R. v. Tim

R. v. Tim
Collection
Supreme Court Judgments
Date
2022-04-14
Neutral citation
2022 SCC 12
Report
[2022] 1 SCR 234
Case number
39525
Judges
Wagner, Richard; Moldaver, Michael J.; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Alberta
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234
Appeal Heard: October 7, 2021 Judgment Rendered: April 14, 2022 Docket: 39525
Between:
Sokha Tim Appellant
and
Her Majesty The Queen Respondent
Coram: Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 101)
Jamal J. (Wagner C.J. and Moldaver, Côté, Rowe and Kasirer JJ. concurring)
Dissenting Reasons: (paras. 102 to 104)
Brown J.
Sokha Tim Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Tim
2022 SCC 12
File No.: 39525.
2021: October 7; 2022: April 14.
Present: Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ.
on appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Arbitrary detention — Search and seizure — Remedy — Exclusion of evidence — Police arresting accused for possession of controlled substance based on mistake of law about pill in accused’s possession being controlled substance — Police subsequently conducting searches of accused and his car and finding drugs, ammunition and handgun — Whether arrest and subsequent searches infringed accused’s rights against arbitrary detention and unreasonable search and seizure — If so, whether admission of evidence would bring administration of justice into disrepute warranting its exclusion — Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).
The accused hit a roadside sign on a busy road and kept driving until his car stopped about a kilometre away. When a police officer arrived at the scene, he asked the accused for his driver’s licence, vehicle registration, and proof of insurance. When the accused opened his car’s door to get the documents, the officer saw him try to hide a small ziplock bag containing a single yellow pill. The officer correctly recognized the pill as gabapentin, which he mistakenly believed was a controlled substance under the Controlled Drugs and Substances Act (“CDSA”). The officer immediately arrested the accused for possession of a controlled substance.
After the accused was arrested, the police conducted four searches. Initially, they conducted both a pat‑down search of the accused and a search of his car incident to arrest, through which they found fentanyl, other illegal drugs, and ammunition. Then, when the accused was being taken to the patrol car, the officer saw bullets falling from his pants. A second pat‑down search was then conducted, during which a loaded handgun fell from the accused’s pants. Finally, the accused was strip searched at the police station but no more contraband was found.
At trial, the accused applied to exclude the evidence obtained during the searches on the basis that the police had breached his rights against arbitrary detention and unreasonable search and seizure respectively guaranteed under ss. 9 and 8 of the Charter. The trial judge dismissed the application, holding that the warrantless arrest did not violate s. 9 of the Charter, as the officer had reasonable and probable grounds to believe that an offence had been committed. He admitted the evidence and convicted the accused of several drug and firearm offences. A majority of the Court of Appeal found no breach of s. 8 or s. 9 of the Charter and dismissed the accused’s appeal. The dissenting judge concluded that the police breached ss. 8 and 9 of the Charter and would have excluded all the evidence under s. 24(2) of the Charter and acquitted the accused.
Held (Brown J. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Moldaver, Côté, Rowe, Kasirer and Jamal JJ.: The police breached s. 9 of the Charter by arresting the accused based on a mistake of law about the legal status of gabapentin. In addition, they breached s. 8 of the Charter by searching his person and car incident to the unlawful arrest. All of the impugned evidence was obtained in a manner that breached the Charter so as to trigger s. 24(2). However, the evidence should not be excluded under s. 24(2) because its admission would not bring the administration of justice into disrepute.
The right against arbitrary detention under s. 9 of the Charter is infringed when an arrest is based on a mistake of law. It is unlawful for the police to arrest someone based on a mistake of law and an unlawful arrest is necessarily arbitrary. A warrantless arrest is permitted pursuant to s. 495(1)(a) and (b) of the Criminal Code when the arresting officer subjectively has reasonable and probable grounds for the arrest, and those grounds are justifiable from an objective viewpoint. The reasonable grounds concept relates to the facts, not the existence of an offence in law. A warrantless arrest is lawful only if the arresting officer’s reasonable belief in the facts, if true, traces a pathway to a criminal offence known to the law. If there is a mistake of law, it makes no difference whether the mistake involves a non‑existent offence, or an existing offence that could not be engaged on the facts, even if true, relied on by the officer. The Court’s conclusion in the civil cases of Frey v. Fedoruk, [1950] S.C.R. 517, and Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, that a lawful arrest cannot be based on a mistake of law, applies equally in the criminal context. There are compelling considerations of principle and legal policy confirming this. Allowing the police to arrest someone based on what they believe the law is — rather than based on what the law actually is — would dramatically expand police powers at the expense of civil liberties.
In the instant case, the arrest of the accused was unlawful and arbitrary, contrary to s. 9 of the Charter. While the arresting officer subjectively believed that he had reasonable and probable grounds to arrest the accused for possession of a controlled substance under the CDSA, his subjective belief was based on a mistake of law, given that, even though he correctly identified the pill as gabapentin, he was mistaken about its legal status. His subjective belief thus was not — and could not be — objectively reasonable.
A warrantless search is prima facie unreasonable, and thus contrary to the s. 8 Charter right to be secure against unreasonable search or seizure. A search is reasonable, and thus complies with s. 8 of the Charter, if: (1) the search is authorized by law; (2) the law authorizing the search is reasonable; and (3) the search is conducted in a reasonable manner. The police have a common law power to search incident to investigative detention under certain circumstances. In the present case, the initial pat‑down search of the accused’s person and the search of his car, which were purportedly conducted incident to arrest, infringed his s. 8 Charter right because the accused’s arrest was unlawful. However, the second pat‑down search and the strip search did not infringe s. 8. The second pat‑down search of the accused’s person was a lawful search incident to investigative detention relating to the traffic collision investigation. The arresting officer had reasonable grounds to believe that his safety or the safety of others was at risk. He expressed subjective concerns about safety, even if only implicitly, and those concerns were objectively reasonable in the circumstances. Moreover, the search was conducted reasonably. As for the strip search at the police station, given that the accused was lawfully arrested for the weapons offences after the ammunition and handgun fell from his pants, it was incident to this arrest and it was conducted reasonably.
Section 24(2) of the Charter is triggered where evidence is obtained in a manner that violates an accused’s Charter rights. To determine whether evidence is so obtained, the courts take a purposive and generous approach. The entire chain of events should be examined, and evidence will be tainted if the breach and the discovery are part of the same transaction or course of conduct. The connection between the Charter breach and the impugned evidence can be temporal, contextual, causal, or a combination of the three. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2). When evidence is obtained in breach of the Charter, the s. 24(2) inquiry then examines the impact of admitting this evidence on public confidence in the justice system over the long term, based on three lines of inquiry: (1) the seriousness of the Charter‑infringing state conduct; (2) the impact of the breach on the accused’s Charter‑protected interests; and (3) society’s interest in the adjudication of the case on the merits. The final step of the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice.
In the instant case, all the evidence seized was obtained in a manner that breached the accused’s Charter rights. With respect to the ammunition and illegal drugs seized during the first and second searches, this was the case because the accused’s arrest for possession of a controlled substance and the searches of his person and car incident to arrest infringed ss. 8 and 9. As for the evidence found during the second pat‑down search, there were temporal and contextual connections between the Charter breaches and the discovery of the evidence. The discovery of this evidence was very close in time to the Charter breaches and it flowed directly out of the same encounter with the police and was part of the same transaction or course of conduct as the first and second searches.
Under the first line of inquiry, the seriousness of the Charter‑infringing state conduct is situated at the less serious end of the scale of culpability and weakly favours exclusion. The conduct underlying the accused’s arrest and the searches incident to arrest was inadvertent, not deliberate, and reflected an honest mistake about whether gabapentin was listed under the CDSA; the arresting officer tried to respect the accused’s Charter rights throughout and at no time did the police conduct display wilful blindness or a flagrant disregard for those rights; and the facts disclose human error by a single, relatively inexperienced police officer with no evidence of a systemic problem or lack of training in the police force that contributed to the mistake. As to the second line of inquiry, the Charter breaches arising from the unlawful arrest and the first two searches had a moderate impact on the accused’s Charter‑protected interests, such that this line of inquiry pulls moderately toward exclusion. When the accused was unlawfully arrested, his liberty interests were lawfully restricted for the traffic collision investigation, which mitigates the impact of his arbitrary arrest to some extent. With regard to the impact of the s. 8 Charter breaches, the searches were minimally intrusive. Finally, as to the third line of inquiry — society’s interest in the adjudication of the case on the merits — the evidence seized was reliable and relevant to the Crown’s prosecution of serious offences and its admission would better serve the truth‑seeking function of the criminal trial process than its exclusion. This line of inquiry pulls strongly toward admission. The final balancing does not call for exclusion of the evidence to protect the long‑term repute of the justice system. Excluding the evidence would damage, rather than vindicate, the long-term repute of the criminal justice system.
Per Brown J. (dissenting): The appeal should be allowed. The evidence should be excluded, and verdicts of acquittal on all charges should be substituted.
There is agreement with the majority that (1) an arrest based on a mistake of law is unlawful, (2) in this case, it resulted in a breach of the accused’s rights under s. 8 and s. 9 of the Charter, and (3) no deference is owed to the trial judge’s findings on s. 24(2) given his legal errors. There is also agreement with the majority’s account of the law and principles governing s. 24(2). There is disagreement on the application of the law and principles to the facts, as they relate to the seriousness of the Charter‑infringing conduct. On that point, there is agreement with the dissenting judge at the Court of Appeal. Taking that into account, and accepting the majority’s discussion of the other lines of inquiry, admitting the evidence would bring the administration of justice into disrepute.
Cases Cited
By Jamal J.
Applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Storrey, [1990] 1 S.C.R. 241; Frey v. Fedoruk, [1950] S.C.R. 517; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335; referred to: R. v. Blaney, 2018 BCSC 2211; R. v. Jongbloets, 2017 BCSC 2329; R. v. J.G.B., 2020 YKTC 14; Pearce v. Canada (Attorney General), 2016 FC 1409; R. v. Johnson, 2018 SKQB 322, aff’d 2021 SKCA 63; R. v. Qaqasiq, 2020 NUCJ 36, aff’d 2021 NUCA 16; R. v. Bourdon, 2016 ONSC 5707; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Stillman, [1997] 1 S.C.R. 607; 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. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; R. v. McDonnell, [1997] 1 S.C.R. 948; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Hudson v. Brantford Police Services Board (2001), 158 C.C.C. (3d) 390; R. v. Douglas, 2021 ONCJ 562; Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Heien v. North Carolina, 574 U.S. 54 (2014); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Orr, 2021 BCCA 42, 399 C.C.C. (3d) 441; R. v. Griffith, 2021 ONCA 302, 71 C.R. (7th) 239; R. v. Todd, 2019 SKCA 36, [2019] 9 W.W.R. 207; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63; R. v. Messina, 2013 BCCA 499, 346 B.C.A.C. 179; R. v. Wilson, 2012 BCCA 517, 331 B.C.A.C. 195, leave to appeal refused, [2013] 3 S.C.R. xii; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; R. v. Rowson, 2015 ABCA 354, 332 C.C.C. (3d) 165, aff’d 2016 SCC 40, [2016] 2 S.C.R. 158; R. v. Thibodeau, 2007 BCCA 489, 247 B.C.A.C. 103, leave to appeal refused, [2008] 1 S.C.R. xiii; R. v. Ali, 2022 SCC 1, [2022] 1 S.C.R. 3; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Latimer, [1997] 1 S.C.R. 217; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Plaha (2004), 189 O.A.C. 376; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; R. v. Goldhart, [1996] 2 S.C.R. 463; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561; R. v. Lichtenwald, 2020 SKCA 70, 388 C.C.C. (3d) 377; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, aff’d 2021 SCC 38, [2021] 2 S.C.R. 1078; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Keller, 2019 ABCA 38, 372 C.C.C. (3d) 502; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366.
By Brown J. (dissenting)
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).
Controlled Drugs and Substances Act, S.C. 1996, c. 19.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 320.16(1), 495(1).
Traffic Safety Act, R.S.A. 2000, c. T‑6, s. 69(1)(a), (c).
Authors Cited
Cournoyer, Guy. Code criminel annoté 2021. Montréal: Yvon Blais, 2020.
Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 2nd ed. Toronto: Thomson Reuters, 1987 (loose‑leaf updated February 2022, release 1).
Manning, Morris, and Peter Sankoff. Manning, Mewett & Sankoff: Criminal Law, 5th ed. Markham, Ont.: LexisNexis, 2015.
Marin, René J. Admissibility of Statements, 9th ed. Toronto: Thomson Reuters, 1995 (loose‑leaf updated February 2022, release 1).
McWilliams’ Canadian Criminal Evidence, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: Thomson Reuters, 2013 (loose‑leaf updated February 2022, release 1).
Stuart, Don. Canadian Criminal Law: A Treatise, 8th ed. Toronto: Thomson Reuters, 2020.
APPEAL from a judgment of the Alberta Court of Appeal (McDonald, Veldhuis and Wakeling JJ.A.), 2020 ABCA 469, 21 Alta. L.R. (7th) 95, 397 C.C.C. (3d) 163, 477 C.R.R. (2d) 11, [2021] 6 W.W.R. 55, [2020] A.J. No. 1426 (QL), 2020 CarswellAlta 2496 (WL), affirming the convictions of the accused for weapons and drug offences. Appeal dismissed, Brown J. dissenting.
Daniel J. Song and Curtis Steeves, for the appellant.
Elisa Frank, for the respondent.
The judgment of Wagner C.J. and Moldaver, Côté, Rowe, Kasirer and Jamal JJ. was delivered by
Jamal J. —
I. Introduction
[1] At issue on this appeal is whether the arrest of an individual based on a mistake of law and subsequent searches infringed the individual’s rights against arbitrary detention (s. 9) and unreasonable search and seizure (s. 8) guaranteed under the Canadian Charter of Rights and Freedoms, and if so, whether the evidence obtained should be excluded under s. 24(2).
[2] The police investigated the appellant, Mr. Sokha Tim, for a traffic collision after he hit a roadside sign on a busy road in Calgary and kept driving until his car stopped. An officer found the appellant standing on the roadside by his damaged car and asked him for his driver’s licence, vehicle registration, and proof of insurance. When the appellant returned to his car to get these documents, the officer saw him try to hide a yellow pill that the officer correctly identified as gabapentin, a prescription drug that the officer mistakenly believed was a controlled substance under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). The officer then arrested him for possession of a controlled substance. The police conducted a pat-down search of the appellant and searched his car incident to arrest, finding fentanyl, other illegal drugs, and ammunition. Because the police saw bullets falling from the appellant’s pants and believed that he was hiding something, they conducted a second pat-down search, this time finding a loaded handgun. A strip search at the police station found no further contraband.
[3] At trial, the appellant applied to exclude the evidence of the gun, ammunition, and drugs on the basis that the police had breached his rights under ss. 8 and 9 of the Charter. The trial judge dismissed the application, admitted the evidence, and convicted the appellant of several drug and firearm offences, including possession of fentanyl and a loaded prohibited firearm. A majority of the Court of Appeal of Alberta dismissed his appeal. The appellant now appeals to this Court as of right.
[4] For the reasons that follow, I would dismiss the appeal. The police breached s. 9 of the Charter by arresting the appellant based on a mistake of law about the legal status of gabapentin. They then breached s. 8 of the Charter by searching his person and car incident to the unlawful arrest. However, the subsequent pat-down search of the appellant was a lawful search incident to a parallel investigative detention for the traffic collision investigation. In addition, the strip search at the police station was a lawful search incident to arrest for possession of a prohibited firearm. Although all the impugned evidence was “obtained in a manner” that breached the Charter, I would not exclude it under s. 24(2). The Charter breaches were at the less serious end of the scale of culpability and only moderately impacted the appellant’s Charter-protected interests. On the other side of the ledger, the evidence was reliable and essential to the prosecution of serious offences. In my view, weighing these considerations, the admission of the evidence would not bring the administration of justice into disrepute.
II. Facts
[5] On the afternoon of October 8, 2016, a member of the public called 9-1-1 to report a single-vehicle collision on Memorial Drive in Calgary. The appellant’s car had veered off the road, hit a roadside sign, and continued for about a kilometre before it became disabled. Fire, medical, and police services rushed to the scene. The appellant was standing at the side of the road talking to a firefighter when a police officer arrived.
[6] The officer, suspecting that the appellant had fled the scene of the collision, approached the appellant and asked if he had been involved in an accident. The appellant acknowledged that he had hit the sign, but he claimed that he could not stop. The officer asked the appellant for his driver’s licence, vehicle registration, and proof of insurance. The appellant said he would get the documents from his car. The officer followed him as he did so.
[7] When the appellant opened the driver-side door, the officer saw a small ziplock bag containing a single yellow pill near the window controls in the door area. The appellant’s eyes motioned to the pill, and he quickly swiped it to the ground outside of the car, as if he were trying to hide it. The officer recognized the pill as gabapentin, which he had seen trafficked on the street with illegal drugs such as fentanyl and methamphetamine. Because the officer believed that gabapentin was a controlled drug under the CDSA, he immediately arrested the appellant for possession of a controlled substance. He did not ask the appellant about the drug because he wanted to arrest and caution him without delay. However, as the officer later learned, gabapentin — which goes by the street name “gabby” or “gabbies” — is not a controlled substance but rather a prescription painkiller and anti-seizure medication. It is also trafficked and used as a recreational drug for the high it creates.[1]
[8] After the appellant was arrested, the police conducted four searches. The legality of those searches was challenged in the courts below and before this Court.
[9] In the first search, the officer conducted a pat-down search of the appellant’s person incident to arrest. This search revealed live ammunition for a .22 calibre rifle and a .45 calibre handgun, five fentanyl pills, two pills later identified as hydromorphone (an opioid and controlled substance under the CDSA), two pills later identified as alprazolam (a tranquillizer and controlled substance under the CDSA), another gabapentin pill, three cell phones, and $480 in cash.
[10] In the second search, another police officer, who arrived moments before the arresting officer placed the appellant under arrest, searched the appellant’s car incident to arrest. He found a folded serrated knife, a canister of bear spray, four fentanyl pills, and two pills later identified as alprazolam.
[11] In the third search, the arresting officer searched the appellant’s person again because he became concerned that the first search might have missed some items. His suspicions were aroused because the appellant was walking strangely while being taken to the patrol car: he was limping and shaking his leg, as if he had something hidden in his pants or falling down his pant leg. The officer then saw .22 calibre ammunition fall from the leg of the appellant’s pants. While searching his person, the officer touched the outside of the appellant’s pants in his groin area and felt a metal object. A double-barrelled handgun immediately fell from his pants. The gun was loaded with two live rounds, one in each barrel.
[12] In the fourth search, the appellant was strip searched at the police station. The appellant was asked to strip down to his underwear and an officer searched around his waistband to see if he had hidden anything else. No more contraband was found.
III. Judgments Below
A. Court of Queen’s Bench of Alberta (Sullivan J.)
[13] On a voir dire, the appellant asserted that the police had infringed his rights under ss. 8 and 9 of the Charter, and he sought to exclude the evidence of the fentanyl, ammunition, and handgun under s. 24(2). The trial judge held that the warrantless arrest did not violate s. 9 of the Charter, as the officer had reasonable and probable grounds to believe that an offence had been committed, even though possession of gabapentin was not an offence. The officer had a subjective belief that gabapentin was a controlled substance, and his belief was objectively reasonable given his experience seeing it trafficked with other street drugs and his observation of the appellant trying to hide the pill. The trial judge held that the searches at the scene were incident to a lawful arrest, and they therefore did not infringe s. 8 of the Charter. Although the trial judge found no breach of s. 8 or s. 9 of the Charter, he said that he had considered all the factors under s. 24(2) and admitted the evidence. The appellant then pleaded guilty to possession of fentanyl and to several firearms offences.
B. Court of Appeal of Alberta, 2020 ABCA 469, 397 C.C.C. (3d) 163 (McDonald and Wakeling JJ.A., Veldhuis J.A. (Dissenting))
[14] The Court of Appeal of Alberta divided on whether ss. 8 and 9 of the Charter were infringed and whether the evidence should be excluded under s. 24(2).
[15] The majority found no breach of s. 8 or s. 9 of the Charter and dismissed the appeal. The officer had reasonable and probable grounds to believe that the appellant had committed an indictable offence, and the officer could thus arrest him without a warrant under s. 495(1) of the Criminal Code, R.S.C. 1985, c. C-46. The arresting officer’s mistake of law — in believing that gabapentin was a controlled substance under the CDSA — did not invalidate the arrest. The officer was not enforcing a “non-existent law”; “[h]e was enforcing the CDSA pertaining to the possession of a controlled substance” (para. 36). Although the officer made a mistake of law, he believed on reasonable and probable grounds in a state of facts and law that, had they existed, would have resulted in the offence of possession of a controlled substance. The officer was not expected to be perfect in hindsight. He acted in good faith and his actions were reasonable in the circumstances. There was thus no breach of s. 9 of the Charter. Since the arrest was lawful, the searches did not infringe s. 8 of the Charter. There was no need to consider s. 24(2).
[16] The dissenting judge concluded that the police breached ss. 8 and 9 of the Charter. The appellant’s arrest was arbitrary and breached s. 9. Although the officer had a subjective belief that the appellant was in possession of a controlled substance, that belief was not objectively reasonable. The police must be familiar with and consult the legislation that they are enforcing. Here, the arresting officer made a mistake of law about the legal status of gabapentin. There were no safety concerns, urgency, or other circumstances requiring an immediate arrest, and the appellant was cooperating with the police at the time of his arrest. All four searches breached s. 8 of the Charter. The Crown conceded that the first and second searches breached s. 8 if the arrest was arbitrary. The dissenting judge ruled that the Crown did not prove independent grounds justifying the third and fourth searches. The officer’s evidence did not establish grounds for a safety search incident to an investigative detention.
[17] The dissenting judge would have excluded all the evidence under s. 24(2) of the Charter and acquitted the appellant. The Charter-infringing state conduct was serious: the arresting officer was not acting in good faith, since his belief that the appellant had committed an offence was not reasonable in the circumstances; he did not make use of the investigative detention powers available to him; and he took no reasonable steps to investigate whether the appellant possessed a controlled substance. The impact on the appellant’s Charter-protected interests was serious, since he was subject to searches of varying degrees of intrusion, culminating in a highly invasive strip search. The final balancing led to excluding the evidence, as admitting it would bring the administration of justice into disrepute. Although society’s interest in adjudicating this case on the merits supported admission of the evidence, the seriousness of the breaches and the impact on the appellant’s Charter-protected interests supported exclusion.
IV. Issues
[18] The appellant raises three issues:
A. Did the police infringe s. 9 of the Charter by arresting the appellant based on a mistake of law?
B. Did the four searches infringe s. 8 of the Charter?
C. Should the evidence be excluded under s. 24(2) of the Charter?
V. Analysis
A. Did the Police Infringe Section 9 of the Charter by Arresting the Appellant Based on a Mistake of Law?
(1) Introduction
[19] The first issue is whether the police infringed the appellant’s right against arbitrary detention under s. 9 of the Charter by arresting him based on a mistake of law. The Crown concedes that the appellant’s arrest involved a mistake of law as to whether gabapentin was a controlled substance under the CDSA. However, the Crown claims that the majority of the Court of Appeal correctly held that an arrest based on a reasonable mistake of law is nevertheless lawful.
[20] I disagree. As I will explain, an arrest based on a mistake of law is unlawful and infringes s. 9 of the Charter.
(2) Applicable Legal Principles
(a) Section 9 of the Charter
[21] Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” This Court has adopted a generous and purposive approach to the interpretation of s. 9, one that seeks to balance society’s interest in effective policing with robust protection for constitutional rights (see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 24; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 15-18 and 23). The purpose of s. 9, broadly stated, “is to protect individual liberty from unjustified state interference” (Grant, at para. 20; see also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25).
[22] Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary (see Grant, at para. 54; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20). Conversely, an unlawful arrest or detention is necessarily arbitrary and infringes s. 9 of the Charter (see Grant, at para. 54; R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3).
(b) The Power of a Peace Officer to Arrest Without a Warrant
[23] Sections 495(1)(a) and (b) of the Criminal Code provide that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence” or “a person whom he finds committing a criminal offence”.
[24] The applicable framework for a warrantless arrest was set out in R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51. A warrantless arrest requires both subjective and objective grounds. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. The police are not required to have a prima facie case for conviction before making the arrest (see also R. v. Feeney, [1997] 2 S.C.R. 13, at para. 24; R. v. Stillman, [1997] 1 S.C.R. 607, at para. 28; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73).
[25] The existence of reasonable and probable grounds is founded on the trial judge’s factual findings. Although such factual findings attract appellate deference and are reviewable only for palpable and overriding error, whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law reviewable for correctness (see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20).
[26] The specific s. 9 Charter issue raised here is whether an arrest based on a mistake of law is unlawful. Can a police officer arrest someone whom they believe has committed an offence, even if the facts relied on by the arresting officer, if true, do not involve unlawful conduct? In my view, the answer is no. As I will elaborate, precedent, principle, and legal policy preclude a lawful arrest based on a mistake of law.
(c) Precedent
[27] This Court first ruled that a lawful arrest cannot be based on a mistake of law in Frey v. Fedoruk, [1950] S.C.R. 517. Frey involved a civil action for false imprisonment brought by a “peeping tom” against a police officer and another person after the officer arrested the voyeur for breach of the peace. The Court held that the conduct for which the plaintiff was arrested was not a criminal offence and should not be recognized as a new offence at common law (voyeurism is now contrary to s. 162(1) of the Criminal Code). Frey is usually cited for the proposition that it is for Parliament and not the courts to create new offences or to expand the basis of criminal liability (see R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 57; R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 33; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 930; D. Stuart, Canadian Criminal Law: A Treatise (8th ed. 2020), at pp. 21-22; M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at pp. 6-7). But the Court in Frey also held that an officer’s mistake of law in believing that certain conduct was a criminal offence could not provide “reasonable and probable grounds” for a warrantless arrest under what was then s. 30 of the Criminal Code (p. 531). A warrantless arrest is lawful only if the arresting officer’s reasonable belief in the facts, if true, traces a pathway to a criminal offence known to the law. As Cartwright J. (as he then was) explained in Frey, at p. 531:
I think that [s. 30 of the Criminal Code] contemplates the situation where a Peace Officer, on reasonable and probable grounds, believes in the existence of a state of facts which, if it did exist would have the legal result that the person whom he was arresting had commit[t]ed an offence for which such person could be arrested without a warrant. It cannot, I think, mean that a Peace Officer is justified in arresting a person when the true facts are known to the Officer and he erroneously concludes that they amount to an offence, when, as a matter of law, they do not amount to an offence at all. “Ignorantia legis non excusat”. [Emphasis added.]
[28] Frey was recently affirmed on this point in Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335. In Kosoian, a subway passenger sued the police when she was arrested and searched for refusing to comply with a subway pictogram warning passengers to hold an escalator handrail. The Court ruled that the pictogram was simply a warning and did not create an offence, and the police officer’s error of law in believing otherwise did not provide reasonable and probable grounds to arrest the passenger without a warrant under Quebec’s Code of Penal Procedure, CQLR, c. C‑25.1 (“C.P.P.”). In Kosoian, at para. 78, citing Frey, Côté J. stated that the reasonable grounds concept relates to the facts, not the existence of an offence in law — and thus an arrest based on a mistake of law is unlawful, even if the arresting officer believes in good faith that the offence exists:
The exercise of these powers presupposes that there are reasonable grounds to believe an offence has been committed. The “reasonable grounds” concept relates to the facts, not to the existence in law of the offence in question (Frey v. Fedoruk, [1950] S.C.R. 517, at p. 531). If the offence that the police officer believes has been committed simply does not exist, neither the C.P.P. nor, for that matter, any other statute or common law rule gives the officer the power to require a person to identify himself or herself and to arrest the person if he or she refuses to comply (see Moore v. The Queen, [1979] 1 S.C.R. 195, at pp. 205‑6, per Dickson J., dissenting; R. v. Guthrie (1982), 21 Alta. L.R. (2d) 1, at p. 8; R. v. Coles, 2003 PESCAD 3, 221 Nfld. & P.E.I.R. 98, at para. 14). An officer who makes an arrest on this basis is acting unlawfully, even if he or she believes in good faith that the offence exists (R. v. Houle (1985), 41 Alta. L.R. (2d) 295, at pp. 297‑99; Crépeau v. Yannonie, [1988] R.R.A. 265 (Que. Sup. Ct.), at p. 269; see also P. Ceyssens, Legal Aspects of Policing (loose‑leaf), vol. 1, at p. 2‑3). It was therefore incumbent upon Constable Camacho to verify the existence of the offence alleged against Ms. Kosoian before using the powers conferred on him by the C.P.P. [Underlining added.]
See, to similar effect, Hudson v. Brantford Police Services Board (2001), 158 C.C.C. (3d) 390 (Ont. C.A.), at para. 24, per Rosenberg J.A. (s. 25(1) of the Criminal Code, which protects a peace officer from civil liability when acting on “reasonable grounds”, encompasses mistakes of fact, but “[i]t does not protect against reasonable mistakes of law”); R. v. Douglas, 2021 ONCJ 562, at paras. 47-48 (CanLII), per Rose J. (“A lawful arrest must have lawful grounds, which excludes the possibility of a mistake of law”). See also R. J. Marin, Admissibility of Statements (9th ed. (loose-leaf)), at § 9:51 (“[B]ecause the risk of abuse is undeniable, it is important there must be a legal basis for police actions. In the absence of justification their actions and conduct cannot be tolerated”.); E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. (loose-leaf)), at § 5:59 (“[A]n officer who arrests someone on the basis of a ‘non-existent offence’ may be civilly liable”).
[29] Although Frey and Kosoian were civil cases, this Court’s conclusion that a lawful arrest cannot be based on a mistake of law applies equally in the criminal context. In both cases, this Court analyzed the lawfulness of a warrantless arrest based on a mistake of law as part of a chain of reasoning to find civil liability. That reasoning concerns the scope of police powers and applies equally to the criminal context. See Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 68, per McLachlin C.J. (The reasonable officer standard in civil cases “entails no conflict between criminal standards” but rather “incorporates them”.); G. Cournoyer, Code crim