The Supreme Court of Canada has ruled that when a minor violation of a suspect’s constitutional rights leads to several subsequent violations, the sequence should be treated as minor by judges conducting criminal trials.
That principle could make it easier for prosecutors to use evidence illegally obtained by police. Yet the ultimate consequences are difficult to assess, because the court sat with just five judges who split in different ways on different legal points, making it hard to know which principle will influence police, prosecutors and judges.
Under the Charter of Rights and Freedoms, evidence that is unlawfully obtained may still be used in a trial – but only if a judge decides that excluding it would cause more harm than including it. Rights violations treated as minor often result in unlawful evidence being permitted to be heard, especially when the alleged offence is a serious one.
The Charter’s approach is different than that of the U.S. Constitution, which excludes most unlawfully obtained evidence. U.S. courts have declined to accept “fruits of the poisonous tree” – evidence linked to an initial breach of a suspect’s rights.
The case before the Supreme Court involved George Zacharias, who was driving near Banff, Alta., in 2017, when he was pulled over by a Mountie specializing in intercepting criminals on highways. A light was burnt out on Mr. Zacharias’s truck and he had illegally tinted windows. A veteran officer who teaches other officers how to conduct roadside searches noticed Mr. Zacharias was nervous, his truck held a large amount of luggage, and it had a commercial-quality cover over the truck box.
The officer contacted a police information centre and learned that in 2014, police received a tip of unknown reliability linking him to the drug trade. The officer then placed Mr. Zacharias in investigative detention and called for a drug-sniffing dog. The dog indicated the presence of drugs. The officer then did a search, and found more than 100 pounds of cannabis, and $12,600 in cash. Mr. Zacharias was arrested, charged and detained in a lockup for several hours before being released.
At Mr. Zacharias’s trial, a judge said the officer did not meet the legal standard of “reasonable suspicion” to call in the sniffer dog or detain Mr. Zacharias to investigate. But it was not far from the legal standard, the judge said, and any breach was inadvertent. The judge therefore allowed the evidence to be used, and convicted Mr. Zacharias of possession for the purpose of trafficking. The Alberta Court of Appeal upheld the conviction 2-1. The dissent gave Mr. Zacharias an automatic right of appeal to the Supreme Court.
The Supreme Court upheld the conviction by a 3-2 margin. The court sometimes sits with just five judges in automatic appeals. Mr. Zacharias had been sentenced to 14 months and served his time before the case reached the top court.
The difference between the majority and minority came down largely to their view of whether the police violations of Mr. Zacharias’s rights were cumulative, and therefore serious, or simply an inevitable result of the first, and minor, breach of his rights. (The majority called this a “consequential breach,” meaning that each violation came as a consequence of the previous one.)
Without additional police misconduct, “the focal point for evaluating seriousness is likely to remain the initial breach,” Justice Malcolm Rowe and Justice Michelle O’Bonsawin wrote in upholding the conviction. A third judge, Justice Suzanne Côté, upheld the conviction but wrote a separate set of reasons explaining why.
The dissenters said Justice Rowe and Justice O’Bonsawin were rejecting “settled law.” Justice Sheilah Martin and Justice Nicholas Kasirer said the evidence should have been thrown out because the rights violations after the initial one were serious. They would have acquitted Mr. Zacharias.
“Far from being unremarkable events, police officers conducted a series of increasingly invasive searches, arrests and detentions in the absence of lawful authority. There is a strong social interest in denouncing a course of conduct that disregards both individual privacy and liberty, thereby undermining the rule of law,” Justice Martin and Justice Kasirer wrote.
Rob Dhanu, who represented Mr. Zacharias, said the ruling was largely positive, in part because four judges (everyone but Justice Côté) had agreed that evidence obtained unlawfully had to be excised, or cut away, before a judge decided whether an arrest was lawful.
Criminal-defence lawyers who were not directly involved in the case had a range of reactions.
“I’m not even sure I understand what to take away from this,” said Boris Bytensky, president of the Criminal Lawyers’ Association. He added that some of the language in the majority ruling on the importance of police compliance with the Charter might prove more important than the ultimate result.
Eric Gottardi of Vancouver said the ruling had little value as precedent, because it was tied 2-2 on the issue of “consequential breaches.” Justice Côté did not address this point directly. But the Supreme Court’s own plain-language summary of the ruling said three of the five judges agreed that the additional violations did not add to the seriousness.
Toronto lawyer Frank Addario expressed concern. “The police respond to the incentives that judicial decisions create. If the courts tell them that violating the Constitution is okay if they are enforcing drug laws, they get the message,” he said.