Thursday, February 6, 2014

Absent an explanation an unlawful search is unconstitutional

R. v. Mandziak, 2014 BCCA 41:

[72]        The fact that there was no evidence or a paucity of evidence to support the Crown’s attempt to justify the unlawful seizure was not per se probative of whether the police acted in bad faith.  It merely left the seizure as unlawful with no explanation for it.  What was probative was the fact the seizing officer acted knowing that he was seizing documents he was not authorized to seize; in fact, documents he specifically had not been authorized to seize.  In the absence of any explanation, how can it be said that the officer was not acting with wilful or reckless disregard of Charter rights?
[73]        In my view, the conduct of the police fits the observation of the Court at para. 75 of Grant:
[75]      Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, perDickson C.J.; R. v. Kokesch1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay2003 SCC 30 (CanLII), 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
The documents in issue in this case were seized by “deliberate police conduct in violation of established Charter standards”.
[74]        There is nothing in the evidence to suggest that the officer seized the documents because he lacked experience.  He knew a warrant was required; he knew the warrant expressly did not authorize the seizure he made.
[75]        I see no relevance to whether the documents were not hidden or to the fact that the police were lawfully in the premises.  They were entitled to search for the category of documents stated in the warrant.  Seizure of the documents in issue was not lawful.
[76]        Counsel for the appellant established that the conduct of the police flagrantly ignored the warrant.  He had no obligation to go further.  Counsel for the Crown acknowledged that had there been a voir dire, Crown counsel should have asked the officer why he seized the documents.  Counsel on appeal suggested that Crown counsel at trial could not have done so because the documents were dealt with in a trial rather than a voir dire.  I do not know why this would be so, but Crown counsel at trial was not in favour of a voir dire.  In any event, even if that was a problem for the Crown, in the circumstances of this case, it does not shift the obligation to provide an explanation to the defence or to erode the fact that the defence established that the police flagrantly ignored the warrant.
[77]        At the end of the day, the inquiry is objective.  As was said in Grant, the question is whether the admission of evidence, despite the Charter-infringing conduct of the police in obtaining it, will send a message to the public that the court condones state deviation from the rule of law.  In my view, on the facts of this case, admission of the unlawfully obtained documents would send such a message.
[78]        In the context of the second prong of the Grant analysis, defence counsel contended that the appellant’s ability to travel was affected by the seizure of his birth certificate and passport.  The judge rejected this contention stating that there was “no evidence to conclude that the [appellant’s] mobility has been affected by the seizure of these documents.”  She agreed with the Crown that the appellant could have applied for the return of the documents, which the appellant did not do.  The judge concluded that “the impact on the [appellant’s] Charter rights was minimal.”  I do not agree with that conclusion.
[79]        In my view, consideration of the effect of the seizure on the appellant’s ability to travel led the judge away from the real concern: the appellant’s privacy interest in his passport and birth certificate.  Such documents are highly personal.  In my view, the unlawful seizure of them was a serious intrusion into the appellant’s privacy interests

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