R. v. Greffe

R. v. Greffe
Collection
Supreme Court Judgments
Date
1990-04-12
Report
[1990] 1 SCR 755
Case number
20763
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 20763
Decision Content
R. v. Greffe, [1990] 1 S.C.R. 755
Marc André Greffe Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. greffe
File No.: 20763.
1989: November 27, 28; 1990: April 12.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.
on appeal from the court of appeal for alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute -- Alleged violations of right to counsel and of right to freedom from unreasonable search and seizure ‑‑ Accused searched at customs for illegal drugs ‑‑ Accused then arrested for outstanding traffic warrants and rectal examination conducted ‑‑ Heroin found in anal cavity and accused charged with importing heroin ‑‑ Whether or not right to counsel and right to freedom from unreasonable search and seizure infringed ‑‑ If so, whether or not real evidence should be excluded ‑‑ Canadian Charter of Rights and Freedoms, ss. 8 , 10 , 24(2) .
The R.C.M.P. alerted Canada Customs at Calgary that there was confidential information that appellant was returning with an unknown quantity of heroin. A visual personal search was conducted when nothing was found in a search of appellant's luggage. Appellant was not informed of his right to counsel ‑‑ the facts arose before this Court's judgment in Simmons ‑‑ and no evidence indicated that appellant had read a poster advising persons not wishing to be searched of their right to have the proposed search reviewed by a justice of the peace, police magistrate or a Senior Customs Officer. No drugs were found. Appellant was then arrested, informed of his right to counsel, and advised that a doctor would perform a body search at a hospital. A condom containing heroin was removed from appellant's anal cavity.
The testimony of the police officers conflicted with respect to appellant's arrest. The notes of one constable indicated that appellant had been arrested for traffic warrants. Another constable testified that appellant had been arrested for importing heroin although his notes indicated no reason for the arrest. The first reference in his notes to charging the appellant with a narcotics offence refers to a time after the rectal search and after the earlier notation in the other constable's notes about arresting the appellant for outstanding traffic warrants. The appellant was ultimately charged with two counts under the Narcotic Control Act, one of unlawfully importing heroin and one of being in unlawful possession of heroin for the purpose of trafficking.
The focal point of the trial was the admissibility of the heroin as evidence. The trial judge excluded the evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms and acquitted the appellant in the absence of any evidence to support the charges against him. He found that the airport arrest was spurious, that appellant's right to obtain and instruct counsel had been tainted and that the violation of that right resulted in a gross infringement of the accused's rights pursuant to s. 8 to be secure against an unreasonable search. A majority of the Court of Appeal held that the trial judge erred in excluding the evidence. Given respondent's concession that ss. 8 and 10 (a) and (b) of the Charter had been violated, the only issue to be considered was whether the evidence ought to have been excluded pursuant to s. 24(2) of the Charter .
Held (Dickson C.J. and L'Heureux-Dubé and Cory JJ. dissenting): The appeal should be allowed.
Per Lamer, La Forest, Wilson and Gonthier JJ.: The factors to be balanced in determining whether the admission of evidence in the proceedings would bring the administration of justice into disrepute can be organized into three categories. The first set of factors are those relevant to the fairness of the trial. The second set of factors concerns the seriousness of the Charter violations as defined by the conduct of the law enforcement authorities. The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding the evidence despite the fact that it was obtained in a manner that infringed the Charter . The purpose of the section is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings.
The key component of the Collins "test" to determine the admissibility of evidence in this appeal is the second set of factors, namely the seriousness of the violations of ss. 8 and 10 of the Charter . In respect of the first factor, the fairness of the trial, what was involved was real evidence, the existence of which did not depend on the Charter violations. Therefore, the admission of the evidence at trial would not, generally speaking, render the trial unfair.
Although the Crown conceded that whether there were reasonable and probable grounds to believe that the appellant was in possession of the heroin was a live issue, the Crown at no point established that those grounds existed or even led evidence in support of their existence. The absence of any inquiry to determine whether or not the confidential information amounted to reasonable and probable grounds for believing that the accused was carrying heroin was extremely important since it went to the assessment of the seriousness of the Charter violations, and more specifically the element of good or bad faith on the part of the police in conducting the search.
Confidential information supplied by a reliable informant may provide the "reasonable and probable grounds to believe". A mere conclusory statement made by an informer to a police officer does not constitute reasonable grounds. Highly relevant are whether the informer's tip contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability.
Absent reasonable and probable grounds, the misinformation regarding the reason for the arrest takes on a more serious complexion. Nothing was put on the record on which the trial judge could have assessed whether or not the confidential information gave rise to reasonable and probable grounds for the belief that the appellant was carrying heroin. The conclusion that reasonable and probable grounds existed by reference to the results of the search was in error. The doubt should be resolved against the Crown since it did fail in its obligation to establish those grounds.
The premise that the search proceeded as incident to an arrest for outstanding traffic warrants was unescapable. The trial judge had erred in law by concluding that the police had reasonable and probable grounds based on the results of the search and the record revealed no evidence to support the existence of the grounds beyond a conclusory statement by the police. This conclusion was the most determinative factor in this case.
The violation of the s. 10 right to counsel goes to the very reasonableness of the search. The appellant, if given the reason for the detention and the right to counsel, might have afforded himself an opportunity to contact counsel to have the "confidential information" on which the search allegedly was based tested to see if there were indeed reasonable and probable grounds to conduct the strip search let alone the rectal examination.
The gravity of the Charter violations is increased by a number of factors. The relationship between the violations of ss. 8 and 10 of the Charter renders the violations more serious than if the breach of s. 10 had been very remote from the strip search. The violation is very serious, however, given that the rectal examination was conducted as incident to an arrest for traffic warrants occasioned by unproved suspicion that the appellant was in possession of heroin. It is the intrusive nature of the rectal search and considerations of human dignity and bodily integrity that demand the high standard of justification before such a search will be reasonable.
There was no urgency or immediate necessity to conduct the rectal examination in order to prevent the loss or destruction of the evidence. The detention of the accused in order to facilitate the recovery of the drugs through the normal course of nature would have been reasonable if the police had reasonable and probable grounds for believing that he was a drug courier.
Finally, more than one Charter violation was at issue. The breaches of the appellant's Charter rights were not isolated errors of judgment by the police, but rather were part of a larger pattern of disregard for the appellant's Charter rights.
The seriousness of the cumulative effect of the Charter violations weighed in favour of excluding the evidence, notwithstanding the fact that the evidence recovered was real evidence that existed irrespective of the Charter violations and that its admission therefore would not negatively affect the adjudicative fairness of the appellant's trial.
The Court must also consider the long‑term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice. Here, the administration of the justice system would be brought into greater disrepute if this Court were to condone, taking the record as it is given by the police and the prosecution, the practice of using an arrest for traffic warrants as an artifice to conduct a rectal examination of an accused who the police do not have reasonable and probable grounds to believe is carrying drugs. Further, the inference of extreme bad faith on the part of the police which arises from their deliberate failure to provide the appellant with the proper reason for the arrest cannot be condoned. This is especially so when the right to counsel and the right to be secure against unreasonable searches are involved.
This Court's assessment of whether the evidence should be excluded should not be influenced by the knowledge that the appellant must have known that he was in possession of the drugs. To do so would be to import an ex post facto chain of reasoning that finds no place in an inquiry pursuant to s. 24(2) of the Charter .
Per Dickson C.J. and L'Heureux‑Dubé and Cory JJ. (dissenting): Whether or not evidence should be excluded under s. 24(2) of the Charter depends on: (1) its effect on the fairness of the trial; (2) the seriousness of the Charter violation; and, (3) the effect of excluding the evidence on the repute of the legal system. No one factor is determinative.
The admission of the heroin would not have a detrimental impact on adjudicative fairness. Real evidence, by its nature, rarely has such an impact.
The factors to be considered in determining the seriousness of the Charter violations generally favoured the admissibility of the evidence.
The arrest for outstanding traffic warrants was irrelevant. Authority for the search was found in the arrest made subsequent to the finding of the drugs. (This arrest was made with due regard for all the appellant's Charter rights.) A search undertaken prior to an arrest may still be incidental to the subsequent arrest, if reasonable and probable grounds existed for that prior search, and therefore legal in terms of s. 450 of the Criminal Code .
The issue of whether reasonable and probable grounds existed was central to a determination of whether the search and seizure complied with s. 8 of the Charter . The "totality of the circumstances" must be examined in making that determination; no one factor should dominate the analysis. Here, the R.C.M.P. had reasonable grounds to arrest and search the appellant and consequently the search was conducted under lawful authority.
The inference that reasonable and probable grounds did not exist cannot be drawn from the fact that little was put in evidence as to the reliability of the informant, who in fact proved reliable. Given the jurisprudential vacuum at the time of the search, the police did all that reasonably could be expected of them in following up the confidential information before deciding to search and arrest the appellant.
The police did not act in "bad faith" in arresting the appellant for outstanding traffic violations. Indeed, the fact that the appellant was advised of his right to retain and instruct counsel indicated that the police acted in "good faith" in their dealings with the appellant.
The conduct of the authorities did not amount to a "pattern of disregard" given that the appellant was informed that he had a right to retain and instruct counsel without delay before he was taken to the hospital for the body cavity search. Although the police violated the appellant's right to be informed promptly of the reason for his arrest, the infringement would be far more grievous if no counsel warning had been given at all. Finally, there is no evidence of malice on the part of the authorities towards the appellant nor of any mistreatment.
The appellant's manifest culpability weighed heavily in favour of the admission of the real evidence. The reasonable person would be shocked and appalled to learn that an accused, unquestionably guilty of importing a sizable amount of heroin, was acquitted of all charges because of what amounted to a slip of the tongue by a police officer when the accused was arrested and read his s. 10 counsel rights.
Cases Cited
By Lamer J.
Applied: R. v. Collins, [1987] 1 S.C.R. 265; considered: R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Cheecham (1989), 51 C.C.C. (3d) 498; distinguished: R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62; referred to: R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), aff'd [1989] 2 S.C.R. 1140; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Heisler (1984), 11 C.C.C. (3d) 475; Bell v. Wolfish, 441 U.S. 520 (1979); R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Stevens (1983), 7 C.C.C. (3d) 260; R. v. Rao (1984), 46 O.R. (2d) 80; R. v. Morrison (1983), 6 C.C.C. (3d) 256; Hunter v. Southam Inc. [1984] 2 S.C.R. 145; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Jacoy, [1988] 2 S.C.R. 548.
By Dickson C.J. (dissenting)
R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), aff'd [1989] 2 S.C.R. 1140; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Strachan, [1988] 2 S.C.R. 980; Mapp v. Ohio, 367 U.S. 643 (1961); Cloutier v. Langlois, [1990] 1 S.C.R. 158.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 10 , 24(2) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 450 [rep. & sub. c. 2 (2nd Supp.), s. 5].
Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 5(1), 10(1).
APPEAL from a judgment of the Alberta Court of Appeal (1988), 57 Alta. L.R. (2d) 161, 84 A.R. 96, 41 C.C.C. (3d) 257, 62 C.R. (3d) 272, 34 C.R.R. 234, allowing the Crown's appeal from the accused's acquittal on charges of importing a narcotic and possession for the purpose of trafficking. Appeal allowed, Dickson C.J. and L'Heureux-Dubé and Cory JJ. dissenting.
Lorne W. Scott, Q.C., and Terrence Semenuk, for the appellant.
B. A. MacFarlane, Q.C., and Shelagh R. Creagh, for the respondent.
//The Chief Justice//
The reasons of Dickson C.J. and L'Heureux-Dubé and Cory JJ. were delivered by
The Chief Justice (dissenting) -- I have had the benefit of reading the reasons for judgment of Justice Lamer in this appeal. He has described accurately the facts and the lower court judgments, and I will repeat neither here. I would emphasize at the outset in the strongest terms that the events in question occurred in March 1984, prior to the release of many of the judgments referred to by Lamer J., including: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), upheld by this Court, [1989] 2 S.C.R. 1140; R. v. Simmons, [1988] 2 S.C.R. 495. The police, therefore, had not been alerted to the procedural safeguards which subsequently have been established by this body of jurisprudence. I agree that the sole issue in this case is the application of s. 24(2) of the Canadian Charter of Rights and Freedoms . However, with respect, I find myself in disagreement with Lamer J.'s conclusion that the violations of the legal rights of the appellant in the appeal justify the exclusion of the evidence, namely, the heroin found in the body cavity of the appellant.
The approach which this Court has adopted for the determination of the admissibility of evidence pursuant to s. 24(2) was stated first in R. v. Collins, [1987] 1 S.C.R. 265, and I restated the method of analysis, writing for a majority of this Court, in R. v. Jacoy, [1988] 2 S.C.R. 548, at pp. 558-59:
First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" ([Collins, at] p. 284). One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.
The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.
Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible.
I propose to deal with each set of factors in turn because, in my opinion, no one factor is determinative of the issue.
Fairness of the Trial
In my view, the nature of the evidence strongly militates against its exclusion. In Collins, supra, this Court recognized that real evidence, by its nature, if admitted will rarely have a detrimental impact upon adjudicative fairness (p. 284). More recently, this Court has had occasion to deal specifically with the issue of the admissibility, pursuant to s. 24(2) , of real evidence of narcotics found during customs searches at airports. In Simmons, supra, a strip search was conducted upon the appellant Simmons in contravention of her s. 10 (b) and s. 8 Charter rights. The search revealed cannabis resin. It was the majority opinion of the Court that the admission of the evidence would not unfairly affect the trial of the appellant (at p. 534):
Unlike the situation in Therens, supra, the accused here was in no way conscripted against herself. The admission of the evidence in this case, in contrast to Therens, would therefore not tend to affect adversely the fairness of the trial process.
Similarly, in Jacoy, supra, the appellant Jacoy's s. 10 (b) rights were infringed during a customs search which uncovered cocaine in his personal belongings. Writing for a majority of the Court, I held that the evidence was properly admissible (at p. 559):
Evidence of narcotics is real evidence that existed independently of the Charter violation. This factor distinguishes this appeal from Therens, where the evidence was created by the accused as a result of the violation. Admission of evidence of this latter sort detracts from the fairness of the trial process, real evidence does not.
I find these recent decisions to be of direct application to the case at bar. Although the Charter violation in issue is said to be an infringement of the appellant's counsel rights, the nature of the evidence is real evidence and not self-incriminating statements goaded from the accused by the authorities during the period in which counsel rights were denied. Consequently, the admission of the evidence would not have a detrimental impact upon the trial process. This set of factors, then, strongly favours the admission of the heroin into evidence.
Seriousness of the Charter Violation
The second group of factors to be considered in a determination of the admissibility of evidence pursuant to s. 24(2) can be grouped together under the general heading of the "seriousness of the Charter violation". Unlike Lamer J., I do not find these factors to be dispositive of this appeal. Rather, in my view, they generally favour the admissibility of the evidence.
I agree with Lamer J. that the question whether the R.C.M.P. had "reasonable and probable grounds" for their belief that the accused was in possession of a narcotic is fundamental to the analysis. First, if grounds for that belief were present, then the police were lawfully entitled to arrest the appellant in respect of a narcotics offence pursuant to s. 450 (now s. 495) of the Criminal Code, R.S.C. 1970, c. C-34. Once lawfully arrested, the police indisputably were entitled to conduct a search of the appellant's person for narcotics, on the basis of the legislative authority in s. 450 : Cloutier v. Langlois, [1990] 1 S.C.R. 158. Thus, if the belief held by the police that the appellant was in possession of heroin is found to be reasonably based, the search itself is "clothed in legality", to use the respondent's turn of phrase, and the failure to arrest for the proper offence can be characterized as a trivial violation of the appellant's Charter rights.
Furthermore, authority for the search can be found in the arrest made subsequent to the finding of the drugs -- an arrest which was made with due regard for all of the appellant's Charter rights. In R. v. Debot, supra, Martin J.A. in the Ontario Court of Appeal recognized the possibility that a search undertaken prior to an arrest may still be incidental to the subsequent arrest, provided that reasonable and probable grounds for the prior search existed (at p. 225):
What constitutes a search incident to arrest is a question of law. . . . I do not think that the fact that the respondent would not have been arrested if drugs had not been found in his possession, precludes the prior search from being incident to the arrest that followed the finding of the drug. This is provided, always, that the officer had reasonable grounds, prior to the search, for arresting the respondent under s. 450 of the Code.
I agree with Martin J.A.'s approach and I find his analysis directly applicable to the facts at bar. If reasonable and probable grounds for an arrest prior to the search existed, then that search is legal in terms of s. 450 of the Criminal Code , despite the fact that the accused was not charged with possession of narcotics at the time. The arrest for outstanding traffic warrants, therefore, becomes irrelevant.
The issue of reasonable and probable grounds also is central to a determination of the reasonableness of the search and seizure in terms of compliance with s. 8 of the Charter , which demands that a search be carried out under lawful, in this case statutory, authority (see Collins, supra, at p. 278). The question of what constitutes "reasonable and probable grounds" has been the subject of considerable judicial comment since the enactment of the Charter , much of it stemming from the judgment of this Court in Hunter v. Southam Inc., supra. In that case, the facts of which are now well known, the Court considered the constitutionality of a warrantless search and held that, at a minimum, "reasonable and probable grounds", established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing a search and seizure. In this regard, I propounded the general principle that "[t]he state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion" (p. 167).
The preconditions to a finding that reasonable and probable grounds for a warrantless search existed have been expanded upon in subsequent cases before this Court, most recently in the context of a warrantless drug search in the case earlier mentioned, R. v. Debot, supra. In that case, Wilson J., writing for a majority of this Court on this issue, elaborated upon the threshold that must be met before this type of search can be justified (at p. 1168):
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated strengths in the other two.
I agree with Wilson J. that the "totality of the circumstances" must be examined in order to determine whether reasonable grounds exist for a search and that no one factor should dominate the analysis.
In the instant case, the R.C.M.P. received a "tip" from an informer and, after background investigation, the police believed that the appellant was returning to Calgary, Alberta on a Canadian Pacific flight from Amsterdam, Holland on March 11, 1984. On the basis of the confidential information and follow-up investigation, they had grounds to believe that the appellant was in possession of heroin. In fact, that belief was so strongly held that when the flight was diverted to Edmonton, Alberta, because of weather conditions, customs inspectors at the Edmonton International Airport were instructed to ensure that the appellant did not leave the aircraft during that unscheduled stop. While I agree with Lamer J. that it would be useful if more detail was present on the record as to the confidential information, and the nature and extent of the background investigation, this is not a case where there was no evidence at all. The evidence indicates that the R.C.M.P. intended to arrest the appellant one week before his flight's arrival, and that they were aware of the flight and its arrival time. They possessed the description of the appellant, the clothing that he was supposed to be wearing and they were aware of the fact that he was expected to be carrying heroin. This was entirely a result of information received and background investigation by the R.C.M.P. Solely from the fact that little was put in evidence as to the reliability of the informant, who in fact proved reliable, I am not prepared to draw the inference that there did not exist reasonable and probable grounds for the belief that the appellant was in possession of heroin.
In addition, as I stated at the outset, in my opinion regard must be had for the fact that the search of the appellant occurred in March 1984. As the respondent correctly submits, the Charter was in its infancy at that time. This Court had not yet pronounced its decision in Hunter v. Southam Inc., supra; nor had the Court yet had the opportunity to deal with the threshold of reasonable and probable grounds in the context of confidential informant information. In Simmons, supra, a majority of this Court recognized that the fact that Charter breaches "occurred not long after the Charter came into force" (p. 535) was relevant to an analysis of the seriousness of the Charter violations and, in particular, to a determination of the good faith of the authorities. Given the jurisprudential vacuum that existed at the time of the search in question, I am unwilling to conclude, based upon the totality of the circumstances of this case, that the R.C.M.P. did not have reasonable and probable grounds for their belief that the appellant was in the possession of heroin. Instead, in hindsight, I think that the police did all that reasonably could be expected of them in following up the confidential information with a background investigation before making a determination to search and arrest the appellant. Consequently, I would not reverse the finding of the trial judge, which was upheld by a majority of the Alberta Court of Appeal, that the police had reasonable and probable grounds.
Having reached this conclusion, unlike Lamer J., I am not prepared to draw an inference that the police acted in "bad faith" in arresting the appellant for outstanding traffic violations. Although this course of action was stupid, the police did have reasonable and probable grounds for arresting the appellant on the charge of importing a narcotic. Indeed, if fault must be placed on anyone, my view is that it lies with Crown counsel who led evidence which provided less than a robust description of the background investigation conducted by the police force. The failure of Crown counsel to properly adduce and emphasize the evidence of reasonable and probable grounds should not, in my opinion, result in the exclusion of evidence necessary to convict a manifestly culpable accused.
It is also important to recall the early date in the history of the Charter of the events in question when one examines whether the violations of the appellant's rights formed part of a pattern of disregard of the Charter . Lamer J. suggests that it is relevant that in conducting a strip search of the appellant the customs inspectors failed to inform the appellant of the reason for his detention or of his right to retain and instruct counsel without delay. Once again, while this earlier violation of the appellant's Charter rights is not unimportant, these facts arose before the judgment of this Court in Simmons, supra, wherein the Court held that an accused was detained within the meaning of s. 10 of the Charter when she was required to undergo a secondary search at customs. In fact, the search occurred prior to this Court's decision in R. v. Therens, supra, the first case which dealt with the meaning of "detention" in s. 10 of the Charter . Consequently, in my view, the failure to inform the appellant of his counsel rights provides no evidence of "bad faith" on the part of the customs inspectors nor can it properly be considered part of a pattern of disregard for Charter rights.
Furthermore, I find it impossible to conclude that the conduct of the authorities amounted to a "pattern of disregard" given that the appellant was informed that he had a right to retain and instruct counsel without delay before he was taken to the hospital for the body cavity search. Although in so doing the police violated the appellant's s. 10 (a) Charter right, the infringement surely would be far more grievous if no counsel warning had been given at all. As well, the fact that the appellant was advised of his right to retain and instruct counsel in my view provides evidence that the police acted in "good faith" in their dealings with the appellant.
Finally, there is no evidence of malice on the part of the authorities towards the appellant nor is there any evidence of mistreatment. Had any of these factors been present, I would be more inclined to find a deliberate or flagrant abuse of the Charter rights of the appellant by the conduct of the authorities.
Given my determination that the R.C.M.P. had reasonable grounds to arrest and search the appellant, and that, as a consequence, the search of the appellant which uncovered heroin was conducted under lawful authority; and considering all of the circumstances of this case and in particular the fact that it occurred at an early stage in the Charter 's history, I conclude that the seriousness of the violations to the appellant's rights are not of such a magnitude as to favour exclusion of the real evidence.
Effect on the System
The final set of factors for review in a consideration of whether evidence is admissible pursuant to s. 24(2) is the impact upon the repute of the legal system of the admission or exclusion of the evidence. As I indicated in Jacoy, supra, at p. 559, "[t]he administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial". Furthermore, in that case, I stated that in the context of real evidence of narcotics found during a customs search, exclusion of the evidence in general is unjustifiable (at p. 560):
The offence with which the appellant was charged constitute serious social evils. The narcotics are an essential piece of evidence to substantiate the charge. . . . In my view, the decision to exclude the evidence in light of all the circumstances would do violence to the repute of the justice system.
Similarly, in R. v. Strachan, [1988] 2 S.C.R. 980, a majority of the Court held that as a general principle (at pp. 1008-9):
. . . where the breach of the right to counsel was inadvertent and where there was no mistreatment of the accused, exclusion of the evidence rather than its admission would tend to bring the administration of justice into disrepute.
I find these passages equally applicable to the case at bar. In my view, the manifest culpability of the appellant weighs heavily in favour of the admission of the real evidence. I believe that the reasonable person would be shocked and appalled to learn that an accused, unquestionably guilty of importing a sizable amount of heroin, was acquitted of all charges because of what amounted to a slip of the tongue by a police officer when the accused was arrested and read his s. 10 counsel rights. I agree fully with McClung J.A. in the Court of Appeal below that:
. . . a substantial majority of . . . Canadians, concerned with the contagion of serious crime and the social devastation directly traceable to the trade in heroin, would be querulous that the Canadian Charter of Rights and Freedoms ruled out the evidence in this case.
((1988), 57 Alta. L.R. (2d) 161, at p. 168.)
To my mind, this type of infringement of the constitutional rights of an accused amounts to the kind of "technical" violation which the general public in the United States frequently derides when an unquestionably culpable accused in that country is acquitted of very serious charges. In this country, the legislature deliberately chose a different rule for the exclusion of evidence, one which allows the courts to avoid the bringing into disrepute of the system of justice that often results from the automatic exclusion of evidence. The instant case provides a graphic example of a situation where the rule should lead to the opposite result from the disposition that might be reached had these facts been governed by the American Bill of Rights, as it has been interpreted in the past by the Supreme Court of the United States: Mapp v. Ohio, 367 U.S. 643 (1961).
Conclusion
In conclusion, then, I find that the integrity of the legal system strongly favours the admission of this evidence. Furthermore, I have determined that there are no concerns relating to the fairness of the trial raised by the admission of this evidence, and that the Charter violations were technical in nature and an example of minor police stupidity. Therefore, the seriousness of the violations does not militate against the admission of the real evidence.
Consequently, I would uphold the decision of the majority of the Court of Appeal of Alberta to admit the evidence and to enter a conviction for importing a narcotic into Canada contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. Accordingly, I would dismiss the appeal.
//Lamer J.//
The judgment of Lamer, Wilson, La Forest and Gonthier JJ. was delivered by
Lamer J. --
Facts
This is a case in which this Court must decide whether the cumulative effect of violations of ss. 8 and 10 of the Canadian Charter of Rights and Freedoms warrants the exclusion of evidence pursuant to s. 24(2) of the Charter . On March 11, 1984, the appellant landed at Calgary on Canadian Pacific flight 383 originating in Amsterdam. Canada Customs at the Calgary International Airport had been alerted by the R.C.M.P. that there was confidential information that the appellant was returning to Calgary from Holland in possession of an unknown quantity of heroin. Customs Inspector France, who was in charge of conducting primary customs inspections, referred the appellant to other customs agents for secondary inspection. The appellant proceeded to the secondary search area where Customs Inspector Lee conducted a search of the appellant's luggage. He found no drugs nor any other illegal or suspicious items. After the search was completed Customs Superintendent McQuay decided, based on information received from the R.C.M.P., to conduct a personal search. The appellant was taken to a private room by Customs Inspectors Lee and Yick, and was informed that a body search was to be done. There was a poster on the wall of the room indicating that a person who does not wish to be searched has the right to have the proposed search reviewed by a justice of the peace, police magistrate or a Senior Customs Officer. There is no evidence that the appellant saw or read the poster. Further, he was not informed of his right to retain and instruct counsel. In fairness to the Customs Inspectors, I note that the facts of this case arose before this Court's judgment in R. v. Simmons, [1988] 2 S.C.R. 495. The appellant's clothing was examined. His body was examined and a visual examination was done of the appellant's rectum by asking him to bend over. He was not touched during the examination, which lasted from five to ten minutes. No evidence of drugs was found as a result of the search.
After the personal search, the appellant was taken to an adjoining room. Inspector Yick advised R.C.M.P. Constables Ingraham and Hammond of the results of the search. Constable Hammond testified that at about 5:24 p.m. he entered the room and advised the appellant of his arrest for importing heroin into Canada. Constable Hammond further testified that the appellant was advised of his right to retain and instruct counsel without delay and that he was not obliged to say anything unless he wished to do so. The appellant indicated that he understood. Despite Constable Hammond's testimony that he told the appellant he was being arrested for importing heroin, the officer's notes made at the time do not specify the reason for the arrest:
Wayne and I went into interview room and I sectioned 10 (secondary warning) right to counsel, et cetera. Greffe stated he understood.
By contrast, Constable Ingraham's notes in relation to the arrest read as follows:
Me and Hammond enter secondary room and take custody of Greffe for the traffic warrants. [Emphasis added.]
Constable Ingraham tes