Good faith is more than just having an honest belief. The belief must also be reasonable.
In R. v. Caron, 2011 BCCA 56 a police officer on highway patrol clocked a vehicle on radar traveling at 165 km/h per hour in a 100 km/h zone. He turned on his emergency lights and siren and pursued it as, at one point, it slowed to 120 km/h, crossed over a doubleyellow centre line and into the on-coming lane to pass a truck.
The officer followed for approximately two kilometers before it pulled over. He arrested Caron, the driver and sole occupant, for dangerous driving. He was advised of his rights, handcuffed and placed in the rear of the police vehicle.
The officer went back to Caron’s vehicle and looked in the glove compartment for the registration but did not find it. Finding a digital camera, he turned it on and scrolled through the photographs, thinking there may be pictures of Caron’s speedometer showing a high rate of speed. This belief was based on his previous experience encountering people taking pictures of themselves while engaged in criminal activity. He had not seen Caron holding a camera or reaching for the glove compartment, but felt he was so focused on his driving that he hadn’t noticed the police car behind him.
After scrolling through some family photos, the officer came across several photographs of Caron and others with firearms. The pictures heightened the officer’s concern for his safety because it appeared Caron had access to guns. He was also concerned about firearms being left inside the vehicle, as he was going to have it towed. He searched the vehicle and found a cardboard box containing $60,000 (30 bundles x $2,000) inside the hatch-back and a backpack containing a loaded 9 mm semi-automatic pistol.
A British Columbia Supreme Court judge found that even if the officer had a subjective belief for examining the camera’s contents to find evidence of speeding, his belief wasn’t subjectively reasonable.
It seems to me that this comes very close to the line and I am concerned that absent evidence of wide practice that persons actually photograph their speedometer while they are speeding, I think that it would be dangerous to permit that type of search to continue... It is close to the line of what might be legitimate versus indiscriminate fishing for evidence.
Nonetheless, the judge admitted the pistol and money as evidence under s. 24(2) of the Charter. It was non-conscriptive and would not undermine trial fairness. As well, the judge found the officer acted in good faith with an honest subjective belief that there may be photographs of the vehicle’s speedometer, which, among other things, mitigated the seriousness of the Charter breach. The offences were very serious, the gun and cash were crucial to the Crown’s case and excluding the evidence would bring the administration of justice into disrepute. Caron was convicted of unauthorized possession of a restricted weapon (the loaded pistol) and property obtained by crime (the money).
Caron appealed to the BC Court of Appeal, arguing the trial judge erred in admitting the evidence. The Crown disagreed.
h3. Good faith
Justice Frankel, speaking for the court, held the officer wasn’t acting in good faith, contrary to the trial judge’s finding.
“’Good faith’ and its polar opposite, ‘bad faith’ (or ‘flagrant’ disregard), are terms of art in the s. 24(2) lexicon,” he said. “The absence of bad faith does not equate to good faith, nor does the absence of good faith equate to bad faith. To fall at either end of this spectrum requires a particular mental state.”
Since good faith connotes an honest and reasonably held belief, if the belief is not reasonable the officer will not be acting in good faith. The search was warrantless, purportedly undertaken under the common-law power to search a vehicle incidental to arrest, and the Crown bore the burden of proving it was reasonable.
Although the officer believed the camera might contain photos of the speedometer, there was no evidence he thought he was entitled to examine it pursuant to the power of search incidental to arrest. Without a finding that the officer believed he was engaging in a lawful search, he cannot be said to have acted in good faith. Even if he had such a belief, it would not have been objectively reasonable.
Although the reasonable grounds standard that evidence will be found does not apply to searches incident to arrest, there is still a “reasonable basis” requirement. The officer did not elaborate on the circumstances of previously seeing photographs of speedometers at high rates of speed. He didn’t see Caron holding a camera or reaching for the glove compartment. It was only speculation that Caron photographed his speedometer and put the camera in the glove compartment.
The officer never turned his mind to whether there was a reasonable prospect such evidence would be found in the circumstances in which the camera was discovered. He “either knew, or ought to have known, that before conducting a search incidental to arrest he was required to consider whether, on the specific facts of his investigation, there was a reasonable prospect that what he wished to search for would be found,” Justice Frankel said in the s. 24(2) analysis.
The legal framework for searches incidental to arrest was established ten years before this case arose. It is (the officer’s) failure to consider whether the examination of the camera fell within the parameters set by the Supreme Court of Canada that makes the breach here more serious than one which is the result of mere inadvertence or an error in judgment.
Thus, the trial judge erred in considering good faith as a mitigating factor in his s. 24(2) analysis.
h3. Safety concerns
Had the camera examination been lawful, the court opined that the photographs the officer saw would have justified searching for firearms on the basis of safety concerns even though Caron was handcuffed and in custody.
He was using a pistol in what appeared to be an unlawful manner. Although the officer did not know when or where the photos were taken, his concern that Caron had access to firearms was legitimate and would have provided a reasonable basis for searching the vehicle.
That (the accused) was restrained before his vehicle was searched did not have the effect of negating the concerns that (the officer) had for his own safety. By definition, a search incidental to arrest takes place after someone is taken into custody and has had his or her immediate ability to harm others substantially diminished. However, the opportunity for harm is not completely eliminated as there is always a possibility that the arrestee will break free and seek to use a weapon in the immediate vicinity. A search intended to lessen that possibility falls within the valid objectives of the criminal justice system.
As well, it was legitimate for (the officer) to be concerned about a vehicle that might contain firearms being towed to a relatively insecure storage facility. If there were firearms is the vehicle and if those firearms fell into the wrong hands, then the public would be at risk (paras. 49-50).
Caron’s appeal was allowed and the evidence excluded. His convictions were set aside and he was acquitted.