R. v. Wise

R. v. Wise
Collection
Supreme Court Judgments
Date
1992-02-27
Report
[1992] 1 SCR 527
Case number
22050
Judges
Lamer, Antonio; La Forest, Gérard V.; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Stevenson, William; Iacobucci, Frank
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 22050
Decision Content
R. v. Wise, [1992] 1 S.C.R. 527
James Henry Wise Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Wise
File No.: 22050.
1991: June 25; 1992: February 27.
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Electronic surveillance ‑‑ Tracking devices ‑‑ Police installing unauthorized electronic tracking device in accused's car to monitor his whereabouts ‑‑ Whether use of device infringed accused's right to be secure against unreasonable search and seizure ‑‑ Canadian Charter of Rights and Freedoms, s. 8 .
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Police installing unauthorized electronic tracking device in accused's car to monitor his whereabouts ‑‑ Accused's right to be secure against unreasonable search and seizure infringed ‑‑ Whether admission of evidence so obtained would bring administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
Criminal law ‑‑ Electronic surveillance ‑‑ Tracking devices ‑‑ Police installing unauthorized electronic tracking device in accused's car to monitor his whereabouts ‑‑ Whether use of device infringed guarantee against unreasonable search and seizure in s. 8 of Canadian Charter of Rights and Freedoms ‑‑ If so, whether admission of evidence so obtained would bring administration of justice into disrepute under s. 24(2) of Charter .
Appellant was charged with mischief to property. The Crown sought to introduce evidence of his whereabouts obtained through the use of an electronic tracking device (a "beeper") installed in his car. The police had had appellant under surveillance for some time since they suspected him of involvement in a recent murder believed to be linked to a series of similar killings. On July 14, 1987, they had obtained a warrant to search his home and vehicle, but had found nothing to link him to any of the homicides. The police had towed the car to the police station to carry out the search. While it was there, but after the warrant had expired, they installed the beeper. On August 15, the day of the alleged offence, the police had been able to trace the location of appellant's car using the beeper and established surveillance on a vehicle resembling his parked in a driveway. About two hours later, the police heard a loud crashing sound, caused by the felling of a communications tower. Soon after, they observed another vehicle, which was in fact appellant's, pull out of a laneway in a nearby field. On August 26 the police obtained a warrant to search appellant's vehicle. When the car was vacuumed, melted pieces of metal, consistent with the metal guy wires of the communications tower, were found. The constant electronic surveillance was maintained until mid-November, when appellant was arrested on the mischief charge. The trial judge excluded all evidence obtained through the use of the beeper, on the ground that it had been obtained in violation of appellant's right to be secure against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms . He acquitted appellant. The Court of Appeal set aside the acquittal and ordered a new trial.
Held (La Forest, Sopinka and Iacobucci JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Gonthier, Cory and Stevenson JJ.: The installation of the beeper inside the appellant's vehicle constituted an unreasonable search in violation of s. 8 of the Charter . Since the subsequent monitoring of the vehicle invaded a reasonable expectation of privacy, it also constituted a search, and, in the absence of prior authorization, violated s. 8 . The search was only minimally intrusive, however. The expectation of privacy in a motor vehicle is much less than in one's home or office. As well, the device used was unsophisticated and inaccurate. It was a very rudimentary extension of physical surveillance, and was attached to the appellant's vehicle, not to the appellant. The police also had a bona fide belief that they were protecting the public when the device was installed, in view of the series of homicides in the rural area in which the appellant lived.
The admission of the evidence in this case would not bring the administration of justice into disrepute. The evidence as to the location of the car would not affect the fairness of the trial. This evidence was real, not conscriptive. There was no police compulsion or enticement which required appellant to enter or drive his car. The beeper merely helped the police to gather evidence which, to a great extent, they had obtained by visually observing the vehicle. The police also acted in good faith in this case. They had reasonable and probable grounds for searching appellant's vehicle when they installed the beeper. While the prolonged electronic monitoring after the metal filings were discovered is difficult to justify, the police obtained the evidence as to the location of the vehicle within a 30‑day period, and this was not an unreasonable length of time to maintain surveillance, particularly in light of their obligation to protect the community from the suspected serial killer. There was clearly a pervasive threat of violence and a sense of urgency here. Moreover, the offence in this case is a serious one. The evidence pertaining to the metal pieces should also be admitted, for the same reasons.
Per Sopinka and Iacobucci JJ. (dissenting): The installation of the tracking device in appellant's automobile constituted an unreasonable search in violation of s. 8 of the Charter . It is not necessary to consider whether the surveillance itself would violate s. 8 . The admission of the evidence would bring the administration of justice into disrepute. The police knowingly committed an illegal trespass. While they suspected appellant of a serious offence, mere suspicion cannot be used to redeem Charter violations. There is no appreciable distinction between this case and R. v. Kokesch, [1990] 3 S.C.R. 3.
Per La Forest J. (dissenting): The installation of the tracking device in appellant's car constituted an unlawful trespass and violates his privacy rights under s. 8 of the Charter . The use of the device to monitor his movements also violated s. 8 . An individual has a reasonable expectation of privacy not only in the communications he makes, but in his movements as well, even when travelling on a public road. This is not a case where the police are monitoring the roads for the purpose of regulating or observing what goes on there. It is a case of tracking the movements of an individual. There is an important difference between courting the risk that our activities may be observed by other persons and the risk that agents of the state, in the absence of prior authorization, will track our every move. It is constitutionally unacceptable that the state should be allowed to rest a justification for the unauthorized electronic surveillance of a given person on the mere fact that that person had been in a situation where he could be the object of scrutiny on the part of private individuals. Whether a person whose movements were surreptitiously tracked had a reasonable expectation of privacy in given circumstances must not be made to depend on the degree to which that person took measures to shield his or her activities from the scrutiny of other persons.
The grave threat to individual privacy posed by surreptitious electronic tracking of one's movement is such as to require prior judicial authorization. The issuance of a search warrant will ordinarily call for an objective showing of reasonable and probable cause, and this should generally be required of those seeking to employ electronic tracking devices in the pursuit of an individual. Since this means of surveillance, if properly controlled, is somewhat less intrusive than electronic audio or video surveillance, it may be possible to establish that judicial officers should be empowered in certain circumstances to accept a somewhat lower standard, such as a "solid ground" for suspicion, if it can be established that such a power is necessary for the control of certain types of dangerous or pernicious crimes.
The evidence obtained through the use of the tracking device should be excluded under s. 24(2) of the Charter . Such evidence would not have existed without the device because visual contact had been lost. Since the violation in this case was intrusive and long‑lasting, it was serious. The electronic surveillance continued day and night over many months. The violation was not mitigated by good faith on the part of the police. The police certainly knew they needed a warrant to search the car, and that the warrant they had obtained did not permit what they did, and in fact had expired. The police did not have reasonable and probable cause, but were acting on mere suspicion. The long‑term consequences of admitting evidence obtained in such circumstances on the integrity of our justice system outweigh the harm done by this accused being acquitted.
Cases Cited
By Cory J.
Distinguished: R. v. Kokesch, [1990] 3 S.C.R. 3; referred to: United States v. Knotts, 460 U.S. 276 (1983); R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Black, [1989] 2 S.C.R. 138; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Ross, [1989] 1 S.C.R. 3; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Simmons, [1988] 2 S.C.R. 495.
By Sopinka J. (dissenting)
R. v. Kokesch, [1990] 3 S.C.R. 3.
By La Forest J. (dissenting)
R. v. Collins, [1987] 1 S.C.R. 265; R. v. Kokesch, [1990] 3 S.C.R. 3; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Moran (1987), 36 C.C.C. (3d) 225; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Thompson, [1990] 2 S.C.R. 1111; Cardwell v. Lewis, 417 U.S. 583 (1974); R. v. Duarte, [1990] 1 S.C.R. 30; United States v. Knotts, 460 U.S. 276 (1983); R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Black, [1989] 2 S.C.R. 138; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Greffe, [1990] 1 S.C.R. 755; Olmstead v. United States, 277 U.S. 438 (1928); R. v. Dyment, [1988] 2 S.C.R. 417.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 10 (b), 24(2) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 387(3).
Criminal Code, R.S.C., 1985, c. C‑46, s. 430(4) .
United States Constitution, Fourth Amendment.
Authors Cited
Gutterman, Malvin. "A Formulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance" (1988), 39 Syracuse L. Rev. 647.
Hentoff, Nat. "Profiles: The Constitutionalist", The New Yorker, March 12, 1990. p. 45.
APPEAL from a judgment of the Ontario Court of Appeal (1990), 40 O.A.C. 103, 49 C.R.R. 163, allowing the Crown's appeal of appellant's acquittal by Smith Dist. Ct. J. on a charge of mischief to property. Appeal dismissed, La Forest, Sopinka and Iacobucci JJ. dissenting.
J. Bruce Carr‑Harris and Carole J. Brown, for the appellant.
Susan Chapman, for the respondent.
//Cory J.//
The judgment of Lamer C.J. and Gonthier, Cory and Stevenson JJ. was delivered by
Cory J. -- I have read with great interest the compelling reasons of my colleague Justice La Forest but, with respect, I must differ from the conclusions that he has reached.
Issues
The Crown respondent conceded that the installation of the beeper was an unreasonable search in violation of s. 8 of the Canadian Charter of Rights and Freedoms . Accepting this concession, the main issue is whether the evidence obtained as a result of the unreasonable search should be excluded under s. 24(2) of the Charter . However, the evidence in question stems not only from the installation of the beeper but also from the monitoring by the beeper. Prior to the s. 24(2) analysis, the following preliminary issue arises:
Did the use of the beeper constitute an unreasonable search in violation of s. 8 of the Charter ?
Analysis
1.Did the Beeper Monitoring of the Vehicle Constitute an Unreasonable Search for the Purposes of s. 8 ?
(a)Introduction
It is clear that s. 8 of the Charter guarantees a broad and general right to be secure from unreasonable search where the person who is the object of the search has a reasonable expectation of privacy. In determining whether the beeper monitoring constitutes a search, the initial question is whether there is a reasonable expectation of privacy in respect of the monitored activity. If the police activity invades a reasonable expectation of privacy, then the activity is a search.
(b)The Lesser Expectation of Privacy in a Motor Vehicle
The expectation of privacy in a vehicle cannot be as great as that contended by my colleague. For the safety and well-being of society, motor vehicles and their drivers are subject to a great many statutory requirements, conditions and regulations. Almost every aspect of the use of a motor vehicle is controlled. The side of the road on which a car may be driven; the speed at which it may proceed; when it may overtake and where it may overtake another vehicle; where and when it must stop; the mechanical condition of the vehicle; the installation of certain accessories, be they required or prohibited; the places where a vehicle may park: all these and many more are circumscribed by various Acts and regulations.
For the safety of all, it is essential that drivers be tested before receiving their licence; that RIDE programs be instituted to discourage the drinking driver; that the speed of vehicles be supervised and that the mechanical fitness of vehicles be inspected. These inspections and tests and this supervision do not constitute unreasonable breaches of basic civil liberties. Rather, they are common sense rules that exist for the protection of society as a whole. Reasonable surveillance and supervision of vehicles and their drivers are essential. Without them, motor vehicles inevitably become instruments of crippling injury, death and destruction.
Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one's home or office.
(c)The Nature of the Device Utilized in this Case and its Minimal Intrusion
It must be remembered that the tracking device used in this case was unsophisticated and indeed simplistic. It did not provide a visual record of the movement or position of the vehicle. Nor was it able to pick up and record conversations in the vehicle. Rather, it was capable of giving only a very rough idea of the vehicle's location. Certainly, it could not be said that the device was capable of tracking the location of a vehicle at all times.
The device consisted of a low power radio transmitter. From the strength of the signal, it was possible to determine the general location of the object to which the beeper had been fixed. By moving in the direction of the transmitter and adjusting the "RF gain control", the location could be more precisely determined. The device used in this case was not capable of indicating if the object being tracked was to the right, left, front or back of the receiver of the signal.
The evidence in this case was that the device was used intermittently as a back-up for visual surveillance of the appellant's car beginning on July 17, 1987, particularly to attempt to locate the vehicle when visual surveillance failed. Since the device was not capable of pinpointing the vehicle with any degree of precision, physical surveillance was always required to fix its proximate position.
Indeed, on the night the tower was destroyed, the device was not capable of successfully tracking the appellant's vehicle. That night, the police lost visual contact with the appellant's vehicle and attempted to trace its location using the beeper. With the "help" of the beeper, the police established surveillance on a car resembling the appellant's. While they were busy observing this vehicle that was not, in fact, the appellant's, they heard the crashing of the Bell tower and then visually observed the appellant's actual vehicle leave a nearby field. This incident illustrates the unsophisticated and inaccurate nature of the beeper.
It has been seen that there is a reduced expectation of privacy by those using a motor vehicle. In addition, the intrusion on any remaining expectation of privacy as a result of the device used in this case is minimal. This particular beeper was a very rudimentary extension of physical surveillance. It must be remembered as well that the device was attached to the appellant's vehicle, not to the appellant. How very different a device such as this is, in its operation and in its effect on the individual, from a hidden video camera or an electronic monitor that surreptitiously intercepts private communications.
Before considering what the position with regard to vehicle tracking devices should be in Canada, it may be of interest to see what approach the Supreme Court of the United States has taken. This should not be considered an indication that American decisions should be slavishly followed. Rather, they should be considered for the sake of their learning and to see if they might be helpful to our consideration.
(d)The American Approach
In the United States, it has been held that beeper monitoring of a vehicle on a public roadway is neither a "search" nor a "seizure" for the purposes of the Fourth Amendment because it does not violate any legitimate expectation of privacy. In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court held (at pp. 281-82):
A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the courier] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.
. . .
Visual surveillance from public places along [the courier's] route or adjoining [the accused's] premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but also on the use of the beeper to signal the presence of [the courier's] automobile to the police receiver, does not alter the situation.
It is true there has been some criticism of this decision: first, on the ground that it assumes an equivalence between visual surveillance and scientific enhancement of surveillance; and second, that it fails to recognize the existence of the privacy interest in automobile travel. Nonetheless, the decision is a strong indication that there must be, at the very least, a markedly lesser expectation of privacy by the users of motor vehicles.
(e)The Protection of the Public
The factual background to this case is of importance. It establishes that the police had a bona fide belief that they were protecting the public when the beeper was installed. There had been a series of homicides in the rural area in which the appellant lived. He was a suspect in these events. The homicides were as follows:
1)Sept. 24, 1975 -Lillian Rouson died in a farmhouse fire near Morrisburg,
2)Jan. 8, 1981 -Kenneth Murphy died in a farmhouse fire in Finch Township,
3)Nov. 18, 1983 -Archie Collision died in a fire in his log cabin near Kempenfeldt,
4)Nov. 25, 1983 -Harold Davidson was shot to death in his farmhouse kitchen near Brinston,
5)May 16 or 17, 1987 -Keith Johnston was killed by a shot from a high powered rifle in a farmhouse near Monkland,
6)July 14, 1987 -John King was apparently shot to death before his home was set on fire in Moorewood.
It can be seen that the four most recent murders took place over a four-year period, the last two occurring within two months of each other. In addition to the homicides, the police had received a tape of an anonymous telephone call threatening more killings. They believed that the call came from the appellant. The appellant was the prime suspect in the killings of Keith Johnston and John King.
The police were able to satisfy a justice of the peace that there were reasonable and probable grounds to obtain a warrant to search the appellant's home, the outbuildings surrounding his home and his vehicle. Between 5:30 p.m. on July 14 and 7:30 a.m. on July 15, 1987, the warrant relating to the murder investigation was executed. The appellant's vehicle was towed to the Winchester Provincial Police Detachment, so that it could be examined by the identification unit. The vehicle remained at this detachment until July 16. During this time, arrangements were made to have the tracking device installed in the back seat. In light of this background, the police had every reason to believe that in installing the device they were not only investigating two murder cases, but also were acting to protect the residents of this rural community.
(f)The Nature of the Search in this Case
In this case, it has been fairly conceded that the installation of the beeper in the interior of the motor vehicle constituted a search which breached the provisions of s. 8 of the Charter . Since the beeper monitoring of the appellant's vehicle invaded a reasonable expectation of privacy, this police activity also constituted a search. Absent prior authorization, such a search will be prima facie unreasonable and therefore in violation of s. 8 . As there was no prior authorization for the installation and use of the beeper device, the monitoring violated the appellant's s. 8 right to be free from unreasonable search. At the same time, however, the lessened privacy interest combined with the use of an unsophisticated device establish that the search was only minimally intrusive. This minimal intrusion and the urgent need to protect the community provide the context in which the s. 24(2) analysis should be made.
Furthermore, it seems artificial to distinguish between the installation of the beeper and the subsequent monitoring. The monitoring is the extension of the installation. It is the aim and object of the installation and cannot be divided from the latter. The installation of the device and its subsequent use to monitor the vehicle, together, constituted the unreasonable search. It is therefore necessary, in the context of the unreasonable search as a whole, to determine whether the evidence obtained should nonetheless be admitted.
2. Should the Evidence be Admitted?
Section 24(2) of the Charter reads as follows:
24. . . .
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
It must be remembered that this Court has a limited role in reviewing the decisions of provincial appellate courts in respect to s. 24(2) of the Charter . In R. v. Greffe, [1990] 1 S.C.R. 755, Lamer J. (as he then was), at p. 783, wrote:
I note that it is not the proper function of this Court, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of courts below in respect of s. 24(2) of the Charter and substitute its opinion for that arrived at by the Court of Appeal. . . .
Thus, it is only if the Court of Appeal made an unreasonable finding or applied the wrong principles that it would be appropriate to undertake a review.
What then are the principles that should be considered? They are set out in R. v. Collins, [1987] 1 S.C.R. 265. There, Lamer J., as he then was, divided the factors that should be taken into account when considering the admissibility of evidence under s. 24(2) into three groups:
(1) the effect of admission on the fairness of the trial process;
(2) the seriousness of the violation; and
(3) the effect of exclusion on the reputation of the administration of justice.
It was emphasized that the object of s. 24(2) was not to remedy police misconduct, but rather to prevent the administration of justice being brought into further disrepute through the admission of improperly obtained evidence. These factors will have to be applied to two aspects of the evidence, namely, the location of the appellant's car and the metal pieces found in the vehicle which were similar to the metal guy wires of the destroyed tower.
Evidence Obtained as to the Movement of the Car
I. Factors Affecting the Fairness of the Trial
The fairness of the trial process has been described as a critical factor. In determining fairness, the nature of the evidence obtained must be considered. The admission of real evidence obtained as a result of a Charter violation will rarely result in a finding of unfairness. However, the admission of evidence obtained by conscripting the accused against himself, such as a confession, will generally render the trial unfair. In Collins, supra, Lamer J. at pp. 284-85 wrote:
It is clear to me that the factors relevant to this determination will include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated. Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter , the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel. Our decisions in Therens, supra, and Clarkson v. The Queen, [1986] 1 S.C.R. 383, are illustrative of this. The use of self-incriminating evidence obtained following a denial of the right of counsel will generally go to the very fairness of the trial and should generally be excluded.
The Nature of the Evidence: Is it Real or Conscriptive?
How should the evidence as to the location of the appellant's vehicle be considered? Evidence has been found to be "real" when it referred to tangible items. For example narcotics were held to be real evidence in R. v. Jacoy, [1988] 2 S.C.R. 548, and in R. v. Debot, [1989] 2 S.C.R. 1140. Weapons were held to be real evidence in R. v. Black, [1989] 2 S.C.R. 138. In all of these cases, the real or tangible evidence was admitted even though it had been obtained as a result of an unreasonable search.
On the other hand, "conscriptive" evidence usually refers to evidence which emanates from the accused following a violation of s. 10 (b) of the Charter . Samples of blood taken from the accused were found to be conscriptive evidence in R. v. Pohoretsky, [1987] 1 S.C.R. 945. Statements made by the accused were found to be conscriptive in R. v. Manninen, [1987] 1 S.C.R. 1233. The compulsory appearance in a police line-up was held to constitute conscriptive evidence in R. v. Ross, [1989] 1 S.C.R. 3. There at p. 16 it was said:
. . . the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair.
In this case, I agree with the Court of Appeal that the movements of the car constituted real evidence. There was no police compulsion or enticement which required the appellant to enter or drive his car. Rather he exercised his own free will. It was the accused who determined that he would drive his car, the routes he would follow and the manner in which he drove. The movement of an object may be transitory but it is real. The movement of a terrestrial body can be and often is plotted. That movement is transitory but real. The migratory route of the caribou herds is transitory but it is vital and real to those who depend upon that movement for food and clothing. So too is the movement of a motor vehicle real. This evidence could be considered conscriptive if the actions of the police forced or perhaps enticed the accused to utilize his vehicle and to follow prefixed routes in arriving at destinations selected by them.
It has been conceded that visual surveillance of motor vehicles by the police is permissible. Further, there is agreement that visual surveillance may properly be augmented by the use of binoculars. The use of this particular beeper, similarly, simply augments visual surveillance. The installation and use of the beeper did not affect in any way the movement of the car. It simply enhanced the ability of the police to observe its movements.
In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. found there was a clear distinction between evidence which an accused was forced to create, which should not be admissible, and existing evidence, which the accused had merely been forced to locate or identify, which should be admitted. He put forth his position at pp. 552-553:
I would first of all note that I do not believe that in drawing this distinction, Lamer J. intended to draw a hard and fast line between real evidence obtained in breach of the Charter and all other types of evidence that could be so obtained. . . . I think this clearly indicates that what Lamer J. had in mind was the much broader distinction between evidence which the accused has been forced to create, and evidence which he or she has been forced to merely locate or identify. . . .
A breach of the Charter that forces the eventual accused to create evidence necessarily has the effect of providing the Crown with evidence it would not otherwise have had. It follows that the strength of its case against the accused is necessarily enhanced as a result of the breach. This is the very kind of prejudice that the right against self-incrimination, as well as rights such as that to counsel, are intended to prevent. In contrast, where the effect of a breach of the Charter is merely to locate or identify already existing evidence, the case of the ultimate strength of the Crown's case is not necessarily strengthened in this way. The fact that the evidence already existed means that it could have been discovered anyway. Where this is the case, the accused is not forced to confront any evidence at trial that he would not have been forced to confront if his Charter rights had been respected. In such circumstances, it would be the exclusion rather than the admission of evidence that would bring the administration of justice into disrepute.
and at p. 555:
The one qualification that must be made to the above has to do with the difference between independently existing evidence that could have been found without compelled testimony, and independently existing evidence that would have been found without compelled testimony. As I have acknowledged at several points in these reasons, there will be situations where derivative evidence is so concealed or inaccessible as to be virtually undiscoverable without the assistance of the wrongdoer. For practical purposes, the subsequent use of such evidence would be indistinguishable from the subsequent use of the pre-trial compelled testimony. [Emphasis in original.]
There my colleague indicated that "created" evidence would affect the fairness of the trial and should not be admitted while "located" evidence would only affect the fairness of the trial if the evidence were virtually undiscoverable without the assistance of the accused.
In this case, the use of the beeper merely assisted the police to gather evidence which, to a great extent, they had obtained by visually observing the vehicle. It is difficult to determine from the transcript what evidence was obtained from the beeper and what was obtained from observation. In light of the unsophisticated nature of the beeper, it seems that the essential evidence was obtained by direct observation. In any event, evidence as to movement of the vehicle was certainly not "undiscoverable". It follows that the admission of the evidence as to the location of the car could not be said to affect the fairness of the trial.
II. The Factors Affecting the Seriousness of the Violation
In this case, I have concluded that the admission of the evidence would not affect the fairness of the trial. How then should the violation be assessed? Lamer J. in Collins, supra, at p. 285 quoted the following passage from Le Dain J.'s reasons in R. v. Therens, [1985] 1 S.C.R. 613, at p. 652:
The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence.
Were the police actions in this case undertaken in bad faith or were they wilful and flagrant violations of Charter rights?
(a)Good Faith
Bad faith has been found in situations where there has been a blatant disregard for the Charter rights of an accused or where more than one Charter right has been violated (see R. v. Greffe, supra, and R. v. Genest, [1989] 1 S.C.R. 59). Good faith has been established in situations where the violation stemmed from police reliance upon a statute or from the following of a procedure which was later found to infringe the Charter (see R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Simmons, [1988] 2 S.C.R. 495).
The Court of Appeal found that the police acted in good faith. I agree with that conclusion. The police had been successful in obtaining a warrant to search the appellant's home, outbuildings and car. It can therefore be assumed that they had reasonable and probable grounds for searching the vehicle of the appellant. These reasonable and probable grounds do not disappear simply because the police were not able to find evidence within a short period of time.
The police did retain the car and install the beeper after the warrant had expired. The officer who installed the device testified that he did not realize the warrant had expired the day before the installation. Although this evidence indicates carelessness on the part of the police, it does not demonstrate bad faith. Of greater concern is the length of time of the surveillance assisted by the beeper. Although the communications tower was destroyed on August 15 and the metal fillings were discovered on August 27, the constant electronic surveillance was maintained until mid-November when the accused was arrested on the charge of mischief. There can be no doubt that the police had a responsibility to the community to carefully investigate the murders. Yet the prolonged electronic monitoring after August 27 is difficult to justify. Nonetheless, the police did obtain the evidence as to the location of the vehicle within a 30-day period from the beginning of the electronic monitoring, a time when the police had established grounds for the search. This was not, in the circumstances, an unreasonable length of time to maintain surveillance, particularly in light of the obligation of the police to protect the small community from the suspected serial killer.
(b)The Threat of Violence and Urgency
In the case at bar there clearly existed a pervasive threat of violence and a sense of urgency. The relatively small rural community in which the accused resided had experienced a series of unsolved homicides. The accused had been a suspect in these crimes and indeed a prime suspect in at least two of the homicides. Evidence existed which linked the appellant to the murders. There had been an anonymous phone call threatening more killings. The police suspected this call came from the appellant. The accused had a significant criminal record including convictions for robbery, break and enter, theft and possession of offensive weapons. These factors must have motivated the police in undertaking and continuing the surveillance of the accused. It was the duty of the police to investigate the crimes and to protect the community.
In the circumstances, the police would have been remiss in their duties if they had not observed the movements of the appellant. It is easy to imagine the sense of outrage and the criticism that would flow from the community if there had not been police surveillance of the appellant.
The question then becomes: how was that surveillance to be accomplished? All agree that it was quite proper for the police to physically observe the appellant and his car at all hours of the day and night. It is further agreed that these physical observations could be enhanced by the use of binoculars. Yet, it is said that the installation of this rudimentary tracking device the day after the search warrant expired and the subsequent monitoring goes too far and prohibits the admission of the evidence pursuant to s. 24(2) . This I find to be a somewhat anomalous position.
In my view the actions of the police in this case were not such that they could be termed "actions taken in bad faith". There was no physical violence, force, coercion or threat employed. The carelessness, with regard to the expiry date of the warrant and the lengthy continuation of the surveillance, do not, in the circumstances of this case, justify the exclusion of the evidence.
Nor do I think that this conclusion conflicts with principles laid down in R. v. Kokesch, [1990] 3 S.C.R. 3. In that case, the police searched the yard surrounding the accused's home without a warrant and without the existence of any reasonable and probable grounds upon which they could have obtained a search warrant. There it was held that the narcotics found during the subsequent valid search of the house should be excluded. It was determined that where the police have nothing but suspicion and no legal way to obtain other evidence they should leave the suspect alone.
Here the situation was very different. It must be remembered that the police did have reasonable and probable grounds to search the appellant's vehicle when they installed the beeper. Moreove