Blue Line

Search evidence excluded Unlawful arrest a serious Charter breach

Without reasonable grounds, a warrantless search incidental to an unlawful arrest is presumptively unreasonable and may be a serious enough breach to warrant excluding the evidence.

June 10, 2009  By Mike Novakowski

Without reasonable grounds, a warrantless search incidental to an unlawful arrest is presumptively unreasonable and may be a serious enough breach to warrant excluding the evidence.

In R. v. Dufault, 2009 ABCA 107, several police officers were dispatched to a report that two men and a woman had broken into an apartment while the owners were home. The owners were physically assaulted and $300 stolen. One of the men was described as average height and build and wearing a black jacket, black pants and a black hoodie.

An officer saw Dufault at the rear of the building wearing a black hoodie, black jacket, and dark blue jeans. He was coming out from behind a dumpster associated with the building across the alley and was walking in the general direction of his bicycle. He wore a backpack, a toque under his hoodie and two pair of gloves covered by a pair of large mittens. He was alone, did not attempt to run and was immediately arrested for robbery.

Dufault’s backpack was removed; he was handcuffed, placed in the police vehicle, cautioned and advised of his Charter rights. A search of the backpack turned up about 12 grams of methamphetamine in a glasses case, found in a pouch along with other drug-related items, bolt cutters and pliers. Dufault was charged with possessing drugs for the purposes of trafficking and possessing break-in instruments.


At trial in Alberta Provincial Court the arresting officer testified he searched the backpack as an incident to the arrest. He was concerned for his safety and wanted to find evidence of the robbery. The arrest was unlawful because police did not have objective grounds for it, the trial judge ruled, but found Dufault’s s.9 Charter rights had not been infringed because police had at least sufficient grounds for an investigative detention. However, the warrantless search of the backpack incidental to the unlawful arrest was unreasonable, and thus a breach of s.8 of the Charter.

Despite the breach, the judge ruled the evidence admissible under s.24(2), since it was nonconscriptive and would not affect trial fairness. The breach was not serious and police acted in good faith. After all, there is an academic debate about the scope of the search powers incidental to arrest, and police acted out of urgency.

Dufault was convicted but challenged the ruling to the Alberta Court of Appeal, arguing the judge erred in admitting the evidence. Justice Conrad agreed. Evidence obtained following a Charter breach is not automatically excluded or included under s.24(2). Instead, courts make a determination by evaluating the effect of admitting it on the fairness of the trial, the seriousness of the breach and the effect of excluding it on the administration of justice, based on all of the case circumstances.

The drugs found in the backpack amounted to real evidence that was non-conscriptive, so its admission would not affect trial fairness. However, contrary to the trial judge’s view, the breach was a serious violation of the accused’s Charter right to be secure against unreasonable search or seizure. The officer searched for evidence absent reasonable and probable grounds based on the mistaken belief that he had grounds for the arrest. Conrad stated:

bq. First, the trial judge used the ongoing academic debate about the scope of search powers incidental to an arrest to buttress his conclusion that the search was not a serious breach and that the evidence should not be excluded. However, this is faulty logic. The fact that there may be ongoing academic disagreement about the scope of the police power to search incidental to arrest cannot be used as a positive factor to negate the seriousness of the breach where, as here, a trial judge finds that the arrest itself is unlawful.

bq. Second, the trial judge appears to have misused the element of urgency… In evaluating the seriousness of the breach, the court is entitled to take into account whether the breach occurred in exigent circumstances where preventing the loss of evidence is a legitimate consideration. Here, however, the trial judge failed to distinguish the urgency of the circumstances leading up to the arrest from the urgency behind the search itself.

bq. Instead, he used the urgent circumstances relating to the arrest to effectively find that the search of the backpack was also urgent, and having gone this far, he implicitly found that this too militated against the seriousness of the breach. However, even if the urgent circumstances surrounding the arrest justified a finding that the arrest was made in good faith, this does not mean that there was an urgent need to search the backpack.

bq. Third, the trial judge appears to have relied almost exclusively on the good faith of the officer who believed, subjectively, that he had the right to arrest [the accused]. Although the trial judge suggested that other factors needed to be taken into account, he did not address them.

bq. Finally, the trial judge failed to place on the seriousness scale one of the most important considerations in circumstances of unlawful arrest, that is, the individual’s reasonable expectation of privacy. A warrantless search is prima facie unlawful and a serious interference with privacy, and where the common law rule allowing the right to search as an incident of arrest is relied upon, it is important that grounds for this extraordinary exception exist. A warrantless search incidental to arrest is only justifiable because the arrest itself has the safeguard of requiring reasonable and probable grounds.

bq. In this instance, however, the safeguard was missing, given that the arrest was made without reasonable and probable grounds. The search, therefore, was an intrusive violation of [the accused’s] reasonable expectation of privacy with respect to the contents of his backpack, which he was carrying when stopped by the officer.

bq. Admitting the evidence in this case could be seen as the courts’ endorsement of an arrest based on a hunch in the hope that the evidence then found would be admitted in subsequent proceedings. This is one reason why courts have historically viewed Charter breaches of this kind as relatively serious.

bq. The Crown accepts that if [the accused] had been lawfully detained for investigatory purposes a search of his backpack here would not have been authorized. The Crown should not be in a better position when the arrest was unlawful, despite the officer’s good faith [paras. 10-15].

The court ruled that the administration of justice would be brought into disrepute if police succeeded in having the evidence admitted even though they didn’t meet the condition precedent for a search incident to lawful arrest. Dufault’s appeal was allowed, the evidence excluded and an acquittal entered.

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