R. v. Zacharias

R. v. Zacharias
Collection
Supreme Court Judgments
Date
2023-12-01
Neutral citation
2023 SCC 30
Case number
40117
Judges
Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; O’Bonsawin, Michelle
On appeal from
Alberta
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Zacharias, 2023 SCC 30
Appeal Heard: May 15, 2023 Judgment Rendered: December 1, 2023 Docket: 40117
Between:
George Zacharias Appellant
and
His Majesty The King Respondent
- and -
Attorney General of Ontario and Attorney General of Alberta Interveners
Coram: Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ.
Joint Reasons: (paras. 1 to 76)
Rowe and O’Bonsawin JJ.
Concurring Reasons: (paras. 77 to 105)
Côté J.
Joint Dissenting Reasons: (paras. 106 to 161)
Martin and Kasirer JJ.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
George Zacharias Appellant
v.
His Majesty The King Respondent
and
Attorney General of Ontario and
Attorney General of Alberta Interveners
Indexed as: R. v. Zacharias
2023 SCC 30
File No.: 40117.
2023: May 15; 2023: December 1.
Present: Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ.
on appeal from the court of appeal of alberta
Constitutional law — Charter of Rights — Search and seizure — Arbitrary detention — Consequential breaches — Remedy — Exclusion of evidence — Police suspecting illegal drug activity following lawful traffic stop of accused — Police detaining accused and conducting several searches — Accused arrested and charged with drug related offences — Trial judge finding initial search and investigative detention breached accused’s Charter rights but declining to exclude evidence — Whether arrests and searches consequential to initial violation further breached Charter — Whether breaches warrant exclusion of evidence — Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 24(2) .
Z was pulled over in a traffic stop because of a burnt‑out light and illegally tinted windows. The police officer made several observations that resulted in placing Z under investigative detention and calling for a sniffer dog to scan for drugs. After a pat‑down search, the officer placed Z in a police vehicle until the sniffer dog arrived. The dog signalled that drugs were present and Z was arrested for possession of a controlled substance. The police then searched Z’s truck, including duffel bags located in the truck box under a tonneau cover. The police discovered a large quantity of cannabis and cash. Z was arrested for possession for the purpose of trafficking, handcuffed, and driven to a police detachment. He was then searched and arrested for possession of proceeds of crime over $5,000.
Z alleged that the police had breached his rights under ss. 8 and 9 of the Charter during the investigation and that the drug evidence seized by the police should be excluded under s. 24(2) of the Charter . The trial judge found that the sniffer dog search and investigative detention breached Z’s ss. 8 and 9 Charter rights but held that the evidence should not be excluded under s. 24(2) because excluding the evidence would bring the administration of justice into disrepute. Z was convicted of possession of 101.5 pounds of marijuana for the purpose of trafficking. He appealed, arguing that the trial judge erred by failing to consider the consequences that flowed from the unlawful investigative detention and sniffer dog search. A majority of the Court of Appeal dismissed the appeal.
Held (Martin and Kasirer JJ. dissenting): The appeal should be dismissed.
Per Rowe and O’Bonsawin JJ.: The arrests and the searches incident to arrest following the sniffer dog search and investigative detention constituted breaches of Z’s rights under ss. 8 and 9 of the Charter . They must be considered when determining whether the evidence should be excluded under s. 24(2) of the Charter . However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter ‑infringing state conduct. In the instant case, additional Charter breaches occurred in a sequence of events: an arrest followed as a consequence of the sniffer dog search, searches followed incident to arrest, and additional arrests followed. These additional consequential breaches do not raise the seriousness of the state conduct as these breaches were breaches only because of the officer’s miscalculation in assessing the grounds for suspicion; the focal point under s. 24(2) remains the initial breaches that set the sequence of state conduct into motion. Balancing the Grant factors applicable to determine whether evidence should be excluded under s. 24(2), the evidence should not be excluded.
The Criminal Code sets out strict standards for when police may exercise powers of arrest. The police must demonstrate reasonable and probable grounds to believe that the person arrested committed an offence. Where the arrest is without a warrant, the arresting officer must honestly believe that the suspect committed the offence in question and those subjective grounds must be justifiable from an objective point of view. Reasonable grounds however cannot be supplied by actions that involved violations of the Charter . Where grounds for arrest are based on evidence that was unlawfully obtained, the court must excise this evidence from the factual matrix and determine whether the police had reasonable and probable grounds for arrest having regard to the totality of the circumstances known to the officer based on the remaining evidence. Warrantless arrests are often carried out in dynamic situations and police are not required to inquire into the constitutionality of prior investigative steps before acting on the information they yielded. However, they are required to consider whether they are acting within constitutional limits when they act. Canadians have a legitimate expectation that the police will know and comply with the law, especially the Charter . In the case of an arrest made without a warrant, it is even more important for the police to demonstrate they had reasonable and probable grounds for the arrest.
In a situation of linked or cascading Charter breaches, a subsequent arrest may be unlawful only as a consequence of the initial breach or breaches that preceded it. An arrest that can be viewed only as a consequential breach is distinct from state action that is characterized by additional or independent misconduct. An unlawful arrest that is a consequential breach must be factored into the first and second stages of the s. 24(2) Grant analysis, but is unlikely to significantly impact the overall seriousness of the Charter ‑infringing state conduct absent additional state misconduct. The first Grant factor asks whether the Charter ‑infringing state conduct is so serious that the court must dissociate itself from it. In the absence of additional state misconduct, the focal point for evaluating seriousness is likely to remain the initial breach. In these circumstances and where the police honestly believed they were proceeding lawfully, subsequent state conduct should be situated on the less serious end of the scale of culpability. The second Grant factor looks to the Charter ‑protected interests of the accused engaged by the infringed right and the degree to which the violation impacted on those interests. A consequential breach will be most relevant at this stage. When additional rights and breaches of those rights are factored into the analysis, there will necessarily be a more significant impact. Consideration of all breaches is necessary to get an accurate picture of the effects of the breaches. To fail to have regard to the impact of an arrest that occurred as a consequence of a preceding Charter breach would fail to take into account all the circumstances. The third Grant factor examines society’s interest in an adjudication of the case on the merits. Consideration of additional breaches may not change the analysis for this Grant factor.
In the instant case, the state cannot rely on the evidence unlawfully obtained from the sniffer dog search to satisfy the reasonable and probable grounds requirement for Z’s subsequent arrests. The police breached ss. 8 and 9 of the Charter in conducting the sniffer dog search and by holding Z in investigative detention while waiting for a sniffer dog to arrive. The arresting officer’s subsequent subjective belief that Z was in possession of a controlled substance relied primarily on the results of the sniffer dog search; therefore, the first arrest for possession was unlawful. Because the first arrest was unlawful, the subsequent searches breached s. 8 of the Charter and the second and third arrests constituted breaches of s. 9 of the Charter . The placement of Z in the police vehicle in handcuffs and at the police detachment were continuations of the s. 9 breaches.
Even considering the consequential breaches, the first Grant factor does not strongly favour exclusion of the evidence. The consequential Charter breaches are not characterized by additional or independent misconduct and were not intentional. The focal point remains the initial breach, which was inadvertent, not wilful, and which does not show a pattern or attitude of disregard for Charter rights or the law. The second Grant factor moderately favours exclusion. The sniffer dog search was brief, minimally intrusive and followed a lawful stop and detention for traffic infractions. However, as a result, Z was arrested, handcuffed, brought to the police station, detained for several hours and the police obtained significant evidence against him. The arrests and searches incident to arrest resulted in more significant impact on Z’s Charter ‑protected interests. The third Grant factor strongly favours admission of the evidence. The evidence was real, reliable, and crucial to the Crown’s case. Given the large quantity of cannabis, the offence is serious and there is a strong societal interest in adjudication of the case on its merits. Balancing the Grant factors, the first two are insufficient to outweigh the third; thus, overall the circumstances favour admission of the evidence.
Per Côté J.: There is agreement that the appeal should be dismissed. However, the proposition that the state cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest is difficult to reconcile with the longstanding s. 24(2) Charter jurisprudence and the framework for warrantless arrests set out in R. v. Storrey, [1990] 1 S.C.R. 241. A Charter breach that leads to incriminating evidence being uncovered will inevitably result in an arrest or other investigative steps by the police. Absent independent or additional police misconduct, the Court has never treated such arrests or investigative steps as separate Charter breaches in its s. 24(2) analysis. A decision to arrest must be made quickly in volatile and rapidly changing situations based on available information which is often less than exact or complete. In the instant case, the circumstances known to the arresting officer at the time of the arrest included the sniffer dog’s clear and unequivocal indication of controlled substances in Z’s vehicle. The focus of the s. 24(2) analysis should be on the investigative detention while awaiting the arrival of the dog for the sniffer search. The presence of additional breaches was not argued at trial and has little, if any, impact on the s. 24(2) analysis.
The reasonable and probable grounds standard for a warrantless arrest is based on the totality of the circumstances known to the officer at the time of the arrest. The analysis under s. 24(2) must be conducted from the perspective of a reasonable person standing in the shoes of the arresting officer. Operating after‑the‑fact, automatic excision of unconstitutionally obtained information would nullify the subjective focus by artificially altering the information on which the arresting officer relied at the time. It is artificial and inconsistent with the reasonable and probable grounds standard to hold that an arrest made based on clear and reliable evidence of a crime is unlawful. This understanding is why the Court has declined to apply the logic behind excision to the context of warrantless arrests. To classify all subsequent police conduct as Charter ‑infringing merely because it flows from the results of an initial breach comes dangerously close to the fruit of the poisoned tree doctrine eschewed by s. 24(2).
In the instant case, all police conduct subsequent to the sniff search was based on an intervening discovery of incriminating evidence. The focus of the first Grant factor is on misconduct from which the court should be concerned to dissociate itself. An arrest made on the basis of clear and reliable evidence of a crime is not misconduct from which the court should be concerned to dissociate itself. To hold otherwise artificially distorts the s. 24(2) analysis and represents a shift towards automatic exclusionary rules that have been rejected. The trial judge correctly characterized the arresting officer’s failure to meet the reasonable suspicion standard as miniscule. That conduct only weakly favours exclusion; its impact on Z was moderate; and the evidence is highly reliable and integral to the Crown’s case. On balance, the drug evidence should not be excluded and Z’s conviction should be upheld.
Per Martin and Kasirer JJ. (dissenting): The appeal should be allowed. Section 24(2) of the Charter directs courts to have regard to all the circumstances in determining whether admitting evidence would bring the administration of justice into disrepute. Consequential, linked or cascading breaches necessarily result in more significant impacts on the Charter ‑protected interests of an accused. All such breaches must be given weight under the Grant analysis. Section 24(2) mandates assessing the cumulative, and potentially compounding, seriousness of all of the conduct related to each of the violations at issue. Applying this approach, s. 24(2) directs that the evidence should be excluded.
The first line of inquiry mandated by Grant is an evaluation of the seriousness of the state conduct. Seriousness is focused on the rule of law. All state action that violates the Charter necessarily deviates from the rule of law. However, not all conduct that violates the Charter deviates from the rule of law to the same extent. There is a sliding scale or spectrum. Relevant considerations that may inform the assessment of the gravity of the offending conduct include the extent to which the conduct reflects deliberate disregard for Charter standards, whether the conduct was part of a pattern and the social values that underlie the Charter rights that were violated. The full range of relevant values entrenched in the Charter should be considered, and where multiple rights are violated, the court must consider how the state conduct implicates each underlying value and how those values interact. All Charter‑infringing state conduct must be factored into the analysis, therefore the seriousness of conduct related to all breaches must be considered even if some of them may be said to have been caused by earlier Charter violations. To treat consequential breaches as having an inconsequential effect on the seriousness inquiry would be a departure from settled law. Breaches that, in isolation, may appear minor or technical can contribute meaningfully to the seriousness of the misconduct that a judge must consider when deciding whether to admit or exclude evidence under s. 24(2). Thus, it would be an error of law to decline to analyze the extent to which each consequential breach reflects serious Charter ‑infringing state conduct. A cumulative approach is mandated by the emphasis that the Grant analysis gives to the totality of the circumstances. The Court’s jurisprudence has never suggested that a relationship between two breaches eliminates the need to assess their cumulative seriousness. A sequence of state conduct may undermine the rule of law more gravely than would each action, considered individually. The analysis is not a mathematical exercise and there is no necessary requirement that the seriousness of the whole be the sum of the constituent parts.
In the instant case, with respect to the first Grant line of inquiry, the initial unreasonable search may not have been in itself grave: the sniffer dog search and initial investigative detention breached Charter standards but inadvertently and without negligence, and a systemic failing was not evident in the record. However that does not exhaust the relevant considerations. Increasingly invasive steps, which represent progressively more serious ways in which the state conduct undermined the rule of law, were taken at each stage of the police action. The subsequent breaches at issue in this case include the pat down search and the search of the truck and of the duffle bags. In addition, the initial detention and each of the three arrests violated s. 9. Further, confinement in a police vehicle, handcuffing, and being taken to the detachment constituted arbitrary detentions. Thus, while the subsequent breaches did not deliberately violate Charter rights, the entire course of conduct does reflect serious state misconduct. On the spectrum of seriousness, the conduct at issue pulls between moderately and strongly towards exclusion, resting closer to a strong pull than a moderate one.
The second Grant line of inquiry considers the seriousness of the impact of the Charter breaches on the Charter ‑protected interests of the accused. Under this line of inquiry, the cumulative seriousness of the impacts on the accused’s Charter ‑protected interests flowing from the same state conduct considered under the first line of inquiry should be assessed. In the instant case, the impacts were substantial and they increased in severity at each stage of interference. The privacy‑compromising impact of an unreasonable vehicle search will generally militate in favour of exclusion, notwithstanding the fact that a vehicle attracts a lesser expectation of privacy than a dwelling house. More substantial was the impact of police officers’ opening of Z’s duffel bags. Opening duffel bags covered by a tonneau in the box of the truck significantly intruded upon Z’s privacy interests. Moreover, the breaches of s. 9 were substantial and prolonged. Z was handcuffed, confined to a police vehicle, and arrested three times. He was unlawfully detained for approximately seven hours, including several hours in the police detachment. These sustained deprivations had substantial impacts on Z’s liberty, autonomy and bodily integrity. Accordingly, the second line of inquiry pulls strongly in favour of exclusion of the evidence.
Finally, the third Grant line of inquiry considers whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. In the instant case, the evidence is highly reliable and is undoubtedly critical to the Crown’s case. The offences are serious, in view of the very large quantity of drugs at issue. Accordingly, the third line of inquiry strongly favours the admission of the evidence.
On balance, however, the third factor is not enough to overwhelm the cumulative seriousness of the Charter ‑infringing conduct along with the impact on Z’s Charter ‑protected interests. In these circumstances, the administration of justice would be brought into disrepute by the admission of the evidence. The evidence should therefore be excluded.
Cases Cited
By Rowe and O’Bonsawin JJ.
Overruled: R. v. Love, 2022 ABCA 269, [2023] 1 W.W.R. 296; R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224; applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; considered: R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Monney (1997), 153 D.L.R. (4th) 617, rev’d on other grounds [1999] 1 S.C.R. 652; R. v. MacEachern, 2007 NSCA 69, 255 N.S.R. (2d) 180; R. v. Blanchard, 2011 NLCA 33, 308 Nfld. & P.E.I.R. 91; R. v. Pelucco, 2015 BCCA 370, 327 C.C.C. (3d) 151; R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415; referred to: R. v. J.F., 2022 SCC 17; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. Beaver, 2022 SCC 54; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Tim, 2022 SCC 12; R. v. Grant, [1993] 3 S.C.R. 223; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643; R. v. Lambert, 2020 NSPC 37, 472 C.R.R. (2d) 1, aff’d 2023 NSCA 8; R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492; R. v. Kossick, 2017 SKPC 67, 392 C.R.R. (2d) 250, aff’d 2018 SKCA 55, 365 C.C.C. (3d) 186; R. v. White, 2022 NSCA 61, 419 C.C.C. (3d) 123; R. v. Loewen, 2018 SKCA 69, [2018] 12 W.W.R. 280; R. v. Reilly, 2021 SCC 38; R. v. Au‑Yeung, 2010 ONSC 2292, 209 C.R.R. (2d) 140; R. v. McColman, 2023 SCC 8; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.
By Côté J.
Considered: R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. McColman, 2023 SCC 8; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Love, 2022 ABCA 269, [2023] 1 W.W.R. 296; R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224; referred to: R. v. Tim, 2022 SCC 12; R. v. Beaver, 2022 SCC 54; R. v. Golub (1997), 34 O.R. (3d) 743; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Lafrance, 2022 SCC 32; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335; Frey v. Fedoruk, [1950] S.C.R. 517; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Reilly, 2021 SCC 38.
By Martin and Kasirer JJ. (dissenting)
R. v. Plaha (2004), 188 C.C.C. (3d) 289; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Tim, 2022 SCC 12; R. v. Beaver, 2022 SCC 54; R. v. McColman, 2023 SCC 8; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Sharma, [1993] 1 S.C.R. 650; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; Hamel v. R., 2021 QCCA 801, 72 C.R. (7th) 132; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Reilly, 2021 SCC 38; R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224; R. v. Love, 2022 ABCA 269, [2023] 1 W.W.R. 296; R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492; R. v. Boudreau‑Fontaine, 2010 QCCA 1108; R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433; R. v. Kossick, 2018 SKCA 55, 365 C.C.C. (3d) 186; R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, aff’d 2018 SCC 57, [2018] 3 S.C.R. 597; R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114; R. v. White, 2022 NSCA 61, 419 C.C.C. (3d) 123; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Lafrance, 2022 SCC 32; R. v. Huynh, 2013 ABCA 416, 8 C.R. (7th) 146; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Shinkewski, 2012 SKCA 63, 289 C.C.C. (3d) 145; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8 , 9 , 24(2) .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 495(1) (a), 507 .
Traffic Safety Act, R.S.A. 2000, c. T‑6.
Authors Cited
Asma, Matthew, and Matthew Gourlay. Charter Remedies in Criminal Cases, 2nd ed. Toronto: Emond Montgomery, 2023.
Coughlan, Steve, and Glen Luther. Detention and Arrest, 2nd ed. Toronto: Irwin Law, 2017.
Fontana, James A., and David Keeshan. The Law of Search and Seizure in Canada, 12th ed. Toronto: LexisNexis, 2021.
Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.
Parent, Hugues. Traité de droit criminel, t. IV, Les garanties juridiques, 2e éd. Montréal: Wilson & Lafleur, 2021.
Stuart, Don. “Uncertainty on Charter Section 24(2) Remedy of Exclusion of Evidence” (2023), 86 C.R. (7th) 255.
Vauclair, Martin, Tristan Desjardins et Pauline Lachance. Traité général de preuve et de procédure pénales 2023, 30e éd. Montréal: Yvon Blais, 2023.
APPEAL from a judgment of the Alberta Court of Appeal (Wakeling, Crighton and Khullar JJ.A.), 2022 ABCA 112, 44 Alta. L.R. (7th) 5, [2022] 8 W.W.R. 231, 506 C.R.R. (2d) 174, [2022] A.J. No. 400 (QL), 2022 CarswellAlta 772 (WL), affirming the conviction of the accused for possession of cannabis for the purpose of trafficking. Appeal dismissed, Martin and Kasirer JJ. dissenting.
Rubinder Dhanu, Rebecca J. K. Gill and Uphar K. Dhaliwal, for the appellant.
Amber Pashuk and Kyra Kondro, for the respondent.
Jeremy Streeter and Jacob Millns, for the intervener the Attorney General of Ontario.
Tom Spark, for the intervener the Attorney General of Alberta.
The following are the reasons delivered by
Rowe and O’Bonsawin JJ. —
I. Overview
[1] The appellant, George Zacharias, was pulled over on the highway for a traffic stop. After a sniffer dog gave a positive indication for drugs in the appellant’s vehicle, police searched the vehicle and seized over 100 pounds of marijuana. The appellant was convicted of possession of marijuana for the purpose of trafficking. The trial judge found that the police had breached the appellant’s rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms in conducting a sniffer search and investigative detention. This appeal is about the lawfulness of the state actions which followed those initial Charter breaches and whether the various breaches warrant exclusion of the evidence under s. 24(2).
[2] In our view, the arrests that followed the sniffer search in this case were also in violation of the Charter . The state cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest. Where the court finds a breach of the Charter has occurred, the breach must be considered in the s. 24(2) analysis. However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct under the s. 24(2) analysis. Rather, a consequential breach will be most relevant to the impact on the Charter-protected interests of the accused.
[3] For the reasons that follow, while we accept that the arrests and searches incident to arrest in this case constituted additional violations of the Charter , we would affirm the decision not to exclude the evidence under s. 24(2) of the Charter . Accordingly, the appeal is dismissed.
II. Facts
[4] On February 17, 2017, the appellant was pulled over on Highway 1 near Banff by Constable MacPhail of the Royal Canadian Mounted Police (“RCMP”). The stop was a traffic stop initiated as a result of a burnt-out light and illegally tinted windows on the appellant’s truck. After pulling over the appellant, Constable MacPhail made several observations that resulted in him placing the appellant under investigative detention and calling for a sniffer dog to scan for drugs.
[5] During the initial stop, Constable MacPhail asked the appellant questions about where he was travelling and why. When he requested the appellant’s driver’s licence and registration, the appellant responded that his wallet had been stolen and offered his passport instead. Constable MacPhail described the appellant as “extremely nervous” and noted that his hands were shaking. This nervousness diminished over time. He also observed a large amount of luggage in the truck and a commercial grade tonneau cover concealing the contents of the truck box.
[6] When Constable MacPhail ran the appellant’s name and identification through the police database, he discovered an entry from 2014 related to drugs. The file was locked down and he had to call the Real Time Information Centre for further information. The Information Centre informed Constable MacPhail that the appellant was the subject of “a complaint of unknown reliability but was said to be an individual tied to the distribution of large quantities of marihuana and cocaine” (A.R., vol. I, at p. 14).
[7] According to Constable MacPhail, the information from the Real Time Information Centre confirmed his suspicions that the appellant was transporting drugs. In addition to the 2014 entry on his record, he made the following observations and inferences: (i) Highway 1, the route the appellant was travelling, was a known drug corridor and Calgary a known destination for drugs; (ii) the appellant’s story of visiting his sister for “a couple of days” was inconsistent with the large amount of luggage; (iii) it was suspicious that the luggage was in the cab of the truck rather than the box; (iv) the type of tonneau cover on the truck bed was often used by drug couriers; (v) “Back the Blue” stickers like the one the appellant had on his window were often used to avoid being pulled over; (vi) the appellant’s claim that his son had purchased the truck with the decal on it was inconsistent with the fact that the truck was registered in the appellant’s name; and (vii) the appellant was extremely nervous, albeit less so over time.
[8] Constable MacPhail placed the appellant under investigative detention and called for a sniffer dog. The appellant declined the opportunity to speak to counsel. Constable MacPhail conducted a pat-down search of the appellant’s front pocket area and placed him in a police vehicle. After around 20 minutes, the sniffer dog arrived with its handler and signalled that drugs were present. Constable MacPhail concluded that he had reasonable and probable grounds to arrest the appellant for possession of a controlled substance and did so.
[9] Upon placing the appellant under arrest, Constable MacPhail conducted a search of the appellant’s truck, including of duffel bags located in the truck box. He discovered 101.5 pounds of cannabis, some cannabis pastries or edibles, a jar with a substance he took to be cannabis, and $12,600 in cash. Constable MacPhail re-arrested the appellant for possession for the purpose of trafficking. The appellant was then removed from the first police car, handcuffed, and driven to the Banff police detachment in a second police vehicle. At the detachment, the appellant was required to strip to one layer of clothing and remove his shoes. He was arrested for a third time for possession of proceeds of crime over $5,000. He was released from police custody at 1:37 a.m., approximately six hours after arriving to the detachment and seven hours after being pulled over.
[10] At the voir dire, Constable MacPhail testified that he had been an RCMP officer for 14 years. At the time of the appellant’s arrest, he was part of the Roving Traffic Unit, which specializes in detecting and intercepting criminals travelling on the highway. Constable MacPhail had been a member of this unit for 8½ years and, in that time, had conducted between 12,000 to 15,000 traffic stops. Constable MacPhail had also acted as an RCMP instructor for the past 3 years and taught over 15 courses on traffic enforcement investigations.
III. Judicial History
A. Alberta Court of King’s Bench
[11] The trial judge identified the primary issue before her to be whether Constable MacPhail had reasonable suspicion to enter into an investigative detention and deploy a sniffer dog. She concluded he did not, as the only objective element for suspicion was a police database entry from 2014 which was unconfirmed and of unknown reliability. As a result, the trial judge found that the police had breached the appellant’s ss. 8 and 9 Charter rights by virtue of the sniffer dog search and investigative detention.
[12] However, the trial judge went on to conclude that the evidence should not be excluded under s. 24(2). First, with respect to the seriousness of the state conduct, there was no evidence of a deliberate or systemic breach of the Charter . Constable MacPhail’s failure to meet the reasonable suspicion standard was “miniscule” and not the result of negligence. While he did not meet the requisite standard, “he was extremely close to crossing it” (A.R., vol. I, at p. 21). Second, with respect to the impact of the breach on the Charter-protected interests of the appellant, the trial judge noted that the search was of a vehicle on a public highway. This did not attract a high expectation of privacy, as would be so in the case of a home or computer. The search also did not demean the appellant’s dignity. Finally, with respect to society’s interest in an adjudication on the merits, the trial judge found that the evidence was both highly reliable and the only evidence for the prosecution’s case. She also noted that the offence was serious despite the legalization of marijuana, given the quantity. After conducting her s. 24(2) analysis, she concluded that excluding the evidence would bring the administration of justice into disrepute.
B. Alberta Court of Appeal, 2022 ABCA 112, 44 Alta. L.R. (7th) 5
[13] The appellant appealed his conviction, arguing that the trial judge erred in her s. 24(2) analysis on the voir dire. In particular, he argued that the trial judge erred by failing to consider the consequences that flowed from the unlawful investigative detention and sniffer dog search.
[14] A majority of the Court of Appeal dismissed the appeal (per Wakeling and Crighton JJ.A.). The majority agreed with the Crown that trial judges are not required to consider conduct that might be relevant to a Charter-protected interest if that conduct was not argued by the parties and no findings were made in respect of it. It was not surprising that the trial judge only made findings on the investigative detention and sniffer dog search, as these were the only assertions set out in the appellant’s Charter notice. The majority concluded that entertaining the new arguments raised on appeal would undermine the role of the trial judge.
[15] The majority also concluded that while the trial judge had failed to consider the s. 9 breach — the investigative detention — under the second factor of the s. 24(2) test, this did not affect the result.
[16] Khullar J.A. (as she then was), dissenting, would have allowed the appeal, excluded the evidence, set aside the conviction, and entered an acquittal. She agreed with the trial judge that the first and third factors of the s. 24(2) test did not pull toward exclusion of the evidence. However, after a fresh analysis of the second factor, she concluded that, on balance, the evidence should be excluded.
[17] In Khullar J.A.’s view, the record was sufficient to consider the new Charter breaches alleged by the appellant and the Crown would not be prejudiced by the court doing so. She concluded that the trial judge had failed to consider several breaches of the appellant’s ss. 8 and 9 rights: the pat-down search; the search of the truck and its contents; the three arrests; and the detention which continued when the police placed the appellant in the police vehicle, handcuffed him, and detained him at the police detachment. Khullar J.A. considered these breaches at the second stage of the s. 24(2) test and determined that the impact of the breaches on the appellant’s Charter-protected interests strongly favoured exclusion of the evidence. On balance, the factors pulled toward exclusion.
IV. Issues
[18] This appeal raises the following two issues.
[19] First, should this Court consider the new issues raised by the appellant for the first time at the Alberta Court of Appeal?
[20] Second, did the trial judge properly consider all of the relevant Charter-infringing state conduct? Answering this raises two further questions. First, did the police commit further breaches of the appellant’s Charter rights by relying on the results of the unlawful sniffer dog search? And second, if so, how are these breaches to be factored into the s. 24(2) analysis?
V. Analysis
A. New Issues on Appeal
[21] The trial judge, based on the arguments before her, found two breaches of the Charter : s. 8 was breached, by virtue of the unlawful sniffer dog search, and s. 9 was breached, by virtue of the roadside investigative detention leading up to and during the sniffer dog search. On appeal before the Alberta Court of Appeal, the appellant argued that the trial judge had failed to consider several other breaches of ss. 8 and 9 of the Charter (paras. 43-44). These arguments engaged new issues beyond those raised at the voir dire.
[22] The appellant asks this Court to consider the new issues which the majority below declined to address, arguing that there is a sufficient record, no prejudice to the respondent, the Crown, and that a purposive and generous approach to the Charter requires the court to consider whether other state action constituted a breach of the appellant’s Charter rights. The Crown, on the other hand, argues that the record is insufficient to address the new issues because it “could have elicited additional evidence” in order “to flesh out the record” on several points, including the scope of the pat-down search, the reasons why Constable MacPhail placed the appellant in the back of the police car, and the circumstances of the appellant’s detention at the station (R.F., at para. 47). In addition, the Crown argues it would be unfair to allow the appellant to shift so far from his trial strategy and that there is no broader interest served by addressing the new issues.
[23] This Court has made clear that such new issues should be entertained only in “exceptional circumstances” (R. v. J.F., 2022 SCC 17, at para. 40, citing Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3). Nevertheless, we conclude that the issue of whether police conduct in this case breached s. 8 or 9 of the Charter should be considered by this Court. The legal question on which the Court of Appeal diverged requires this Court to consider the dissenting judge’s path of reasoning.
[24] Like Khullar J.A., we are of the view that addressing this issue would not result in unfairness to the Crown. The appellant, in making his argument, alleges “nothing further other than the fact that [the arrests, searches, and detention in question] occurred” (A.F., at para. 70). The Crown does not dispute that these events occurred. At the voir dire, the Crown adduced evidence from the arresting officer Constable MacPhail, the backup officer, and the dog handler. In the Court of Appeal, the Crown did not suggest it would have called any further evidence, except in relation to the strip search, which is no longer at issue (C.A. reasons, at para. 48). With respect to the legal issues before this Court, the Crown has had ample