Present: Dickson C.J. and McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Drug search ‑‑ Woman searched by police in violent manner ‑‑ Heroin discovered ‑‑ Reasons for suspecting woman not introduced at trial because unfounded objection hearsay ‑‑ Whether or not unreasonable search and seizure ‑‑ Whether or not evidence of heroin inadmissible because bringing administration of justice into disrepute ‑‑ Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 10(1) ‑‑ Canadian Charter of Rights and Freedoms, ss. 8 , 24(1) , (2) .
Evidence ‑‑ Admissibility ‑‑ Bringing administration of justice into disrepute ‑‑ Drug search ‑‑ Doubt as to reasonableness of search ‑‑ Whether admission into evidence of seized heroin bringing administration of justice into disrepute.
Appellant had been under surveillance by two members of the R.C.M.P. Drug Squad. A police officer approached her in a pub, laid hold of her identifying himself by saying "police officer", grabbed her throat and pulled her to the floor. (The "throat hold" is used to prevent someone from swallowing drugs contained in a condom or balloon and recovering them later.) The officer directed her to let go of an object clenched in her hand‑‑a balloon containing heroin. The trial judge found that the officer did not have a reasonable ground as required in s. 10 of the Narcotic Control Act because the evidential basis for his suspicion was not admitted following an objection, albeit unfounded, that it was hearsay. The search was found to be unlawful and therefore unreasonable and in violation of s. 8 of the Charter but the evidence was nevertheless admitted because the accused failed to satisfy the judge that it should be excluded under s. 24(2) of the Charter . The Court of Appeal unanimously dismissed the accused's appeal. At issue is whether or not this evidence should be excluded under s. 24(2) of the Charter .
Held (McIntyre J. dissenting): The appeal should be allowed and a new trial ordered.
Per Dickson C.J. and Lamer, Wilson and La Forest JJ.: The trial judge's decision under s. 24(2) is a question of law from which an appeal will generally lie, except in so far as it is based on his assessment of the credibility of witnesses.
Appellant bears the burden of persuading the court on a civil standard that a Charter right has been infringed. In the case of a search without a warrant, the burden shifts to the Crown. The Crown here was not able to prove the search reasonable because it did not establish under s. 10 of the Narcotic Control Act that the officer had reasonable and probable grounds for believing there were narcotics in the place where the person was searched. Because this failure to establish the grounds for the search was due to an error by the trial judge, a new trial should be ordered if the evidence would be excluded on the record as it now stands.
Where a search is unreasonable and violates appellant's rights under s. 8 of the Charter , the evidence so obtained should be excluded pursuant to s. 24(2) of the Charter if the appellant establishes on a civil standard that its admission would bring the administration of justice into disrepute. The criminal justice system may be brought into disrepute by the admission of evidence that would deprive the accused of a fair hearing or from judicial condonation of unacceptable conduct by the authorities. Disrepute may also result from the exclusion of evidence.
Since the concept of disrepute involves some element of community views, the test should be put figuratively in terms of the reasonable person: would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable person, dispassionate and fully apprised of the circumstances of the case. A judge's discretion under this test is thus not untrammelled, for he should not render a decision that would be unacceptable to the community, provided the community is not being wrought with passion or otherwise under passing stress due to current events.
Section 24(2) directs the judge to consider all the circumstances in determining whether the admission of evidence would bring the administration of justice into disrepute. The courts have considered a number of factors‑‑the list is not exhaustive‑‑and these factors can be broadly summarized. Certain factors are relevant in determining the effect of the admission of evidence on the fairness of the trial. The trial is a key part of the administration of justice and its fairness is a major source of the repute of the system. A second group of factors relates to the seriousness of the Charter violation and therefore to the disrepute that will result from judicial acceptance of evidence obtained through that violation. The third group of factors relates to the effect of excluding the evidence: exclusion of evidence essential to a charge because of a trivial breach of the Charter would result in an acquittal and would bring the administration of justice into varying degrees of disrepute directly proportionate to the seriousness of the charge. The more serious the offence, however, the more damaging would be an unfair trial to the system's repute. A final factor, the availability of other remedies, was not relevant.
The threshold for exclusion under s. 24(2) is lower than that under the "community shock test" enunciated in Rothman v. The Queen, [1981] 1 S.C.R. 640. Under s. 24(2), there will have been a constitutional violation as opposed to the absence of any unlawful behaviour as a result of the resort to tricks in Rothman. The language of s. 24(2), furthermore, indicates a lower threshold. The French version of the text, which translates could bring the administration of justice into disrepute, is less onerous than the more stringent English version, "would bring the administration of justice into disrepute", and consequently is preferable in that it better protects the right to a fair trial.
The evidence should be excluded on the record as it stands at present, notwithstanding the fact that the trial would not be rendered unfair by its admission or the fact that exclusion could bring the administration of justice into disrepute by allowing a person convicted at trial of a relatively serious offence to evade that conviction. The administration of justice would be brought into even greater disrepute if the Court did not exclude the evidence and dissociate itself from the conduct of the police which, assuming it was based on mere suspicion, flagrantly and seriously violated the individual's rights. The matter might be clarified at a new trial where the officer could explain his reasons for his actions, but absent adequate additional grounds for those actions, the evidence must be excluded.
Per Le Dain J.: Assuming, as was necessary on the record here, that the police officer did not have grounds for a reasonable belief that the accused was in possession of a narcotic and having regard to all the circumstances and in particular the relative seriousness of the violation of the right guaranteed by s. 8 of the Charter to be secure against unreasonable search, the admission of the evidence would bring the administration of justice into disrepute. The nature of the test under s. 24(2) of the Charter and the factors to be weighed as discussed by Lamer J. were generally agreed with without subscribing to what was said concerning the nature and general importance under s. 24(2) of the factor referred to as the effect of the admission of evidence on the fairness of the trial. Opinion was reserved with respect to this factor which was not necessary to the determination of this case. Concern was expressed as to the possible implications for such matters as self‑incrimination and confession and as to whether there was a basis in s. 24(2) for the view that, to the extent that this factor was relevant, it should generally lead to the exclusion of the evidence.
Per McIntyre J. (dissenting): The search can be considered unreasonable for the purposes of this appeal. The admission of the evidence obtained on that search, nevertheless, would not bring the administration of justice into disrepute contrary to s. 24(2) of the Charter . The issue of whether or not the administration of justice will be brought into disrepute is to be seen through the eyes of the community as a whole and accordingly an approach similar to the "reasonable man" should be adopted. Rules and principles will be developed on a case‑by‑case basis to produce an applicable standard for the application of s. 24(2). Recourse should not be had to the "community shock" test or to public opinion polls and other devices used to sample public opinion. On a charge for possession of narcotics for the purpose of trafficking, the admission of evidence of possession of a balloon containing heroin in a public bar in the presence of other people would not bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised in the circumstances.
Cases cited
By Lamer J.
Referred to: Rothman v. The Queen, [1981] 1 S.C.R. 640; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Therens, [1985] 1 S.C.R. 613; R. v. DeBot (1986), 17 O.A.C. 141; R. v. Lundrigan (1985), 19 C.C.C. (3d) 499; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251; Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; R. v. Cohen (1983), 5 C.C.C. (3d) 156; R. v. Simmons (1984), 11 C.C.C. (3d) 193; R. v. Pohoretsky (1985), 18 C.C.C. (3d) 104; R. v. Dyment (1986), 25 C.C.C. (3d) 120; R. v. Gladstone (1985), 22 C.C.C. (3d) 151; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Dumas (1985), 23 C.C.C. (3d) 366; R. v. Strachan (1986), 24 C.C.C. (3d) 205; R. v. Dairy Supplies Ltd., Man. C.A., January 13, 1987, unreported.
By McIntyre J. (dissenting)
R. v. Strachan (1986), 24 C.C.C. (3d) 205.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8 , 11( d ) , 24(1) , (2) .
Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 10(1)(a), (b), (c), rep. in part by S.C. 1985, c. 19, s. 200.
Authors Cited
Gibson, Dale. The Law of the Charter: General Principles. Calgary: Carswells, 1986.
Morissette, Yves‑Marie. "The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms : What to Do and What Not to Do" (1984), 29 McGill L.J. 521.
APPEAL from a judgment of the British Columbia Court of Appeal, [1983] 5 W.W.R. 43, 148 D.L.R. (3d) 40, 5 C.C.C. (3d) 141, dismissing an appeal from conviction, by Wong Co. Ct. J., of possession of heroin for the purpose of trafficking, [1983] W.C.D. 061, [1983] B.C.W.L.D. 1180. Appeal allowed and a new trial ordered, McIntyre J. dissenting.
G. A. Goyer, for the appellant.
S. David Frankel and Donald J. Avison, for the respondent.
The judgment of Dickson C.J. and Lamer, Wilson and La Forest JJ. was delivered by
1. Lamer J.‑‑The appellant, Ruby Collins, was seated in a pub in the town of Gibsons when she was suddenly seized by the throat and pulled down to the floor by a man who said to her "police officer". The police officer, then noticing that she had her hand clenched around an object, instructed her to let go of the object. As it turned out, she had a green balloon containing heroin.
2. It is common knowledge that drug traffickers often keep their drugs in balloons or condoms in their mouths so that they may, when approached by the Narcotics Control Agent, swallow the drugs without harm and recoup them subsequently. The "throat hold" is used to prevent them from swallowing the drugs.
3. The issue is whether the evidence obtained under these circumstances is to be excluded under s. 24(2) of the Charter .
The Facts
4. Constables Rodine and Woods of the RCMP Drug Squad at Vancouver attended at Gibsons to assist the Gibsons Detachment in dealing with a "heroin problem". They commenced a surveillance at 11:00 a.m. at the Ritz Motel. Ruby Collins and her husband Richard were observed moving their belongings from one room to another and going to and from a car parked in front of their room. The officers ceased their surveillance at noon.
5. At 2:50 p.m., the officers entered the Cedars Pub, where they observed Ruby Collins seated at a table with two other people. Richard Collins and another person joined the first group at 3:35 p.m. At 3:50 p.m., Richard Collins and one of the others left the pub, and the officers followed them. They arrested Richard Collins and the other man at a nearby trailer court. Richard Collins was searched and was found to be in possession of heroin.
6. The officers returned to the pub at 4:15 p.m. They observed Ruby Collins sitting with another woman at a different table. Constable Woods went directly to Ruby Collins. He testified:
...A As I approached I quickened my pace. I then grabbed ahold of Mrs. Collins. At that time my impression was that she'd be under arrest. I grabbed her by the throat to prevent her from swallowing any evidence that may be there. In the process we had gone to the floor, taken her off the chair. We had gone to the floor. I observed her at that time move her hand away from her body. I observed a green item in that hand. It was clenched and just a piece of it was showing out. I asked her to open her hand and leave the item on the floor which she did and I subsequently seized a green balloon which had a knot on the top of it. I then picked Mrs. Collins from the floor, handcuffed her, and removed her outside.
Q... Did you say anything to her at the time you seized her by the throat?
...A Police officer. I stated that I was a police officer at that time.
The force used by Constable Woods was "considerable".
Legislation
7. The search of Ruby Collins was purportedly authorized by s. 10(1) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, as amended, as that section read prior to the amendments of December 1985:
10. (1) A peace officer may, at any time,
(a) without a warrant enter and search any place other than a dwelling‑house, and under the authority of a writ of assistance or a warrant issued under this section, enter and search any dwelling‑house in which he reasonably believes there is a narcotic by means of or in respect of which an offence under this Act has been committed;
(b) search any person found in such place; and
(c) seize and take away any narcotic found in such place, any thing in such place in which he reasonably suspects a narcotic is contained or concealed, or any other thing by means of or in respect of which he reasonably believes an offence under this Act has been committed or that may be evidence of the commission of such an offence.
8. The relevant provisions of the Canadian Charter of Rights and Freedoms are ss. 8 and 24:
8. Everyone has the right to be secure against unreasonable search or seizure.
...
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(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.
The Proceedings
Trial
9. Ruby Collins was charged with possession of heroin for the purpose of trafficking. At the beginning of her trial before Wong Co. Ct. J., her counsel requested that a voir dire be conducted under s. 24 of the Charter to determine whether the fact that heroin was found in her possession should be admitted. He argued that the evidence should be excluded because it was obtained in a manner that infringed her right to be secure against unreasonable search and because, having regard to all of the circumstances of this case, the admission of that evidence into these proceedings would bring the administration of justice into disrepute.
10. Examined in chief, Constable Woods related the observations I have narrated. Under cross‑examination, he admitted that nothing he had observed had aroused his suspicion that she was handling drugs or that drugs were on her person. The Crown re‑examined the constable and sought to establish the basis of his suspicion, but the following exchange occurred:
MR. WALLACE (appearing for the Crown):
QYes. Constable Woods, you said in answer to a question by Mr. Martin that the object, the sighting of the object in Ruby Collins' hand confirmed your suspicions?
A That's correct.
Q Where‑‑when did you formulate those suspicions?
AThey were prior to arriving at Gibsons. We were advised‑‑
MR. MARTIN (appearing for the appellant):
That's hearsay, your honour. Anything what [sic] he was advised other than that is hearsay and that's certainly outside the ambit of my cross‑ examination, your honour.
MR. WALLACE:
QIt was prior to your arrival in Gibsons?
A That's correct.
MR. WALLACE: No further questions.
The Crown thus did not establish the basis for the constable's suspicion.
11. On this evidence, the trial judge made the following finding of fact:
Prior to this date, both accused were not personally known to Constables Rodine and Woods. There was no untoward behaviour on the part of either accused observed by the police during the surveillance, and both officers admit that they only had a suspicion that the accused were carrying heroin.
He thus concluded that Constable Woods did not come within s. 10 of the Narcotic Control Act as this suspicion, because of its lack of footing, did not constitute a belief on reasonable grounds. He found the search unlawful and therefore unreasonable and in violation of the appellant's rights under s. 8 of the Charter .
12. However, relying mainly on the undersigned's judgment in Rothman v. The Queen, [1981] 1 S.C.R. 640, he ruled that the accused failed to satisfy him that the evidence should be excluded under s. 24(2). The evidence was admitted and she was found guilty.
The Court of Appeal
13. The British Columbia Court of Appeal unanimously dismissed her appeal: (1983), 5 C.C.C. (3d) 141.
14. Nemetz C.J.B.C. dealt first with the reasonableness of the search. Referring to this Court's decision in Eccles v. Bourque, [1975] 2 S.C.R. 739, he found that reasonable and probable grounds can be based on hearsay, and he stated at p. 144:
The judge, if pressed by Crown counsel, could have allowed the constable to state what, aside from his observation, caused his suspicions. However, he was not so pressed. Accordingly, we do not know what this officer had learned from others to arouse his suspicion. In my opinion, it was for the Crown to lay the groundwork to show what knowledge the police had. They failed to do so in direct examination and failed to pursue the point during the re‑examination. Accordingly, it cannot now be said on what the constable's suspicion was based.
He then concluded on the first issue:
The judge found that on the evidence before him this was an unreasonable search. I cannot say that he erred on this point.
15. The Chief Justice also agreed with the trial judge that the evidence should not be excluded. He more or less followed the trial judge's reasoning and concluded at p. 146:
Without justifying the use of the throat hold as a general practice, I cannot say that the judge erred in the circumstances of this case.
16. Seaton J.A. doubted the correctness of the finding that the search was unreasonable, but he found the evidence in any event admissible. At the outset he stated, at p. 149:
Section 24(2) of the Charter has rejected extreme answers. No longer is all evidence admissible, regardless of the means by which it was obtained. Nor, on the other hand, is all improperly obtained evidence inadmissible. A middle ground has been chosen, but not the middle ground of discretion that has been chosen in many jurisdictions: see G.L. Peiris' "The Admissibility of Evidence Obtained Illegally: A Comparative Analysis", 13 Ottawa L. Rev. 309 (1981). Where has our Charter placed the Canadian law?
He then reviewed the American case law in the field. Nemetz C.J.B.C. in his judgment has referred to this review as being "admirable". I cannot but agree and I am grateful to Seaton J.A. and unconditionally endorse his analysis of the American experience at pp. 151‑54. Drawing on this experience he then made the following statements, with which I am in general agreement:
‑<‑ It is not open to the courts in Canada to exclude evidence to discipline the police, but only to avoid having the administration of justice brought into disrepute.
‑<‑ It is the admission, not the obtaining, that is the focus of the attention under our s. 24(2), though the manner of obtaining the evidence is obviously one of the circumstances.
‑<‑ Evidence improperly obtained is prima facie admissible. The onus is on the person who wishes the evidence excluded to establish the further ingredient: that the admission of the evidence would bring the administration of justice into disrepute.
‑<‑ Section 24(2) does not confer a discretion on the judge but a duty to admit or exclude as a result of his finding.
He then upheld the trial judge's finding to admit the evidence.
17. In a short concurring judgment, Craig J.A. simply upheld the trial judge's ruling.
Jurisdiction
18. The trial judge's decision to exclude or not to exclude under s. 24(2) of the Charter is a question of law from which an appeal will generally lie (see R. v. Therens, [1985] 1 S.C.R. 613, per Le Dain J. at p. 653). However, where the trial judge's decision is based, for instance, on his assessment of the credibility of the witness, that assessment cannot be challenged by way of appeal (see R. v. DeBot (1986), 17 O.A.C. 141). The exclusion of the evidence in this case did not depend on any such assessment, and the Court of Appeal and this Court had jurisdiction to hear the appeals.
The Law
19. The appellant seeks the exclusion of evidence that she was in possession of heroin, alleging that the heroin was discovered pursuant to a search which was unreasonable under s. 8 of the Charter . This Court in Therens, supra, held that evidence cannot be excluded as a remedy under s. 24(1) of the Charter , but must meet the test of exclusion under s. 24(2). At first glance, the wording of s. 24 leads one to conclude that there are three prerequisites to the exclusion of evidence under s. 24(2) of the Charter :
(1) that the applicant's rights or freedoms, as guaranteed by the Charter , have been infringed or denied,
(2) that the evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter , and
(3) that, having regard to all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.
20. However, a closer scrutiny leaves me with some queries I do not think I should like to decide on the facts of this case and without the benefit of argument or the views of the courts below. There are at least two problems: must the rights or freedoms infringed or denied under the second prerequisite be those of the applicant, and must the applicant be the accused? For example, if the admission of evidence obtained as a result of the unreasonable search of a third party's home could bring the administration of justice into disrepute, could the accused (if, for example, his right to a fair hearing was thereby infringed) or the third party move under s. 24(2) for the exclusion of the evidence? On the facts of this case, because the evidence was obtained as a result of an alleged violation of the applicant's rights and because the applicant is the accused, there are only two issues to be addressed:
(1) was the search conducted by the police officer unreasonable?
(2) if so, having regard to all the circumstances, would the admission of the evidence bring the administration of justice into disrepute?
The Reasonableness of the Search
21. The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. That appears from the wording of s. 24(1) and (2), and most courts which have considered the issue have come to that conclusion (see R. v. Lundrigan (1985), 19 C.C.C. (3d) 499 (Man. C.A.), and the cases cited therein and Gibson, The Law of the Charter: General Principles (1986), p. 278). The appellant also bears the initial burden of presenting evidence. The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the court must conclude that they were not.
22. The courts have also developed certain presumptions. In particular, this Court held in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 161:
In United States v. Rabinowitz, 339 U.S. 56 (1950), the Supreme Court of the United States had held that a search without warrant was not ipso facto unreasonable. Seventeen years later, however, in Katz, Stewart J. concluded that a warrantless search was prima facie "unreasonable" under the Fourth Amendment. The terms of the Fourth Amendment are not identical to those of s. 8 and American decisions can be transplanted to the Canadian context only with the greatest caution. Nevertheless, I would in the present instance respectfully adopt Stewart J.'s formulation as equally applicable to the concept of "unreasonableness" under s. 8, and would require the party seeking to justify a warrantless search to rebut this presumption of unreasonableness.
This shifts the burden of persuasion from the appellant to the Crown. As a result, once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.
23. A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. In this case, the Crown argued that the search was carried out under s. 10(1) of the Narcotic Control Act, supra. As the appellant has not challenged the constitutionality of s. 10(1) of the Act, the issues that remain to be decided here are whether the search was unreasonable because the officer did not come within s. 10 of the Act, or whether, while being within s. 10, he carried out the search in a manner that made the search unreasonable.
24. For the search to be lawful under s. 10, the Crown must establish that the officer believed on reasonable grounds that there was a narcotic in the place where the person searched was found. The nature of the belief will also determine whether the manner in which the search was carried out was reasonable. For example, if a police officer is told by a reliable source that there are persons in possession of drugs in a certain place, the officer may, depending on the circumstances and the nature and precision of the information given by that source, search persons found in that place under s. 10, but surely, without very specific information, a seizure by the throat, as in this case, would be unreasonable. Of course, if he is lawfully searching a person whom he believes on reasonable grounds to be a "drug handler", then the "throat hold" would not be unreasonable.
25. Because of the presumption of unreasonableness, the Crown in this case had to present evidence of the officer's belief and the reasonable grounds for that belief. It may be surmised that there were reasonable grounds based on information received from the local police. However, the Crown failed to establish such reasonable grounds in the examination‑in‑chief of Constable Woods, and, as set out earlier, when it attempted to do so on its re‑examination, the appellant's counsel objected. As a result, the Crown never did establish the constable's reasonable grounds. Without such evidence, it is clear that the trial judge was correct in concluding that the search was unreasonable because unlawful and carried out with unnecessary violence.
26. However, the problem is that the objection raised by the appellant's counsel was groundless: this Court has held that reasonable grounds can be based on information received from third parties without infringing the hearsay rule (Eccles v. Bourque, supra), and the question put to the constable in this case was not outside the ambit of the ground covered in cross‑examination. A further problem is that the record does not disclose why the question was not answered: it is not clear whether the trial judge maintained the objection or whether the Crown had reacted to the objection by withdrawing the question. It is worthy of mention that, because a conviction was entered, the Crown could not in any event appeal against the decision.
27. This Court has two options. We could resolve the doubt against the Crown, which had the burden of persuasion, and simply proceed on the basis that there was no such evidence. Alternatively, we could order a new trial. I would order a new trial on the basis that the trial judge either made an incorrect ruling or failed to make a ruling, and, in any event, the appellant should not, in the particular circumstances of this case, be allowed to benefit from her counsel's unfounded objection.
28. However, before ordering a new trial, we must decide whether we agree with the trial judge and the Court of Appeal that the evidence of the heroin would be admissible regardless of the constable's grounds for the search, for there then would be no point in a new trial and we should dismiss the appeal. As a result, I must determine whether I would exclude the evidence under s. 24(2) on the assumption that Constable Woods testifies that he had not received any further information, thereby leaving matters in that regard as they stand at present on the record.
Bringing the Administration of Justice into Disrepute
29. On the record as it now stands, the appellant has established that the search was unreasonable and violated her rights under s. 8 of the Charter . As Seaton J.A. pointed out in the Court of Appeal, s. 24(2) has adopted an intermediate position with respect to the exclusion of evidence obtained in violation of the Charter . It rejected the American rule excluding all evidence obtained in violation of the Bill of Rights and the common law rule that all relevant evidence was admissible regardless of the means by which it was obtained. Section 24(2) requires the exclusion of the evidence "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".
30. At the outset, it should be noted that the use of the phrase "if it is established that" places the burden of persuasion on the applicant, for it is the position which he maintains which must be established. Again, the standard of persuasion required can only be the civil standard of the balance of probabilities. Thus, the applicant must make it more probable than not that the admission of the evidence would bring the administration of justice into disrepute.
31. It is whether the admission of the evidence would bring the administration of justice into disrepute that is the applicable test. Misconduct by the police in the investigatory process often has some effect on the repute of the administration of justice, but s. 24(2) is not a remedy for police misconduct, requiring the exclusion of the evidence if, because of this misconduct, the administration of justice was brought into disrepute. Section 24(2) could well have been drafted in that way, but it was not. Rather, the drafters of the Charter decided to focus on the admission of the evidence in the proceedings, and the purpose of s. 24(2) is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings. This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies. It will also be necessary to consider any disrepute that may result from the exclusion of the evidence. It would be inconsistent with the purpose of s. 24(2) to exclude evidence if its exclusion would bring the administration of justice into greater disrepute than would its admission. Finally, it must be emphasized that even though the inquiry under s. 24(2) will necessarily focus on the specific prosecution, it is the long‑term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice which must be considered (see on this point Gibson, supra, p. 245).
32. The concept of disrepute necessarily involves some element of community views, and the determination of disrepute thus requires the judge to refer to what he conceives to be the views of the community at large. This does not mean that evidence of the public's perception of the repute of the administration of justice, which Professor Gibson suggested could be presented in the form of public opinion polls (supra, pp. 236‑47), will be determinative of the issue (see Therens, supra, pp. 653‑54). The position is different with respect to obscenity, for example, where the court must assess the level of tolerance of the community, whether or not it is reasonable, and may consider public opinion polls (R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251 (Man. C.A.), at p. 266, cited in Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494, at p. 513). It would be unwise, in my respectful view, to adopt a similar attitude with respect to the Charter. Members of the public generally become conscious of the importance of protecting the rights and freedoms of accused only when they are in some way brought closer to the system either personally or through the experience of friends or family. Professor Gibson recognized the danger of leaving the exclusion of evidence to uninformed members of the public when he stated at p. 246:
The ultimate determination must be with the courts, because they provide what is often the only effective shelter for individuals and unpopular minorities from the shifting winds of public passion.
The Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority.
33. The approach I adopt may be put figuratively in terms of the reasonable person test proposed by Professor Yves‑Marie Morissette in his article "The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms : What to Do and What Not to Do" (1984), 29 McGill L.J. 521, at p. 538. In applying s. 24(2), he suggested that the relevant question is: "Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?" The reasonable person is usually the average person in the community, but only when that community's current mood is reasonable.
34. The decision is thus not left to the untramelled discretion of the judge. In practice, as Professor Morissette wrote, the reasonable person test is there to require of judges that they "concentrate on what they do best: finding within themselves, with cautiousness and impartiality, a basis for their own decisions, articulating their reasons carefully and accepting review by a higher court where it occurs." It serves as a reminder to each individual judge that his discretion is grounded in community values, and, in particular, long term community values. He should not render a decision that would be unacceptable to the community when that community is not being wrought with passion or otherwise under passing stress due to current events. In effect, the judge will have met this test if the judges of the Court of Appeal will decline to interfere with his decision, even though they might have decided the matter differently, using the well‑known statement that they are of the view that the decision was not unreasonable.
35. In determining whether the admission of evidence would bring the administration of justice into disrepute, the judge is directed by s. 24(2) to consider "all the circumstances". The factors which are to be considered and balanced have been listed by many courts in the country (see in particular Anderson J.A. in R. v. Cohen (1983), 5 C.C.C. (3d) 156 (B.C.C.A.); Howland C.J.O. in R. v. Simmons (1984), 11 C.C.C. (3d) 193 (Ont. C.A.); Philp J.A. in R. v. Pohoretsky (1985), 18 C.C.C. (3d) 104 (Man. C.A.); MacDonald J. in R. v. Dyment (1986), 25 C.C.C. (3d) 120 (P.E.I. App. Div.), and Lambert J.A. in R. v. Gladstone (1985), 22 C.C.C. (3d) 151 (B.C.C.A.)), and by Seaton J.A. in this case. The factors that the courts have most frequently considered include:
‑‑ what kind of evidence was obtained?
‑‑ what Charter right was infringed?
‑‑ was the Charter violation serious or was it of a merely technical nature?
‑‑ was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?
‑‑ did it occur in circumstances of urgency or necessity?
‑‑ were there other investigatory techniques available?
‑‑ would the evidence have been obtained in any event?
‑‑ is the offence serious?
‑‑ is the evidence essential to substantiate the charge?
‑‑ are other remedies available?
I do not wish to be seen as approving this as an exhaustive list of the relevant factors, and I would like to make some general comments as regards these factors.
36. As a matter of personal preference, I find it useful to group the factors according to the way in which they affect the repute of the administration of justice. Certain of the factors listed are relevant in determining the effect of the admission of the evidence on the fairness of the trial. The trial is a key part of the administration of justice, and the fairness of Canadian trials is a major source of the repute of the system and is now a right guaranteed by s. 11( d ) of the Charter . If the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of the other factors, the evidence generally should be excluded.
37. 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. Several Courts of Appeal have also emphasized this distinction between pre‑existing real evidence and self‑incriminatory evidence created following a breach of the Charter (see R. v. Dumas (1985), 23 C.C.C. (3d) 366 (Alta. C.A.), R. v. Strachan (1986), 24 C.C.C. (3d) 205 (B.C.C.A.), and R. v. Dairy Supplies Ltd. (Man. C.A., January 13, 1987, unreported)). It may also be relevant, in certain circumstances, that the evidence would have been obtained in any event without the violation of the Charter .
38. There are other factors which are relevant to the seriousness of the Charter violation and thus to the disrepute that will result from judicial acceptance of evidence obtained through that violation. As Le Dain J. wrote in Therens, supra, at p. 652:
The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence.
I should add that the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious. We are considering the actual conduct of the authorities and the evidence must not be admitted on the basis that they could have proceeded otherwise and obtained the evidence properly. In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter , which is a factor supporting the exclusion of the evidence.
39. The final relevant group of factors consists of those that relate to the effect of excluding the evidence. The question under s. 24(2) is whether the system's repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence. 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. I would thus agree with Professor Morissette that evidence is more likely to be excluded if the offence is less serious (supra, pp. 529‑31). I hasten to add, however, that if the admission of the evidence would result in an unfair trial, the seriousness of the offence could not render that evidence admissible. If any relevance is to be given to the seriousness of the offence in the context of the fairness of the trial, it operates in the opposite sense: the more serious the offence, the more damaging to the system's repute would be an unfair trial.
40. Finally, a factor which, in my view, is irrelevant is the availability of other remedies. Once it has been decided that the administration of justice would be brought into disrepute by the admission of the evidence, the disrepute will not be lessened by the existence of some ancillary remedy (see Gibson, supra, at p. 261).
41. I would agree with Howland C.J.O. in Simmons, supra, that we should not gloss over the words of s. 24(2) or attempt to substitute any other test for s. 24(2). At least at this early stage of the Charter 's development, the guidelines set out are sufficient and the actual decision to admit or exclude is as important as the statement of any test. Indeed, the test will only take on concrete meaning through our disposition of cases. However, I should at this point add some comparative comment as regards the test I enunciated in Rothman, supra, a pre‑Charter confession case dealing with the resort to "tricks", which was coined in the profession as the "community shock test". That test has been applied to s. 24(2) by many courts, including the lower courts in this case. I still am of the view that the resort to tricks that are not in the least unlawful let alone in violation of the Charter to obtain a statement should not result in the exclusion of a free and voluntary statement unless the trick resorted to is a dirty trick, one that shocks the community. That is a very high threshold, higher, in my view, than that to be attained to bring the administration of justice into disrepute in the context of a violation of the Charter .
42. There are two reasons why the threshold for exclusion under s. 24(2) is lower. The first, an obvious one, is that, under s. 24(2), there will have been a violation of the most important law in the land, as opposed to the absence of any unlawful behaviour as a result of the resort to tricks in Rothman.
43. The second reason is based on the language of s. 24(2). Indeed, while both the English text of s. 24(2) and Rothman use the words "would bring the administration of justice into disrepute", the French versions are very different. The French text of s. 24(2) provides "est susceptible de déconsidérer l'administration de la justice", which I would translate as "could bring the administration of justice into disrepute". This is suppportive of a somewhat lower threshold than the English text. As Dickson J. (as he then was) wrote in Hunter v. Southam Inc., supra, at p. 157:
Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s. 8: in other words, to delineate the nature of the interests it is meant to protect.
As one of the purposes of s. 24(2) is to protect the right to a fair trial, I would favour the interpretation of s. 24(2) which better protects that right, the less onerous French text. Most courts which have considered the issue have also come to this conclusion (see Gibson, supra, at pp. 63 and 234‑35). Section 24(2) should thus be read as "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings could bring the administration of justice into disrepute". This is a less onerous test than Rothman, where the French translation of the test in our reports, "ternirait l'image de la justice", clearly indicates that the resort to the word "would" in the test "would bring the administration of justice into disrepute" means just that.
Conclusion
44. As discussed above, we must determine in this case whether the evidence should be excluded on the record as it stands at present.
45. The evidence obtained as a result of the search was real evidence, and, while prejudicial to the accused as evidence tendered by the Crown usually is, there is nothing to suggest that its use at the trial would render the trial unfair. In addition, it is true that the cost of excluding the evidence would be high: someone who was found guilty at trial of a relatively serious offence will evade conviction. Such a result could bring the administration of justice into disrepute. However, the administration of justice would be brought into greater disrepute, at least in my respectful view, if this Court did not exclude the evidence and dissociate itself from the conduct of the police in this case which, always on the assumption that the officer merely had suspicions, was a flagrant and serious violation of the rights of an individual. Indeed, we cannot accept that police officers take flying tackles at people and seize them by the throat when they do not have reasonable and probable grounds to believe that those people are either dangerous or handlers of drugs. Of course, matters might well be clarified in this case if and when the police officer is offered at a new trial an opportunity to explain the grounds, if any, that he had for doing what he did. But if the police officer does not then disclose additional grounds for his behaviour, the evidence must be excluded.
46. I would allow the appeal and order a new trial.
The following are the reasons delivered by
47. McIntyre J. (dissenting)‑‑I have had the advantage of reading the reasons for judgment prepared in this appeal by my colleague Justice Lamer. I accept and adopt his statement of facts. I accept as well his statement of the question for decision, that is, was the search conducted by the police officer unreasonable and, if so, having regard to all the circumstances, would the admission of the evidence bring the administration of justice into disrepute? I am unable, however, with deference to my colleague's views, to reach the same conclusion.
48. For the purposes of this appeal, I will accept with some hesitation the finding of the trial judge that the search was unreasonable. It then becomes necessary to decide whether the evidence obtained by the search should have been admitted or rejected under the provisions of s. 24(2) of the Canadian Charter of Rights and Freedoms . In deciding this question, I am content to adopt the judgment of Seaton J.A. in the Court of Appeal in the case at bar, now reported in (1983), 5 C.C.C. (3d) 141. In my view, he has correctly stated the principles upon which this issue must be decided. I would, accordingly, adopt his result and dismiss the appeal.
49. With the exception of his conclusion, there is little, if anything, inconsistent in the judgment of Seaton J.A. with what my colleague, Lamer J., has said up to the point where he discusses his approach to the question of how a court should determine, in accordance with s. 24(2) of the Charter , whether the admission of evidence would bring the administration of justice into disrepute. It is with respect to that aspect of my colleague's judgment that a divergence in our views appears. With the very greatest deference to my colleague, I would not approve of a test so formulated. I would prefer the less formulated approach of Seaton J.A. , who said at p. 151:
Disrepute in whose eyes? That which would bring the administration of justice into disrepute in the eyes of a policeman might be the precise action that would be highly regarded in the eyes of a law teacher. I do not think that we are to look at this matter through the eyes of a policeman or a law teacher, or a judge for that matter. I think that it is the community at large, including the policeman and the law teacher and the judge, through whose eyes we are to see this question. It follows, and I do not think this is a disadvantage of the suggestion, that there will be a gradual shifting. I expect that there will be a trend away from admission of improperly obtained evidence.
I do not suggest that the courts should respond to public clamour or opinion polls. I do suggest that the views of the community at large, developed by concerned and thinking citizens, ought to guide the courts when they are questioning whether or not the admission of evidence would bring the administration of justice into disrepute.
In this, I take it that Seaton J.A. in deciding the question has adopted an approach similar to that of the reasonable man, so well known in the law of torts. This is by no means a perfect test, but one which has served well and which has, by its application over the generations, led to the development of a serviceable body of jurisprudence from which has emerged a set of rules generally consistent with what might be termed social attitudes. I would suggest that such an approach, developing rules and principles on a case‑by‑case basis, will produce an acceptable standard for the application of s. 24(2) of the Charter .
50. This view has judicial support in the words of Seaton J.A. , referred to above, and in the words of Esson J.A. in the British Columbia Court of Appeal in R. v. Strachan (1986), 24 C.C.C. (3d) 205. Speaking for the Court, he said, at p. 236:
It may be, as some have contended, that the so‑called "community shock" test for applying s. 24(2) is not a completely satisfactory basis for deciding whether the admission of evidence will bring the administration of justice into disrepute. But it surely cannot be right to decide that issue without consideration for the concerns of and prevailing views in the community. Some commentators have expressed the view that this will put the decision in the hands of "red necks", which is [sic] in this context seems to mean those who have not studied the subject at a graduate level. By that logic, we should not leave to juries the most serious issues in criminal cases. But we do and the Charter requires that to be done. One of the virtues of the jury system is to require community values to be reflected in the decision‑making process. As that ideal way of reflecting community values is not available in relation to the question whether to exclude, it may be appropriate to have regard to such legendary devices as "the reasonable man" or "right thinking people generally". If due regard is had to community values, the remedy of exclusion will likely be confined to those relatively rare cases where there is some real reason for describing a denial as flagrant, and in which exclusion would not unduly prejudice the public interest in law enforcement.
Further support from the academic world may be found in the words of Yves‑Marie Morissette, "The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms : What to Do and What Not to Do" (1984), 29 McGill L.J. 521, at p. 538:
Instead of reiterating unconvincing appeals to evanescent community views, Canadian judges should concentrate on what they do best: finding within themselves, with cautiousness and impartiality, a basis for their own decisions, articulating their reasons carefully and accepting review by a higher court where it occurs. A convenient and longstanding legal fiction exists for the purposes of judicial dialectics: the reasonable man, whether it be the man on the Clapham omnibus or, perhaps today in Canada, the career‑woman on the Voyageur bus. One commendable feature of this concept is its coherence. Judges may disagree among themselves on what the reasonable man would do in any given case, but in the end the courts never disagree with the reasonable man. They are, in reality, the reasonable man. The question should be: "Would the admission of the evidence bring the administration of justice into disrepute in the eyes of a reasonable man, dispassionate and fully apprised of the circumstances of the case?" If in due course the reasonable man takes into account the findings of opinion polls, so be it, but for the time being section 24(2) should remain entirely within the control of the courts. [Emphasis added.]
51. I do not suggest that we should adopt the "community shock" test or that we should have recourse to public opinion polls and other devices for the sampling of public opinion. I do not suggest that we should seek to discover some theoretical concept of community views or standards on this question. I do suggest that we should adopt a method long employed in the common law courts and, by whatever name it may be called, apply the standard of the reasonable man. The question should be as stated by Yves‑Marie Morissette, supra, "Would the admission of the evidence bring the administration of justice into disrepute in the eyes of a reasonable man, dispassionate and fully apprised of the circumstances of the case?" I am aware that the trial judge appeared to apply the community shock test. However, it is clear from the passage quoted above that Seaton J.A. , in expressing his approval and dismissing the appeal, was in essence adopting the test of the reasonable man. I would observe as well that Esson J.A. in Strachan, supra, in accepting the need for a consideration of community values brought in the reasonable man.
52. Applying this test to the case at bar, I am led to the conclusion that the administration of justice would not fall into disrepute by the admission of this evidence. This is not a case where the search revealed a concealed capsule or two of heroin, such as one might have for personal use. Here, the appellant, with heroin in her hand contained in a balloon, was found in a public bar among other people. In my view, the admission of this evidence on a trial for possession of narcotics for the purpose of trafficking would not‑‑in the eyes of a reasonable man, dispassionate and fully apprised of the circumstances of the case‑‑bring the administration of justice into disrepute. The circumstances of the case include the events described by Nemetz C.J.B.C., at p. l43:
The facts are not in dispute. Constables Rodine and Woods of the drug section of the R.C.M.P. were on duty at Gibsons, a small community near Vancouver. They took up a surveillance‑post near a pub in the village. There they saw the appellant and another woman seated at a table. A short time later the pair were joined by Richard Collins and another man. About 15 minutes later, Collins and the stranger left the pub and drove in a car to a trailer‑park a short distance from the pub. The police followed them. They searched the car and there found heroin, some multicoloured balloons and other paraphernalia. Richard Collins was arrested. At 4:15 p.m., Constables Rodine and Woods returned to the pub. The appellant and her companion were still there.
The police then entered the bar and found heroin in the possession of the appellant, not concealed but in her hand in a public place. I express no view as to the cogency or weight of this evidence but, in my view, a reasonable man would not be offended at the thought that on the issue of possession for the purpose of trafficking the trier of fact should be permitted to consider it. I would dismiss the appeal.
The following are the reasons delivered by
53. Le Dain J.‑‑I agree with Justice Lamer that the appeal should be allowed and a new trial ordered. Assuming, as we must on the present record, that the police officer did not have grounds for a reasonable belief that the accused was in possession of a narcotic, I am in agreement with the conclusion that, having regard to all the circumstances, and in particular the relative seriousness of the violation of the right guaranteed by s. 8 of the Charter to be secure against unreasonable search, the admission of the evidence would bring the administration of justice into disrepute. I am also in general agreement with what Lamer J. says concerning the nature of the test under s. 24(2) of the Charter and the factors to be weighed, but I do not wish to be understood as necessarily subscribing to what is said concerning the nature and relative importance under s. 24(2) of the factor which he refers to as the effect of the admission of the evidence on the fairness of the trial. Since, as Lamer J. indicates, it is not necessary to consider this factor in the present case, I prefer to reserve my opinion with respect to it. I am concerned about the possible implications for such matters as self‑incrimination and confession, aspects of fairness to which Lamer J. refers and which are the subject of special provision in the Charter or in well established rules of law. I am also concerned as to whether there is a basis in s. 24(2) for the view that, to the extent this factor is relevant, it should generally lead to the exclusion of the evidence.
Appeal allowed and a new trial ordered, McIntyre J. dissenting.
Solicitors for the appellant: Braidwood, Nuttall, MacKenzie, Brewer, Greyell & Company, Vancouver.
Solicitor for the respondent: Department of Justice, Vancouver.
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