 8 Charter rights - The Supreme Court of Canada stated that s. 8 protected the search and seizure of com­mercial records only where the information was "personal and confidential", which included information revealing intimate details of a person's lifestyle and personal choices - The court stated that electrical consumption was not "personal and confi­dential" and the relationship between the accused and the Calgary Utilities Commis­sion was not one of confidence - The accused had no reasonable expectation of privacy with respect to computerized elec­tricity records - Additionally, the serious­ness of the offence militated in favour of concluding that the law enforcement re­quirements outweighed the accused's pri­vacy interest - See paragraphs 15 to 24.

Civil Rights - Topic 1555

Property - Personal property - Search of private lands and buildings - [See Civil Rights - Topic 1654 ].

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See Criminal Law - Topic 3097 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - [See Criminal Law - Topic 3097 ].

Civil Rights - Topic 1654

Property - Search and seizure - Warrantless search and seizure - Perimeter search - Section 10 of the Narcotic Con­trol Act provided that police may conduct a warrantless search of any place other than a dwelling house - The Supreme Court of Canada stated that s. 10 "had to be read down to apply only to situations involving exigent circumstances which rendered obtaining prior judicial authori­zation impracticable" - The court stated that absent proof of such exigent circum­stan­ces, a warrantless perimeter search consti­tuted an unreasonable search and seizure under s. 8 of the Charter - See paragraph 14.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police received an anony­mous tip that marijuana was being grown in a certain house - Police located the house and conducted a warrantless per­imeter search under s. 10 of the Narcotic Control Act - The Supreme Court of Canada held that the perimeter search violated s. 8 of the Charter - However, the evidence obtained should not be excluded under s. 24(2) of the Charter - The evi­dence obtained was real evidence, which did not depend on the Charter violation for its discovery - The police acted in good faith and relied on the prevailing law at the time that warrantless perimeter searches were valid - The court stated that exclusion of the evidence would have a greater negative effect on the repute of justice than would its admission - See paragraphs 32 to 36.

Criminal Law - Topic 3097

Search warrants - Issue of - Contents of information for issue of - Police received a tip from an anonymous informant that marijuana was grown at a certain location - Police located the house, noted its address, conducted a warrantless perimeter search and did a computer search of the accused's electricity records - Police obtained a search warrant, mistakenly informing the issuing judge that the in­formant identified the house by its civic address - The Supreme Court of Canada stated that the perimeter search violated s. 8 of the Charter - The court stated that, excluding the information obtained from the perimeter search and considering the mistaken attribution of the civic address to the informant, the balance of the inform­ant's information and the computerized electricity records provided reasonable grounds to issue a search warrant - Ac­cordingly, the search warrant was valid and, absent objection as to the reasonable­ness of the search itself, there was no violation of s. 8 of the Charter - See paragraphs 25 to 31.

Narcotic Control - Topic 2065

Search and seizure - Warrantless searches - Perimeter search - [See Civil Rights - Topic 1654 ].

Cases Noticed:

R. v. Wiley (R.W.) (1993), 158 N.R. 321 (S.C.C.), appld. [para. 1].

R. v. Grant (D.) (1993), 159 N.R. 161 (S.C.C.), appld. [para. 1].

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, dist. [para. 10].

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. 15].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 10 M.V.R.(2d) 1; 66 C.R.(3d) 348; 55 D.L.R.(4th) 503, refd to. [para. 15].

Katz v. United States (1967), 389 U.S. 347 (C.A.), refd to. [para. 15].

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; 71 O.R.(2d) 575; 74 C.R.(3d) 281; 45 C.R.R. 278, refd to. [para. 16].

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. 16].

United States v. Miller (1976), 425 U.S. 435, refd to. [para. 19].

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. [paras. 21, 42].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129; 45 C.R.R. 49, refd to. [para. 27].

R. v. Donaldson (1990), 58 C.C.C.(3d) 294 (B.C.C.A.), refd to. [para. 29].

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. 33].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24 [para. 12].

Criminal Code, R.S.C. 1985, c. C-46, sect. 489 [para. 11].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 4(2), sect. 6(1) [para. 2]; sect. 10, sect. 12 [para. 12].

Counsel:

Terry Sturgeon, for the appellant;

M. David Gates and Ronald C. Reimer, for the respondent.

Solicitors of Record:

Lord, Russell, Calgary, Alberta, for the appellant;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on November 5, 1992, before Lamer, C.J.C., La Forest, So­pinka, Gonthier, Cory, McLachlin and Iaco­bucci, JJ., of the Supreme Court of Canada.

The judgment of the court was delivered in both official languages on September 30, 1993, and the following opinions were filed:

Sopinka, J. (Lamer, C.J.C., La Forest, Gonthier, Cory and Iacobucci, JJ., concurring) - see paragraphs 1 to 37;

McLachlin, J. - see paragraphs 38 to 46.