Case Report – SCC alters section 24(2) test… applies it in search and seizure case

On July 17th, the Supreme Court of Canada issued two search and seizure decisions. In R. v. Harrison, the majority applied a newly-developed test for excluding evidence obtained in breach of the Charter and excluded evidence obtained in a “brazen” and “flagrant” unlawful search of a rental car. In R. v. Shepherd, the Court unanimously held that a brethalyzer demand was made based on reasonable and probable grounds and was therefore lawful.

Real and non-conscriptive evidence excluded in Harrison

The Ontario Court of Appeal’s majority decision in Harrison has been criticized for allowing in evidence that would bring the administration of justice into disrepute. It is about a drug charge that followed a police demand to pull over a rental car on a Northern Ontario highway. The officer had no real reason to stop the car other than he had been told it was rented at the Vancouver airport and it was driving at only the speed limit. After the stop, the officer learned that the driver was driving with a suspended license, arrested the driver and searched the vehicle purportedly incident to that arrest. He turned up a large stash of cocaine.

Though the trial judge found the officer’s in-court testimony to be misleading, he admitted the evidence of the found drugs because he felt the criminality of the officence to be serious. A majority of the Ontario Court of Appeal agreed.

A majority of the Supreme Court of Canada, with Dechamps J. dissenting on his own, held that the evidence ought to be excluded based on the police officer’s blatant disregard for Charter rights and his misleading testimony. The majority applied the new three-part test articulated in the Court’s concurrently-issued decision in R. v. Grant, in which it said a court must assess and balance the affect of admitting evidence on society’s confidence in the justice system having regard to:

  1. the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct)
  2. the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little)
  3. society’s interest in the adjudication of the case on its merits

This framework was endorsed by the majority Grant to encourage a more contextualized approach to admissibility and to back away from a rule that conscriptive evidence is generally inadmissible. In Harrison, the found cocaine was neither concriptive evidence nor unreliable in any way. Regardless, the Court held that it should have been excluded, finding that the exclusion of reliable evidence of a serious offence did not outweigh the importance of maintaining Charter standards.

For an early critique of the Grant framework, see here.

R. v. Harrison, 2009 SCC 34.

Trial judge wrong in finding officer had no reasonable grounds for breathalyzer demand

The sole issue in Shepherd was whether a trial judge erred in finding that a police officer had insufficient grounds to demand a breathalyzer. The judge that the officer had a sufficient subjective belief but that his belief was not objectively reasonable, in part because he had relied on the accused person’s initial failure to pull over. The accused person said that he didn’t pull over because he thought the police car was an ambulance. The trial judge felt this excuse was valid, and held that the officer did not have reasonable grounds even though he testified that the accused person looked lethargic, had red eyes and smelled of alcohol.

The Court held that the existence of reasonable grounds is a question of law subject to review on a standard of correctness. It then held:

With respect, it is our view that the trial judge erred in finding that the officer’s subjective belief of impairment was not objectively supported on the facts. The officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd. The trial judge placed substantial weight on Mr. Shepherd’s explanation that he thought the police vehicle was an ambulance. Leaving aside the fact that this confusion itself can be a sign of impairment, it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. In our view, there was ample evidence to support the officer’s subjective belief that Mr. Shepherd had committed an offence under s. 253 of the Criminal Code. We therefore conclude that the officer had reasonable and probable grounds to make the breath demand, and that Mr. Shepherd’s Charter claim must fail.

R. v. Shepherd, 2009 SCC 35.

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