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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against unreasonable search and seizure - Remedies for denial of rights

Friday, September 08, 2017 @ 8:41 AM  

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Appeal by the accused from convictions for firearms and drug offences. In a search for stolen firearms and ammunition, police broke into a barn on private property and searched it without a warrant. They seized a cache of firearms and ammunition. After the search, they received information that there were more firearms in the barn hidden behind a false wall. They applied for and obtained a search warrant. They searched again and found firearms, ammunition, cash, and drugs. The trial judge excluded the items found during the warrantless search on the basis that the search was unlawful. The trial judge found the police officers, knowing they were not entitled to do so, conducted a perimeter search of the barn, peered into its windows with flashlights, and then picked a lock to get in. The officers knew they did not have grounds to obtain a warrant. They then searched the building. At no time did the officers contact the Crown prosecutor. With respect to the second search, the trial judge upheld the search warrant as valid. The trial judge found the warrantless search was sufficiently connected to the second search to require an analysis under s. 24(2) of the Canadian Charter of Rights and Freedoms (Charter) in relation to the evidence seized from the second search. After weighing the appropriate factors, he concluded that the evidence seized in the second search was admissible on the basis that society’s interest in adjudication on the merits was the predominant factor.

HELD: Appeal allowed. The trial judge erred in law with respect to the s. 24(2) analysis by impermissibly diminishing the seriousness of the Charter breach and his conclusion was unreasonable. The investigative process was tainted by police misconduct. The fact that the issuing judge was told about the illegal entry into the barn did not impact the seriousness of the breach. The trial judge’s reasons did not mention that the disclosure in the information to obtain (ITO) was not full and frank. For police to rely on an after-the-fact acknowledgement of wrongdoing as a way to diminish the seriousness of a breach, and thereby achieve admission of the evidence, would give the police a licence to engage in misconduct and render the Charter’s protection meaningless. The trial judge also failed to take into account several other factors, including the following: the officers knew what they were doing was illegal; the officers did not speak to the prosecutor assigned to the case; the warrantless search and seizure was a series of deliberate breaches involving a perimeter search, a forced entry, and the involvement of officers from two police forces; and the untold number of private properties the police searched before searching the barn property. The trial judge failed to give effect to the systemic nature of the police misconduct. The breaches were deliberate and ongoing and required that the court dissociate itself from such conduct, particularly when the conduct was part of a pattern of abuse. The convictions were quashed and the accused was acquitted on all counts.

R. v. Strauss, [2017] O.J. No. 4084, Ontario Court of Appeal, D. Watt, M.L. Benotto and L.B. Roberts JJ.A., July 31, 2017. Digest No. TLD-Sept42017009