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| Patrick J Ducharme |
In July, 2009 the Supreme Court of Canada rendered its decisions in R. v. Harrison1 and R. v. Grant.2 These cases are fundamentally important to understanding how our courts will now interpret applications to remedy Charter infringements of one’s right to be secure against unreasonable search or seizure and arbitrary detentions and arrests by the police.
In Harrison the accused and his friend were driving a rented sports utility vehicle from Vancouver to Toronto. In Ontario, a police officer on highway patrol noticed that the vehicle did not have a front licence plate. Only after activating his roof lights to pull it over did the police officer realize that, because it was registered in Alberta, the vehicle did not require a front licence plate.
The officer was then informed by radio dispatch that the vehicle had been rented at the Vancouver airport. Although the officer had no grounds to believe that any offence was being committed the officer continued to investigate. He testified at trial that abandoning his intended detention might have affected the integrity of the police in the eyes of observers.
The officer’s suspicions seem to have been aroused from the beginning of this encounter. He arrested the accused after discovering that his driver’s licence had been suspended. The officer then proceeded to search the vehicle. He found two cardboard boxes containing 35 kg of cocaine. On a voir dire, the trial Judge held that the initial detention of the accused was premised on a mere hunch or suspicion rather than reasonable grounds.
The stop and questioning therefore constituted an arbitrary detention, contrary to section 9 of the Charter. The trial Judge held that the warrantless search of the vehicle was unreasonable within the meaning of section 8 of the Charter. In the analysis pursuant to subsection 24(2) of the Charter, the trial Judge found that the violations were serious and that the officer’s explanations for stopping the vehicle defied credibility. However, in view of the seriousness of the offence charged and the importance of the evidence to the Crown’s case, he admitted the cocaine into evidence on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission. The accused was convicted of possession for the purpose of trafficking.
The Court of Appeal, in a majority decision, upheld the trial Judge’s decision to admit the evidence and affirmed the accused’s conviction. Cronk J.A. dissented, finding the Charter infringement so egregious that the 35 kilos of cocaine should be excluded from evidence. The Supreme Court of Canada agreed with the minority decision. The Charter breaches were found to be significant from the accused’s perpective, and thus, the sole issue for the court to decide was whether the cocaine was properly admitted into evidence.
Based on the revised framework for determining subsection 24(2) exclusions of evidence set out in Grant, the three lines of inquiry relevant to determining whether the admission of the evidence would bring the administration of justice into disrepute are: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.
When the framework was applied to the facts of this case, the balancing of the factors favoured exclusion of the evidence. The conduct of the police that led to the Charter breaches represented a blatant disregard for Charter rights, further aggravated by the officer’s misleading testimony at trial. The deprivation of liberty and privacy represented by the unconstitutional detention and search was a significant, although not egregious, intrusion upon the accused’s Charter rights.
Although the drugs seized constituted highly reliable evidence tendered on a very serious charge, the seriousness of the offence and the reliability of the evidence, while important, did not, in this case, outweigh the factors leading to exclusion. The court held that to condone willful and flagrant Charter breaches amounting to significant incursions upon the accused’s rights does not enhance, but rather undermines, the long-term repute of the administration of justice.
The trial Judge’s reasoning transformed the subsection 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence. He placed undue emphasis on the third line of inquiry while neglecting the importance of the other two, particularly the need to dissociate the Justice system from flagrant breaches of Charter rights. Because the evidence in question was essential to the Crown’s case, the accused was acquitted. The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. Police officers are expected to adhere to higher standards than alleged criminals.
Continued in Part 2.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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