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Cocaine tossed because Charter rights disregarded

The importance of maintaining Charter values and a court’s disassociation from police misconduct can trump the truth seeking interests of the criminal justice system, a convicted drug trafficker has learned.

In R. v. Harrison, 2009 SCC 34, a police officer saw a Dodge Durango without a front licence plate (an offence for Ontario registered vehicles) and decided to stop it. When he activated his emergency lights and manoeuvred in behind the vehicle he noticed it had an Alberta rear licence plate and realized it did not require a front plate. He nonetheless decided not to abandon his intention to make the stop to maintain his “integrity” in the eyes of observers – he already had his emergency lights on and had begun the stop.

There were two men in the vehicle. The officer asked Harrison for his licence and vehicle registration, insurance and rental agreement. Harrison looked for but was unable to produce his licence. During the encounter the officer noted the vehicle looked lived in – it was messy and littered with used food and drink containers – and there were clothing and bags on the back seat and two boxes in the rear compartment.

Both occupants provided different versions of their association. After conducting computer checks, the officer learned Harrison’s drivers licence had been suspended and he was arrested for that offence.

The officer decided to search the vehicle as an incident to the arrest because Harrison hadn’t “identified himself properly.” The officer believed Harrison’s driver’s licence could be within the vehicle and also suspected there could be drugs, weapons and/or cash. He based this on his training and experience, including a drug interdiction course.

For safety reasons, he asked the occupants if there were drugs or weapons inside – he didn’t want to get pricked by a needle or pull a trigger on a handgun when searching. Both men responded in the negative. A search turned up 77 pounds (35 kgs.) of cocaine with a street value of between $2,463,000 and $4,575,000 in the two boxes located in the rear area. The men were arrested for possessing cocaine for the purpose of trafficking.

At trial in the Ontario Superior Court of Justice on a charge of trafficking, Harrison argued his Charter rights were breached and sought to have the evidence excluded. The trial judge found the officer breached s.8 and 9 of the Charter, holding the men were arbitrarily detained and that the search of the vehicle was unreasonable. In his view, the officer did not have reasonable grounds to stop and search the car and knew it.

He found that the officer’s explanation for stopping the vehicle and detaining its occupants was contrived and defied credibility. The search after arrest wasn’t, “truly incidental” to the arrest for driving while under suspension and the officer’s stated purpose for it was certainly not reasonable. The officer’s actions were flagrant, brazen, not committed in good faith and the Charter breaches were extremely serious.

However, the judge refused to exclude the cocaine under s.24(2) because trial fairness wasn’t compromised and the Charter breaches, “pale in comparison to the criminality involved in the possession for the purposes of distribution of 77 pounds of cocaine.”

Harrison was convicted and sentenced to five years in prison. His appeal to the Ontario Court of Appeal was dismissed by a divided panel. Two judges upheld the trial judge’s decision to admit the evidence, although concluding it was a close call. They acknowledged that the Charter breaches were serious, but found they were mitigated somewhat. The officer did not have, “a carefully thought out plan or practice to breach the Charter” and the violations were not “deliberate.” Rather, the inexperienced officer made a serious mistake – it was a flawed decision-making process, not a systemic or institutional pattern of abuse, that lead to the breaches.

As well, the detention was brief, not physically coercive and Harrison’s expectation of privacy in the contents of the vehicle wasn’t great compared to a person’s body, home, or office. Further, Harrison denied that the boxes containing the cocaine belonged to him, further mitigating any privacy violation, thus the effects of the Charter breaches were relatively minor.

In the dissenting judge’s view, the breaches were intentional violations that undermined the integrity of the administration of justice and condoning the constitutional misconduct by admitting the evidence obtained would do more harm to the integrity of the justice system than would excluding evidence. She would have allowed the appeal and entered an acquittal.

Harrison appealed to the Supreme Court of Canada which, using the revised s.24(2) Charter analysis developed in R. v. Grant (page 22), would have excluded the evidence by a 6:1 majority. In this case, Harrison’s rights under s.8 and 9 of the Charter were violated by the detention and search. The officer should not have made the initial stop because he knew Harrison’s vehicle did not require a front licence plate before pulling it over.

“A vague concern for the ‘integrity’ of the police, even if genuine, was clearly an inadequate reason to follow through with the detention,” said the majority. “The subsequent search of the S.U.V. wasn’t incidental to the (accused’s) arrest for driving under a suspension and was likewise in breach of the Charter. While an officer’s “hunch” is a valuable investigative tool – indeed, here it proved highly accurate – it is no substitute for proper Charter standards when interfering with a suspect’s liberty.”

The Court then went on to determine whether the evidence was admissible under their revised s.24(2) approach using the following three lines of inquiry:

(1) The seriousness of the Charter-infringing state conduct.

Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree or where the police knew (or should have known) that their conduct wasn’t Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern (para. 22). • The breaches were serious and represented a reckless and blatant disregard for Charter rights;

• Reasonable grounds for the initial stop was entirely non-existent;
• Reasonable grounds for the search were also non-existent; and
• The officer’s in court testimony was misleading.

(2) The impact of the breach on the Charter-protected interests of the accused.

This factor looks at the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact? These are among the questions that fall for consideration in this inquiry (para. 28). • The detention was intended to brief and there was a lower expectation of privacy in the vehicle:

(M)otorists have a lower expectation of privacy in their vehicles than they do in their homes. As participants in a highly regulated activity, they know that they may be stopped for reasons pertaining to highway safety – as in a drinking-and-driving roadblock, for instance. Had it not turned up incriminating evidence, the detention would have been brief. In these respects, the intrusion on liberty and privacy represented by the detention is less severe than it would be in the case of a pedestrian. Further, nothing in the encounter was demeaning to the dignity of the (accused) (para. 30).

• But, being stopped and searched without lawful justification is much more than trivial;
• Harrison had the expectation to be left alone,absent a valid highway traffic stop; and

• Although not egregious, the deprivation of Harrison’s liberty and privacy was sig-nificant.

• Society’s interest in the adjudication of the case on its merits.

At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case (para. 33). • The drugs were highly reliable evidence; • The drugs were critical to the Crown’s case; and • The charge was very serious.

In this case, the court excluded the drugs and Harrison was acquitted. The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards, the court stated:

The police misconduct was serious; indeed, the trial judge found that it represented a “brazen and flagrant” disregard of the Charter. To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant’s rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it. In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion…

(A)llowing the seriousness of the offence and the reliability of the evidence to overwhelm the s.24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’… Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences…

(T)he trial judge seemed to imply that where the evidence is reliable and the charge is serious, admission will always be the result…

(T)his is not the law.

Additionally, the trial judge’s observation that the Charter breaches “pale in comparison to the criminality involved” in drug trafficking risked the appearance of turning the s.24(2) inquiry into a contest between the misdeeds of the police and those of the accused. The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s.24(2). We expect police to adhere to higher standards than alleged criminals (paras. 39-41).

h2. A lone dissenter

Justice Deschamps disagreed with her colleagues and would have admitted the evidence. In her view, “the public interest in an adjudication on the merits is paramount and this is a case in which excluding the evidence will have a negative effect on the confidence of an objective person, fully informed of all the circumstances, in the administration of justice.”