Charter breaches warranted excluding evidence

Mike Novakowski
September 15, 2014
By Mike Novakowski

Complying with <s. 10> of the Charter while arresting a drug trafficker would not have compromised an ongoing police investigation into gang violence, Canada's highest court has ruled.

In <R. v. Mian, 2014 SCC 54> Edmonton police were investigating gang related homicides and other violence. The investigative team obtained a wiretap authorization allowing them to intercept private communications of a principal target. One of the calls they heard related to the purchase of half a kilogram of cocaine.

Visual surveillance of the intercept target revealed interactions with Mian, who drove a grey Chevrolet Malibu and was believed to be the cocaine supplier. While surveillance was ongoing, a detective instructed other officers to make a routine traffic stop of the Malibu.

They were to use every effort to find appropriate grounds to search the car without relying on the detective's information so as not to compromise the ongoing homicide investigation. The officers were told that there were already grounds to arrest the driver, which they could rely on if they could not find other grounds.

They pulled over the car as it left a bar and removed Mian. He was holding a cell phone, which police removed. A pat-down search revealed $2,710 cash on his person. A vehicle search turned up cocaine, an additional $1,340 cash, another cell phone and Mian's wallet.

Some 22 minutes after the Malibu was pulled over, Mian was advised he was being arrested for possessing cocaine for the purposes of trafficking. Another two to five minutes passed before he was advised of his Charter right to retain and instruct counsel. Mian was charged with possessing cocaine for the purpose of trafficking and possessing currency obtained by the commission of an offence.

In the Alberta Court of Queen's Bench, Mian sought the exclusion of all of the evidence under s. 24(2) of the Charter. He argued that he was arbitrarily detained and arrested, subjected to an unreasonable search and seizure and not properly advised of the reason for his detention and right to counsel.

The judge found that although the arresting officers did not have grounds of their own to arrest Mian and conduct the searches, they could rely on the grounds gathered by the detective and surveillance team that there was a significant quantity of cocaine in the Malibu. Thus, Mian's detention wasn't arbitrary and the searches of his person and vehicle were lawful.

However, the judge ruled that Mian's <s. 10 (a)> Charter right to be informed promptly of the reasons therefor and his <s. 10 (b)> right to be informed of his right to retain and instruct counsel without delay had been breached.

In the judge's view, there must be exceptional circumstances to justify suspending the rights, which did not exist in this case. There was no satisfactory reason for not advising Mian immediately of his <s. 10> rights on arrest and waiting 22 minutes to inform him of the reason for his arrest and right to retain and instruct counsel breached <s. 10(a) and (b)>. The evidence was excluded under <s. 24(2)> and Mian was acquitted.

The Crown appealed to Alberta's highest court, arguing that the trial judge erred by failing to find exceptional circumstances justified the suspension of his <s. 10(a) and (b)> rights and in excluding the evidence. The court raised a new issue for consideration and ordered a new trial on the basis that the trial judge relied on impermissible cross examination; allowing a police witness to be questioned about the veracity of evidence given by another officer. The court found it inappropriate to engage in an analysis of the Crown's other grounds of appeal.

Mian appealed the order of a new trial to Canada's top court, which included a determination about whether the trial judge erred in finding breaches of <s. 10(a) and (b)> and his analysis and decision to exclude the evidence.

The Crown suggested the 22 minute delay in complying with the informational duties was justified by exceptional circumstances. In the Crown's view, a more transparent drug arrest would have compromised the integrity of the separate and ongoing wiretap investigation into gang violence.

Justice Rothstein, speaking for a unanimous seven member panel of the Supreme Court of Canada, found there was no basis to overturn the trial judge's conclusion that Mian's <s. 10> rights were breached. Even if the need to protect the integrity of a separate, ongoing investigation is an exceptional circumstance which could delay their implementation or justify the suspension of <s. 10 (b)> rights, exceptional circumstances did not arise on the facts in this case, as found by the trial judge.

<The trial judge found as a fact that there was insufficient evidence to support the assertion that immediate compliance with s. 10 of the Charter would have compromised the broader investigation. The trial judge acknowledged that (the detective) testified that the delay was due to concerns about compromising the ongoing investigation. However, the judge went on to find that there was no evidence about why simply advising (the accused) of the reason for his arrest or informing him of his right to counsel would have frustrated the ongoing investigation of (the principal target) and other gang members.

Ultimately, the trial judge found that there was no evidence of a "real and present danger that the operation would be frustrated or compromised." The Crown hasn't established a legal basis for assailing these factual findings> (references omitted, para. 75).

Since there were no exceptional circumstances to justify the police delay in complying with their informational duties, Mian's <s. 10 (a) and (b)> rights were infringed.

As for excluding evidence under <s. 24(2),> the trial judge was owed considerable deference. He applied the proper test – the seriousness of the Charter breach, the impact of the breach on the protected interests of the accused and society's interest in the adjudication of the case on its merits.

Mian's appeal was allowed and his acquittal restored.

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