BC Unreasonable Search and Seizure Criminal and Drug Possession Criminal Defence lawyers located in Surrey and Fort St John
Our Surrey and Fort St John MacLean Law criminal defence lawyers would like to explain a significant case involving s. 8 of the Charter concerning search and seizure of drugs. Call our Surrey and Fort St JohnBc criminal lawyers toll free at 1 877 602 9900. The Supreme Court of Canada in R. v. Aucoin, 2012 SCC 66, recently ruled on an appeal from a man who had been given a roadside detention and placed into the back of a police cruiser while being issued a ticket. The pat-down search incidental to this detention turned up some cocaine.
The majority of the Supreme Court of Canada ruled that the detention was unnecessary, and so the pat-down search breached the man’s s. 8 rights against unreasonable search and seizure. They also ruled that, nevertheless, the cocaine would be admitted as evidence under s. 24(2) of the Charter because, as noted at paragraph 49 and 50:
[49] In the end, having regard to the trial judge’s findings of fact, I am satisfied that Constable Burke was acting in good faith. His error was in not appreciating that the pat-down search would only be reasonable in the circumstances if it could be shown that it was reasonably necessary — in the sense that there were no other reasonable means available — to secure the appellant in the rear of the cruiser to address his concern that the appellant might walk away. But there was no intention on his part to misuse his powers; nor did he choose to ignore the appellant’s Charter rights. These factors serve to attenuate the seriousness of the breach.
[50] Moreover, as the decisions of the trial judge and the majority of the Court of Appeal reveal, the law surrounding police powers in the detention context is still evolving. For that reason, in cases 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 a breach may be attenuated. See R. v. Cole, 2012 SCC 53, at para. 86.
Writing for the minority, Justices Lebel and Fish noted that the Charter breaches appeared to be part of a pattern, that they were routine, and that there was a serious impact both on the accused’s privacy interests and especially his liberty interests where he was asked questions without having been informed of his right to counsel. They wrote:
[106] Having considered all the circumstances, I find that admitting the evidence would bring the administration of justice into disrepute. This is primarily because of the seriousness of the Charter-infringing conduct. The law regarding police powers of search and detention is well established. Yet Cst. Burke followed his standard practice even though there were no reasonable grounds for proceeding as he did in the context of a motor vehicle infraction. The Court must dissociate itself from this conduct if it is to maintain the long-term repute of the justice system.
The judgment of the majority appears to be a further move in favour of a more crime-control focused model, though it may be that this could change with further clarification. The minority’s quote from Grant sums up the conceptual problem with this approach:
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. [Grant, at para. 75]
On the other hand, the question arises–the law is “still evolving,” from paragraph 50, but now that the S.C.C. has pronounced its decision on the practice of placing people in the back seat for issuing tickets under provincial regulatory powers, is that part of the law still evolving? Or is it just the officer in question who can no longer do this? Or can he continue to place people in the back of his car for the issuance of tickets and search without consequence? Is this a “don’t do it again” decision, or a decision signaling that, when similar events occur, the evidence will be continue to be admitted? This remains to be seen. One thing that is certain is that one must always be careful, and be aware that there are not always remedies readily available for these kinds of breaches–just because evidence was obtained in breach of your rights, or even if it was simply material or correspondence you found humiliating, doesn’t mean you will necessarily get a remedy. For information about your specific circumstances, as always, get legal advice. Call our Surrey and Fort St John criminal lawyers toll free at 1 877 602 9900.
