Denial of counsel for 7 hours, non-compliance with warrant breached charter: Alberta Court of Appeal

Breaches weighed in favour of excluding evidence from search of house

Denial of counsel for 7 hours, non-compliance with warrant breached charter: Alberta Court of Appeal

Denying an arrested person access to counsel for seven hours and questioning him after he invoked his right to counsel impaired his interest in receiving his “constitutional lifeline,” the Alberta Court of Appeal has ruled.

In R v. Badu, 2022 ABCA 267, the appellant received a conviction for importing and possessing cocaine for the purposes of trafficking under the Controlled Drugs and Substances Act.

At trial, the Crown conceded that the police breached the following of the appellant’s charter rights:

  • s. 8 – when the RCMP entered and searched the residence where a package was delivered and searched the appellant’s cellphone, without complying with the general warrant’s conditions
  • s. 10(b) – when police officers delayed his access to a lawyer for over seven hours after his arrest, and when an officer questioned him about the investigation after he invoked his right to counsel but before he had access to a lawyer.

The trial judge admitted the evidence obtained from the search of his home and his cellphone, stating that admitting this evidence would not bring the administration of justice into disrepute under s. 24(2) of the charter. The appellant challenged the s. 24(2) analysis and asked for an exclusion of the evidence.

New trial ordered

The Alberta Court of Appeal allowed the appeal, determining that the trial judge wrongly found that the breach was not serious because the evidence was “discoverable.” The s. 8 breach was not in good faith, the appellate court said.

The police officers involved in the search of the home committed seriously culpable state misconduct, the appellate court ruled. Police obtained a general warrant under the Criminal Code and acknowledged at trial that they read it and understood its conditions. However, the officers failed to explain why they ignored these conditions and proceeded to search the house almost immediately upon arrest.

The judge failed to evaluate the extent of people’s privacy interest in their homes and inappropriately concluded that the unauthorized search of the appellant’s home had a limited impact on his s. 8 privacy interest, the appellate court held.

Next, the appellate court said that the judge also committed errors regarding the s. 10(b) breach. The length of the unjustified delay between the appellant’s detention and his contact with counsel amounted to a serious violation of charter rights, the court found.

The appellate court noted that the appellant had no access to counsel for seven hours, stayed in a police cell for most of that time, and received no explanation for why he could not communicate with counsel and no indication of when he could speak to a lawyer or someone else.

Questioning the appellant in the police vehicle, in violation of s. 10(b), led to police using his answers to identify text messages, which were later tendered as evidence. The trial judge improperly minimized the seriousness and impact of this breach, the appellate court said.

The appellate court ordered that a new s. 24(2) analysis be conducted, considering the errors in the trial judge’s assessment.

Three of the four breaches were serious and significantly impaired the appellant’s charter-protected interests, the appellate court concluded. The first two stages of the inquiry established under R v. Grant, 2009 SCC 32 – the seriousness of the charter-infringing conduct and the impact on the appellant’s charter-protected interests – weighed strongly in favour of excluding the evidence.

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