Good faith means an honest and reasonable belief action lawful

R v Caron [2011] BCCA 56 is a British Columbia appeal decision considering a search and whether a trial judge erred in considering good faith as a mitigating factor in a s. 24(2) analysis.

The Court held that "good faith" required an objectively reasonable belief in the legality of the search. Absent such objective component, good faith is not established. The Court writes:

[41] The specific portions of the Supreme Court's previous decisions referred to in Grant reflect the fact that, for a Charter breach to have been committed in good faith, the police officers (or other state agents) involved must, at the time the breach occurred, have honestly and reasonably believed they were acting lawfully. In those decisions the Court held, in brief, that:

• While the police are not expected to have a detailed knowledge of search-warrant law, they are expected to be aware of those requirements that the courts have held are essential for the validity of a warrant: R. v. Genest, 1989 CanLII 109 (S.C.C.), [1989] 1 S.C.R. 59 at 87;

• While the police are not expected to have an immediate understanding of judicial decisions affecting their powers, they will not have acted in good faith when they either knew, or ought to have known, their actions were unlawful: Kokesch at 32, 33; and

• "Good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority": Buhay at para. 59, citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999 at 450.

[42] This view of good faith can be seen in other decisions of the Supreme Court of Canada, such as:

• R. v. Sieben, 1987 CanLII 85 (S.C.C.), [1987] 1 S.C.R. 295 at 299; R. v. Hamill, 1987 CanLII 86 (S.C.C.), [1987] 1 S.C.R. 301 at 308: police officers acting in good faith in conducting a warrantless search of a dwelling-house pursuant to a statutorily granted power (i.e., a writ of assistance) that they had no reason to believe violated s. 8 of the Charter;

• R. v. Simmons, 1988 CanLII 12 (S.C.C.), [1988] 2 S.C.R. 495 at 535: customs officers acting in good faith in not advising a person detained for secondary inspection of her right to counsel, because they were following procedures that they had no reason to believe contravened s. 10(b) of the Charter;

• Jacoy at 558, 559: customs officers acting in good faith in not advising a person detained for secondary inspection of his right to counsel, because they were following a policy directive based on a later overruled decision of a Court of Appeal in another jurisdiction holding that s. 10(b) of the Charter did not apply in the circumstances;

• R. v. Duarte, 1990 CanLII 150 (S.C.C.), [1990] 1 S.C.R. 30 at 59, 60; R. v. Wiggins, 1990 CanLII 151 (S.C.C.), [1990] 1 S.C.R. 62 at 68: police acting in good faith in relying on a statutory provision authorizing "consent" interceptions prior to that provision being found to violate s. 8 of the Charter;

• R. v. Wiley, 1993 CanLII 69 (S.C.C.), [1993] 3 S.C.R. 263 at 278, 279: police officers acting in good faith in relying on a later overruled decision of the Court of Appeal in their jurisdiction holding that a warrantless "perimeter search" of a dwelling did not violate s. 8 of the Charter; and

• R. v. Dewald, 1996 CanLII 250 (S.C.C.), [1996] 1 S.C.R. 68: police officer acting in good faith in following standard procedure and waiting 15 minutes before administering a roadside screening test, when, at the time, it had yet to be authoritatively decided that, absent a reasonable basis for doing so, such a delay violates s. 10(b) of the Charter.