SCC split on seriousness of additional constitutional breaches that are consequential to an initial breach
The Supreme Court of Canada has dismissed an Alberta man’s appeal of his drug-trafficking conviction.
Lower courts had found the police violated his Charter rights in the investigative detention that led to the discovery of 101.5 lbs of cannabis. The appellant argued that the appeal court had failed to assess additional Charter breaches occurring after the initial investigation and search. The SCC’s majority agreed that searches and arrest following the initial unlawful detention were breaches under ss. 8 and 9 of the Charter, which protect against unlawful search and seizure and arbitrary detention. The court found these breaches must be considered when the court decides whether the evidence should be excluded under s. 24(2) of the Charter.
But the SCC’s majority found that the Charter breaches “consequential on an initial violation” without “additional or independent state misconduct” are “unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct.” In this case, the majority found that that the additional Charter breaches only arose because of the officer’s initial violation. They said the initial breaches should be the focus in the assessment of whether the evidence obtained in the process should be excluded from trial.
Before R. v. Zacharias, 2023 SCC 30, which was released Friday morning, courts across Canada disagreed on whether police could rely on evidence obtained during an unlawful detention, says Rob Dhanu, counsel for the appellant, and co-founding partner at Dhanu Dhaliwal Law Group. One line of authority – from rulings in BC, Alberta, and Ontario – held that police could “essentially hit the reset button on the investigation” and make a new, lawful arrest based on the evidence revealed through the unlawful detention. The other line of authority – from rulings in Nova Scotia, Newfoundland, and another in Ontario – said that policy cannot rely on evidence for an arrest that was obtained through their own unlawful behaviour, he says. The latter view won the day in R. v. Zacharias.
If police know that they can detain a person on spurious grounds and then “go on a fishing expedition” and lawfully arrest the suspect for what they find, “it incentivizes bad police conduct,” says Dhanu. “This is what the Supreme Court is trying to stop.”
“Number one, it makes the law now uniform in Canada,” he says. “Now, all the courts across Canada know how they should deal with these situations where there's an unlawful detention, and police obtain evidence and subsequently try to use that evidence to arrest you. That's the biggest thing. It creates uniformity on a very important issue.”
“Number one, it makes the law now uniform in Canada,” says Dhanu. “Now, all the courts across Canada know how they should deal with these situations where there's an unlawful detention, and police obtain evidence and subsequently try to use that evidence to arrest you. That's the biggest thing. It creates uniformity on a very important issue.”
The majority consisted of Justices Malcolm Rowe, Michelle O’Bonsawin, and Suzanne Côté. Justice Côté wrote her own set of concurring reasons.
In dissent, Justices Sheilah Martin and Nicholas Kasirer found that s. 24(2) of the Charter, under which a court must exclude evidence obtained through a Charter breach if its inclusion would bring the administration of justice into disrepute, requires that courts examine “all the circumstances.” These include “[c]onsequential, linked or cascading breaches,” which will “necessarily” result in a greater Charter impact. “Section 24(2) mandates assessing the cumulative, and potentially compounding, seriousness of all of the conduct related to each of the violations at issue,” said Martin and Kasirer. They would have excluded the evidence.
The case came to the SCC as of right because there had been a dissent at the Court of Appeal.
The appellant in the Alberta case was convicted for the possession for the purpose of trafficking. A police officer discovered the cannabis after a traffic stop. The officer placed Zacharias under investigative detention and deployed a drug-sniffing dog.
The trial judge ruled that the officer’s investigation breached ss. 8 and 9 of the Charter, which protect against unreasonable search and seizure and arbitrary detention. But in the analysis under s. 24(2) of the Charter, through which the court determines whether the evidence obtained via the Charter breach should be admitted into evidence, the judge ultimately found in favour of the evidence’s inclusion. Zacharias was convicted under. S. 5(2) of the Controlled Drugs and Substances Act.
On appeal, the court’s majority refused to consider Zacharias’ arguments about additional Charter breaches that he did not include in his Charter notice or argue at trial, finding it would be unfair for an appellate court to make fact findings on new breach arguments. One of Court of Appeal judges found the trial judge erred in the second stage of the s. 24(2) analysis, and that that factor favoured exclusion of the evidence. Admitting the evidence would undermine the criminal justice system’s reputation in the eyes of a reasonable person, said the dissenting judge.
In his factum for the SCC, Zacharias argued for a “purposive and generous approach” to whether police obtained evidence in a way that breached the appellant’s Charter rights. Such an approach would examine “the entire chain of events involving Charter breaches and the impugned evidence.” Zacharias argued a trial judge should not be restricted to the scope of the Charter notice. Courts have recognized that the trial judge has agency to ensure fairness by putting “all defences to a jury that arise on the facts,” even when the accused has not specifically raised them, he said.
“Trials and Charter issues are dynamic and subject to the ebb and flow of evidence,” the appellant factum states. “A trial judge is not merely a passive observer in a trial court, and neither can a trial judge employ a formulaic, rigid and narrow approach when considering Charter rights. Rather, s.11(d) of the Charter obligates a trial judge to ensure that an accused's right to a fair trial is preserved.”
In its factum, the Crown argued the case should be dismissed for three reasons. The appellate court should not have entertained new Charter arguments because there were no exceptional circumstances that would compel the court to do so. The Crown said the trial judge made no reversible errors in the assessment of the impact of the Charter breaches but was “fully aware of the circumstances surrounding the seizure of the evidence and correctly assessed that the impact of the misconduct did not strongly favour exclusion.” Third, the Crown argued that a fresh s. 24(2) analysis would achieve the same result.