Inevitable Appeal to SCC in R v Harrison
On February 11, 2008, the Court of Appeal for Ontario rendered their decision in R v Harrison, 2008 ONCA 85, a criminal case dealing primarily with the treatment of unconstitutionally obtained evidence. In the decision, Associate Chief Justice O’Connor and Justice MacPherson agreed that the critical evidence was properly admitted at trial and consequently dismissed the appeal. Justice Cronk, however, dissented on the admission of evidence, and instead would have entered an acquittal. Pursuant to s. 691(1)(a) of the Criminal Code, RSC 1985, c C-46, Harrison is entitled to appeal as of right to the Supreme Court of Canada (“SCC”) on the issue of the admission of the critical evidence.
The case is certainly controversial, and no less so because it is certain to end up before the SCC; it even caught the attention of the mainstream media, and generated an editorial from the Toronto Star [(18 February 2008) online: <www.thestar.ca>. By the admission of the trial judge and the majority of the Court of Appeal, the police officer’s breaches of the Charter were flagrant and that he knew they were flagrant. Both courts nevertheless concluded that the evidence should be admitted.
Bradley Harrison and Sean Friesen rented a Dodge Durango at the Vancouver airport with the intention to drive straight to Toronto, sharing the driving responsibilities. They had two large cardboard boxes in the back which contained 77 pounds of cocaine, worth anywhere between $2.4M and $4.5M. They got as far as Kirkland Lake without incident, when Constable Brian Bertoncello decided to pull them over for driving without a front licence plate.
Once Constable Bertoncello had engaged his flashers and pulled right up behind the car, he noticed the plates were from Alberta and consequently it was legal to not have a front plate. He told the trial judge that the other cars on the road had seen him put his lights on, and the public appreciation for the “integrity for police” required him to stop the car.
Once he had stopped the car, he asked Harrison for his licence, registration and insurance; Harrison couldn’t find his licence, and the officer eventually ran a CPIC scan on both Harrison and Friesen. It turned up that Harrison’s licence was suspended, and Constable Bertoncello arrested him on that basis. He went further, however, and searched the car as an incident to the arrest, purportedly because Harrison “identified himself properly in the search for a driver’s licence, which I believe could be contained within the motor vehicle.” Before searching the vehicle, however, he repeatedly asked both Harrison and Friesen if they had either drugs or weapons in the car.
Sean Friesen was acquitted at trial because his name wasn’t on the rental agreement and there was no evidence to show he had control over the boxes. The trial judge decided that Constable Bertoncello had arbitrarily detained Harrison and Friesen when he pulled them over in the first place. He also decided that the search of the vehicle after arrest was unreasonable. The test for including evidence obtained through Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“], breaches is found in s. 24(2) of the Charter, and governed by the test first set down in R v Collins,  1 S.C.R. 265 [“Collins“]. After conducting the test, the trial judge concluded that though the Charter breaches were “extremely serious” they “pale in comparison to the criminality involved” of trafficking cocaine, and therefore admitted the evidence.
The trial judge convicted Harrison, and sentenced him to five years incarceration.
The Court of Appeal Decision
Harrison appealed only the conviction, and did so on three points of law: the evidence issue and two others. The Court of Appeal was unanimous in dismissing the two other grounds of appeal, and it is therefore unlikely that they will be discussed before the Supreme Court of Canada.
There was no question that Harrison’s s. 8 and s. 9 Charter rights were infringed by Constable Bertoncello. The majority, authored by O’Connor A.C.J.O., proceeded through the three prongs of the Collins analysis. The ultimate question is whether admission of the evidence would bring the administration of justice into disrepute. To answer that question, the court asks three sub-questions: (1) does the evidence affect trial fairness; (2) how serious was the Charter breach; and (3) would the exclusion of the evidence have a negative impact on the administration of justice. Justice O’Connor stressed that despite being a question of law, the admissibility of evidence under s. 24(2) is subject to considerable deference by appellate courts.
It was not contested by any party, or by the dissenting judge, that the evidence did not affect trial fairness. It was not conscripted from the defendant, merely obtained through police conduct in violation of the Charter.
Justice O’Connor agreed with the trial judge’s condemnation of the officer’s conduct. The officer’s explanation for stopping the vehicle was “contrived” and his conduct was “brazen and flagrant;” also the stated purpose of the search was not reasonable and “not conducted in good faith.” Despite these harsh words, however, Justice O’Connor and the trial judge both found that the Charter breaches were not “within the most egregious category of Charter breaches.” In making this conclusion, they point to the fact that the Charter breaches were likely not premeditated by the officer, nor part of a systemic pattern of Charter breaches. They also state that the effect of the Charter breaches were relatively minor: Harrison was detained on the roadside for fifteen minutes and the search “was of a car, nothing more” (i.e. as opposed to one’s person, house or office.)
Finally, the exclusion of the evidence, in the opinion of Justice O’Connor, could reasonably be seen to more negatively impact the reputation of the administration of justice than its admission. In coming to this conclusion, he pointed to the centrality of the evidence to the Crown’s case (and the lack of a case without the evidence), the obvious criminality of possession of that evidence, and the actual quantum of drugs in the possession of Harrison.
Justice O’Connor and the trial judge both went to great lengths to condemn the police officer’s conduct in this case; they did not wish to be interpreted as placing a “judicial condonation” on that sort of behaviour. Justice O’Connor also highlighted the fact that s. 24(2) is not intended to be a tool to censure police misconduct but instead serves multiple purposes, and that police misconduct is therefore not sufficient in itself to warrant the exclusion of evidence.
Despite words to the contrary, it was the position of Justice Cronk that any course of action other than excluding the evidence is an effective judicial condonation of the police misconduct at issue in this case.
She agreed with the majority on the first branch of the Collins test: i.e. trial fairness was not affected by the Charter breach. It was on the final two points where the OCA split.
Whereas the majority state clearly that they recognize the seriousness of the Charter breaches, Justice Cronk insists that one cannot recognize the seriousness of Charter breaches by mere words in a judgment and then go on to allow those breaches to adduce inculpatory evidence. She also dispensed with the factors the majority pointed to when highlighting the relatively non-serious nature of the Charter breaches. On the contrary, she argued, the trial judge made numerous and extensive findings that the Charter breaches were extremely serious. She also refused to accept the position that merely because a police officer’s actions are not systemic that therefore reduces their impact to negligibility: a single police officer severely breaching Charter is, at the end of the day, still severely breaching Charter rights.
The crux of the disagreement, however, rests in the final stage of the Collins analysis. The difference in opinion between the majority and Justice Cronk on the second factor is merely one of degree. She parts ways entirely on the third factor. While Justice O’Connor and the trial judge, she writes, were right to highlight the criminality of trafficking in cocaine, it is merely one factor of many. To treat it as conclusive, as the trial judge did, is a mistake. Justice Iacobucci wrote in Collins:
I underscore that we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2).
Using the criminality of an offence as the determinative factor would lead to the unsavoury conclusion that those accused of serious crimes simply do not have the full protection of the Charter.
Instead, the police conduct should be the overriding factor in third prong of the Collins test, which she eloquently sums up in the following two paragraphs:
My colleagues write that the admission of evidence where there has been a Charter breach should not be viewed, by itself, as a condonation by the court of the Charter breach. I agree that inherent to the third stage of the Collins analysis is the possibility that unlawfully obtained evidence may be admitted notwithstanding a Charter violation. Thus, for example, if evidence is obtained as the result of inadvertent or inconsequential Charter breaches or when the police acted in good faith, its admission may be justified.
But when a court is faced with evidence that was gathered by the police in deliberate and serious violation of their constitutional obligations, the admissibility scales may tip the other way. The claim that a police officer’s intentional constitutional misconduct has been condemned, rather than condoned, by the courts rings hollow when evidence deliberately obtained in serious violation of an accused’s Charter rights is relied on to secure a conviction.
Supreme Court of Canada
The SCC will certainly have important issues in front of them. There is an unmistakable trend in favour of “law and order” politics on Parliament Hill. The views of the community form the core of the s. 24(2) analysis. This case will determine the extent to which the police can egregiously infringe the rights of citizens, when doing so is in the context of the prosecution of a serious crime. It will also be a good opportunity to discuss the proper amount of curial deference owed to a trial judge on s. 24(2) matters.
It should be remembered that, while as has been stated above, s. 24(2) is not a remedy for police misconduct, only police misconduct which uncovers criminal behaviour will lead to charges being laid. Unconstitutional police misconduct where, say, no drugs are found, go unchecked.
While the majority of the Court of Appeal raise many salient points, it is, in my opinion, unnerving the degree of leniency they allow to the police. It is difficult to imagine more severe breaches of Charter rights, short of those which are actual criminal offences on the part of the police (assaults, beatings, and unwarranted destruction of property.)
[Editor’s note: the SCC has since rendered its judgement on this case in R v Harrison,  2 SCR 494.]