R. v. Harrison

R. v. Harrison
Collection
Supreme Court Judgments
Date
2009-07-17
Neutral citation
2009 SCC 34
Report
[2009] 2 SCR 494
Case number
32487
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 32487
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494
Date: 20090717
Docket: 32487
Between:
Bradley Harrison
Appellant
and
Her Majesty The Queen
Respondent
‑ and ‑
Attorney General of Ontario, Canadian Civil Liberties Association and
Criminal Lawyers’ Association (Ontario)
Interveners
Official English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 43)
Dissenting Reasons:
(paras. 44 to 74)
McLachlin C.J. (Binnie, LeBel, Fish, Abella and Charron JJ. concurring)
Deschamps J.
______________________________
R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494
Bradley Harrison Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Canadian Civil Liberties Association and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Harrison
Neutral citation: 2009 SCC 34.
File No.: 32487.
2008: December 9; 2009: July 17.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Enforcement — Exclusion of evidence — Police officer stopping and searching accused’s rental vehicle — Cocaine found and accused charged with trafficking — Trial judge finding breaches of accused’s constitutional rights against arbitrary detention and unreasonable search and seizure, but concluding that evidence should not be excluded — Accused convicted — Whether admission of evidence bringing administration of justice into disrepute — Revised framework for determining whether evidence obtained in breach of constitutional rights must be excluded — Canadian Charter of Rights and Freedoms, s. 24(2) .
The accused and his friend were driving a rented sports utility vehicle from Vancouver to Toronto. In Ontario, a police officer on highway patrol noticed that the vehicle had no front licence plate. Only after activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front licence plate. The officer was informed by radio dispatch that the vehicle had been rented at the Vancouver airport. Even though he had no grounds to believe that any offence was being committed, the officer testified at trial that abandoning the detention might have affected the integrity of the police in the eyes of observers. The officer’s suspicions seem to have been aroused from the beginning of this encounter. He arrested the accused after discovering that his driver’s licence had been suspended. The officer then proceeded to search the vehicle. He found two cardboard boxes containing 35 kg of cocaine. On a voir dire, the trial judge held that the initial detention of the accused was premised on a mere hunch or suspicion rather than reasonable grounds and therefore constituted an arbitrary detention, contrary to s. 9 of the Canadian Charter of Rights and Freedoms . He further held that the warrantless search of the vehicle was unreasonable within the meaning of s. 8 of the Charter . In the analysis pursuant to s. 24(2) of the Charter , the trial judge found that the violations were serious and that the officer’s explanations for stopping the vehicle defied credibility. However, in view of the seriousness of the offence charged and the importance of the evidence to the Crown’s case, he admitted the cocaine into evidence on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission. The accused was convicted of trafficking. The Court of Appeal, in a majority decision, upheld the trial judge’s decision to admit the evidence and affirmed the accused’s conviction.
Held (Deschamps J. dissenting): The appeal should be allowed and an acquittal entered.
Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: The Charter breaches in this case are clear, the sole issue being whether the cocaine was properly admitted into evidence. Based on the revised framework set out in Grant, the three lines of inquiry relevant to determining whether the admission of the evidence would bring the administration of justice into disrepute are: (1) the seriousness of the Charter ‑infringing state conduct; (2) the impact of the breach on the Charter ‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. When the framework is applied to the facts of this case, the balancing of the factors favours exclusion of the evidence. The conduct of the police that led to the Charter breaches represented a blatant disregard for Charter rights, further aggravated by the officer’s misleading testimony at trial. The deprivation of liberty and privacy represented by the unconstitutional detention and search was a significant, although not egregious, intrusion on the accused’s Charter ‑protected interests. On the other hand, the drugs seized constituted highly reliable evidence tendered on a very serious charge. However, the seriousness of the offence and the reliability of the evidence, while important, do not in this case outweigh the factors pointing to exclusion. To appear to condone wilful and flagrant Charter breaches amounting to a significant incursion on the accused’s rights does not enhance, but rather undermines, the long‑term repute of the administration of justice. The trial judge’s reasoning transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence. He placed undue emphasis on the third line of inquiry while neglecting the importance of the other two, particularly the need to dissociate the justice system from flagrant breaches of Charter rights. Because the evidence in question was essential to the Crown’s case, the accused should be acquitted. The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. Police officers are expected to adhere to higher standards than alleged criminals. [1-2] [20-21] [27] [32-34] [37-39] [41-43]
Per Deschamps J. (dissenting): To determine whether the repute of the administration of justice will be better protected by admitting or excluding evidence, it is necessary to analyse, on the one hand, the societal interest in protecting constitutional rights and, on the other hand, the societal interest in an adjudication on the merits. These two branches are sufficient to encompass all the circumstances relevant to the analysis required by s. 24(2) . [50]
At the first stage of the analysis, the impact of the violation on the Charter ‑protected interests must be assessed. Regarding the deprivation of liberty, the accused was stopped in a vehicle on a highway, and not in a private place. The officer was not aggressive and did not impair the dignity of the accused or of his passenger, and the detention was brief. Even though the officer had no reasonable suspicion that justified stopping the vehicle, the continuation of the detention and the search took place only after the officer’s suspicion had been aroused by signs he knew, because of his training, to correspond to practices of drug traffickers. Regarding the expectation of privacy, the search was conducted in a vehicle rented by a third party that was travelling on a public highway, and the accused said that neither the boxes in the vehicle nor their contents were his. Furthermore, the officer did not plan the unjustified stop, nor was he motivated by malice or bad faith. Thus, it is clear from the objective facts and the circumstances of this case that the violation of the rights of the accused did not have a serious impact on the Charter ‑protected interests. The trial judge’s rejection of the officer’s testimony is irrelevant to the protection against unreasonable search and seizure. The accused was not detained longer, nor were his rights infringed further during the stop and the search, because of this testimony. [49] [51] [58‑59] [61‑62] [64] [66]
In assessing the public interest in an adjudication on the merits, the most significant factors are the reliability of the evidence obtained in violation of the protected rights, the importance of that evidence and the seriousness of the offence with which the accused is charged. On the basis of these three factors, the public interest in an adjudication on the merits is situated practically at the highest point of the spectrum where importance is concerned. The evidence is highly reliable, and the trial could not have been conducted without it; furthermore, crimes involving “hard” drugs, and particularly those linked to trafficking, have systematically been found to be serious. [68‑69]
The analysis required by s. 24(2) cannot be limited to the fact that the officer lacked reasonable grounds for the detention and search. His conduct must be recognized for what it was: an error in judgment with which the court does not want to be associated. When the relevant interests are weighed against each other, the necessary conclusion is that this is a case in which the public interest in an adjudication on the merits is paramount. To exclude the evidence would have a negative effect on the confidence of an objective person, fully informed of all the circumstances, in the administration of justice. [72‑73]
Cases Cited
By McLachlin C.J.
Applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; referred to: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Puskas (1997), 120 C.C.C. (3d) 548; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14.
By Deschamps J. (dissenting)
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Kokesch, [1990] 3 S.C.R. 3.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 24(2) .
APPEAL from a judgment of the Ontario Court of Appeal (O’Connor A.C.J.O. and MacPherson and Cronk JJ.A.), 2008 ONCA 85, 89 O.R. (3d) 161, 55 C.R. (6th) 39, 231 C.C.C. (3d) 118, 233 O.A.C. 211, 167 C.R.R. (2d) 291, [2008] O.J. No. 427 (QL), 2008 CarswellOnt 591, upholding the accused’s conviction entered by Karam J., 2006 CarswellOnt 9525. Appeal allowed, Deschamps J. dissenting.
Marie Henein and Jordan Glick, for the appellant.
James C. Martin and Rick Visca, for the respondent.
Michal Fairburn and Tracy Stapleton, for the intervener the Attorney General of Ontario.
Jonathan Dawe, for the intervener the Canadian Civil Liberties Association.
Scott K. Fenton, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ. was delivered by
[1] The Chief Justice — The sole issue on this appeal is whether 35 kg of cocaine, discovered as a result of an unconstitutional detention and search, should have been admitted into evidence against the appellant at trial. The trial judge admitted the evidence and convicted the appellant of trafficking in cocaine. The Court of Appeal majority upheld the conviction, Cronk J.A. dissenting.
[2] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, released concurrently, we develop a revised framework for determining whether evidence obtained in breach of the Canadian Charter of Rights and Freedoms must be excluded under s. 24(2) . We identify three avenues of inquiry which should guide courts in the delicate balancing exercise mandated by that section: (1) the seriousness of the Charter ‑infringing state conduct; (2) the impact of the breach on the Charter ‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. This case illustrates the difficult choices that courts are forced to make when these factors pull strongly in opposite directions. Here, the high public interest in reaching a determination on the merits of the charge is in tension with the need to dissociate the justice system from patently unconstitutional conduct by state authorities in obtaining the evidence.
[3] Applying the framework in Grant to these facts, I am satisfied that the balance mandated by s. 24(2) favours exclusion of the evidence. It is true that the public interest in having the case adjudicated on its merits favours the admission of the evidence, particularly in light of its reliability. On the other hand, the impact on the accused’s rights, while not egregious, was significant. Bulking even larger, however, was the police misconduct involved in obtaining the evidence. This was far from a technical or trivial breach. Rather, it involved a “brazen and flagrant” disregard, to quote the trial judge, of the appellant’s Charter rights against arbitrary detention and unreasonable search and seizure. These are protections that law-abiding Canadians take for granted and courts must play a role in safeguarding them even where the beneficiaries are involved in unlawful activity. In the circumstances of this case, it is my view that the admission of the evidence would bring the administration of justice into disrepute. I conclude that the evidence should have been excluded pursuant to s. 24(2) of the Charter . I would therefore allow the appeal and enter an acquittal.
1. Facts
[4] On October 24, 2004, the appellant and his friend Sean Friesen were driving a Dodge Durango sports utility vehicle (“SUV”) near Kirkland Lake, Ontario. They had rented the vehicle at Vancouver International Airport two days earlier and were on their way from Vancouver to Toronto. Although they had been sharing driving duties, the appellant was at the wheel on this occasion.
[5] Cst. Bertoncello of the Ontario Provincial Police was on highway patrol when he saw the Durango approaching from the opposite direction, traveling at the speed limit of 90 km per hour with a line of eight or nine other vehicles directly behind it. Cst. Bertoncello noticed that the SUV had no front licence plate, which for a car registered in Ontario would constitute an offence. Only after turning around to follow the Durango and activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front licence plate. Cst. Bertoncello was informed by radio dispatch that the vehicle had been rented at the Vancouver airport. Even though he had no grounds to believe that any offence was being committed, the officer testified that he decided to pull the Durango over anyway because abandoning the detention may have affected the integrity of the police in the eyes of observers.
[6] Cst. Bertoncello’s suspicions seem to have been aroused from the beginning of this encounter. He observed that the car was littered with food and drink containers and had a “lived‑in look”, suggesting to him that the appellant and Friesen had been traveling straight through from Vancouver. He knew that rental cars are often used to courier drugs because of the risk that the car could be confiscated by the state if apprehended. Additionally, in the officer’s experience, it was rare for someone to be driving that stretch of highway at exactly the speed limit, as the appellant had been. Questioned separately, the appellant and Friesen gave stories that seemed to be contradictory.
[7] The appellant identified himself accurately and produced the vehicle’s registration, insurance, and rental agreement. He was, however, unable to find his driver’s licence, explaining that he might have left it in Vancouver. Cst. Bertoncello ran computer checks on both occupants of the SUV and learned that the appellant’s licence was under suspension. He therefore arrested the appellant for driving while suspended.
[8] With the appellant under arrest, Cst. Bertoncello asked him and Friesen whether there were any drugs or weapons in the vehicle. They both answered in the negative. Other officers soon arrived on the scene. Cst. Bertoncello proceeded to search the SUV “incident to arrest”, ostensibly for the appellant’s missing driver’s licence, even though its whereabouts was irrelevant to the charge of driving while suspended. He began his search in the rear cargo area, which contained (among other things) two cardboard boxes which were taped shut. When asked, Friesen claimed that the boxes contained dishes and books for his mother. However, according to Cst. Bertoncello, the look and feel of the boxes belied this explanation. When asked again whether there were any drugs or weapons in the box, Friesen looked very nervous and said “yeah”, then said he did not know.
[9] One of the boxes was opened and found to contain bricks of a white substance, which turned out to be cocaine. Friesen was arrested, and the appellant was held on the drug charge as well. In all, 35 kg of cocaine was discovered in the SUV.
[10] The appellant’s conviction or acquittal hinged primarily on the admissibility of the cocaine.
2. Judgments Below
(a) Ontario Superior Court of Justice
[11] On a voir dire, Karam J. held that the initial detention of the appellant was premised on a mere hunch or suspicion rather than reasonable grounds within the meaning of R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. It therefore constituted an arbitrary detention, contrary to s. 9 of the Charter . The trial judge further held that the warrantless search of the vehicle was not incident to the appellant’s arrest for driving while suspended because the officer was not “attempting to achieve some valid purpose connected to the arrest”, as required by R. v. Caslake, [1998] 1 S.C.R. 51, at para. 19, per Lamer C.J. The search was therefore without legal authorization, rendering it unreasonable within the meaning of s. 8 . With those Charter violations established, the question before the trial judge was whether the cocaine should be excluded from evidence under s. 24(2) .
[12] The trial judge conducted the s. 24(2) analysis according to the test laid out in R. v. Collins, [1987] 1 S.C.R. 265. Since the cocaine was not conscriptive (self-incriminatory) evidence, the analysis centered on the second and third Collins factors: the seriousness of the breach and the effect of exclusion. On the seriousness of the breach, the trial judge took a dim view of the officer’s conduct in stopping and searching the SUV. He found that the officer’s intention throughout the encounter “was to take whatever steps were necessary to determine whether his suspicions were correct”, notwithstanding the lack of any legal basis for the stop or search. This led the judge to conclude that the officer’s actions “can only be described as brazen and flagrant”. Moreover, the officer’s in-court explanations for stopping the vehicle were “contrived and defy credibility”. While this was not the most egregious set of circumstances conceivable — there was no violence used, for example — the Charter breaches were nonetheless “extremely serious”.
[13] On the effect of exclusion on the repute of the justice system, the trial judge considered the seriousness of the offence charged and the importance of the evidence to the Crown’s case. He noted that the charge was extremely serious (given the large quantity of cocaine involved) and that the Crown would have no case without the evidence. He adopted the following statement of Moldaver J.A. from R. v. Puskas (1997), 120 C.C.C. (3d) 548 (Ont. C.A.), at para. 25:
To exclude the evidence under these circumstances, where the guilt of the respondent for a serious offence is clearly established by real evidence and where the exclusion of the evidence would result in his acquittal, would, in my opinion, have a greater negative effect on the repute of justice than its admission.
In the trial judge’s view, these comments applied to the case before him. As brazen as the arresting officer’s actions were, according to the trial judge “they pale in comparison to the criminality involved in the possession for the purposes of distribution of 77 pounds of cocaine, if such is proven”. He therefore admitted the cocaine into evidence on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission.
[14] Friesen was acquitted mid-trial on the basis that the vehicle rental agreement in his name was hearsay and, as a result, the Crown could not prove possession. The appellant took the stand in his own defence and offered an explanation for the presence of the cocaine in the SUV that was, according to the trial judge, “so unlikely and incredible that I find that I must reject it entirely” (2006 CarswellOnt 9525, at para. 12). He therefore found the appellant to have been in possession of the cocaine and convicted him of the trafficking charge.
(b) Ontario Court of Appeal
[15] The Court of Appeal split on the application of s. 24(2) : 2008 ONCA 85, 89 O.R. (3d) 161. Writing jointly, O’Connor A.C.J.O. and MacPherson J.A. upheld the trial judge’s decision to admit the evidence.
[16] The majority acknowledged and endorsed the trial judge’s finding that the Charter breaches were serious, but pointed to other factors not articulated by the trial judge which mitigated the seriousness of the violations to some extent. Because the officer apparently did not have “a carefully thought out plan or practice to breach the Charter ”, in their view it would be misleading to describe the Charter violations as “deliberate” (para. 42). Rather, the relatively inexperienced officer made a serious mistake in the context of an evolving situation. This was the product of an individual officer’s flawed decision-making process, not a systemic or institutional pattern of abuse.
[17] The majority further stressed that the violations were not particularly serious from the perspective of the appellant: the detention was brief and not physically coercive and, most importantly, his expectation of privacy in the contents of the SUV was not great. As noted by the majority, courts have repeatedly held that the privacy interest in a vehicle and its contents is lower than in a person’s body, home, or office. Moreover, the appellant denied that the boxes containing the cocaine even belonged to him, further mitigating any violation of his privacy brought about by the search. All this suggested to the majority that the effects of the Charter breaches on the appellant were relatively minor.
[18] On the effects of exclusion, O’Connor A.C.J.O. and MacPherson J.A. acknowledged that the trial judge’s juxtaposition of the officer’s misconduct and the appellant’s apparent criminality was a “slight mischaracterization” of the balancing required by s. 24(2) but held that it did not rise to an error of law (para. 55). They emphasized that the mere presence of a serious Charter breach does not end the s. 24(2) analysis. In their view, the trial judge was entitled to deference on his conclusion that exclusion of the evidence would bring the administration of justice into greater disrepute than admission. Ultimately the majority concluded that this was a “close call” on which reasonable people could disagree, circumstances in which deference to the trial judge is especially necessary (para. 6). They dismissed the appeal.
[19] Cronk J.A. strongly dissented. In her view, the majority’s analysis effectively downplayed the trial judge’s factual findings on the seriousness of the Charter breaches. These breaches were “intentional violations of the appellant’s constitutional rights that undermine the integrity of the administration of justice” (para. 84). Cronk J.A. disputed the majority’s contention that the effect of the violations on the appellant was minor, pointing to the judge’s explicit finding that they were “extremely serious” (para. 79). While she emphasized that these findings on the seriousness of the breach were entitled to deference, she considered the trial judge’s ultimate conclusion to be tainted by legal error. In particular, the judge misapplied the third branch of Collins, setting up a false contest between the misconduct of the police and the alleged criminality of the accused. According to Cronk J.A., he failed to consider the crucial question: “whether condoning the constitutional misconduct by admitting evidence obtained in violation of important Charter rights would do more harm to the integrity of the justice system than would excluding evidence that is essential to the Crown’s case against an accused charged with a serious crime” (para. 144). In her view, it would. Accordingly, she would have allowed the appeal and entered an acquittal.
3. Analysis
[20] The Charter breaches in this case are clear. It is common ground that the appellant’s rights under ss. 8 and 9 of the Charter were violated by the detention and search, as found by the trial judge. Given that the officer recognized prior to the detention that the appellant’s SUV did not require a front licence plate, he should not have made the initial stop. A vague concern for the “integrity” of the police, even if genuine, was clearly an inadequate reason to follow through with the detention. The subsequent search of the SUV was not incidental to the appellant’s arrest for driving under a suspension and was likewise in breach of the Charter . While an officer’s “hunch” is a valuable investigative tool — indeed, here it proved highly accurate — it is no substitute for proper Charter standards when interfering with a suspect’s liberty.
[21] Breaches of the Charter established, the question is whether the evidence thereby obtained should be excluded under s. 24(2) of the Charter . The test set out in s. 24(2) is simply stated: would the admission of the evidence bring the administration of justice into disrepute? Grant identifies three lines of inquiry relevant to this determination. Once again, they are: (1) the seriousness of the Charter ‑infringing state conduct; (2) the impact of the breach on the Charter ‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. I will discuss each of these in turn.
(a) Seriousness of the Charter -Infringing State Conduct
[22] At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter -compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.
[23] The trial judge found that the police officer’s conduct in this case was “brazen”, “flagrant” and “extremely serious”. The metaphor of a spectrum used in R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights. . . . What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct. [Citation omitted; para. 41.]
[24] Here, it is clear that the trial judge considered the Charter breaches to be at the serious end of the spectrum. On the facts found by him, this conclusion was a reasonable one. The officer’s determination to turn up incriminating evidence blinded him to constitutional requirements of reasonable grounds. While the violations may not have been “deliberate”, in the sense of setting out to breach the Charter , they were reckless and showed an insufficient regard for Charter rights. Exacerbating the situation, the departure from Charter standards was major in degree, since reasonable grounds for the initial stop were entirely non-existent.
[25] As pointed out by the majority of the Court of Appeal, there was no evidence of systemic or institutional abuse. However, while evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion, the absence of such a problem is hardly a mitigating factor.
[26] I note that the trial judge found the officer’s in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, “the integrity of the judicial system and the truth‑seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter . Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority” (para. 160).
[27] In sum, the conduct of the police that led to the Charter breaches in this case represented a blatant disregard for Charter rights. This disregard for Charter rights was aggravated by the officer’s misleading testimony at trial. The police conduct was serious, and not lightly to be condoned.
(b) Impact on the Charter ‑Protected Interests of the Accused
[28] This factor looks at the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact? These are among the questions that fall for consideration in this inquiry.
[29] In this case, the detention and the search had an impact on the appellant’s liberty and privacy interests. The question is how that impact should be characterized.
[30] The majority of the Court of Appeal emphasized the relatively brief duration of the detention and the appellant’s low expectation of privacy in the SUV, and concluded that the effect of the breach on the appellant was relatively minor. It is true that motorists have a lower expectation of privacy in their vehicles than they do in their homes. As participants in a highly regulated activity, they know that they may be stopped for reasons pertaining to highway safety — as in a drinking-and-driving roadblock, for instance. Had it not turned up incriminating evidence, the detention would have been brief. In these respects, the intrusion on liberty and privacy represented by the detention is less severe than it would be in the case of a pedestrian. Further, nothing in the encounter was demeaning to the dignity of the appellant.
[31] This said, being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial. As Iacobucci J. observed in Mann, the relatively non-intrusive nature of the detention and search “must be weighed against the absence of any reasonable basis for justification” (para. 56 (emphasis in original)). A person in the appellant’s position has every expectation of being left alone — subject, as already noted, to valid highway traffic stops.
[32] I conclude that the deprivation of liberty and privacy represented by the unconstitutional detention and search was therefore a significant, although not egregious, intrusion on the appellant’s Charter -protected interests.
(c) Society’s Interest in an Adjudication on the Merits
[33] At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.
[34] The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.
(d) Balancing the Factors
[35] I begin by summarizing my findings on the three factors in Grant. The police conduct in stopping and searching the appellant’s vehicle without any semblance of reasonable grounds was reprehensible, and was aggravated by the officer’s misleading testimony in court. The Charter infringements had a significant, although not egregious, impact on the Charter -protected interests of the appellant. These factors favour exclusion, the former more strongly than the latter. On the other hand, the drugs seized constitute highly reliable evidence tendered on a very serious charge, albeit not one of the most serious known to our criminal law. This factor weighs in favour of admission.
[36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[37] In my view, when examined through the lens of the s. 24(2) analysis set out in Grant, the trial judge’s reasoning in this case placed undue emphasis on the third line of inquiry while neglecting the importance of the other inquiries, particularly the need to dissociate the justice system from flagrant breaches of Charter rights. Effectively, he transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence.
[38] The trial judge placed great reliance on the Ontario Court of Appeal’s decision in Puskas. However, the impact of the breach on the accused’s interests and the seriousness of the police conduct were not at issue in Puskas; Moldaver J.A. opined that if there was a breach of s. 8 , it was “considerably less serious than the trial judge perceived it to be”, the police having fallen “minimally” short of the constitutional mark (para. 16). In those circumstances, the public interest in truth-seeking rightly became determinative.
[39] This case is very different. The police misconduct was serious; indeed, the trial judge found that it represented a “brazen and flagrant” disregard of the Charter . To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant’s rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it. In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion.
[40] As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’” (para. 150). Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences. In relying on Puskas in these circumstances, the trial judge seemed to imply that where the evidence is reliable and the charge is serious, admission will always be the result. As Grant makes clear, this is not the law.
[41] Additionally, the trial judge’s observation that the Charter breaches “pale in comparison to the criminality involved” in drug trafficking risked the appearance of turning the s. 24(2) inquiry into a contest between the misdeeds of the police and those of the accused. The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s. 24(2) . We expect police to adhere to higher standards than alleged criminals.
[42] In summary, the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. That being the case, the admission of the cocaine into evidence would bring the administration of justice into disrepute. It should have been excluded.
4. Conclusion
[43] I would allow the appeal. Because the evidence in question was essential to the Crown’s case, rather than order a new trial I would enter an acquittal.
English version of the reasons delivered by
[44] Deschamps J. (dissenting) — I have read the majority’s reasons, and I cannot agree with them. My colleagues criticize the trial judge’s analysis as a contest between the police officer’s conduct and the seriousness of the offence, but a simplistic interpretation such as this does not do his analysis justice. As the majority of the Court of Appeal correctly pointed out, the trial judge’s comment must be considered in light of his reasons as a whole. I agree with the majority of the Court of Appeal that the trial judge did not err in law and that his finding must stand. I disagree not only with my colleagues’ conclusion, but also with their analysis. They attach excessive weight to the officer’s conduct and disregard the fact that the impact of the violation on the interests protected by the Canadian Charter of Rights and Freedoms was limited.
[45] It is interesting that, without the benefit of the new test proposed by the majority of this Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the majority of the Court of Appeal assessed not only the seriousness of the violation (in R. v. Collins, [1987] 1 S.C.R. 265, the analysis of this factor was focussed on police conduct), but also the impact of the violation on the Charter ‑protected interests. It will therefore be helpful to reproduce the introductory paragraphs of the reasons they gave for affirming the trial judge’s decision:
In deciding to admit the evidence, the trial judge considered the appropriate factors under s. 24(2) of the Charter . He decided that the seriousness of the breaches was not sufficient to warrant exclusion. He put it this way: “[the Charter breaches] pale in comparison to the criminality involved in the possession for the purpose of distribution of 77 pounds of cocaine . . .” In reaching this conclusion, the trial judge was very alive to the conduct of the police officer that gave rise to the breaches and to the problems with the police officer’s testimony at trial.