Harrison and his friend were driving a rented SUV from Vancouver to Toronto. In Ontario, a police officer on highway patrol noticed that the vehicle had no front licence plate. Only after activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front licence plate. Even though he had no grounds to believe that any offence was being committed, the officer testified at trial that abandoning the detention might have affected the integrity of the police in the eyes of observers. He arrested the accused after discovering that his driver's licence had been suspended. The officer then proceeded to search the vehicle and found two cardboard boxes containing 35kg of cocaine. On a voir dire, the trial judge held that the initial detention of the accused was premised on a mere hunch or suspicion rather than reasonable grounds and therefore constituted an arbitrary detention, contrary to s.9 of the Charter. He further held that the warrantless search of the vehicle was unreasonable within the meaning of s.8. In the s.24(2) analysis, the trial judge found that the violations were serious and that the officer's explanations for stopping the vehicle defied credibility. However, in view of the seriousness of the offence charged and the importance of the evidence to the Crown's case, he admitted the cocaine into evidence on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission. The Court of Appeal upheld the trial judge's decision to admit the evidence and affirmed the accused's conviction.
- Should the cocaine have been admitted into evidence under s.24(2)?
Appeal allowed, acquittal entered.no
McLachlin, writing for the majority, applied the test set out in Grant. She held that the conduct of the police that led to the Charter breaches represented a blatant disregard for Charter rights, which was further aggravated by the officer's misleading testimony at trial. The deprivation of liberty and privacy represented by the unconstitutional detention and search was a significant, although not egregious, intrusion on the accused's Charter-protected interests. On the other hand, the drugs seized constituted highly reliable evidence tendered on a very serious charge.
On balance, however, she held that the seriousness of the offence and the reliability of the evidence did not outweigh the factors pointing to exclusion; for the courts to appear to condone wilful and flagrant Charter breaches undermines the long-term repute of the administration of justice. The trial judge's reasoning transformed the s.24(2) analysis into a contest between the degree of the police misconduct and the seriousness of the offence, placing undue emphasis on the third section. Because the evidence in question was essential to the Crown's case, Harrison was acquitted. She noted that:
We expect police to adhere to higher standards than alleged criminals . . . . the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards.Deschamps, in the dissent, held that the violation of Harrison's Charter rights was not serious as people driving on the highway can be reasonably expected to be stopped by police, and that excluding the drugs and entering an acquittal would bring more disrepute to the system than admitting it.