The Chief Justice
(with whom Binnie, LeBel, Fish, Abella and Charron JJ joined)
The sole issue on this appeal is whether 35 kg of cocaine, discovered as a result of an unconstitutional detention and search, should have been admitted into evidence against the appellant at trial. The trial judge admitted the evidence and convicted the appellant of trafficking in cocaine. The Court of Appeal majority upheld the conviction, Cronk J.A. dissenting.
In R v Grant, 2009 SCC 32, released concurrently, we develop a revised framework for determining whether evidence obtained in breach of the Canadian Charter of Rights and Freedoms must be excluded under s. 24(2). We identify three avenues of inquiry which should guide courts in the delicate balancing exercise mandated by that section:
the seriousness of the Charter‑infringing state conduct;
the impact of the breach on the Charter‑protected interests of the accused; and
society's interest in the adjudication of the case on its merits.
This case illustrates the difficult choices that courts are forced to make when these factors pull strongly in opposite directions. Here, the high public interest in reaching a determination on the merits of the charge is in tension with the need to dissociate the justice system from patently unconstitutional conduct by state authorities in obtaining the evidence.
Applying the framework in Grant to these facts, I am satisfied that the balance mandated by s. 24(2) favours exclusion of the evidence. It is true that the public interest in having the case adjudicated on its merits favours the admission of the evidence, particularly in light of its reliability. On the other hand, the impact on the accused’s rights, while not egregious, was significant. Bulking even larger, however, was the police misconduct involved in obtaining the evidence. This was far from a technical or trivial breach. Rather, it involved a “brazen and flagrant” disregard, to quote the trial judge, of the appellant’s Charter rights against arbitrary detention and unreasonable search and seizure. These are protections that law-abiding Canadians take for granted and courts must play a role in safeguarding them even where the beneficiaries are involved in unlawful activity. In the circumstances of this case, it is my view that the admission of the evidence would bring the administration of justice into disrepute. I conclude that the evidence should have been excluded pursuant to s. 24(2) of the Charter. I would therefore allow the appeal and enter an acquittal.
On October 24, 2004, the appellant and his friend Sean Friesen were driving a Dodge Durango S.U.V. near Kirkland Lake, Ontario. They had rented the vehicle at Vancouver International Airport two days earlier and were on their way from Vancouver to Toronto. Although they had been sharing driving duties, the appellant was at the wheel on this occasion.
Cst. Bertoncello of the Ontario Provincial Police was on highway patrol when he saw the Durango approaching from the opposite direction, traveling at the speed limit of 90 km per hour with a line of eight or nine other vehicles directly behind it. Cst. Bertoncello noticed that the S.U.V. had no front licence plate, which for a car registered in Ontario would constitute an offence. Only after turning around to follow the Durango and activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front licence plate. Cst. Bertoncello was informed by radio dispatch that the vehicle had been rented at the Vancouver airport. Even though he had no grounds to believe that any offence was being committed, the officer testified that he decided to pull the Durango over anyway because abandoning the detention may have affected the integrity of the police in the eyes of observers.
Cst. Bertoncello’s suspicions seem to have been aroused from the beginning of this encounter. He observed that the car was littered with food and drink containers and had a “lived‑in look”, suggesting to him that the appellant and Friesen had been traveling straight through from Vancouver. He knew that rental cars are often used to courier drugs because of the risk that the car could be confiscated by the state if apprehended. Additionally, in the officer’s experience, it was rare for someone to be driving that stretch of highway at exactly the speed limit, as the appellant had been. Questioned separately, the appellant and Friesen gave stories that seemed to be contradictory.
The appellant identified himself accurately and produced the vehicle’s registration, insurance, and rental agreement. He was, however, unable to find his driver’s licence, explaining that he might have left it in Vancouver. Cst. Bertoncello ran computer checks on both occupants of the S.U.V. and learned that the appellant’s licence was under suspension. He therefore arrested the appellant for driving while suspended.
With the appellant under arrest, Cst. Bertoncello asked him and Friesen whether there were any drugs or weapons in the vehicle. They both answered in the negative. Other officers soon arrived on the scene. Cst. Bertoncello proceeded to search the S.U.V. “incident to arrest”, ostensibly for the appellant’s missing driver’s licence, even though its whereabouts was irrelevant to the charge of driving while suspended. He began his search in the rear cargo area, which contained (among other things) two cardboard boxes which were taped shut. When asked, Friesen claimed that the boxes contained dishes and books for his mother. However, according to Cst. Bertoncello, the look and feel of the boxes belied this explanation. When asked again whether there were any drugs or weapons in the box, Friesen looked very nervous and said “yeah,” then said he did not know.
One of the boxes was opened and found to contain bricks of a white substance, which turned out to be cocaine. Friesen was arrested, and the appellant was held on the drug charge as well. In all, 35 kg of cocaine was discovered in the S.U.V.
The appellant’s conviction or acquittal hinged primarily on the admissibility of the cocaine.
2. Judgments below
(a) Ontario Superior Court of Justice
On a voir dire, Karam J. held that the initial detention of the appellant was premised on a mere hunch or suspicion rather than reasonable grounds within the meaning of R v Mann, 2004 SCC 52,  3 S.C.R. 59. It therefore constituted an arbitrary detention, contrary to s. 9 of the Charter. The trial judge further held that the warrantless search of the vehicle was not incident to the appellant’s arrest for driving while suspended because the officer was not “attempting to achieve some valid purpose connected to the arrest”, as required by R v Caslake,  1 S.C.R. 51, at para. 19, per Lamer C.J. The search was therefore without legal authorization, rendering it unreasonable within the meaning of s. 8. With those Charter violations established, the question before the trial judge was whether the cocaine should be excluded from evidence under s. 24(2).
The trial judge conducted the s. 24(2) analysis according to the test laid out in R v Collins,  1 S.C.R. 265. Since the cocaine was not conscriptive (self-incriminatory) evidence, the analysis centered on the second and third Collins factors: the seriousness of the breach and the effect of exclusion. On the seriousness of the breach, the trial judge took a dim view of the officer’s conduct in stopping and searching the S.U.V. He found that the officer’s intention throughout the encounter “was to take whatever steps were necessary to determine whether his suspicions were correct”, notwithstanding the lack of any legal basis for the stop or search. This led the judge to conclude that the officer’s actions “can only be described as brazen and flagrant”. Moreover, the officer’s in-court explanations for stopping the vehicle were “contrived and defy credibility”. While this was not the most egregious set of circumstances conceivable – there was no violence used, for example – the Charter breaches were nonetheless “extremely serious”.
On the effect of exclusion on the repute of the justice system, the trial judge considered the seriousness of the offence charged and the importance of the evidence to the Crown’s case. He noted that the charge was extremely serious (given the large quantity of cocaine involved) and that the Crown would have no case without the evidence. He adopted the following statement of Moldaver J.A. from R v Puskas (1997), 120 C.C.C. (3d) 548, at para. 25:
To exclude the evidence under these circumstances, where the guilt of the respondent for a serious offence is clearly established by real evidence and where the exclusion of the evidence would result in his acquittal, would, in my opinion, have a greater negative effect on the repute of justice than its admission.
In the trial judge’s view, these comments applied to the case before him. As brazen as the arresting officer’s actions were, according to the trial judge “they pale in comparison to the criminality involved in the possession for the purposes of distribution of 77 pounds of cocaine, if such is proven”. He therefore 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.
Friesen was acquitted mid-trial on the basis that the vehicle rental agreement in his name was hearsay and, as a result, the Crown could not prove possession. The appellant took the stand in his own defence and offered an explanation for the presence of the cocaine in the S.U.V. that was, according to the trial judge, “so unlikely and incredible that I find that I must reject it entirely” (2006 Carswell Ont 9525, at para. 12). He therefore found the appellant to have been in possession of the cocaine and convicted him of the trafficking charge.
(b) Ontario Court of Appeal
The Court of Appeal split on the application of s. 24(2): 2008 ONCA 85, 89 O.R. (3d) 161. Writing jointly, O’Connor A.C.J.O. and MacPherson J.A. upheld the trial judge’s decision to admit the evidence.
The majority acknowledged and endorsed the trial judge’s finding that the Charter breaches were serious, but pointed to other factors not articulated by the trial judge which mitigated the seriousness of the violations to some extent. Because the officer apparently did not have “a carefully thought out plan or practice to breach the Charter”, in their view it would be misleading to describe the Charter violations as “deliberate” (para. 42). Rather, the relatively inexperienced officer made a serious mistake in the context of an evolving situation. This was the product of an individual officer’s flawed decision-making process, not a systemic or institutional pattern of abuse.
The majority further stressed that the violations were not particularly serious from the perspective of the appellant: the detention was brief and not physically coercive and, most importantly, his expectation of privacy in the contents of the S.U.V. was not great. As noted by the majority, courts have repeatedly held that the privacy interest in a vehicle and its contents is lower than in a person’s body, home, or office. Moreover, the appellant denied that the boxes containing the cocaine even belonged to him, further mitigating any violation of his privacy brought about by the search. All this suggested to the majority that the effects of the Charter breaches on the appellant were relatively minor.
On the effects of exclusion, O’Connor A.C.J.O. and MacPherson J.A. acknowledged that the trial judge’s juxtaposition of the officer’s misconduct and the appellant’s apparent criminality was a “slight mischaracterization” of the balancing required by s. 24(2) but held that it did not rise to an error of law (para. 55). They emphasized that the mere presence of a serious Charter breach does not end the s. 24(2) analysis. In their view, the trial judge was entitled to deference on his conclusion that exclusion of the evidence would bring the administration of justice into greater disrepute than admission. Ultimately the majority concluded that this was a “close call” on which reasonable people could disagree, circumstances in which deference to the trial judge is especially necessary (para. 6). They dismissed the appeal.
Cronk J.A. strongly dissented. In her view, the majority’s analysis effectively downplayed the trial judge’s factual findings on the seriousness of the Charter breaches. These breaches were “intentional violations of the appellant’s constitutional rights that undermine the integrity of the administration of justice” (para. 84). Cronk J.A. disputed the majority’s contention that the effect of the violations on the appellant was minor, pointing to the judge’s explicit finding that they were “extremely serious” (para. 79). While she emphasized that these findings on the seriousness of the breach were entitled to deference, she considered the trial judge’s ultimate conclusion to be tainted by legal error. In particular, the judge misapplied the third branch of Collins, setting up a false contest between the misconduct of the police and the alleged criminality of the accused. According to Cronk J.A., he failed to consider the crucial question: “whether condoning the constitutional misconduct by admitting evidence obtained in violation of important Charter rights would do more harm to the integrity of the justice system than would excluding evidence that is essential to the Crown’s case against an accused charged with a serious crime” (para. 144). In her view, it would. Accordingly, she would have allowed the appeal and entered an acquittal.
The Charter breaches in this case are clear. It is common ground that the appellant’s rights under ss. 8 and 9 of the Charter were violated by the detention and search, as found by the trial judge. Given that the officer recognized prior to the detention that the appellant’s S.U.V. did not require a front licence plate, he should not have made the initial stop. A vague concern for the “integrity” of the police, even if genuine, was clearly an inadequate reason to follow through with the detention. The subsequent search of the S.U.V. was not incidental to the appellant’s arrest for driving under a suspension and was likewise in breach of the Charter. While an officer’s “hunch” is a valuable investigative tool – indeed, here it proved highly accurate – it is no substitute for proper Charter standards when interfering with a suspect’s liberty.
Breaches of the Charter established, the question is whether the evidence thereby obtained should be excluded under s. 24(2) of the Charter. The test set out in s. 24(2) is simply stated: would the admission of the evidence bring the administration of justice into disrepute? Grant identifies three lines of inquiry relevant to this determination. Once again, they are:
the seriousness of the Charter‑infringing state conduct
the impact of the breach on the Charter‑protected interests of the accused, and
society's interest in the adjudication of the case on its merits.
I will discuss each of these in turn.
(a) Seriousness of the Charter-Infringing State Conduct
At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.
The trial judge found that the police officer’s conduct in this case was “brazen”, “flagrant” and “very serious”. The metaphor of a spectrum used in R v Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor [para. 41]:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights... . What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.
Here, it is clear that the trial judge considered the Charter breaches to be at the serious end of the spectrum. On the facts found by him, this conclusion was a reasonable one. The officer’s determination to turn up incriminating evidence blinded him to constitutional requirements of reasonable grounds. While the violations may not have been “deliberate”, in the sense of setting out to breach the Charter, they were reckless and showed an insufficient regard for Charter rights. Exacerbating the situation, the departure from Charter standards was major in degree, since reasonable grounds for the initial stop were entirely non-existent.
As pointed out by the majority of the Court of Appeal, there was no evidence of systemic or institutional abuse. However, while evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion, the absence of such a problem is hardly a mitigating factor.
I note that the trial judge found the officer’s in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, “the integrity of the judicial system and the truth‑seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority” (para. 160).
In sum, the conduct of the police that led to the Charter breaches in this case represented a blatant disregard for Charter rights. This disregard for Charter rights was aggravated by the officer’s misleading testimony at trial. The police conduct was serious, and not lightly to be condoned.
(b) Impact on the Charter‑Protected Interests of the Accused
This factor looks at the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact? These are among the questions that fall for consideration in this inquiry.
In this case, the detention and the search had an impact on the appellant’s liberty and privacy interests. The question is how that impact should be characterized.
The majority of the Court of Appeal emphasized the relatively brief duration of the detention and the appellant’s low expectation of privacy in the S.U.V., and concluded that the effect of the breach on the appellant was relatively minor. It is true that motorists have a lower expectation of privacy in their vehicles than they do in their homes. As participants in a highly regulated activity, they know that they may be stopped for reasons pertaining to highway safety – as in a drinking-and-driving roadblock, for instance. Had it not turned up incriminating evidence, the detention would have been brief. In these respects, the intrusion on liberty and privacy represented by the detention is less severe than it would be in the case of a pedestrian. Further, nothing in the encounter was demeaning to the dignity of the appellant.
This said, being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial. As Iacobucci J. observed in Mann, the relatively non-intrusive nature of the detention and search “must be weighed against the absence of any reasonable basis for justification” (para. 56 (emphasis in original)). A person in the appellant’s position has every expectation of being left alone – subject, as already noted, to valid highway traffic stops.
I conclude that the deprivation of liberty and privacy represented by the unconstitutional detention and search was therefore a significant, although not egregious, intrusion on the appellant’s Charter-protected interests.
(c) Society’s Interest in an Adjudication on the Merits
At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.
The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.
(d) Balancing the Factors
I begin by summarizing my findings on the three factors in Grant. The police conduct in stopping and searching the appellant’s vehicle without any semblance of reasonable grounds was reprehensible, and was aggravated by the officer’s misleading testimony in court. The Charter infringements had a significant, although not egregious, impact on the Charter-protected interests of the appellant. These factors favour exclusion, the former more strongly than the latter. On the other hand, the drugs seized constitute highly reliable evidence tendered on a very serious charge, albeit not one of the most serious known to our criminal law. This factor weighs in favour of admission.
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
In my view, when examined through the lens of the s. 24(2) analysis set out in Grant, the trial judge’s reasoning in this case placed undue emphasis on the third line of inquiry while neglecting the importance of the other inquiries, particularly the need to dissociate the justice system from flagrant breaches of Charter rights. Effectively, he transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence.
The trial judge placed great reliance on the Ontario Court of Appeal’s decision in Puskas. However, the impact of the breach on the accused’s interests and the seriousness of the police conduct were not at issue in Puskas; Moldaver J.A. opined that if there was a breach of s. 8, it was “considerably less serious than the trial judge perceived it to be”, the police having fallen “minimally” short of the constitutional mark (para. 16). In those circumstances, the public interest in truth-seeking rightly became determinative.
This case is very different. The police misconduct was serious; indeed, the trial judge found that it represented a “brazen and flagrant” disregard of the Charter. To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant’s rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it. In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion.
As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’”(para. 150). Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences. In relying on Puskas in these circumstances, the trial judge seemed to imply that where the evidence is reliable and the charge is serious, admission will always be the result. As Grant makes clear, this is not the law.
Additionally, the trial judge’s observation that the Charter breaches “pale in comparison to the criminality involved” in drug trafficking risked the appearance of turning the s. 24(2) inquiry into a contest between the misdeeds of the police and those of the accused. The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s. 24(2). We expect police to adhere to higher standards than alleged criminals.
In summary, the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. That being the case, the admission of the cocaine into evidence would bring the administration of justice into disrepute. It should have been excluded.
I would allow the appeal. Because the evidence in question was essential to the Crown’s case, rather than order a new trial I would enter an acquittal.
I have read the majority’s reasons, and I cannot agree with them. My colleagues criticize the trial judge’s analysis as a contest between the police officer’s conduct and the seriousness of the offence, but a simplistic interpretation such as this does not do his analysis justice. As the majority of the Court of Appeal correctly pointed out, the trial judge’s comment must be considered in light of his reasons as a whole. I agree with the majority of the Court of Appeal that the trial judge did not err in law and that his finding must stand. I disagree not only with my colleagues’ conclusion, but also with their analysis. They attach excessive weight to the officer’s conduct and disregard the fact that the impact of the violation on the interests protected by the Canadian Charter of Rights and Freedoms was limited.
It is interesting that, without the benefit of the new test proposed by the majority of this Court in R v Grant, 2009 SCC 32, the majority of the Court of Appeal assessed not only the seriousness of the violation (in R v Collins,  1 S.C.R. 265, the analysis of this factor was focussed on police conduct), but also the impact of the violation on the Charter‑protected interests. It will therefore be helpful to reproduce the introductory paragraphs of the reasons they gave for affirming the trial judge’s decision (2008 ONCA 85, 89 O.R. (3d) 161, at paras. 3‑6):
In deciding to admit the evidence, the trial judge considered the appropriate factors under s. 24(2) of the Charter. He decided that the seriousness of the breaches was not sufficient to warrant exclusion. He put it this way: “[the Charter breaches] pale in comparison to the criminality involved in the possession for the purpose of distribution of 77 pounds of cocaine ....” In reaching this conclusion, the trial judge was very alive to the conduct of the police officer that gave rise to the breaches and to the problems with the police officer’s testimony at trial. In the end, however, this experienced trial judge concluded that the harm to the reputation of the administration of justice from excluding the evidence would be greater than that from admitting it.
The trial judge recognized that the breaches did not fall in the most egregious category. While the trial judge did not elaborate to any great extent, there are circumstances which attenuate the seriousness of the breaches which support his conclusion. For example, the officer’s conduct was not shown to be systemic in nature, or the result of operational policies or guidelines, or even an order from a senior officer. The actions involved were those of one officer, who had been on the force for four years and who made some flawed decisions during the roadside encounter and later when testifying. And while some might describe the officer’s breaches as “deliberate” (the trial judge did not use that word), that description tends to paint a picture of a more planned and premeditated course of action than the record reveals.
In addition, the Charter breaches did not have a particularly serious effect on the appellant’s Charter rights. The appellant was detained in the roadside stop for only a short period of time. As the trial judge pointed out, the officer did not use any force or physical restraint. The officer did not search the appellant’s person, he only searched the car. The appellant did not own the car. It had been rented by the passenger. The appellant’s privacy interest in the car was low.
In our view, the trial judge’s decision to admit the evidence was open to him. It was not unreasonable and reflects no error in principle. His decision deserves deference in this court. We do not suggest that this is an easy case – far from it. This is a close call and one on which reasonable people could disagree. But, in our view, that makes it precisely the type of case in which deference comes into play.
Thus, the Court of Appeal began by considering police conduct, which is the first branch of the test proposed by the majority, before reviewing the impact on the Charter‑protected interests, which is the second branch. Although it did not actually refer to a balancing of these two branches, one is implicit in the overall analysis. In my view, the Court of Appeal correctly held that the trial judge’s conclusion was founded in law and in fact.
In Grant, I express my disagreement with the new test proposed by the majority. The instant case provides an example of the difficulties inherent in that test. I propose a simpler test in Grant. If this test is applied, it is clear that the Court of Appeal came to the right conclusion in the case at bar.
The conduct of a police officer in a given case must be assessed in the context of its impact on the justice system. State conduct is therefore but one of the factors to be considered in assessing the impact of the violation on the Charter‑protected interests. If my colleagues in the majority find as they do, it is because they consider state conduct to be a distinct factor and because they do not conduct a complete analysis of the interests affected by the detention and arrest of Mr. Harrison. The facts are summarized in the majority’s reasons, and I will refer to them only to highlight those that cannot be disregarded in the analysis.
I agree that the officer had no reasonable suspicion that justified stopping the vehicle Mr. Harrison was driving. The concern that to desist from the stop would have caused the other motorists watching it to doubt the appropriateness of the police action was not therefore a reasonable justification for the detention. I also agree that the offence of driving a motor vehicle while under suspension did not justify the search of the vehicle.
As I state in Grant, I propose to determine whether the repute of the administration of justice will be better protected by admitting or excluding the evidence in light, on the one hand, of the societal interest in protecting constitutional rights and, on the other hand, of the societal interest in an adjudication on the merits. These two branches are sufficient to encompass all the circumstances relevant to the question whether the administration of justice will be brought into disrepute by the admission or exclusion of evidence obtained in violation of a protected right. In the course of my analysis, I will also make a few comments about the majority’s reasons.
1. Public Interest in Protecting Constitutional Rights
At the first stage of the analysis, the impact of the violation on the Charter‑protected interests must be assessed. On this branch of the test, the majority acknowledge that if they were to base their analysis on the factors normally considered in assessing the expectation of privacy, they would have to conclude that the impact of the violation was insignificant. However, they find that because the violation resulted from an action that had no reasonable justification, its impact was significant and the deprivation of liberty and violation of privacy, more than trivial (paras. 31‑32).
It should be noted that according to the test proposed by the majority in Grant, the fact that a police officer intervened without reasonable grounds is a factor that should logically be considered at the stage of reviewing state conduct, not at that of assessing the impact of the violation on the Charter‑protected interests. The majority rely on R v Mann, 2004 SCC 52,  3 S.C.R. 59, at para. 56, to contend that the absence of reasonable grounds is also relevant to the assessment of the impact of the violation on the protected interests. I have difficulty accepting this reasoning because, in Mann, the absence of reasonable grounds to conduct the search was a factor in the assessment of the seriousness of the violation, which was itself focussed on police conduct. This factor was not taken into account twice in Mann. According to the majority in the case at bar, police conduct is a distinct branch of the test. Taking the absence of reasonable grounds into account in each of the two branches of the test proposed by the majority in Grant results in duplication, and this one fact becomes central and overshadows the real issue related to the Charter‑protected interests. The fact that the majority consider the absence of reasonable grounds for the detention and search in their analysis of both the first and second branches also underlines the inappropriateness of dividing the circumstances of the violation to make police conduct a separate branch of the test for determining whether to admit or exclude the evidence. In my view, as I explain in Grant, only one branch is needed for the review of all circumstances relevant to the assessment of the impact of the violation on the Charter‑protected interests.
The interest that is central to the right not to be arbitrarily detained is liberty. I agree with the majority in Grant (at para. 20) that, quoting Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44,  2 S.C.R. 307, at para. 49, the purpose of affording constitutional protection against the deprivation of liberty is to safeguard the entitlement to “make decisions of fundamental importance free from state interference”. I also agree with their statement that s. 9 of the Charter also protects “against incursions on mental liberty by prohibiting the coercive pressures of detention”. These purposes are worded generally and ensure that all the relevant circumstances can be taken into account in order to objectively assess the impact detention might have.
A number of factors can be considered in assessing the impact of a violation of the right not to be arbitrarily detained. In many respects, these factors are similar to the ones that have been adopted for searches. The relevant factors will include the place where the person is stopped, the likelihood of the police conducting checks at the place in question or with respect to the activity being engaged in, the duration of the stop, the grounds for the detention and the attitude of the police officers during the stop:
Dedman v The Queen,  2 S.C.R. 2, at pp. 16‑17 and 34‑36;
R v Hufsky,  1 S.C.R. 621, at para. 23;
R v Ladouceur,  1 S.C.R. 1257, at pp. 1266‑67 and 1285;
R v Swain,  1 S.C.R. 933, at pp. 1015‑20.
Short stops for reasons that are insufficient from a legal standpoint, but in circumstances in which the accused persons cannot really be surprised to be stopped – because they have been acting erratically or because the place in question or the activity in which they are engaged is subject to frequent police checks – will have limited impact on Charter rights. Where, however, an officer is violent or arrogant or compromises not only a person’s liberty, but also his or her dignity, or where a stop deprives an individual of his or her freedom of movement for a prolonged period, the impact will be greater.
On the interest to which the protection against unlawful searches applies, the Court proposed, in R v Edwards,  1 S.C.R. 128, at para. 45, and R v Tessling, 2004 SCC 67,  3 S.C.R. 432, at para. 32, a non‑exhaustive list of factors to assist in assessing the expectation of privacy. They can be summarized as follows: presence of the accused at the time of the search; place and subject matter of the search; accessibility to the public of the place and subject matter of the search; abandonment of the subject matter, or indications of ownership thereof; ownership, possession, control or use of the place of the search; ability to control access to it; notice of the possibility of searches being conducted in that place; and the technique used to conduct the search.
Where the expectation of privacy is concerned, it is clear that a search that violates a person’s physical integrity is more serious than one involving personal belongings. Similarly, a search involving personal belongings that are abandoned or even left in a place that is accessible to the public is less intrusive than one involving property kept in a residence. It is clear that, because of the conditions attached to driving, the courts have granted more limited protection in the case of motor vehicles than in that of other, more private places.
In the instant case, regarding the deprivation of liberty, it should be noted that the accused was stopped in a vehicle on a highway, and not in a private place, such as an office or a residence. Furthermore, the officer was not aggressive and did not impair Mr. Harrison’s dignity or that of his passenger. Finally, the detention was brief, as it lasted no more than 15 minutes.
Moreover, even though the reason given for stopping the vehicle was insufficient, and even though the stop itself coincided with the commencement of the detention, the continuation of the detention and the search took place only after the officer’s suspicion had been aroused by signs he knew, because of his training, to correspond to practices of drug traffickers. A judge must consider all the facts in assessing a police officer’s conduct. Even if they are insufficient to justify the detention and search, these facts help explain the officer’s conduct. There were many facts that aroused suspicion. The vehicle was rented – drug traffickers do not use their own vehicles owing to the risk of seizure. It had been rented at the Vancouver airport – an important port of entry for drugs. Mr. Harrison was travelling with a companion to Toronto – an important distribution point. And they had driven from Vancouver almost without stopping. Moreover, Mr. Harrison and his companion gave inconsistent explanations as to how they had met. In addition to these suspicious circumstances, Mr. Harrison’s driver’s licence was suspended and he was unable to produce it.
The above comments relate to the interests affected by detention. A similar analysis must be conducted with respect to the protection from searches.
Regarding the impact of the violation on the expectation of privacy, the fact that the search was conducted in a vehicle travelling on a public highway is relevant. The expectation of privacy is reduced in this very public place, since the use of highways is subject to extensive regulation and the police must therefore conduct roadside checks, so it should not come as a surprise to motorists to be stopped. Moreover, the vehicle was rented, and it had not been rented in Mr. Harrison’s name. It can be assumed that a reasonable person does not have as strong a connection with a vehicle rented by a third party as with his or her own vehicle and would consider a search of a vehicle rented on a short‑term basis by a third party to be less intrusive than a search conducted in a place belonging to him or her. In R v Belnavis,  3 S.C.R. 341, the majority held that the passenger had no expectation of privacy in a vehicle that did not belong to her. In that case, the Court referred, without providing an answer in respect of it, to the situation of two people travelling together on an extended journey. That is the very situation in the case at bar. In my view, Mr. Harrison himself denied any expectation of privacy when he said that neither the boxes in the vehicle nor their contents were his.
Although I do not deny that it is important for motorists to be able to travel without being needlessly stopped by the police, it should nonetheless be noted that the officer did not plan the unjustified stop, nor was he motivated by malice or bad faith. It is true that the judge was not satisfied by the reason the officer gave for carrying on with the stop after learning that the absence of a front licence plate was not an offence. However, he did not find that the officer had acted in bad faith at the time of the stop. According to the majority of the Court of Appeal, this was a case in which a relatively new officer had made an error in judgment. I agree with this interpretation, and also with what the Court of Appeal stated on this issue (at para. 60):
|While clearly the misconduct was serious, the actions involved were those of one police officer, who had been on the force for four years. That officer made some flawed decisions during the roadside encounter and later when testifying. However, this is not a case where it has been shown that there is or even might be an institutional problem. Furthermore, Collins states at p. 280 S.C.R .... that s. 24(2) of the Charter is not intended as a remedy for police misconduct.|
I note that although they did not have the benefit of the reasons of the majority of this Court in Grant, the majority of the Court of Appeal considered all the circumstances, and systemic problems in particular, in analysing the seriousness of the violation. They considered the impact of the violation on the Charter‑protected interests. They pointed out that it would be simplistic to limit the judge’s analysis to a contest between the seriousness of the offence and the seriousness of the violation. It will be helpful to set out the reasons of the majority of the Court of Appeal [paras. 43‑47]:
Moreover, from the appellant’s point of view, the effects of the breaches were not particularly serious. His detention at the side of the road was brief: only 15 minutes elapsed between the beginning of the traffic stop and the appellant’s arrest for driving with a suspended licence. As the trial judge pointed out, during the period of the improper detention, the appellant was not subjected to any physical force or restraint.
Perhaps more importantly, the effect of the search on the appellant’s privacy interest was not great. This is not a case involving a search of a person, a residence or an office. The search was of a car, nothing more.
The courts have held that an individual’s privacy interest in a vehicle and its contents – a factor not mentioned in the trial judge’s ruling on the voir dire – are lower than the privacy interest in a person’s body, home or office: see R v Belnavis,  3 S.C.R. 341 .... at [paras. 19‑25]; R v Calderon,  .... 188 C.C.C. (3d) 481 ([Ont.] C.A.), at para. 98; R v Alkins (2007), .... 218 C.C.C. (3d) 97 ([Ont.] C.A.), at para. 55. In this case, the vehicle was a rental vehicle. The appellant was not the lessee. He was properly arrested for driving while under suspension. Moreover, the appellant did not testify in the voir dire about any perceived violation of his privacy interest. He did not even look to make sure his own bags were in the vehicle’s rear compartment prior to leaving Vancouver. Indeed, he told Constable Bertoncello that the boxes belonged to Friesen. This denial of ownership is an important factor. Recently, in a similar case in which an officer searched a bag after a young man denied the bag was his, R v L.B. (2007), 86 O.R. (3d) 730 (C.A.), Moldaver J.A. observed at para. 71: “Having disclaimed any privacy interest in the bag, the respondent effectively precluded himself from relying on s. 8 of the Charter to impugn the lawfulness of Officer Purches’s search.”
Thus, we conclude that the effects of the breaches on the appellant’s rights that were protected by ss. 8 and 9 of the Charter were relatively minor. There was ample evidence to support the trial judge’s conclusion that the breaches did not fall within the most egregious category.
In summary, the trial judge was well aware of the officer’s conduct and motives as well as his testimony at trial. He was also aware that the breaches did not fall in the most egregious category. In the end, the trial judge decided that the breaches were not sufficiently serious to warrant excluding the evidence. It is that decision that is at the heart of this appeal.
In my view, this analysis is both clear and flawless. Its focus is on the judge’s comments about the reasons given by the officer for carrying on with the stop and conducting the search in the context of the objective facts related to the violation. It is clear from the objective facts and the circumstances that the violation did not have a serious impact on the Charter‑protected interests. Furthermore, it is interesting to contrast the facts of this case with those of other cases in which the Court has found violations to be serious. In Collins, for example, the officers had seized the accused by the throat. And in R v Kokesch,  3 S.C.R. 3, the Court was divided on whether the violation was serious, even though it involved a search in a residence.
Of course, the Court’s past decisions are not of great assistance in identifying the factors that will tip the scales to one side or the other in a given case. For this reason, the Court has often emphasized the need to show deference to the trial judge’s analysis and conclusion. I agree with the majority of the Court of Appeal that although in the instant case the trial judge did state that the breach was serious, he also indicated that this was not the most serious of cases.
Furthermore, the language used by the judge shows that he reacted quite strongly to the officer’s testimony at trial. In my opinion, this factor is irrelevant to the analysis of the impact of the violation on the protected rights. The trial judge did not believe the officer’s explanation that his purpose in searching the vehicle had been to find the driver’s licence. He even seemed to be shocked by this testimony. With respect, I consider the rejection of the officer’s testimony to be irrelevant to the protection against unreasonable search and seizure. Mr. Harrison was not detained longer, nor were his rights infringed further during the stop and the search, because of the testimony, which was given much later. Trial judges hear all sorts of witnesses. They believe some and disbelieve others. A judge who believes that a witness is deliberately lying can take appropriate action. But false testimony given at trial is irrelevant to the impact of a violation that occurred in the course of a search or seizure. To take the rejection of the officer’s testimony at trial into account in assessing the impact of the violation on the protected rights will cause confusion in the application of the test.
In short, in light of all the circumstances, I do not consider it appropriate to place the impact of the violation on the protected interests at the high end of the seriousness spectrum.
2. Public Interest in an Adjudication on the Merits
It is also necessary to consider all the relevant circumstances at the stage of the assessment of the public interest in an adjudication on the merits. Those that seem the most significant here are the reliability of the evidence obtained in violation of the protected rights, the importance of that evidence and the seriousness of the offence with which the accused is charged. On the basis of these three factors, the public interest in an adjudication on the merits is situated practically at the highest point of the spectrum where importance is concerned. The evidence could not be more reliable, and the trial could not have been conducted without it. The Crown could not discharge its burden of proof without proving that Mr. Harrison was in possession of 35 kilos of cocaine. Indeed, the exclusion of evidence has a more profound effect than a stay of proceedings based on abuse: when evidence is excluded, the proceedings are not merely stayed, an acquittal is entered. From the perspective of the search for truth, such an outcome would be particularly likely to shake the confidence of an objective and well‑informed person in the administration of justice.
Furthermore, the assessment of the effect on the public of the decision to admit or exclude evidence is not limited to the reliability of the evidence and its importance for the trial. The failure to attach appropriate weight to the seriousness of the offence with which Mr. Harrison was charged is, in my view, a flaw in the majority’s analysis. To acquit someone who is charged with trafficking in 35 kilos (77 pounds) of cocaine with a market value of $2,463,000 to $4,575,000 owing to the exclusion of evidence is likely to have a long‑term impact on the repute of the administration of justice. The trial judge correctly made this an important factor in his analysis. It might be accepted that the courts deal less harshly with offences like possession of such drugs as marijuana. However, crimes involving “hard” drugs, and particularly those linked to trafficking, have systematically been found to be serious. As I say in Grant, I find it artificial to maintain that the nature of the offence has a neutral effect in the assessment of the public interest in an adjudication on the merits.
I agree that accused persons have a heightened interest in the exclusion of evidence where the evidence is unreliable and the penal stakes for them are high. But this interest is subsumed in the public interest in having a justice system that prizes the reliability of evidence. The interest of an accused person in the exclusion of evidence is therefore irrelevant to the analysis of the branch of the public interest in an adjudication on the merits.
3. Balancing the Relevant Interests
In balancing the public interest in protecting constitutional rights against the public interest in an adjudication on the merits, I must disagree with the majority on both branches of the test. Like the majority of the Court of Appeal, I can only find that the impact of the violation on the Charter‑protected interests was not particularly serious. I do not consider it very helpful to refer to the trial judge’s strongly worded description of the violation, especially because the judge seemed to want to sanction the officer’s testimony at trial.
In the case at bar, the analysis cannot be limited to the fact that the officer lacked reasonable grounds for the detention and search. His conduct must be recognized for what it was: an error in judgment with which the court does not want to be associated. Motorists can expect to be stopped by the police, but the only authorized stops are those related to the enforcement of highway safety rules or to a specific program: Dedman. No one should be subjected to a search or seizure without sufficient reasons. I do not mean to minimize the impact of state conduct on the violation of constitutional rights. But it must be recognized in the analysis of the public interest in protecting those rights that a number of factors point to the conclusion that the impact on the protected interests was, when all is said and done, quite limited.
Regarding the public interest in an adjudication on the merits, this case is at the high end of the spectrum because of the unquestionable reliability of the evidence, because the trial could not be conducted without it and because the offence was a very serious one. In my view, the public interest in an adjudication on the merits is paramount, and this is a case in which excluding the evidence will have a negative effect on the confidence of an objective person, fully informed of all the circumstances, in the administration of justice.
For these reasons, I would have dismissed the appeal.
Marie Henein and Jordan Glick (m/s Henein & Associates, Toronto), for the appellant.
James C. Martin and Rick Visca (Public Prosecution Service of Canada, Halifax), for the respondent.
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