This is a significant case, with a strong dissent by Justice Cronk, dealing with the exclusion of evidence under s. 24(2) of the Charter. It is important for the exclusion of real evidence on the basis of improper search and seizure.
In the result the Court of Appeal decided not to exclude the admission of a significant quantity of cocaine even though the cocaine was discovered as a result of extremely serious breaches of the appellant's ss. 8 and 9 Charter rights. The Court so ruled even though the trial judge found that the police officer involved did not have reasonable grounds to stop and search the car and that he knew it. The trial judge described the officer's actions as flagrant. The trial judge did not accept the officer's evidence attempting to explain his actions.
Nevertheless, after a careful analysis, and with deference to the trial judge, the Court concluded the admission of the evidence was proper.
The Court notes:
[3] 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.
[4] 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.
[5] 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.
[6] 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.
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