R. v. Beaulieu, 2010 SCC 7, [2010] 1 SCR 248

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

Georges Beaulieu

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Cromwell JJ.

                                                ______________________________

R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248

Her Majesty The Queen                                                                                                    Appellant

v.

Georges Beaulieu                                                                                                            Respondent

Indexed as:  R. v. Beaulieu

2010 SCC 7

File No.:  33181.

2010:  January 12; 2010:  February 25.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Cromwell JJ.

on appeal from the court of appeal for quebec

Constitutional law — Charter of Rights  — Enforcement — Exclusion of evidence — Violation of accused’s right against unreasonable search and seizure — Trial judge declining to exclude evidence under s. 24(2)  of Canadian Charter of Rights and Freedoms  — Whether evidence should have been excluded.

During the course of an investigation into drug trafficking, RCMP officers obtained an authorization to intercept the accused’s private communications.  While installing listening devices in his car, they found a hidden compartment containing a leather case with a loaded firearm in it.  The firearm was rendered unusable and placed back in the car.  The accused was later convicted of possession of a loaded prohibited firearm.  Although the firearm itself was never recovered and therefore not in evidence at trial, the accused challenged the admissibility of the testimony relating to its discovery.  The trial judge found that the search exceeded the scope of the authorization and violated s. 8  of the Canadian Charter of Rights and Freedoms  but declined to exclude the evidence pursuant to s. 24(2) , primarily on the basis that the police officers did not believe they were exceeding the powers granted to them by the authorization and had not evidenced a flagrant disregard of the accused’s Charter  rights.  A majority of the Court of Appeal reversed the trial judge’s decision to admit the evidence and set aside the conviction.

Held:  The appeal should be allowed.

The Court of Appeal’s decision should be set aside and the accused’s conviction restored.  Considerable deference is owed to a trial judge’s s. 24(2)  assessment and, in this case, she considered the proper factors and made no unreasonable findings.  The fact that the trial judge and the Court of Appeal did not have the benefit of the new three‑part s. 24(2)  inquiry set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, does not affect the outcome of this case because the relevant factors in a s. 24(2)  analysis have not changed and the trial judge’s reasons make clear that the three Grant considerations point toward admitting the evidence.

Cases Cited

Applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; referred to:  R. v. Collins, [1987] 1 S.C.R. 265.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .

Criminal Code, R.S.C. 1985, c. C-46, s. 95 .

APPEAL from a judgment of the Quebec Court of Appeal (Gendreau, Dalphond and Côté JJ.A.), 2009 QCCA 797, [2009] J.Q. n^o 3803 (QL), 2009 CarswellQue 3887, setting aside the accused’s conviction.  Appeal allowed.

Magalie Cimon and Henri‑Pierre La Brie, for the appellant.

Michel Dussault, Christian Raymond and Alexandre Boucher, for the respondent.

The judgment of the Court was delivered by

[1]     Charron J. — This is a Crown appeal as of right on the question of whether the trial judge erred in declining to exclude evidence pursuant to s. 24(2)  of the Canadian Charter of Rights and Freedoms .  In our view, the majority of the Quebec Court of Appeal erred in reversing the trial judge’s decision to admit the evidence.  We would allow the Crown’s appeal and restore the conviction.

[2]     The relevant facts are detailed in the decisions below and need only be reviewed briefly here.  The respondent, Georges Beaulieu, was convicted of possession of a loaded prohibited firearm contrary to s. 95  of the Criminal Code, R.S.C. 1985, c. C‑46 .  The firearm was found in a secret compartment of his car during the course of an extensive investigation into drug trafficking.  As part of the operation, RCMP officers in Montreal obtained an authorization to intercept the private conversations of Mr. Beaulieu.  While installing listening devices in his car, two officers discovered hidden electrical switches underneath the dashboard.  The officers followed the wires and found that they led to the centre of the console.  They dismantled the console and found a hidden compartment containing a leather case.  At this point, the officers stopped their installation and notified their superior who then opened the case to find that it contained a loaded firearm.  So as not to jeopardize the ongoing investigation, the police had the firearm rendered unusable and placed it back in the car.  One year later, Mr. Beaulieu was  charged with this offence.

[3]     While the firearm itself was never recovered and was therefore not in evidence at trial at the Court of Quebec, Mr. Beaulieu challenged the admissibility of the testimony relating to the discovery of the firearm.  The trial judge found that the search was not performed [translation] “for the purpose of installing the device, ensuring their safety or protecting their investigative technique” (Appellant’s Record, vol. IV, at p. 85).  Rather, at the time of the search, the police, surprised by the discovery of the wires and hidden compartment, had abandoned the plan to install listening devices.  Consequently, the search exceeded the scope of the judicial authorization and violated s. 8  of the Charter .  That finding was not appealed.  It is not disputed that the judicial authorization did not give the police carte blanche to search the vehicle in a manner or for a purpose that exceeded the terms of the judicial order.

[4]     The trial judge, however, declined to exclude the evidence pursuant to s. 24(2) , primarily on the basis that the police officers did not believe they were exceeding the powers granted to them by the authorization and had not evidenced a flagrant disregard of Mr. Beaulieu’s Charter  rights.  Gendreau J.A., writing for a majority of the Court of Appeal, allowed the appeal and set aside the conviction:  2009 QCCA 797 (CanLII).  Côté J.A., dissenting, would have dismissed the appeal.

[5]     The majority of the Court of Appeal erred in interfering with the trial judge’s weighing of the factors in the s. 24(2)  analysis.  In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, this Court reaffirmed that “considerable deference” is owed to a trial judge’s s. 24(2)  assessment of what would bring the administration of justice into disrepute having regard to all the circumstances (para. 86).  In this case, the trial judge considered proper factors and made no unreasonable findings.  With regard to the trial judge’s conclusion that the Charter  breach was at the less serious end of the spectrum — which was central to the analysis on these facts — the dissent noted correctly, [translation] “[i]n determining the seriousness of the breach, she considered a set of factors.  Her assessment of the facts was not unreasonable, nor did she make a palpable and overriding error in her analysis” (para. 53).  Her determination deserved deference.

[6]     Neither the trial judge nor the Court of Appeal had the benefit of this Court’s decision in Grant which established a new three-part inquiry for determining whether the admission of evidence would bring the administration of justice into disrepute:  (1) the seriousness of the Charter -infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.  The application of the Grant approach does not affect the outcome of the s. 24(2)  determination in the case at bar.

[7]     First, as this Court noted in Grant, the relevant factors have not changed: “These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2)  determination as enunciated in Collins and subsequent jurisprudence” (para. 71, referencing R. v. Collins, [1987] 1 S.C.R. 265).

[8]     Second, the trial judge’s reasons make clear that the three Grant considerations point toward admitting the evidence.  As noted above, the trial judge’s conclusions as to the seriousness of the breach were central to this case, and they remain equally relevant under the Grant approach.  As for the impact of the breach, the trial judge took into account Mr. Beaulieu’s reduced privacy interest in his car and the limited scope and invasiveness of the search.  With regard to society’s interest in an adjudication on the merits, she concluded that the evidence was crucial to the Crown’s case.  It is also uncontested that a gun is reliable evidence.

[9]     The appeal is allowed.  The decision of the Court of Appeal is set aside and the conviction is restored.

Appeal allowed.

Solicitor for the appellant:  Directeur des poursuites criminelles et pénales du Québec, Longueuil.

Solicitors for the respondent:  Dussault, Raymond, Poliquin, Sherbrooke.