Friday, November 30, 2012

Good faith and proper motive important considerations in exclusion of improperly obtained evidence

R. v. Aucoin, 2012 SCC 66 holds an otherwise unlawful search did not lead to exclusion of evidence in large part because the officer acted in good faith and not for an imporper motive.

A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. Because the pat‑down search was a prelude to securing A in the cruiser, the question that arises is whether detaining A in this manner was reasonably necessary in the totality of the circumstances. The question is not whether the officer had the authority to detain the appellant in the rear of the cruiser, but whether he was justified in exercising it as he did in the circumstances of this case. The problem here arises from the shift in the nature and extent of A’s detention that flowed from the police officer’s decision to secure A in the rear of his cruiser while he wrote up the ticket for the motor vehicle infractions. Those factors altered the nature and extent of A’s detention in a fairly dramatic way, especially when one considers that the infractions for which he was being detained consisted of two minor motor vehicle infractions. The question is whether there were other reasonable means by which the officer could have addressed his concern about A disappearing into the crowd. The officer’s actions, though carried out in good faith, were not reasonably necessary. Because A’s detention in the back of the cruiser would have been unlawful, it cannot constitute the requisite basis in law to authorize the warrantless pat‑down search.

Nonetheless, the cocaine found on A was admissible into evidence under s. 24(2) of the Charter. There were unusual circumstances that prompted the police officer’s conduct in this case and he acted in good faith. He attempted throughout to respect A’s rights. He was not searching for evidence. The search was for reasons of officer safety and A’s safety. These factors attenuate the seriousness of the breach. Moreover, the law surrounding police policies in the detention context is still evolving. Where the police act in good faith and without deliberate disregard for or ignorance of Charter rights, as was the case here, the seriousness of the breach may be attenuated.

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