Who Polices the Police? Not the Court of Appeal!
by Joseph Neuberger

The Ontario Court of Appeal in the recent case of Regina v. Harrison, 2008 ONCA 85, has given a license for police to trample on individual rights so long as the fruits of their conduct yields evidence of a crime. Under what appears to be a new form of analysis of s. 24(2) of the Charter, as long as the Crown can establish that the admission of the impugned evidence is necessary to continue the prosecution, the harm to the reputation of the administration of justice from excluding the evidence would be greater than that from admitting it, and thus, the evidence goes in and the rights go out the window.

The Charter was designed not be a suggestion but to protect society from unjust conduct by the state. Harrison will do little to protect society but in the long run will only serve to harm societal interests by inviting more incursions into privacy by state actors.

Harrison and his co-accused were operating a rental vehicle and driving from Vancouver to Toronto. While passing through Kirkland Lake, an OPP officer pulled over the vehicle because it was missing a front plate. As the officer positioned himself behind the vehicle he realized that the car was from Alberta and in Alberta it is not an offence to drive a vehicle without a front plate. The police officer admitted at trial that he had no valid legal grounds to continue the stop and search the motor vehicle.

While under detention, the officer observed certain indicia of drug transportation and upon questioning of the driver, discovered that the driver had a suspended license. The officer then arrested the driver and conducted a search of the vehicle incident to arrest.
Cocaine was found in the rear the vehicle which weighed approximately 35 kilograms and had a street value of between $2,463,000 and $4,575,000.

The trial judge found that the officer arbitrarily detained the occupants of the car and that the search of the vehicle was unreasonable contrary to s. 8 of the Charter. The trial judge found that the police officer’s conduct was flagrant in nature. However, the he refused to exclude the evidence because trial fairness was not compromised and the Charter breaches “pale in comparison to the criminality involved in the possession for the distribution of 77 pounds of cocaine...” On appeal, the Court of Appeal by a two judge majority upheld the trial judge’s decision noting that the breaches did not have a particularly serious effect on the appellant’s Charter rights and the appellant’s privacy interest in the car was low. Further, the majority noted that this was not an easy case – “far from it.” “This was a close call and one which reasonable people would disagree.” Thus, deference came into play.

The dissenting voice of Madam Justice Cronk was scathing to say the least of the analysis by the majority. Cronk J. stated, “where the evidence was obtained as a result of serious and deliberate police misconduct, including an attempt by a police officer to mislead the court about the basis for his impugned conduct, respect for the values enshrined in the Charter must take precedence and the court must dissociate itself from such misconduct. What occurred here was disdainful of the rights and freedoms protected by the Charter. Accordingly, on a proper balancing of all relevant factors in this case, I conclude that the trial judge’s decision to admit the evidence of the cocaine must be set aside. While excluding the evidence could bring the administration of justice into disrepute, on the record in this case, the administration of justice would be brought into greater disrepute by admitting it. To hold otherwise, on the facts and in the circumstances of this case, would invite the disregard of Charter rights by the police, with an unspoken ‘assurance of impunity.”

We have appropriately avoided in Canada legitimating incursions into individual rights by an “end justifies the means” analysis. The majority in Harrison dangerously crosses this border. Trial defence lawyers can take one thread of hope from this case however. We must urge trial courts to exclude evidence in similar circumstances as Harrison and argue that appeal courts will and must show equal deference to decisions to exclude when the case is a “close call”.

 

BANG! BANG! BANG! - IS SECTION 24(2) DEAD?
by Leora R. Shemesh

Given the prevalence of gang and gun related homicides, exclusion of illegally obtained evidence has become difficult if not impossible to achieve on a section 24(2) Charter analysis. It is submitted, however, that we should not determine rights based on moral panic respecting the issue.

Commonly, compelling Charter Applications are advanced on section 8 and/or section 9 violations, wherein officers detain young black men on city streets, in vehicles or in apartment complexes, and then subject them to an investigative detention and subsequent search of their pockets, person - and discover a firearm. Judges are often failing to exclude firearms, claiming that the public would be shocked if such evidence was excluded and those responsible would escape punishment. Judges have explicitly stated the following:

I have further considered that the exclusion of the evidence, being an unregistered firearm, would bring the administration of justice into disrepute given the known concern of the public for its safety as it relates to unregistered guns in particular.

- Regina v. Bullok, [2000] O.J. No. 796 (Ont. S.C.)

Judges have distinguished between the exclusion evidence of drugs or property from that of exclusion of evidence of a firearm. In one recent case, the Court excluded evidence of marijuana and cocaine but admitted the firearm, even though all were found during the same unreasonable search and seizure.

In weighing the three factors, I conclude that the evidence of marijuana and cocaine which resulted from the searches of Stewart, Emsley and Tomlin should be excluded and the evidence relating to the firearms and ammunition should be admitted. In reaching this conclusion, I considered the drug evidence, the firearm evidence and ammunition evidence separately in weighing the three Collins factors…. The discovery of the firearms and ammunition resulted in very serious charges. In weighing the three Collins factors, I conclude that the administration of justice would be brought into greater disrepute by excluding the firearms and ammunition evidence that it would by admitting the evidence.

- Regina v. Emsley, [2006] O.J. No. 5476 (Sup. Crt)

Often where courts find arbitrary detentions, the language chosen by the court to describe the breach may limit the remedy. Terms such as “technical” and “good faith” are used to describe the conduct, and thereby justify admitting the impugned evidence. For example:

The detention of the vehicle was brief and there was no damage. This was a lawful investigative detention involving an armed home invasion at the same address to which the vehicle was registered. The search was conducted in good faith. In my view, there were no material differences in the police recollection of events. Therefore, any breach would not have been sufficiently serious to justify the exclusion of evidence. The evidence of the firearm and the marijuana is essential to the prosecution of this case. It is reliable evidence in support of serious criminal charges involving a loaded prohibited firearm ready to be fired as well as possession of 10 ounces of marijuana for the purpose of trafficking. This weighs in favor of admission. These factors strongly suggest that the evidence should be admitted under section 24(2) of the Charter. Its exclusion would have a more serious impact on the administration of justice than its admission.

- Regina v. Van Rossum, [2005] O.J. No. 6136 (Sup. Crt.)

Justice Moldaver in Regina v. L.B. recently provided a template. Justice Moldaver rested his section 24(2) analysis on the media’s interpretation of our city streets and the level of crime which may be plaguing our youth and disregarded the true state of our streets and the over policing of certain communities. He reasoned the following:

This case involves a loaded handgun in the possession of a student on school property. Conduct of that nature is unacceptable without exception. It is something that Canadians will not tolerate. It conjures up images of horror and anguish the likes of which few could have imagined twenty-five years ago when the Charter first came to being. Sadly, in recent times, such images have become all too common – children left dead and dying; families overcome by grief and sorrow; communities left reeling in shock and disbelief. That is the backdrop of this case and in my view, it provides the context within which the conduct of the police should be measured, for the purpose of section 24(2), in deciding whether we should be excluding completely reliable evidence (here, the gun) and freeing, potentially dangerous people without a trial on the merits.

- Regina v. L.B., [2007] O.J. No. 3290 (C.A)

Yes guns are bad, but it is submitted that the danger with this analysis is that it can be used with many crimes. Now it is being extended to drinking and driving cases. Due to the public regard for the carnage caused by impaired driving accidents, the courts are finding that breath readings must be admitted and not excluded (see Regina v. Traicheff [Unreported, 2007]). Cases like L.B. have given police officers wide latitude. We should not, it is submitted, sacrifice fundamental legal rights because of the public concern about gun crime.

 

Keep it in – Minor Breaches of the Charter are Okay with the Court. by Joseph A. Neuberger

There is no doubt that impaired driving is a serious social issue affecting Canadians across Canada. The consequences of a conviction for impaired driving can have long lasting implications for an individual. This is partly why impaired driving cases account for the largest percentage of cases litigated in the Provincial courts. Charter jurisprudence has matured within this context. Consequences for Charter breaches such as the right to speak with counsel of choice, or an unreasonable seizure of breath have traditionally resulted in exclusion of the breath readings with little analysis of s. 24(2).

A recent decision of Mr. Justice Ducharme sitting on an appeal of an acquittal of an Over 80 charge in Regina v. Padavattan, [2007] O.J. 2003, has been heralded by some Crown Attorney as a pivotal decision establishing that a breach of Charter rights does not mean that conscriptive evidence (breath samples) must always be excluded. Indeed this judgment garnered considerable media attention as being noted in a Toronto Star article of July 13, 2007 as “Precedent-setting drunk-driving incident expected to have major impact on other cases.”

Mr. Padavattan had pulled up to a McDonald’s drive through and appeared drunk to the cashier. Police were called and when Mr. Padavattan was stopped, police made a demand under s. 254(2) of the Criminal Code for a roadside breath sample. The officer who had formed the suspicion that Mr. Padavattan had previously consumed alcohol called for another officer to attend with the breath machine. At trial the defence brought an Application to exclude the results alleging an unreasonable seizure of the accused’s breath. The second officer did not testify and the issue was whether the Crown was required to prove that the officer who physically administers the test must have the reasonable suspicion. The trial court found that since there was no evidence that the administering officer had a reasonable suspicion, the accused’s right was violated and the readings were excluded. The Crown appealed.

The routine exclusion of breath samples has generally be based on the view that the Supreme Court of Canada has articulated an automatic rule of exclusion for conscriptive evidence that impacts trial fairness, Regina v. Stillman (1997), 113 C.C.C. (3d) (S.C.C.). However, in recent years many lower court decisions such as Regina v. Richfield (2004), 178 C.C.C. (3d) (Ont. C.A.) have found that exclusion of evidence, as a general rule, may provide a disproportionate remedy. Justice Ducharme wrote that “Given the public acceptance of the use of breath samples to fight drinking and driving cases …. the exclusion of the evidence would have a negative impact on the reputation of the administration of justice.” This was because the breach was of a very minor nature (p. 29).

Crown Attorneys have however seized upon this language to argue that “technical” breaches ought not to result in exclusion of evidence. However, rather than resetting the course of Charter jurisprudence in impaired driving cases, this decision does little more than remind courts that the Collins factors must be examined when determining whether exclusion of evidence is an appropriate remedy. Further, Justice Ducharme found that as long as the investigating officer had a reasonable suspicion, the requirements of s. 254(2) were met and that there was no Charter breach, but if his analysis was wrong and there was a violation of s. 8 of the Charter, the evidence ought not to be excluded. The must discussed s. 24(2) analysis thus occurs within the context of a hypothetical breach on facts that would not and should not constitute a Charter violation.

Post Padavattan, Provincial trial courts are still excluding evidence when Charter violations are found. In impaired driving cases, the focus is typically on whether or not there has been a violation of the Charter rights of an accused. Although going forward closer attention may be paid to the factors under s. 24(2), the vast majority of Charter violations tend to revolve around serious fundamental issues that can never been characterized as merely “technical” and will continue to result in exclusion of conscriptive evidence.

 

WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving. by Joseph A. Neuberger

Defending impaired driving and over 80 cases often involves a challenge to the actions of police officers holding up their conduct to the scrutiny of the Charter. One such area is the right to remain silent and to advise from counsel. Technology has yielded digitally recorded real time evidence showing the interaction between the police and the detainee while in the police station. This has a dual affect. All actions of the detainee are captured for all to see at a trial but similarly the officers are constrained in their actions, thereby resisting making any threats or promises to induce statements. When a person enters the “breath room”, the intoxilyzer technician will routinely advise of the right to speak to counsel without delay and will delay the tests if a request is made by an accused to speak to either private or duty counsel. As well, the primary and secondary caution will be given prior to any tests being administered. In the past any conversation between two tests had been regarded as admissible evidence since the detainee has been given the rights and caution and voluntarily chosen to answer the questions. A recent decision of Regina v. Duong , the Honourable Mr. Justice H. Chisvin ruled that the answers provided between the two tests were not voluntarily as Mr. Duong was not re-cautioned after the 1st sample was obtained.

In most Ontario jurisdictions, there is a standard form utilized with questions relating to how, what, when and how long details of alcohol consumption. A further question confirming the accused had been operating the motor vehicle when stopped by the police is in included in the form. At trial, a Crown prosecutor will make application to tender those utterances to either prove the necessary elements of the offence(s), or to rebut “evidence of the contrary”.

Mr. Duong was arrested with impaired operation of a motor vehicle as a result of being involved in an accident. Mr. Duong was not proficient in English. The technician had another officer act as translator prior to taking the first sample. After the first sample was taken, the officer immediately began asking the standard questions in English and without the secondary caution being re-administered. His Honour confirmed that “although there is no obligation to repeat the caution, the failure to do so may, in some circumstances, result in a finding that the answers given were not voluntary.” He then observed that to an accused“…this had the appearance of being a seamless process and objectively could be seen as part of the entire testing procedure.” After being told that the accused must provide two samples of his breath, it flows that an accused would feel compelled to answer such questions that are inevitably inculpatory.

This decision is both consistent and an extension of Regina v. Pomeroy , wherein the Honourable Mr. Justice Casey Hill, sitting as a summary conviction Judge, confirmed that although there is no obligation in law, the failure to do so “… may result in an adverse finding and exclusion of answers” . Even though Justice Hill refused to overturn the trial judge’s finding that the statements were voluntary, there is judicial recognition that an accused must understand the extent of his/her jeopardy during each stage of the investigative process.

Although it may seem polite to answer the officer’s questions, there is no substitute for adhering to the right to remain silent.

R. v. Khelawon, 2006 SCC 57 - Clarifying Hearsay, Again
Joseph A. Neuberger and David Rose

This recent decision of the Supreme Court of Canada has once again attempted to clarify how lower courts are to deal with issues of necessity and reliability in the determination of whether an out-of-court video taped statement ought to be admitted into evidence at trial. The issue often arises in domestic violence cases where a complainant does not wish to attend court or proceed to trial after having given the police a video statement under oath. When the complainant fails to attend court or is otherwise unavailable, the Crown can bring an Application to admit the statement for the truth of its contents provided two conditions are satisfied – necessity and reliability. It is the later condition that has been the subject of considerable debate since the Supreme Court’s decision in Regina v. Starr, [2000] 2 S.C.R. 144. That decision has generated much judicial commentary and academic criticism on various grounds, but most significantly on defining what constitutes “extrinsic” circumstances. In Khelawon, the Supreme Court did not expand the legal test developed from the line of cases of Regina v. Khan,[1990] 2 S.C.R. 531, Regina v. Smith, [1992] 2 S.C.R. 915, Regina v. B.(K.G., [1993] 1 S.C.R., 740, but sought to clarify whether “extrinsic” circumstances to the taking of the statement can be considered in determining threshold reliability.

In a unanimous judgment written by Charron J., the Supreme Court has done away with categorizing factors in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions are to no longer be followed. Instead, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence, such as whether the declarant was influenced in making the allegations, and hence the statement, by some disgruntlement with the accused. The trial judge need not determine, at this stage, the truth of the statement but that there is sufficient reliability, based upon all relevant factors, to admit the evidence. The trial judge is to be guided by trial fairness, and not only in relation to the decision on admissibility but also is informed in applying his or her residual discretion to exclude the evidence even if necessity and reliability can be shown.

Although, the ultimate test for reliability is subjecting the declarant to cross-examination, this decision arms defence lawyers with greater ability to attack an out-of-court statement beyond simply examining the immediate features of the statement such as the fact that it was provided on video or made under a promise to tell the truth, similar to the archaic concept that a person would not lie if s/he swears an oath. Important and relevant factors that were previously ignored can now be drawn upon to argue for the exclusion of such evidence. Most important are factors that tend to establish a motivation to make the allegations that are less than meritorious – that disclose an animus or ulterior motive such as gaining an advantage in a matrimonial dispute. Similarly, factors relating to the declarant’s competency to provide a statement are fertile ground to advance evidence on and to seek exclusion.

In practice, it is yet to be seen if this decision will expand or restrict the number of out-of-court statements that make their way into trial as evidence.

Impaired Driving Investigations – Right in Your Own Driveway

In a recent decision, the Ontario Court of Appeal visited the issue of police investigation powers at a private driveway. In R. v. Lotozky the respondent had been investigated and arrested by two police officers in his driveway. Their interest had been generated by a radio call that an impaired driver had been attempting to use the drive-through window of a local restaurant. The police matched the licence plate to an address and watched as the driver approached that address oddly. The driver parked in the driveway, at which time he was approached by the two police officers, investigated for impaired driving, and arrested. At trial Lotozky was acquitted of the charge due to a Charter infringement, i.e., the police had breached his s.8 charter rights by investigating the driver in his driveway. This was upheld in Superior Court.

The Ontario Court of Appeal differed in their analysis of this fact scenario and overturned the acquittal. Merely asking questions of a driver and examining the interior of the vehicle is not a search. More importantly, such police activity on a driveway is within the doctrine of implied license. Such common law rights exist, writes Rosenberg J.A., because “A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an open area that is visible to the public. The scope of the implied invitation must be analyzed in that context .”

Although policy reasons weigh heavily in this decision (to rule otherwise would create an incentive for impaired drivers to view their driveway as a safe haven), the key here is the ruling that police investigation which merely amounts to tapping on the window, and peering inside with a flashlight, does not amount to a search. This takes yet more from the limited privacy rights which protect occupants of motor vehicles. This part of the ruling is generally consistent with dicta from R. v. Mellenthin , where the Supreme Court of Canada found that the visual inspection of the interior of a motor vehicle at a motor vehicle check stop was permissible. In Mellinthin, however, the rationale in Mellenthin was officer safety. So Lotozky extends the bounds of permissible vehicle inspection from Mellinthin. Of course, if such conduct did amount to a search, then the police would be conducting a perimeter search of a residence, and require prior judicial authorization. This decision will be welcomed by prosecutors who wish to restrict the application of search and seizure doctrine in the traffic stop context.