R. v. Duguay, [1989] 1 SCR 93

R. v. Duguay, [1989] 1 S.C.R. 93

 

Her Majesty The Queen    Appellant

 

v.

 

Robert Joseph Duguay, Edward James Murphy

and Robert Stephen Sevigny     Respondents

 

indexed as:  r. v. duguay

 

File No.:  19422.

 

1988:  October 14; 1989: January 26.

 

Present:   Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

 

on appeal from the court of appeal for ontario

 

    Constitutional law -- Charter of Rights  -- Admissibility of evidence  -- Bringing administration of justice into disrepute -- Infringement of accused's right against arbitrary detention -- Accused acquitted following trial judge's exclusion of evidence pursuant to s. 24(2)  of the Canadian Charter of Rights and Freedoms  -- Court of Appeal upholding trial judge's decision to exclude evidence --  Supreme Court of Canada should not,  in the absence of error or unreasonable findings, review the findings made by the courts  below  under s. 24(2) and substitute its opinion for that of the Court of Appeal -- Canadian Charter of Rights and Freedoms, ss. 9 , 24(2)  -- Criminal Code, R.S.C. 1970, c. C-34, s. 450.

 

    Courts -- Jurisdiction -- Power of appellate court to review a decision to exclude evidence -- Trial judge's decision to exclude evidence under s. 24(2)  of the Canadian Charter of Rights and Freedoms  upheld by the Court of Appeal -- Supreme Court of Canada should not, in the absence of error or unreasonable findings, review the findings made by the courts below under s. 24(2) and substitute its opinion for that of the Court of Appeal.

 

    Prior to leaving their home, the victims of a break and enter and theft noticed three young men drinking beer in a neighbour's back yard. On the basis of a description given by the victims to the police, the neighbour was able to identify M as one of the young men.  The neighbour telephoned M inviting him to come over with the friends who were with him on the previous night.  The respondents arrived shortly after.  M and S were recognized by the victims as two of the youths in the neighbour's back yard on the night of the crime. A police officer asked the respondents to sit in the police car to answer a few questions.  They complied.  The officer then said:  "You guys save me a trip back and tell me where the stereo is?"  M spontaneously answered and gave an inculpatory reply.  The respondents were advised that they were charged of break and enter and theft, were given the customary caution and read their rights to counsel.  All replied that they understood their rights.  The events in the patrol car lasted only a few minutes.  They were then driven to the police station and put in separate interview rooms.  At no time did any of them request the presence of a lawyer.  An inculpatory statement was obtained from each of them, their fingerprints were taken and, later that evening, the stereo set was recovered at M's house.  The fingerprints of D and M were eventually matched to the fingerprints found on the stereo, and D's fingerprints were also matched to those found on the window through which access to the victims' residence was gained.

 

    At trial, the Crown sought to introduce as evidence the written statements, the stereo set and the fingerprints.  The trial judge found that the arrest was not made in accordance with the provisions of s. 450  of the Criminal Code  because the police did not establish reasonable and probable grounds for the arrest, that the accused had been submitted to an arbitrary detention contrary to s. 9  of the Canadian Charter of Rights and Freedoms , and that the evidence should be excluded under s. 24(2)  of the Charter . As a result, the respondents were acquitted. The majority of the Court of Appeal accepted the trial judge's findings, upheld his decision to exclude the evidence and dismissed the Crown's appeal. The Crown appealed to this Court as of right and conceded that there was a violation of s. 9  of the Charter . The sole issue in this appeal is whether the evidence adduced should have been excluded under s. 24(2)  of the Charter .

 

    Held (L'Heureux-Dubé J. dissenting):  The appeal should be dismissed.

 

    Per Dickson C.J. and McIntyre, Lamer, Wilson, La Forest and Sopinka JJ.: The  majority in the Court of Appeal did not enunciate any principle with which we disagree. They simply applied the law to the facts as found by the trial judge and did not feel justified to interfere.  Absent some apparent error as to the applicable principles or rules of law, or absent an unreasonable finding, it is not the proper function of this Court, even though it has jurisdiction to do so, to review findings of the courts below under s. 24(2)  of the Charter  and substitute its opinion of the matter for that of the Court of Appeal.

 

    Per L'Heureux-Dubé J. (dissenting): When a peace officer arrests a person without a warrant pursuant to s. 450(1) (a) of the Criminal Code , he is not required to have evidence which would secure the conviction of the suspect.  The officer is authorized to act where the circumstances are such that, in the mind of a reasonable person, they would give rise to a belief in the likelihood that the person concerned is guilty.  The trial judge did not apply this test.  He directed his mind to the question whether the evidence upon which the officers proceeded "would result in a conviction".  The trial judge erred in setting a threshold more onerous than belief of guilt based on reasonable and probable grounds.  This error tainted his characterization of the circumstances as an "arrest for investigative purposes" and ultimately led to the exclusion of the evidence at trial and in the Court of Appeal as well. Although the evidence fell short of establishing the respondents' guilt beyond a reasonable doubt, it could very well have led a reasonable person to believe it was likely that the respondents committed the break-in. In any event, assuming that the circumstances amounted to something less than reasonable and probable grounds, the circumstances did not sufficiently depart from the prescribed norm to conclude that the detention was arbitrary. A detention is arbitrary if it is the product of an untrammelled discretion. That was not the case here. There was a rational investigative process leading up to the "detention" and arrest. The arrest was neither capricious nor random.

 

    The Crown, however, conceded that there was a violation of s. 9  of the Charter  and the sole question in this appeal is whether the admission of the evidence would bring the administration of justice into disrepute. The Crown argued that incorrect principles  were applied by the Court of Appeal and that its decision to uphold the exclusion of evidence pursuant to s. 24(2)  of the Charter  was premised on an error of law. In these circumstances, this Court should exercise its jurisdiction to review the findings of the Court of Appeal with respect to the application of s. 24(2).

 

    In light of the principles enunciated in R. v. Collins, [1987] 1 S.C.R. 265, the admission of the evidence would not bring the administration of justice into disrepute.  First, the admission of real evidence and the admission of voluntary statements do not affect the fairness of the trial. The stereo set found in M's possession existed prior to the Charter  violation and was not created by it.  Likewise, the fingerprint evidence cannot be said to have been manufactured by the Charter  violation.  The fingerprints were in the victims' residence and on the stolen goods before any infringement occurred. As for the written statements, the evidence clearly establishes that they were freely volunteered after the respondents had properly been charged, given the customary caution, told that they could remain silent and told as well that they had the right to retain and instruct counsel pursuant to the Charter . Second, the detention was a relatively minor and trifling infringement on the respondent's Charter  rights. The detention was brief and no physical compulsion was used by the officer. The respondents conceded having voluntarily attended the police in a spirit of co-operation.  The evidence shows a respect for individuals and their Charter  rights, as then understood by the police and the courts.  As soon as the formal arrest was made, the respondents' Charter  rights were read.  If any violation of the Charter  did occur, it was one in the nature of an isolated error committed in good faith.   Finally, in this case, it is more likely that it is the exclusion of the evidence, not its admission, that will bring the administration of justice into disrepute. Break and enter is a serious offence and the immediate effect of the exclusion of evidence was to withhold from the trial, because of a trivial breach of the Charter ,  highly probative and reliable evidence.

 

    The trial judge and the majority of the Court of Appeal therefore erred in excluding the evidence. The trial judge considered the violation of s. 9  of the Charter  to be "blatant" and "shocking" and he suggested that it fell just short of "torture".  Similarly, in the Court of Appeal, the majority suggested that the police officers' actions were "irrational" and "repugnant to our concept of the administration of criminal justice" and indicative of an "incipient Star Chamber attitude". Their findings with respect to the seriousness of the violation were simply not supported by the evidence. There was also no justification for their assessment that the police conduct demonstrated bad faith. Further, both courts below assumed that admitting the evidence would condone the underlying infringement. This reasoning is inconsistent with a proper interpretation of s. 24(2).

 

Cases Cited

 

By L'Heureux-Dubé J. (dissenting)

 

    R. v. Collins, [1987] 1 S.C.R. 265; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Upston, [1988] 1 S.C.R. 1083, aff'g (1987), 86 N.R. 18 (B.C.C.A.), rev'g (1986), 86 N.R. 21 (B.C. Co. Ct.); R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Strachan (1986), 49 C.R. (3d) 289, aff'd [1988] 2 S.C.R. 980; R. v. Genest, [1989] 1 S.C.R. 000; Rothman v. The Queen, [1981] 1 S.C.R. 640; McArdle v. Egan (1933), 150 L.T. 412; Hussien v. Chong Fook Kam, [1970] A.C. 942; Holtham v. Commissioner of Police for the Metropolis, Engl. C.A. (Civ. Div.), November 25, 1987, unreported; R. v. Biron, [1976] 2 S.C.R. 56; Eccles v. Bourque, [1975] 2 S.C.R. 739; Campbell v. Hudyma (1985), 42 Alta. L.R. (2d) 59; R. v. Brown (1987), 33 C.C.C. (3d) 54; R. v. Hufsky, [1988] 1 S.C.R. 621; Re Jamieson and The Queen (1982), 70 C.C.C. (2d) 430; Re M.H. and The Queen (No. 2) (1985), 21 C.C.C. (3d) 384 (Alta. C.A.), aff'g (1984), 17 C.C.C. (3d) 443 (Alta. Q.B.); R. v. McGregor (1983), 3 C.C.C. (3d) 200; R. v. Beare, [1988] 2 S.C.R. 387; United States v. Leon, 468 U.S. 897 (1984); Curr v. The Queen, [1972] S.C.R. 889; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. Smith (1986), 25 C.C.C. (3d) 361; R. v. Bazinet (1986), 25 C.C.C. (3d) 273; R. v. Dedman (1981), 59 C.C.C. (2d) 97 (Ont. C.A.), aff'd on other grounds, [1985] 2 S.C.R. 2; R. v. Gladstone (1985), 22 C.C.C. (3d) 151.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 9 , 24(2) .

 

Criminal Code, R.S.C. 1970, c. C-34, ss. 450 [rep. & subs. S.R.C. 1970 (2nd Supp.), c. 2, s. 5], 621(1)(a).

 

Authors Cited

 

Tarnopolsky, Walter Surma.The Canadian Bill of Rights, 2nd rev. ed.  Toronto:  McClelland & Stewart, 1975.

 

    APPEAL from a judgment of the Ontario Court of Appeal (1985), 50 O.R. (2d) 375, 8 O.A.C. 31, 18 D.L.R. (4th) 32, 17 C.R.R. 203, 18 C.C.C. (3d) 289, 45 C.R. (3d) 140, dismissing the Crown's appeal from the accused's acquittal on a charge of break, enter and theft.  Appeal dismissed, L'Heureux-Dubé J. dissenting.

 

    Bruce Duncan, for the appellant.

 

    Andrew Kerekes, for the respondents.

 

//The Chief Justice//

 

    The following is the judgment delivered by

 

    THE CHIEF JUSTICE AND McINTYRE, LAMER, WILSON, LA FOREST AND SOPINKA JJ. -- The Crown in this case has conceded throughout a breach of s. 9  of the Canadian Charter of Rights and Freedoms .  The only issue properly before us is whether the evidence adduced is to be excluded or not under s. 24(2)  of the Charter .  The majority in the Court of Appeal for Ontario did not enunciate any principle or rule of law with which we disagree: (1985), 18 C.C.C. (3d) 289.  They simply applied the law to the facts as found by the trial judge, with which they did not feel justified in interfering.

 

    It is not the proper function of this Court, though it has jurisdiction to do so, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of the courts below under s. 24(2)  of the Charter  and substitute its opinion of the matter for that arrived at by the Court of Appeal.

 

    We would accordingly dismiss this appeal.

 

//L'Heureux-Dubé J.//

 

    The following are the reasons delivered by

 

    L'HEUREUX-DUBÉ J. (dissenting) -- I had the benefit of the reasons of the majority but with respect, I am unable to concur in them nor can I agree with the majority's disposition of this appeal.

 

    Since I am of the view that the characterization of the circumstances of this case is of prime importance, I find it necessary at the outset to recite the facts in some detail.

 

Facts

 

    Between 8:00 p.m. on June 25, 1982, and 3:00 a.m. on June 26, 1982, there was a break and entry in the home of Mr. and Mrs. Laframboise, in the city of Windsor, while the occupants were away.  A stereo set, a wrist-watch and some liquor were stolen.  On the morning following the theft, Detectives Reaume and Chevalier were dispatched to the Laframboise residence.  Upon their arrival, the detectives were informed by a constable already on the scene that prior to leaving their home, the Laframboises had noticed three young men drinking beer in the Grummetts' back yard, which bordered their own property to the north.  This information was thereafter confirmed in a discussion with Mrs. Laframboise, who recalled having already seen one of the youths there on a number of occasions.  She added that there was a short conversation between one of the youths and Mr. Laframboise:  as the latter was putting his dog in the garage before leaving the house, one of the three men inquired as to whether he always put his dog there.  The detectives then met with the  neighbour on the southern side of the property who informed them that the yard lights in the Laframboise residence went out at around 10:00 p.m., two hours after the occupants had left.  The neighbour did not see anyone in the residence at the time.  The detectives then returned to the Grummett residence and questioned a boarder who lived there, Mr. Dura.  He told the detectives that he had not seen anybody in the Grummetts' back yard the previous evening.

 

    While the detectives were receiving Mr. Dura's information, a car pulled up in the Grummetts' driveway.  Mr. Grummett was returning from an out-of-town trip.  The detectives went to meet him and informed him of the break-in and investigation.  As he had been away, he could not confirm the presence of the youths in his back yard the preceding evening.  Nevertheless, on the basis of the description of the young men given to him by the detectives, he recognized "the Murphy lad".  He then went into his home to call the Murphy residence and asked Murphy to come over with his friends who were with him the night before.  Detective Chevalier was informed by Mr. Grummett that three young men were on their way over.  Both officers went back to the front porch of the Laframboise residence to wait for them. 

 

    The young men arrived a short while later, accompanied by the Grummetts' son, who left the group to enter into his parents' house.  The Laframboises, who were with the detectives at the time, recognized Murphy and Sevigny as two of the youths in the Grummetts' back yard the previous evening.  Detective Reaume went to meet the respondents at the Grummetts' driveway, while Detective Chevalier went back into the Laframboise residence with the couple.  Detective Reaume identified himself to the youths and asked them their names, addresses and dates of birth.  He then asked the respondents: "You guys want to have a seat in our car?   We want to talk to you."  All three complied and sat in the back seat of the car.  Detective Reaume sat in the front.  It was an unmarked patrol car.   As the youths were seated, Detective Reaume asked them:  "You guys save me a trip back and tell me where the stereo is?"  One of them, Murphy, spontaneously answered and, while the content of his reply was not disclosed in evidence, both counsel agreed in their oral pleadings that it was an incriminating reply.  At this time, Detective Chevalier returned to the patrol car and Detective Reaume formally placed the three respondents under arrest on a charge of break and enter and theft.  The youths were given the customary caution and read their rights to counsel pursuant to the then newly-enacted Canadian Charter of Rights and Freedoms .  All replied that they understood their rights.  The events in the patrol car lasted only a few minutes.  The youths were then driven to the police station and put in separate interview rooms.  At no time did any of them request the presence of a lawyer.  An inculpatory statement was obtained from each of them.  Their fingerprints were taken.  Later that evening, Murphy led the policemen to the crawl-space under his house, where the stereo set was recovered.  The fingerprints of Duguay and Murphy were eventually matched to the fingerprints found on the stereo, and Duguay's fingerprints were also matched to those found on the window through which access to the Laframboise residence was gained.

 

Judgments

 

County Court (Criminal Division)

 

    At trial, the Crown sought to introduce as evidence the written statements, the stereo set and the fingerprints.  There was a voir dire on the admissibility of this evidence, and Huneault J. ruled all of it inadmissible pursuant to s. 24(2)  of the Charter .  As a result, the Crown's case collapsed and the respondents were acquitted.

 

    Huneault J. first ruled that the respondents had been submitted to an arbitrary detention, contrary to s. 9  of the Charter .  He found that, as they stepped into the cruiser in response to Detective Reaume's request, the respondents were in effect under arrest.  While they had not been formally arrested, the judge found that Detective Reaume had already formed the intention of arresting the respondents and that he would not have let them go had they tried to get out of the car.  No formal arrest was made at that time because Detective Chevalier had momentarily left his partner and the youths in order to escort the Laframboises back into their house.  According to Detective Reaume, standard police practice required two officers to be present when an arrest was being made, to assure the corroboration of the arresting officer's testimony.

 

    The trial judge also found that at the time the respondents stepped into the car, the officers did not have the evidence necessary to support a conviction on the charge of break and entry and theft.  He relied on Detective Reaume's testimony who at one point candidly said in cross-examination that while he believed he had reasonable and probable grounds to arrest the respondents pursuant to s. 450  of the Criminal Code , he did not have enough evidence to lay a charge.

 

    The trial judge found that the officers could not honestly believe that they had probable and reasonable grounds for an arrest.  He held:  "I find as a fact that there was absolutely no basis for Detective Chevalier's opinion that the three youths were the culprits" (Case on Appeal, at p. 259).   He explained that, while the evidence showed that the respondents may have had an opportunity to commit the break-in, there was "no evidence whatsoever to warrant a prosecution of the charge, let alone support a conviction" (Case on Appeal, at p. 262).  It was emphasized that the detectives "had no evidence against the individuals which would result in a conviction" (Case on Appeal, at p. 262).

 

    The trial judge concluded that the arrest was for the officers "a means of conducting their investigation" and he ruled that the arrest was not made in accordance with the provisions of s. 450  of the Criminal Code .  He then referred to a definition of "arbitrary detention" given in Tarnopolsky, The Canadian Bill of Rights (2nd rev. ed. 1975), at p. 235:  "the proscription here is against detention, imprisonment or exile without specific authorization under existing law".  On this basis, as there was no lawful authority for the arrest of the respondents,  Huneault J. found a breach of s. 9  of the Charter .  He remarked that the unlawful arrest constituted a "blatent [sic] violation of the rights and freedoms" of the accused (Case on Appeal, at p. 263).

 

    The last step in the trial judge's analysis was to find that the illegally-obtained evidence should be excluded pursuant to s. 24(2)  of the Charter .  He referred to the "community shock" test, which was the approach enunciated in the pre-Charter case of Rothman v. The Queen, [1981] 1 S.C.R. 640.  He adopted the view that s. 24(2) was intended to exclude evidence which is constitutionally tainted to such a degree that its admission would "shock the values of the right thinking members of the community".  Reviewing the evidence, he concluded:

 

    Other than some actual form of torture, I cannot think of anything more shocking to the right thinking member of the community that the courts would allow police officers to introduce evidence which they have obtained through the nefarious means of an unlawful arrest.  To admit such evidence would, in effect mean, that the courts sanction unlawful arrests by the police.  Far be it from this court to give that blessing.  I therefore rule as inadmissible any utterances or statements made by the accused in this case.  I further rule inadmissible, any evidence which the police might have obtained as a result of such utterances or statements.  Fingerprint evidence which arises out of the fact that these accused were fingerprinted following their arrest is also ruled inadmissible.

 

    (Case on Appeal, at pp. 265-66)

 

Ontario Court of Appeal

 

    The Crown argued on appeal that the trial judge erred in finding a violation of s. 9, and that he also erred in excluding the evidence pursuant to s. 24(2)  of the Charter .  The appeal was dismissed by the majority (MacKinnon A.C.J.O. and Martin J.A.): (1985), 18 C.C.C. (3d) 289.   Zuber J.A. wrote a strong dissent.

 

    Delivering the reasons of the majority, MacKinnon A.C.J.O. reviewed the definition of an "arbitrary" detention.  He expressed the view that where the grounds upon which an arrest is made fall "just short" of constituting reasonable and probable cause, a detention may nevertheless fall outside the scope of s. 9  of the Charter  if the person making the arrest honestly, though mistakenly, believed that the requisite grounds existed.  In such circumstances, MacKinnon A.C.J.O. remarked, "the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary" (p. 296).  However, he accepted the findings of Huneault J. that the arresting officers did not hold an honest belief that the youths were the culprits, and that the circumstances did not establish reasonable and probable grounds for the arrest.  MacKinnon A.C.J.O. accordingly agreed with the trial judge's characterization that the arrest was made for the purpose of "assisting the investigation."  The actions of the police officers were suggested to be "irrational" and "high-handed" (p. 296) and the trial judge's conclusion that the arrest constituted an arbitrary detention was not disturbed.

 

    With respect to the exclusion of the evidence, MacKinnon A.C.J.O. ruled that the trial judge did not err in finding that the present case fell within s. 24(2)  of the Charter .  The majority acknowledged that Huneault J.'s language was "somewhat excessive in condemning the action of the two detectives".  Nevertheless, in their opinion, "the manner in which the police proceeded suggested a somewhat incipient Star Chamber attitude" (p. 298). They held that the breach was not a slight one, noting that "[i]t is repugnant to our concept of the administration of criminal justice and to the rights of citizens in a free and democratic society, to make them subject to arbitrary arrest for investigative purposes" (p. 298).

 

    The majority essentially considered three groups of factors, namely, the lack of good faith on the part of the officers, the relative seriousness of the offence and the lack of urgency in proceeding the way the policemen did.  MacKinnon A.C.J.O. stressed that "the arrest was not made in good faith" and that there was "a deliberate breach of the Charter  right for an illegal purpose" (p. 299).  It was emphasized by the majority that admitting the evidence notwithstanding the violation would amount to a condonation of the perceived police misconduct.  MacKinnon A.C.J.O. said (at p. 300):

 

    If the court should turn a blind eye to this kind of conduct, then the police may assume that they have the court's tacit approval of it.  I do not view the exclusion of the evidence as a punishment of the police for their conduct, although it is to be hoped that it will act as a future deterrent.  It is rather an affirmation of fundamental values of our society, and the only means in this case of ensuring that the individual's Charter  rights are not illusory.  [Emphasis added.]

 

    The majority accordingly confirmed the exclusion of the evidence by the trial judge.

 

    Zuber J.A. expressed contrary views on both issues.  He seemed prepared to hold that there had been no breach of s. 9  of the Charter .  On the assumption that there was such a breach, however, he reached the alternative conclusion that the respondents fell short of their burden of persuading the Court that the admission of the evidence would bring the administration of justice into disrepute.  In fact, he thought it more likely that the exclusion of the evidence would entail such a consequence.

 

    Zuber J.A. could not agree with the trial judge's finding that there was "absolutely no basis" for the detectives' suspicion in the circumstances.  While it was not clear to him that reasonable and probable grounds existed at the time of the arrest, he disagreed that the detectives' belief was "a pure flight of fancy" nor could he accept that the arrest was "capricious" or "random".  He remarked that, contrary to what had been assumed at trial, s. 450  of the Criminal Code  does not require that the reasonable and probable grounds "be made up of evidence that can later be adduced in a court-room" (p. 302).  Zuber J.A. suggested that there were sufficient grounds for the detention not to be an arbitrary one.

 

    Notwithstanding his "serious doubts" respecting the arbitrary nature of the detention, Zuber J.A. rested his dissent on the sole ground that, assuming a violation of s. 9  of the Charter  had occurred, the evidence should not be excluded pursuant to s. 24(2)  of the Charter .

 

    The learned judge pointed out that the use of a "community shock" test amounted to a rewriting of s. 24(2).  He expressed the view that "the formulation of a judgment premised on s. 24(2)  of the Charter  requires more than a recitation of all of the circumstances followed by a selection of the result" (p. 304).  It was also Zuber J.A.'s view that the decision under appeal lacked a clear appreciation of the principles involved in a s. 24(2) analysis.  Consequently, he enumerated five criteria which should guide the courts in determining whether there is disrepute in each particular case.

 

    First, section 24(2) is not an automatic exclusionary rule.  According to Zuber J.A., "[e]vidence obtained as a result of a Charter  violation is, as a general rule, admissible" (p. 304).  The exclusion of evidence is an exceptional (not necessarily rare) remedy.  Zuber J.A. also warned that a wide-spread application of the blind-eye argument would move s. 24(2)  of the Charter  in the direction of an exclusionary rule (at p. 305):

 

    The logical extension of the blind-eye argument leads to the exclusion of evidence almost automatically and will inevitably lead us to a position very close to the exclusionary rule as it exists in the United States.  This would be a result which is clearly inconsistent with the compromise position taken by s. 24(2) itself.  On wider grounds, and as a matter of principle, we should be very wary of moving in the direction of an exclusionary rule.  The American experience with the exclusionary rule should dampen the ardour of anyone ready to follow that course.

 

    Second, the reliability of the evidence and the effect of its exclusion must be considered.  Noting that "[c]ourts are being asked to suppress the truth", the learned judge wrote (at p. 305):

 

    The question becomes whether the admission of the truth (albeit discovered as a result of a Charter  violation) will bring the administration of justice into disrepute.  The converse question is, what will the suppression of the truth do to the repute of the administration of justice?

 

    Third, Zuber J.A. remarked that while the Charter  transformed the law respecting illegally obtained evidence, there had been no abrupt change in our Canadian perception of what is likely to bring disrepute to the administration of justice.  Commenting on the present circumstances, he remarked (at p. 306):

 

    Had this case taken place prior to 1982, all of the evidence excluded by the trial judge would have been admitted without exciting any notice whatever.

 

    Fourth, controlling the police has no place in the determination whether evidence should be excluded pursuant to s. 24(2)  of the Charter .  Zuber J.A. recognized that there existed specific remedies for police misconduct both in the civil and criminal law.  He held that s. 24(2) does not provide a remedy for police misconduct, because "[w]hatever penalty there may be in excluding the evidence in a given case does not fall on the police.  It falls on the public" (p. 306).

 

    Finally, the disrepute must be established on the basis of the views of the whole community.

 

    Applying these principles to the circumstances of the case, Zuber J.A. concluded that, contrary to the finding of the trial judge, there was some basis in fact for the arrest.  It followed that the conduct of the officers was not tainted with bad faith.  He disagreed with the majority that the offence committed by the respondents was not a serious one.  He noted that "break and entry of a dwelling carries a maximum penalty of life imprisonment" (p. 307), that the evidence sought to be excluded was "clear, cogent and reliable" (p. 305) and that its exclusion "led to the collapse of the Crown's case" (p. 308).  The effect of the exclusion on the victims was also considered.  In this case, Zuber J.A. recalled the significant participation of the Laframboises in the criminal process and the broken expectations which have likely resulted from their experience with the police and the courts (at p. 308):

 

    In my view, the plight of the victim is also a relevant circumstance within s. 24(2).  His dwelling was broken into and his possessions were stolen.  He expended his time and energy by reporting the matter to the police, testifying at the preliminary hearing and apparently by attending at the trial ready to testify again.  However, his recourse to the law has yielded him nothing.  He, no doubt, has some interesting impressions as to the course of these proceedings.

 

    Zuber J.A. further noted that the link between the Charter  violation and the finding of the stolen goods was weak, and that it was weaker still between the violation and the obtention of the fingerprint evidence.  Zuber J.A. consequently would have set aside the verdicts of acquittal and directed a new trial.

 

    It must be noted that, at the time, the trial judge and the Ontario Court of Appeal did not have the benefit of the judgment of this Court in R. v. Collins, [1987] 1 S.C.R. 265, nor of the subsequent judgments in which this Court considered the application of s. 24(2)  of the Charter , namely, those in R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Upston, [1988] 1 S.C.R. 1083; R. v. Simmons, [1988] 2 S.C.R. 495;  R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Strachan, [1988] 2 S.C.R. 980, and R. v. Genest, [1989] 1 S.C.R. 000.

 

Arguments

 

    The parties argued this appeal on the basis that a violation of s. 9  of the Charter  had occurred.  The Crown conceded at the outset that the compliance of the youths to the officer's request to get in the car may have constituted an arbitrary detention, contrary to s. 9  of the Charter .  The argument, therefore, rested on whether the admission of the evidence obtained subsequently to this violation would bring the administration of justice into disrepute.

 

    The Crown's main submission was that the lower courts erred in failing to recognize that evidence obtained in violation of a Charter  right is nevertheless prima facie admissible.  Illegally obtained evidence, in the Crown's view, should only be excluded in exceptional (not necessarily rare) cases which fall within the scope of s. 24(2).  The Crown noted that, in excluding the evidence, the Court of Appeal emphasized that it could not condone improper police conduct which could be "explained" neither by urgency nor by good faith.  Such an approach, the Crown argued, amounts to reversing the rule of prima facie admissibility which is said to follow from the clear words of s. 24(2) and substituting in its place an American-style quasi-automatic rule of exclusion accompanied by some exceptions.  The approach advocated by the Court of Appeal requires the Crown to bring the case within one of these exceptions, and this, it was submitted, constitutes an error of law.

 

    The Crown further argued that, on a proper analysis of all the circumstances, using the guidelines set forth by this Court in Collins, the evidence was incorrectly excluded by the lower courts.  A specific submission was made with respect to the fairness of the trial, in that the admission of voluntary confessions does not affect the fairness of the trial.  On that basis, the admission of the statements in this case would not go to fairness, nor would the admission of the stolen goods and fingerprints, because "real" evidence does not go to fairness.  It was also submitted that none of the other factors in Collins militate in favour of exclusion, and that the lower courts erred in holding that the requisite burden had been discharged by the respondents.

 

    The respondents' first submission went to the jurisdiction of an appellate court to review a trial judge's finding of fact as well as his finding respecting the exclusion of the evidence.  According to the respondents, a decision to exclude made pursuant to s. 24(2)  of the Charter  cannot be reversed unless it is shown to be unreasonable.

 

    In the alternative, the respondents invoked for the first time in these proceedings a breach of s. 10  of the Charter .  Relying on Collins, they argued that, as the respondents were not informed of their right to counsel immediately upon their entering the patrol car, the admission of the subsequently-obtained statements would necessarily affect the fairness of the trial.  As for the other factors of exclusion, the respondents argued that the test in Collins should lead to the exclusion of the evidence in this case.

 

Analysis

 

    In view of the position taken by the Crown in this appeal, I am prepared to rest my opinion solely on s. 24(2)  of the Charter .  Nevertheless, I find it necessary to express my views as to whether there was a breach of s. 9  of the Charter  in the circumstances of the present case.

 

Section 9  of the Charter 

 

    Section 9  of the Charter  reads as follows:

 

    9.                     Everyone has the right not to be arbitrarily detained or imprisoned.

 

    What is at issue here is the characterization of the evidence by the trial judge, later accepted and relied upon by the Court of Appeal. In my view, the trial judge's findings rest on an erroneous appreciation of the grounds required for an arrest without warrant under s. 450(1) (a) of the Criminal Code .

 

    The trial judge found that the arrest was for the officers "a means of conducting their investigation".  He stressed that the facts known to the police officers did not give them enough evidence to establish the respondents' guilt in a court of law.  He wrote:

 

    Detective Reaume admits that notwithstanding their arrest, if they had not subsequently obtained inculpatory statements, the accused would have been released.  Detective Reaume admitted that at the time of the arrest he had no evidence against the individuals that would result in a conviction.  Detective Chevalier said, "We arrested them to determine whether they actually did it or not".  He said he believed them to be guilty and was trying to get a case against them and hoped to get a statement.  [Emphasis added.]

 

    (Case on Appeal, at p. 262)

 

    The trial judge focussed on part of the evidence offered by the officers.  The gist of Detective Reaume's testimony was that, while there was not enough evidence to convict, there was enough evidence to arrest:

 

    Q.  All right; so to answer the question directly, you do believe that you have the right to arrest someone and then carry on an investigation about that person to see whether or not the investigation reveals further evidence that may allow you to lay a charge?

 

    A.  You missed one thing.  I needed reasonable and probable grounds to arrest.  I must have that for me to do that and you're right with the rest of your statement.

 

    Q.  So it would be fair to conclude on your evidence that you felt that you had enough to arrest, but that you did not have enough to lay a charge?

 

    A.  That's true.

 

    (Case on Appeal, at pp. 206-7)

 

    Detective Chevalier's testimony is to the same effect (Case on Appeal, at pp. 230-31).  The powers of a peace officer to arrest a suspect without a warrant are conferred by s. 450  of the Criminal Code , which reads as follows:

 

    450. (1)  A peace officer may arrest without warrant

 

(a)  a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence, . . .

 

    The origins of that disposition are found in the common law power of arrest.  In McArdle v. Egan (1933), 150 L.T. 412, the Court of Appeal of England considered the extent of a police officer's power to arrest without warrant.  Lord Hewart C.J. set out a test which was adopted by the Court (at p. 412):

 

    The law is very concisely stated in the well-known edition of Bullen and Leake (3rd edit.) at p. 795, note:  "A constable is justified in arresting a person without a warrant upon a reasonable suspicion of a felony having been committed and of the person being guilty of it".

 

The "reasonable suspicion" criterion was incorporated in specific statutes, one of which was considered by the Privy Council in Hussien v. Chong Fook Kam, [1970] A.C. 942.  Police officers in Malaysia had acted pursuant to a statutory disposition which gave them the power to arrest a person without warrant if there existed a "reasonable suspicion" that this person was concerned in an offence of reckless driving.  Delivering the reasons of the Court, Lord Devlin emphasized that, under the statute, the suspicion necessary for an arrest without warrant could  rest on evidence which would fall short of convicting the suspect (at pp. 948-49):

 

    The test of reasonable suspicion prescribed by the Code is one that has existed in the common law for many years.  The law is thus stated in Bullen and Leake, 3rd ed. (1868), p. 795, the "golden" edition of (1868):

 

    "A constable is justified in arresting a person without a warrant, upon a reasonable suspicion of a felony having been committed and of the person being guilty of it."

 

    Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof.  In Dumbell v. Roberts [1944] 1 All E.R. 326, Scott L.J. said, at p. 329:

 

    "The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt.  That requirement is very limited.  The police are not called upon before acting to have anything like a prima facie case for conviction ...."

 

    In reviewing whether the arresting officer's suspicion was "reasonable", a court must therefore keep in mind the important distinction between the evidence which is necessary to convict and the evidence which suffices to ground a reasonable suspicion.  Where the court requires that the arresting officer act on nothing less than evidence amounting to a prima facie case for conviction of the suspect, it commits an error of law reviewable in appeal.  In Holtham v. Commissioner of Police for the Metropolis, Engl. C.A. (Civil Division), November 25, 1987 (unreported), the plaintiffs' son was under investigation for murder.  The investigating officers had been led to suspect that the plaintiffs themselves might be involved, following a statement by a neighbour who said he had seen the plaintiffs' son visit his parents and move certain stereo equipment into their house.  The officers knew some stereo equipment had been stolen after one of the murders.  They consequently obtained a warrant to search the plaintiffs' house.  When they visited the house, they were greeted in a friendly and co-operative way.  The search revealed nothing, save that the parents denied that their son had visited them, contrary to what the neighbour had said.  The plaintiffs were later arrested on a charge of impeding a police investigation.  After being found not guilty of this charge, they brought an action for unlawful arrest.

 

    The trial judge held in favour of the plaintiffs.  The applicable statutory disposition enabled an arrest without warrant where "a constable, with reasonable cause, [suspected] that an arrestable offence [had] been committed".  The trial judge observed that "reasonable suspicion" could rest on evidence insufficient to establish a "prima facie case".  But he added: "[T]he statute requires [the police] to have reasonable grounds for suspicion, and that, in my view, is something a good deal more than suspicion" (emphasis added).  He found there had not been enough of a departure from mere suspicion and held that the arrest was unlawful.

 

    This finding was reversed in appeal.  Sir Donaldson M.R., writing for the Court of Appeal of England, held that the trial judge erred in setting the standard at "something more than suspicion":

 

    With all respect to the learned judge, I do not think that this is a correct statement of the law.  As it was put by Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942, [1969] 3 All ER 1626, at 948 of the former report, "Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: `I suspect but I cannot prove.'"  Suspicion may or may not be based on reasonable grounds, but it still remains suspicion and nothing more.  By applying a test of something which was not suspicion but was "something a good deal more than suspicion", I think that the learned judge erred and that this error was fundamental to his conclusion.  [Emphasis added.]

 

    The fact that the plaintiffs had lied with respect to their son's visit gave the officers good cause to suspect them of impeding the investigation.  Sir Donaldson outlined three possible explanations for this lie:  that it was a nervous reaction to a police enquiry; that the plaintiffs had something to hide which was not connected to their son's actions; or that indeed the parents knew their son to be guilty and tried to hide facts which could help the prosecution.  Sir Donaldson found that, in the circumstances, the third explanation was the most likely and, accordingly, he found that the arrest was justified and dismissed the plaintiffs' action.

 

    These principles offer guidance in the interpretation of s. 450(1) (a) of the Criminal Code .  This Court considered this provision in R. v. Biron, [1976] 2 S.C.R. 56.  While that case raised the application of s. 450(1) (b) of the Criminal Code , Martland J. nevertheless made the following remarks on para. (a) (at p. 72):

 

    This paragraph, limited in its application to indictable offences, deals with the situation in which an offence had already been committed or is expected to be committed.  The peace officer is not present at its commission.  He may have to rely upon information received from others.  The paragraph therefore enables him to act on his belief, if based on reasonable and probable grounds.

 

    In Eccles v. Bourque, [1975] 2 S.C.R. 739, this Court was called upon to determine the extent of the common law power to enter into a person's home in order to effect an arrest.  Delivering the reasons of the Court on this point, Dickson J. (as he then was) held that the arresting officers could commit a trespass if they had reasonable and probable cause to believe that the suspect was on the premises.  He wrote:  "That this information was hearsay does not exclude it from establishing probable cause" (p. 746).

 

    Two recent decisions of provincial Courts of Appeal illustrate that s. 450(1) (a) of the Criminal Code  may be applied to arrest a suspect even though the evidence available to the officers would not be sufficient to convict him.  In Campbell v. Hudyma (1985), 42 Alta. L.R. (2d) 59 (C.A.), the plaintiff brought an action for false arrest.  She had been arrested after an informant not previously known to the defendant officers advised them that a woman was selling LSD from her purse outside a theatre.  The officers arrested the plaintiff, who matched the description given by the informant.  Syringes were found in the purse.   The plaintiff was taken to the station where it was realized that she was a diabetic and used the syringes for medical reasons.  The trial judge held that there was no reasonable and probable cause to suspect the plaintiff and accordingly the arrest was not justified by s. 450(1) (a) of the  Criminal Code .  This finding was reversed by a majority of the Court of Appeal who held that in view of the policy background of discouraging the street sale of LSD, the information provided to the officers gave them reasonable and probable cause to believe the plaintiff had committed an indictable offence, even though the informant was not previously known to them.  For the majority, McClung J.A. noted (at p. 66):

 

    The trial judge found that the detention and search of the plaintiff was not undertaken under reasonable and probable grounds for belief by the defendants that she had sold or was about to sell drugs.  With respect I believe that finding is not only reviewable but that it is not supported by the trial record.

 

McClung J.A. then reviewed the facts relied upon as grounds for arrest, which were six in number (at p. 67):

 

The judge's reasons list the factors leading to the plaintiff's arrest:

 

The onus is on the defence to prove the existence of reasonable and probably [sic]  grounds.  The defence says, in determining whether, their impression, there were reasonable and probable grounds, they relied on the following factors:

 

    (1)                    information from the informant;

 

    (2)                    the fact the area was known to have been a location where drug transactions were made as an everyday occurrence;

 

    (3)                    a similarity of the plaintiff with the informant's description;

 

    (4)                    the attitude and reaction of the plaintiff;

 

    (5)                    the finding of two or three syringes reinforced this impression;

 

    and I should mention:

 

    (6)                    of Constable Hudyma who said, "there was a gut reaction",

 

although I note he had been in the police force for only a period of one year.

 

In all likelihood, these elements would not suffice to convince a jury beyond a reasonable doubt that the plaintiff had sold LSD.  Nevertheless, it sufficed in the majority's opinion to give reasonable and probable cause for the officers' suspicion.  A second illustration is provided by R. v. Brown (1987), 33 C.C.C. (3d) 54 (N.S.C.A.)  In that case as well, a drug trafficker was arrested in circumstances which were held to amount to reasonable and probable grounds for suspicion, but which in all probability could not have secured a conviction.

 

    I conclude from the foregoing that, when he arrests a person without a warrant pursuant to s. 450(1) (a) of the Criminal Code , a peace officer is not required to have evidence which would secure the conviction of the suspect.  Not every arrest results in a conviction.  Certainty beyond a reasonable doubt is required to convict, but that is not the language used by the enabling disposition of the Criminal Code  as regards arrests.  The threshold is significantly lower.  The officer is authorized to act where the circumstances are such that, in the mind of a reasonable person, they would give rise to a belief in the likelihood that the person concerned is guilty.

 

    The trial judge did not apply this test in the present case.  He directed his mind to the question whether the evidence upon which the officers proceeded "would result in a conviction".  In my respectful view, the trial judge erred in setting a threshold more onerous than belief of guilt based on reasonable and probable grounds.  This error tainted his characterization of the circumstances as an "arrest for investigative purposes" and ultimately led to the exclusion of the evidence at trial and in the Court of Appeal as well.

 

    Turning now to the test which should have been applied by the courts below, I find that it was reasonable for the officers to believe that the break-in occurred at 10:00 p.m., when the yard lights went out.  The burglars would have had to turn the lights off in order not to be seen by the neighbours.  The other circumstances revealed by the investigation, while insufficient to convict the respondents, did however tend to make them suspects.  When last seen by the Laframboises at 8:00 p.m., there was no indication that the youths were leaving.  To the contrary, they had a case of beer with them.  Certainly, the youths had seen the Laframboises close the house and had the opportunity to commit the break-in.  Mr. Dura's lie with respect to the presence of the respondents in the Grummetts' back yard could lead the officers to believe that he was trying to hide something from them.  It could have been something Mr. Dura himself had done, but in the absence of any other indication, the officers were entitled to believe that it was as likely that Mr. Dura tried to conceal something the respondents had done.  The conversation between one of the youths and Mr. Laframboise, the previous evening, with respect to putting the dog in the garage, indicated that the respondents were curious whether the dog was left in the house to guard it.  Such a curiosity would naturally tend to confirm the officers' suspicion.  It is necessary to emphasize that all these circumstances were analyzed by officers with a combined experience of 39 years on the force.  In all likelihood, this was not the first break-in they were called upon to investigate.  While the evidence is not explicit on this point, given their knowledge of the neighbourhood and appreciation of the fact that some liquor was stolen and other circumstances of the break-in, it may have been natural for them to suspect inexperienced neighbourhood youths instead of sophisticated out-of-town burglars.  I agree that this evidence falls short of establishing the respondents' guilt beyond a reasonable doubt, but in my view, it could very well have led a reasonable person to believe it was likely that the respondents committed the break-in.

 

    While the circumstances described above might have sufficed to authorize the arrest pursuant to s. 450  of the Criminal Code , an additional fact was relied upon by the detectives.  When Mr. Grummett told Detective Chevalier that the respondents were on their way over, the officer understood that the persons responsible for the break-in were coming.  The officer did not witness the phone conversation.  In his initial police report and at the preliminary enquiry, the detective stated that Mr. Grummett had simply told him three persons were coming.  However, in cross-examination on the voir dire, Detective Chevalier specified that Mr. Grummett told him that the three who were coming were the culprits:

 

    Q.  All I'm trying to find out sir is nothing that he had said to you assisted you in coming to the conclusion that these three people were the ones responsible.

 

    A.  Yes, he did.  What he said to us indicated that those three people were responsible.  The three people responsible would be coming to the residence.

 

    Q.  The three people you wanted would be coming to the residence, but not the three people responsible.  He didn't know -- he wasn't even in town.

 

    A.  I understood it was the three people we wanted for the B & E.

 

    (Case on Appeal, at p. 221)

 

    Detective Reaume did not hear this conversation between his partner and Mr. Grummett.  When Detective Chevalier saw the respondents approaching on the sidewalk, he said to his colleague:  "Those are the three".  Detective Reaume testified that he took this to mean that the three were responsible for the break and entry:

 

    Q.  Now if the words were in fact:  "Those are the three", can you tell me what, in your mind, that meant?

 

    A.  It meant that those are the ones that broke in.

 

    Q.  Simply by those words:  "Those are the three".

 

    A.  Yes, by the way my partner and I work.

 

    (Case on Appeal, at p. 203)

 

    The trial judge rejected this evidence and refused to find that Mr. Grummett had indeed said the three who were coming were the actual culprits.  The trial judge wrote:  "I find it beyond belief that if Grummett had said something to the effect that the guilty parties were on their way, the detectives would not have followed up on that and ascertained the source of Grummett's information" (Case on Appeal, at p. 259).  Consequently, Huneault J. ruled that the information given to the detective was simply that the three who were in the back yard the night before were on their way over, with no indication that they actually were responsible for the break-in.  With respect, I am of the view that Detective Chevalier was entitled to rely on any information given to him by Mr. Grummett without first ascertaining its source or validity.  As said earlier, hearsay evidence is admissible to establish probable cause for suspicion.  I mention that in Campbell and Brown, the arresting officers likewise acted on unverified hearsay information.  Also, implicit in the trial judge's remark is the concern that it was impossible for Mr. Grummett to know whether or not the respondents were actually guilty.  With respect, for reasons already given, that is not a proper criterion under s. 450(1) (a) of the Criminal Code .  I note that Detective Chevalier's testimony on his state of mind following the conversation with Mr. Grummett is corroborated by the fact that the former thereafter said to his partner:  "These are the three".  No evidence contradicts Detective Chevalier's testimony, as Mr. Grummett did not testify at trial.  The content of his phone call to the Murphy residence was not established.  Having said this, while I do not necessarily agree with his conclusion on this point, I must respect the trial judge's assessment of the credibility of the witnesses and subsequent "finding of fact" that no information respecting the respondents' guilt was given by Mr. Grummett to the officer.

 

    Be that as it may, and assuming that the circumstances of the present case amount to something less than reasonable and probable grounds, I would still entertain doubts whether it would necessarily follow that the detention was arbitrary.  It would appear that where persons are detained without reasonable and probable cause, it does not necessarily follow that their detention is "arbitrary" within the meaning of s. 9  of the Charter .  This Court considered the meaning of "arbitrary" in the recent case of R. v. Hufsky,  [1988] 1 S.C.R. 621.  Delivering the reasons of the Court, Le Dain J. wrote (at p. 633):

 

Although authorized by statute and carried out for lawful purposes, the random stop for the purposes of the spot check procedure nevertheless resulted, in my opinion, in an arbitrary detention because there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure.  The selection was in the absolute discretion of the police officer.  A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.  [Emphasis added.]

 

A detention is arbitrary if it is the product of an untrammelled discretion.  That is not what happened here.  There was a rational investigative process leading up to the "detention" and arrest.  There was an overriding preoccupation to meet the standard prescribed by s. 450(1) (a) of the Criminal Code .  The criterion guiding the detectives' actions was the existence of reasonable and probable grounds for suspicion.  Assuming that these grounds did not exist, in my view the circumstances did not sufficiently depart from the prescribed norm to conclude that the detention was arbitrary.  The arrest was neither capricious nor random.

 

    For these reasons, as well as for those expressed by Zuber J.A., I entertain strong reservations that a breach of s. 9  of the Charter  occurred here.  In view, however, of the position taken by the Crown with respect to this aspect of the case, I will rest my opinion solely on the question whether the admission of the evidence would bring the administration of justice into disrepute.

 

Section 24(2)  of the Charter 

 

    Section 24(2)  of the Charter  reads as follows:

 

    24.                   (1) . . .

 

    (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

    Appellate Power to Review a Decision to Exclude Evidence

 

    The question whether evidence should be excluded pursuant to s. 24(2)  of the Charter  is a question of law from which an appeal will generally lie (Collins, supra, at p. 276).  The present instance was brought before this Court on that basis.  The Crown appealed as of right pursuant to s. 621(1) (a) of the Criminal Code  on the ground that Zuber J.A. dissented on the application of s. 24(2) to the case at bar.  Moreover, this is not a case where the questions raised by the application of s. 24(2) are limited to the assessment of testimonial evidence or determination of facts.  The Crown argues that incorrect principles were applied by the Court of Appeal and that its decision to uphold the exclusion of the evidence pursuant to s. 24(2) was premised on an error of law.  As well, I note that in the case of Genest, supra, this Court allowed an appeal from a decision not to exclude evidence pursuant to s. 24(2).  An important aspect of that case, like the present one, turned on the issue of whether the breach was a serious one.  In these circumstances, I have no hesitation in coming to the conclusion that this Court should exercise its jurisdiction to review the findings of the Court of Appeal with respect to the application of s. 24(2) in the present case.

 

    Burden of Proof Under s. 24(2) of the Charter 

 

    It is now clear that s. 24(2)  of the Charter  does not provide for the automatic exclusion of evidence obtained as a result of the infringement of a protected right.  Not every Charter  violation will give rise to the remedy provided for by that section.  The Chief Justice, writing for the Court on that point in Simmons, supra, at p. 532, said:

 

    The final question in this appeal is whether the evidence should be excluded under s. 24(2)  of the Charter .  As Lamer  J. noted in R. v. Collins, [1987] 1 S.C.R. 265, the Charter  enshrines a position with respect to evidence obtained in violation of Charter  rights that falls between two extremes.  Section 24(2) rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights (see, for example, Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961)).  It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained (see R. v. Wray, [1971] S.C.R. 272).  Evidence may be excluded under s. 24(2) if having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute.

 

    As well, in Strachan, supra, at p. 1008, the Chief Justice reiterated this principle:

 

Any denial of a Charter  right is serious, but s. 24(2) is not an automatic exclusionary rule.  Not every breach of the right to counsel will result in the exclusion of evidence.

 

    In order for the remedy of exclusion to become available, the individual whose Charter  rights have been infringed bears the burden of persuading the court that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.  By hypothesis, s. 24(2) is premised on a violation of the Charter .  The individual  must therefore move the analysis beyond this starting point and engage in a balancing of all the circumstances.  He must bring the court to consider the interplay between the seriousness of the violation, the fairness of the trial and the effect of exclusion.  In this context, courts are sometimes pressed to exclude the evidence pursuant to s. 24(2)  of the Charter  because to admit it would condone the underlying violation.  Courts are thereby invited to use the remedy of exclusion to discipline improper police conduct.  Such an argument, if accepted, would greatly reduce the applicant's burden under s. 24(2).  As every breach of the Charter  is serious and as no court wishes to condone improper police conduct, the argument provides the means to avoid engaging in any sort of balancing.  Taken to its logical extreme, this reasoning leads to the automatic exclusion of evidence.

 

    In my view, the blind-eye reasoning is based on the incorrect assumption that a decision not to exclude pursuant to s. 24(2)  of the Charter  means that the court condones the underlying violation.  The equation however does not necessarily follow.  There may be, in certain cases, "particular circumstances [which] provide a rational basis for holding that the admission of the evidence will at least give the appearance of condoning misconduct" (R. v. Strachan (1986), 49 C.R (3d) 289 (B.C.C.A.), at p. 311, per Esson J.A.)   Such circumstances would be relevant in the application of s. 24(2).  Other than  these special cases, it would be, in my view, incorrect to assume that admitting the evidence condones the underlying infringement.  Moreover, as held by this Court in Collins and Genest, it is generally not proper for a court to exclude evidence with a view to controlling the police.  The main reason for this is that the price of exclusion is not paid by the police, and that consequently, from the police's point of view, exclusion generally would amount to no punishment at all.  The public and the victims of the offence are those who are affected by the exclusion.  For these reasons, I am of the view that the blind-eye reasoning is inconsistent with a proper interpretation of s. 24(2).

 

    In the present instance, the trial judge considered the violation of s. 9  of the Charter  to be "blatant", "shocking", "nefarious", and he suggested that it fell just short of "torture".  He then applied the blind-eye reasoning, holding that to admit the evidence would sanction unlawful arrests by the police.  Similarly, in the Court of Appeal, the majority suggested that the police officers' actions were "irrational", "high-handed", "repugnant to our concept of the administration of criminal justice" and indicative of an "incipient Star Chamber attitude".  The majority thereafter applied the blind-eye reasoning and stated that admitting the evidence would authorize the police to assume that they have the courts tacit approval of the improper conduct.  Neither the trial judge nor the majority in the Court of Appeal gave reasons explaining why the admission of the impugned evidence could be equated with judicial condonation in the present circumstances.  With respect, I see no reason for making that assumption in the case at bar, particularly since I do not share the somewhat excessive language used by the courts below to characterize police conduct in this case.

 

    The Criteria Under s. 24(2) and Their Application

 

    The applicable criteria were first considered in Collins, a decision, as I mentioned earlier, from which the trial judge and the Court of Appeal did not benefit at the time they rendered their decision.  As restated by the Chief Justice in Simmons, supra, at pp. 533-34, these criteria are as follows:

 

The first set of factors are those relevant to the fairness of the trial.  Evidence that might in some way affect the fairness of the trial would tend to bring the administration of justice into disrepute and in general should be excluded.  Within this category, Lamer J. [in Collins] distinguished between the type of evidence obtained (at pp. 284-85):

 

    It is clear to me that the factors relevant to this determination will include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated.  Real evidence that was obtained in a manner that violated the Charter  will rarely operate unfairly for that reason alone.  The real evidence existed irrespective of the violation of the Charter  and its use does not render the trial unfair.  However, the situation is very different with respect to cases where, after a violation of the Charter , the accused is conscripted against himself through a confession or other evidence emanating from him.  The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination.  Such evidence will generally arise in the context of an infringement of the right to counsel.  Our decisions in Therens, supra, and Clarkson v. The Queen, [1986] 1 S.C.R. 383, are illustrative of this.  The use of self-incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded.

 

    The second set of factors concerns the seriousness of the Charter  violation as defined by the conduct of the law enforcement authorities.  In this category, an assessment of whether the breach was committed in good faith, whether it was one of a merely technical nature or whether it was deliberate and flagrant falls to be considered.  Also within this category is the consideration of whether the Charter  violation was motivated by circumstances of urgency or from fear of destruction of evidence.  Finally, if other investigatory techniques had been available or if the evidence could have been obtained in a manner which would not have infringed the Charter , the violation would tend to be construed as more serious.

 

    The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding evidence despite the fact that it was obtained in a manner that infringed the Charter .  The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other.  In some cases the harm to the integrity of the judicial system resulting from excluding the evidence will be so great that exclusion and not admission will bring the administration of justice into disrepute.  This would be the case if evidence necessary to substantiate a charge were excluded on the basis of a trivial Charter  violation.

 

    I shall consequently examine the evidence in light of these criteria.

 

    Fairness at the Trial

 

    The evidence excluded by the trial judge consisted of the stolen stereo set, fingerprints obtained at the station, at the Laframboise residence and on the stolen goods, as well as written statements elicited from each of the respondents.

 

    The stereo set found in Murphy's possession existed prior to the Charter  violation and was not created by it.  Likewise, the fingerprint evidence cannot be said to have been manufactured by the Charter  violation.  The fingerprints were in the Laframboise residence and on the stolen goods before any infringement occurred.

 

    Fingerprint evidence, like real evidence, falls outside the scope of the right against self-incrimination.  In Re Jamieson and The Queen (1982), 70 C.C.C. (2d) 430 (Que. S.C.), declaratory proceedings were taken to attack the constitutionality of s. 455.5(5) of the Criminal Code , which provides that a person charged with an indictable offence may be required to attend for the purpose of having his fingerprints taken.  It was argued that this disposition forced the accused to testify against himself contrary to his rights under ss. 11( d )  and 13  of the Charter .  Durand J. conducted an extensive review of the case law and found that [TRANSLATION] "[f]ingerprints are accordingly not testimony and a person does not testify against himself when he provides them" (p. 442).

 

    This conclusion was later approved by the Alberta Court of Appeal in Re M.H. and The Queen (No. 2) (1985), 21 C.C.C. (3d) 384, aff'g (1984), 17 C.C.C. (3d) 443 (Q.B.), leave to appeal to this Court granted, September 19, 1985, [1985] 2 S.C.R. ix.  Likewise, it was held in R. v. McGregor (1983), 3 C.C.C. (3d) 200 (Ont. H.C.), that (at p. 211):

 

It is clear that in law, neither the presumption of innocence nor the fairness of an accused's trial are affected by statutory provisions which authorize the police to require an accused to submit to physical tests or procedures which may produce incriminating evidence.

 

    The constitutional validity of s. 455.5(5) of the Criminal Code  was considered by this Court in the recent case of R. v. Beare, [1988] 2 S.C.R. 387.  Delivering the reasons of the Court, La Forest J. found that the fingerprinting of a person who has been arrested but not yet convicted pursuant to that provision did not offend any Charter  rights or freedoms.  On the specific question of the right to counsel and fairness, he wrote (at p. 415):

 

    I am unable to grasp the significance of s. 10 (the right to counsel) to these issues in the circumstances of these cases.  Nor do I see how the respondents could be said to be witnesses in proceedings against themselves under s. 11( c )  of the Charter  (see Re Jamieson and The Queen, supra; see also the cases on the much broader provision of the Fifth Amendment against self-incrimination in the United States Constitution, particularly Schmerber v. California, 384 U.S. 757 (1966), at p. 764, discussed in Moenssens, supra, at pp. 62-66.

 

    Section 11(d) guarantees a fair trial.  If the fingerprints were obtained in a manner consistent with the principles of fundamental justice, it is not readily apparent how their use as evidence could affect the fairness of a trial.

 

    Real evidence has consistently been held by this Court not to affect the fairness of a trial.  In Simmons, supra, drugs had been found taped to the waist of the accused.  The majority of this Court held that the drugs had been found in violation of the accused's rights under s. 8  of the Charter .  The Chief Justice said (at p. 534):

 

    The evidence obtained as a result of the strip search was real evidence that existed irrespective of the Charter  violations.  As Belzil J.A. observed in R. v. Dumas (1985), 23 C.C.C. (3d) 366 (Alta C.A.), at p. 372:

 

    What is sought to be excluded here is pre-existing physical evidence which the appellant was attempting to conceal to prevent its detection and rightful seizure . . . .

 

Unlike the situation in Therens, supra, the accused here was in no way conscripted against herself.  The admission of the evidence in this case, in contrast to Therens, would therefore not tend to affect adversely the fairness of the trial process.

 

    In Strachan, supra, at p. 1007, narcotics were found in the accused's possession in a manner which infringed his Charter  right to counsel.  Delivering the reasons of the Court, the Chief Justice wrote:

 

    The factors concerning the fairness of the trial are especially important when the right to counsel has been violated because of the concern that an accused has been incriminated by statements improperly elicited by the police.  Unlike Clarkson v. The Queen, [1986] 1 S.C.R. 383, and R. v. Manninen, supra, where the breach of the right to counsel resulted in self-incriminatory statements, no such statements were elicited in this case.  Admission of the narcotics themselves would not render the trial unfair.

 

Likewise, in Jacoy, supra, at p. 559, where narcotics were seized in violation of the accused's right to counsel, the Chief Justice held:

 

Evidence of narcotics is real evidence that existed independently of the Charter  violation.  This factor distinguishes this appeal from Therens, where the evidence was created by the accused as a result of the violation.  Admission of evidence of this latter sort detracts from the fairness of the trial process, real evidence does not.

 

    Even in the United States, where the exclusion of the evidence obtained in violation of the Fourth Amendment is a firmly established rule, it was held by White J., delivering the reasons of the majority in United States v. Leon, 468 U.S. 897 (1984), that the indiscriminate exclusion of "inherently trustworthy tangible evidence" unacceptably impedes the truth-finding function of criminal trials and ultimately leads to disrespect for the judicial process (pp. 907-8).

 

    For these reasons, I conclude that the admission of the stereo set and fingerprint evidence would not affect the fairness of the trial in the present case.

 

    Turning now to the written statements obtained from the accused, they also in my view fall outside the scope of the privilege in the present instance.  While they obviously are of a testimonial nature, the evidence clearly establishes that they were freely volunteered after the respondents had properly been charged, given the customary caution, told that they could remain silent and told as well that they had the right to retain and instruct counsel pursuant to the Charter .  The situation is analogous with the case of Upston.  There, three policemen came to the accused's home with a valid search warrant.  Prior to reading the right to counsel, there was a conversation between one of the officers and the accused.  The policeman asked whether the accused owned everything in the house.  This question sought an incriminating reply, as it was directed to obviating any defence of non-ownership.  The accused answered in the affirmative.  He was then read his Charter  right to counsel and there was a second conversation in which further incriminating statements were obtained.  The Crown only sought to introduce the latter statements.  The trial judge held that they had been voluntarily given:

 

    It's clear that the accused completely understood all that was said to him and that the statement was voluntary.  The atmosphere was completely neutral.  The accused did not request counsel and he was completely cognitive of all that was going on and being said.  When I say he understood all, I am referring to both the confession and the Charter  warning as well.

 

                            ((1986), 86 N.R. 21 (B.C. Co. Ct.), at p. 21)

 

It was not disputed in that case that the accused's right to counsel had been breached in that he was not informed of his rights at the outset of the detention.  Nevertheless, this Court dismissed the appeal from the Court of Appeal of British Columbia (1987), 86 N.R. 18 and held that the evidence should not be excluded pursuant to s. 24(2).  For the Court, La Forest J. said that (Upston, supra, at pp. 1083-84):

 

    [T]he evidence adduced was not obtained as a result of that breach but, as the trial judge found, was completely voluntary after he had been informed of his right to counsel.  The evidence was thus not obtained in a manner that infringed or denied a Charter  right within the meaning of s. 24  of the Charter  and should consequently not be excluded.  [Emphasis added.]

 

    In Upston, no compulsion of any kind tainted the voluntary nature of the statements made by the accused, and I take that case to suggest that the fairness of the trial would not be affected by the admission of a voluntary confession.

 

    Before the Charter , it had been held that the right against self-incrimination was limited to testimonial evidence which could not be said to have been voluntarily given by the accused.  In Curr v. The Queen, [1972] S.C.R. 889, Laskin J. (as he then was) wrote for the majority (at p. 909):

 

    Again, an accused could not before the enactment of the Canadian Bill of Rights nor can he since its enactment claim any immunity or privilege against the admissibility of his voluntary disclosures where they are relevant to a charge against him. [Emphasis added.]

 

This has remained true since the enactment of the Charter .  In R. v. Esposito (1985), 24 C.C.C. (3d) 88, leave to appeal to this Court refused, February 24, 1986, [1986] 1 S.C.R. viii, the Ontario Court of Appeal reviewed the nature of the right to remain silent.  The accused was questioned in his own house by police officers investigating the commission of a fraud.  During the questioning, at a time when he had not yet been arrested and when the officers had no reasonable and probable grounds to suspect he was guilty, the accused made certain inculpatory statements.  At trial, the accused sought to have these statements excluded from the evidence on the basis that they were obtained as a result of an infringement of his rights under ss. 11( c )  and 10( b )  of the Charter .  The trial judge admitted the statements and convicted the accused.  The Court of Appeal dismissed the appeal.

 

    Delivering the reasons of the Court of Appeal, Martin J.A. extensively reviewed the sources of a suspect's right to silence.  This right was held to operate at the investigative stage as well as at the trial stage.  The court found that while the police have the right to ask questions of any person, they have no power to compel that person to answer.  If the person refuses to comply, then he must be allowed to proceed on his way, unless there are reasonable and probable grounds for an arrest.  Martin J.A. further stated that (at p. 95):

 

    If, however, the suspect chooses to answer questions put to him by the police, his answers are admissible if the prosecution establishes that his statements were voluntary.

 

He later held (at p. 97): "I am of the view that s. 11( c )  of the Charter  has no application to the admissibility of the appellant's answers in response to police questioning."  It must be stressed that in Esposito, the court held that the accused was not detained during the questioning that took place in the living room of his own house.  Nevertheless, the case stands for the proposition that the admission of voluntary statements does not affect the fairness of a trial.

 

    In the present case, the respondents themselves argue that their encounter with the officers was voluntary and co-operative.  They write in their factum (at p. 3):

 

The three young men were co-operative throughout the investigation.  They had voluntarily come to meet the officers in front of the premises broken into.

 

Murphy's initial incriminating response to Detective Reaume's question was given spontaneously.  There was no compulsion.  The evidence suggests that the respondents had come to meet the officers with a view to letting the cat out of the bag.  After the formal charge, the young men indicated that they understood the caution, the right to silence and right to counsel.  But they nevertheless decided to give written statements without first instructing counsel.  The atmosphere was one of co-operation.  The statements were written a very short time after the arrest.  The Crown did not seek to introduce as evidence Murphy's initial reply in the patrol car.  In these circumstances, I am of the view that the admission of the statements would not affect the fairness of the trial.

 

    Seriousness of the Violation

 

    In assessing the seriousness of the underlying violation of the Charter , this Court in Collins suggested considering whether the impugned conduct was "serious" as opposed to "technical", and whether it was "deliberate, wilful or flagrant" as opposed to "inadvertent or committed in good faith" (p. 283).  As the Chief Justice said in Strachan, supra, at p. 1008, I agree that "[a]ny denial of a Charter  right is serious".  It does not necessarily follow, however, that every denial will give rise to the remedy provided for by s. 24(2)  of the Charter .

 

    In the case of a violation of s. 9  of the Charter , I am of the view that the duration and intensity of the detention are relevant factors in determining the relative seriousness of the infringement.

 

    The detention here lasted a very brief period of time.  Detective Reaume's uncontradicted testimony is that his partner was away from the patrol car for a total of two minutes.  I would conclude that the detention was therefore of a relatively insignificant duration.  Moreover, in my view, the circumstances indicate that this very brief detention was not tainted with any coercive overtones whatsoever.  Some recent cases illustrate that the imperative nature of the language used by the officer as well as the coercive nature of the other circumstances are relevant factors in appreciating whether there has been a detention.  It would naturally follow that the more coercive the circumstances, the more serious the detention.  In R. v. Smith (1986), 25 C.C.C. (3d) 361 (Man. C.A.), the accused and his common-law wife were visited by the police in the course of an investigation into the violent death of the woman's child.  They were both asked to come down to the station "to discuss the matter further".  At that time, there was no reason to believe that the accused was responsible for the infant's death.  The accused was taken into an interview room for a first series of questions.  The investigating officers then left the room and verified the accused's story in questioning the child's mother.  She provided them with the necessary grounds of suspicion, and when the officers returned to the interview room where the accused had remained all this time, he was charged with the child's murder, cautioned and read his rights to counsel.  He did not ask for legal assistance but rather voluntarily answered a series of questions, answers which constituted the incriminating statements leading to his conviction.  The Manitoba Court of Appeal unanimously confirmed the finding by the trial judge that the statements should not be excluded pursuant to s. 24(2)  of the Charter .  The accused claimed he had been improperly detained and denied his right to counsel during the first interview.  Writing for the Court, Huband J.A. dismissed this argument.  He held that the hour spent in the interview room at the police station did not constitute a detention (at p. 368):

 

    In the present case there was no physical constraint.  Nor was there any "demand or direction".  There was a request that the accused attend the Public Safety Building, which the accused was free to refuse.  There was a request that he co-operate in providing information as to the circumstances of the death of the child which, once again, he was free to refuse.  There was no physical constraint, nor any demand or direction that he remain in the interview-room after the first interview had been completed.  And, throughout the entire period, until the police officers had a second interview with Donna Popiel, the police officers had no reason to think that the accused was criminally involved in the death of the child.  [Emphasis added.]

 

    A second illustration is the case of R. v. Bazinet (1986), 25 C.C.C. (3d) 273 (Ont. C.A.)   As part of their investigation, police officers had attended the home of the accused, informed him that they were investigating a murder and told him that they "would like to ask him some questions".  The accused replied: "Just a minute.  I'll get dressed and go with you".  He then accompanied the officers back to the police station.  There was no arrest because the officers did not have the requisite grounds.  A number of questions were asked and at the end of a two-hour interview the accused said: "There's no sense going on any further with this. I did it".  He was then charged and his rights were read to him.  At trial, the statement was admitted and the accused was convicted.  The appeal was dismissed by the Ontario Court of Appeal, on the ground that the accused was not detained within the meaning of s. 10( b )  of the Charter  when he made the statements.  For the court, Tarnopolsky J.A. noted that there was no coercive demand or direction which prompted the response in order to induce the accused to submit himself to the questioning (at p. 284):

 

    Clearly, in the case at bar, there was no "demand or direction".  In fact, there was not even a "request" that the appellant accompany the officers to the police station.

 

                                                                          . . .

 

Although the fact that the questioning in this case took place in a police station could be a factor to consider on the issue of whether there has been a detention, in the circumstances it is not enough.  Nor, for that matter, was the fact of asking whether the appellant's clothes could be examined because of what appeared to be blood on them.  There was no evidence that this was done as a "demand or direction", nor that it was being used as a means of depriving Bazinet of his liberty of movement, nor that there was any reasonable belief on his part that he had to submit to such examination.

 

    While the circumstances in Smith and Bazinet differed from the ones in the present case, I find some support with respect to the issue at hand in that a request to come down to the station to "discuss the matter further" and an affirmation that the police "would like to ask some questions" were considered not to amount to a demand or direction.

 

    A third illustration is provided by the case of Esposito, which I discussed earlier.  The accused argued that his right to counsel pursuant to s. 10( b )  of the Charter  had been infringed and that the statements made during his questioning should be excluded from the evidence.  The Ontario Court of Appeal rejected the argument.  It held that the accused was not detained prior to his arrest, when he made the incriminating statements.  Martin J.A. wrote (at p. 101):

 

    The questions put to the appellant in the case at bar did not contain intimidating or inducing overtones.  Although Constable O'Grady informed the appellant, just prior to arresting him, that he did not believe him, the prior questioning was not hostile or coercive in nature.  Constable O'Grady was not asked on the voir dire whether the appellant would have been permitted to leave or terminate the questioning.  It would seem, however, to be implicit from Constable O'Grady's statement that he had no grounds for arresting the appellant, that the appellant was free to terminate the interview.  The appellant was represented by counsel but did not testify on the voir dire, although he was entitled to do so [on] the issue of the voluntariness of the statement without being subject to cross-examination on the issue of guilt.  There is no evidence on the record that the appellant actually believed that his freedom was restrained and, in my view, the circumstances would not lead him reasonably to believe that his freedom had been restrained.  There was no evidence that the appellant was subject to a demand or direction with which he might reasonably believe he was required to comply.  Unless all questioning of a suspect by a police officer, in the absence of a warning that the suspect is free to leave and is entitled to refuse to answer, constitutes a detention under s. 10( b )  of the Charter , the questioning of the appellant in his home by Constable O'Grady, in the circumstances, did not constitute such a detention.  In my view, the appellant was not detained within the meaning of s. 10( b )  of the Charter  when he gave the incriminating answers at his home in response to questions put to him by Constable O'Grady.  [Emphasis added.]

 

    The cases of Smith, Bazinet and Esposito suggest that the detention in the present case is a borderline one, a relatively minor and trifling infringement on the respondents' Charter  rights.  It bears repetition that the encounter took place in a neighbourhood with which the respondents were familiar; that the officers were met in plain view of the Grummetts' residence; that there were three persons met by a single officer; that a single question was asked by the police officer; that a polite and courteous manner was used by the investigating officer; that the respondents conceded having voluntarily attended the police in a spirit of co-operation; that at no time during the brief encounter did they offer any resistance; that no physical compulsion whatsoever was used by the officer; and that the encounter took place in an unmarked patrol car which was not equipped with automatic locks.  In my view, these circumstances do not bear the mark of intimidating or coercive overtones which would be characteristic of a more serious infringement on the respondents' rights.

 

    The trial judge and the majority of the Court of Appeal suggested that this police conduct could be compared to torture and to practices of the Star Chamber.  They characterized the encounter as an "arrest for investigative purposes".  In my view, this characterization exaggerates and distorts what actually happened.  It rests on an erroneous understanding of the power to arrest without warrant.  Under section 450(1) (a) of the Criminal Code , there can be such an arrest even though the available evidence would be insufficient to convict the suspect.  The Criminal Code  itself contemplates that not every arrest will result in a conviction.  It does not follow, however, that, where the evidence does not subsequently result in a conviction, the initial arrest was "for investigative purposes", "repugnant to our concept of the administration of criminal justice", "high-handed", "irrational" or "shocking".  It remains an arrest on reasonable suspicion.  In the complete absence of compulsion of any kind, it is in my view quite an exaggeration to suggest that two minutes spent in a police car fall just short of torture.  In the presence of circumstances which either meet or fall just short of meeting the threshold of reasonable and probable cause for suspicion, it is a distortion to compare the arrest to the practices of the Star Chamber.  The findings in the lower courts with respect to the seriousness of the violation are simply not supported by the evidence.  Moreover, as is apparent from their testimony, the detectives directed their minds toward meeting the standard in s. 450(1) (a) of the Criminal Code  at the time of the arrest.  The officers believed that appropriate police powers were being used for a proper police function.  This belief found support in the state of the law as it stood then.  The events occurred in July 1982.  At that time, the Ontario Court of Appeal had rendered its decision in the case of R. v. Dedman (1981), 59 C.C.C. (2d) 97, aff'd on other grounds, [1985] 2 S.C.R. 2.  The Court of Appeal had approved, under the common law, a police program to randomly stop cars and verify the owner's registration and apparent sobriety.  It could not be said that the arresting officer in Dedman was acting in bad faith, although he certainly had no reason whatsoever to believe that the driver he randomly requested to stop had committed an offence.  Surely, the present case is much less of a departure from the reasonable and probable norm than there was in Dedman.  Further, it is appropriate to mention that the Charter  had only been adopted for a few months prior to the incident here at issue and that there was much uncertainty with respect to the extent to which it would affect police practice.  This factor has already been considered by this Court, in Simmons, supra, at p. 535, and by the British Columbia Court of Appeal, in R. v. Gladstone (1985), 22 C.C.C. (3d) 151, at pp. 173-74 (per Anderson J.A.), as relevant to the question of good faith.  In these circumstances, I find no deliberate contempt or plain disregard for the rights of the respondents.  On the contrary, as soon as the formal arrest was made, the respondents' Charter  rights were read.  This evidence shows a respect for individuals and their Charter  rights, as then understood by the police and the courts.  If any violation of the Charter  did occur, it was one in the nature of an isolated error committed in good faith.  In fact, had both officers been together at the time the respondents were met on the sidewalk, the young men would have been formally charged, cautioned and given their right to counsel on the spot.  In my view, the result would in all likelihood have been the same, and the voluntary confessions and real evidence would have been obtained in exactly the same manner.  The reason why there was a two-minute delay before the formal charge is that the arresting officer was waiting for his partner to return to the patrol car.  I can find no justification, on the facts of this case, for the trial judge's assessment that the police conduct demonstrated bad faith.  I can only speculate that his initial error of law coloured his characterization, since in his view there was absolutely no basis for the respondents' arrest, a conclusion which I do not find is supported by the evidence.  I share Zuber J.A.'s view that (at p. 307):

 

    Accepting the trial judge's findings that the two detectives did not believe on reasonable and probable grounds that the three accused were the authors of the break-in, there was nevertheless a basis in fact for their arrest.  As mentioned earlier, the arrest was neither random nor capricious.  Their following detention was neither oppressive nor inhumane.  Nothing in the trial record suggests that the detectives were acting in bad faith.

 

In my respectful view, these factors respecting the seriousness of the violation  suggest that the admission of the evidence would not bring disrepute into the administration of justice.

 

    Effect of Excluding the Evidence

 

    In this last group of factors, two elements are of special importance in the present case.  First, the break and entry of a dwelling is a serious offence.  As noted by Zuber J.A., it carries a maximum penalty of imprisonment for life.  This is the most severe penalty provided by the Criminal Code .  Second, the immediate effect of the exclusion on the trial was to withhold from it evidence of great reliability and probative value.  The prosecution collapsed because the Crown had no other evidence to adduce.  This drastic effect on the trial is all the more significant in light of the trivial nature of the Charter  infringement and the seriousness of the offence.  As it was said in Collins, supra, at p. 286:

 

In my view, the administration of justice would be brought into disrepute by the exclusion of evidence essential to substantiate the charge, and thus the acquittal of the accused, because of a trivial breach of the Charter .  Such disrepute would be greater if the offence was more serious.

 

    The respondents' infraction was not a victimless one.  The Laframboises reported the matter and sought the help of the police and criminal process.  They were active participants in the process.  They had privately carried out a brief investigation prior to the police arriving at their residence the morning after the theft.  They took the time to inform the detectives of all the circumstances and helped them identify the youths.  The Laframboises testified at the preliminary enquiry and, as noted by Zuber J.A., apparently attended at the trial.  Yet the process yielded nothing in return for their involvement and co-operation with the police.  They were aware that the youths confessed that they were the culprits and that some of the stolen goods were found in their possession.  I agree with Zuber J.A. that it is "more likely that the exclusion of the evidence in this case will bring the administration of justice into disrepute" (p. 308).

 

    On the whole, it is my view that, having regard to all the criteria set out by this Court to evaluate the opportunity of granting a remedy pursuant to s. 24(2)  of the Charter , the trial judge erred in excluding the evidence.  I would allow the appeal and order a new trial.

 

    Appeal dismissed, L'HEUREUX-DUBÉ J. dissenting.

 

    Solicitor for the appellant:  The Attorney General for Ontario, Toronto.

 

    Solicitors for the respondents:  Kerekes, Collins, Toronto.