The paper draws on the analogy of a possible bad traffic stop to help illustrate a difficult ruling of the Supreme Court of Canada. This paper is about when and where the Grant test maybe in need of a reset. By the SCC own words it does not matter if your Charter rights are violated, they are not vocalized as a subject of limits anymore but to the whims of the Court. "your rights were infringed but its ok you can handle it"
Introduction:
R v Zacharias [2023] was a Supreme Court of Canada decision that raised issues of illegal search and seizure, and unlawful arrest. Zacharias was charged with a drug trafficking offence, after a highway traffic violation that subsequently led to the discovery of a large amount of marijuana in his vehicle. At the trial of first instance, Zacharias challenged his detainment under section 9 and claimed that his vehicle was unlawfully searched offending section 8 of the Charter of Rights and Freedoms (here after referred to as the Charter). These issues made their way to the Supreme Court of Canada. The Court was placed in the position to decide if an initial breach of the Charter led to additional consequential breaches that occurred to the point where all the evidence obtained was to be excluded under section 24(2) of the Charter. This paper will first look at the (3-2) Supreme Court of Canada majority decision in Zacharias, upholding the conviction, choosing not to exclude the evidence. Specifically, this paper will examine the courts analysis of inclusion under the Grant test. This paper will illustrate how this decision may affect future cases involving similar Charter challenges. From this perspective this paper will conclude that the Supreme Courts ruling in Zacharias was ‘bad law’.
The Supreme Court of Canada without considering the suspicious character of the traffic stop, began their analysis of the Charter breaches and section 24(2) after the initial stop took place. The police officers’ reason for stopping Zacharias vehicle was for a simple routine traffic stop, specifically, “a broken taillight and illegal dark tinted windows on his truck”[1]. This stop began the cascade of events (more or less equivalent to something seen on a Dukes of Hazzard episode that would be initiated by Boss Hogg). How hard is it for a police officer to make up a story, that the tint on a car is too dark or a taillight is broken for being the reason for the initial detainment[2]? The possibility of a state actor too easily finding a way to circumvent a Charter right 'ought' to be of concern, in any case. But, as we will see, in the Supreme Court of Canada ultimate analysis, this was overlooked ( the SCC does not have to limit itself with only the issues of fact before it made by council).
The relevancy of mentioning the traffic stop defines what ‘ought’ to be involved in a consideration of all the circumstances of the case when sec 24 2 analysis is concerned. It relates to the time at which law enforcement became genuinely suspicious of a crime being committed. This, 'ought' to raise the specter of suspicion regarding law enforcements subjective intent (luck not being ruled out but highly unprobeable). Potentially the police may have chosen to initiate their investigation of Zacharias using the HTA. A question of the officer’s honesty and integrity. In this case the police officer stipulated that 'he had his suspicions of drug trafficking only after the initial stop took place not before'. These suspicions only manifested after he interacted with Zacharias finding his demeanour to be nervous and a strong smell of marijuana emanating from the vehicle. Then after quick police data base check of the persons name, 'it came back with an unconfirmed note of him being a suspected drug trafficker'. All of these circumstances led the officer to formulate subjectively that of the possibility that the accused was in possession of drugs.
When are the police to become suspicious? This can happen at anytime but must be reasonable in inference given the circumstances. As expressed by the majority of the court in Zacharias, affirming R v Fearon (1998), the police must think fast and secure evidence[3]. What is obvious is that the police officer became suspicious of drugs in the vehicle at some point. In thinking that drugs were likely being transported, he placed Zacharias under investigative detainment beginning a warrantless search of his person and after a sniffer dog was called then his vehicle was searched. Each level of court noted that 'this was a wrong decision made by the police officer and that obtaining warrant prior to the dog sniffer would have been the correct course of action'. The Charter challenge was based on the actions consequential of the initial detainment then the warrantless searches. At the trial of first instance, the Judge threw out the evidence under section 24(2) of the Charter believing that the police officer did not have the requisite reasonable and probable grounds( no longer referred to as this) to start a sniffer search. That initial suspicion, was found to be primarily based on information regarding Zacharias’s possible involvement in drug trafficking obtained by the police officer after completing a data base name search[4]. The trial Judge found that this was mere unfounded suspicion. The data base search revealed that the source of 'Zacharias involvement was unsubstantiated'. Had the police officer been successful in obtaining a warrant to search Zacharias vehicle the subsequent breaches of the Charter would not have happened. Further it is unknown how much time there was between when Zacharias was stopped before he was placed under investigative detainment[5]. If State actors are allowed to use the excuse of a routine highway traffic stop while having other motives for the stop then it is the Supreme Courts job to send the correct signal to the police that this will not be tolerated
A warrant in this case would have ultimately revealed the same outcome. The initial investigative detainment of Zacharias was for the purposes of a sniffer dog search. According to the Supreme Court this was "the officer’s miscalculation in assessing the grounds for suspicion"[6]. The Court classified it as "a miscalculation"[7], which sounds as the court clearly discribing it as not worthy of mentioning[8]. The Court 'ought' not play any part in condoning of Charter breaches. This initial mistake by the officer, 'ought' make any consequential actions of the police unlawful. The “fruits of poisonous tree” is a principle commonly invoked in the United States. Basically, the State cannot use any evidence that was obtained illegally at any stage of the police investigation, as a rsult of an unconsitutional searce or seizer. The importance of the s.24(2) as a remedy to a Charter breach is paramount in this case. Without the ability of the drugs being adduced as evidence the entire case for the crown would fall apart. As Justice Cote properly placed it, that and evaluation ought to be made of the initial breach in relation to a section 24(2) analysis. Under the Grant test is then used to consider the excludion of that evidence under section 24(2) for the Charter breach [9]. Further, she stated that we are not to confuse a Charter breach as additional misconduct of the police. Under the Grant test a Charter breach is not misconduct, according to Justice Cote and therefore is not to be seen as such for the purposes of the Grant test. This begs the question then is not an unlawful search and arrest minimizing the value of a Charter breach?
There is a standard that the police must meet of subjectivity and objectivity; to classify as having ‘reasonable grounds’ to conduct a search. The common law precluded warrantless arrests that were not misdemeanors, otherwise a warrant must be produced unless the search is incidental to an arrest. The Court in R v Caslake (1998) defined when a search “that is justified, that is incidental to an arrest or an equivalent detainment”[10]. As it was in this case, the police officer must have the requisite mindset prior to the detainment. Chief Justice Lamer here stated in Caslake that the Court, “cannot characterize a search as being incidental to an arrest when the officer is actually acting for the purposes unrelated to the arrest”[11]. This helps illustrate the uphill battle of defence council that the police officer formulated his subjective intent before the initial traffic stop[12]. To argue that the traffic stop was entirely motivated by the officer’s mindset of wanting to search the vehicle? The Supreme Court did not agree with the trial judges analysis for exclusion; that it was possible that the officer was on a fishing expedition from the beginning[13]. The officer's claim that 'the smell of marijuana could just as easily be fabricated as was the HTA stop'[14]. There is also an objective side to this analysis as to what a reasonable person in the circumstance of the police officer would do. This at the trial of first instance, the judge found that there was no credibility-based probability just mere suspicion-based possibility that occurred after the police data base search[15].
Both sections 8 and 9 of the Charter seem to invoke a strong wording. Showing a strong intension of its drafters to make Charter rights very difficult for the State to intrude on. According to Justices Rowe and O’Bonsawin: “In the instant case, the state cannot rely on the evidence unlawfully obtained from the sniffer dog search to satisfy the reasonable and probable grounds requirement for Z’s subsequent arrests.”[17] The Grant test is employed to see if the State ought not be able to rely on evidence obtained in this manner. The Court began their analysis considering the circumstances from the time that the officer was first suspicious after the HTA stop not before. What tipped the scale for the majority, in favor of the evidence being admissible, was their overall analysis; determining a remedy under section 24(2). In their finding the third part of the grant test analysis outweighed consideration of the first two.
Regardless of finding breaches in the Charter their still must be a determination made under section 24(2) of the Charter whether to exclude the evidence or not[18]. Any evidence obtained from the infringement may then be excluded according to section 24(2) based on a grant test analysis. “Where, in proceedings, a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”[19]. So, having regard to all of the circumstance of a particular case is an important factor in the analysis where each case must be examined in its entirely. According to R v Burlingham (1995), a murder case where the accused right to counsel was violated; the Court found that despite the infringement of the right to counsel under 10 (b) of the Charter the evidence was still admissible because it did not create any unfairness at trial or in other wordsit did not prejudice the accused[20]. The old three-part Collins test, R v Collins (1987,) was predicated on (in the section 24(2) analysis) as to what constituted fairness in a trial. The consideration was that a court could not allow an unfair trial to proceed.
In R v Collins the Court found that a police officer did not have reasonable grounds to conduct a search[21]. There was a brief reaffirmation of the Collins test in R v Stillman in 1997 involving the connection of fairness and the right against self incrimination[22]. Now, in Grant, the Court comprised a three-part test that is not far from the initial Collins test:
“Considerations of the seriousness of the Charter-infringing state conduct. the impact of that breach on the Charter-protected interests of the accused, and society’s interest in the adjudication of the case on its merits.”[23]. When the majority of the Court in R v Zacharias, applied the Grant test they found in favor of the inclusion of the evidence. The first part of the analysis concluded that the initial breach was not serious, but inadvertent and innocent. This means that the police officer did not mean to make the mistake of not obtaining a warrant prior to the detainment, that it was not purposeful. The Court found it to be ‘honest’ in so far that he believed that he was doing no wrong. So, this part of the analysis did not support exclusion of evidence. The second part concluded that the initial breach was minimal. That the detainment of Zacharias for the sniffer dog search was not significant enough, while that the arrest after the sniffer dog was more of a breach of the accused rights which lead to an exclusion of evidence. The final part to of the test lead to inclusion of evidence because the public has a high degree of interest in prosecuting drug dealing. The first two parts of the test did not out weigh the consideration of the third therefore, the appeal was dismissed.
These conclusions of the Court seem weak. Finding that the police officer is excused for their actions because of an honest mistake diminishes the strength of the wording of sections 8 and 9 of the Charter. Then finding that several hours of detention following the minimal detention prior to the sniffer dog’s arrival trivial in comparison to the totality of events; places no consideration of the implication of the Courts ruling to that of the true publics interest. The purpose of the criminal code in stopping the traffic of narcotics is sound but the Courts cannot allow the State to get there by any means necessary. It seems implausible that Zacharias ever had a chance in the appeal in the first place when the Grant test is implemented because there seemed to be an overwhelming priority placed on the third part of the test. It would be common sense to include in the Grant test analysis the true interest of the public; that they need protection of their rights above the interests of a few bad individuals in society[24]. Decisions made by a police officer whether they are considered as minor mistakes or minor incursions on individual rights (civil liberties) cannot be the foundation to limit Charter rights and values.
What is even more striking about the Court decision is Justice Cote’s concurring decision. Justice Cote’s agreed with the majority that sections 8 and 9 were breached, that they were only minor breaches and that therefore did not constitute enough of a breach to exclude the evidence[25]. The majority agreed that the subjective belief of the officer was a valid one. But in this analysis of the officer’s subjective belief Justice Cote went out on a lime it seems. She set herself apart from all of the justices claiming that the fact that they found drugs did constitute justification for the police officer’s subjective requirement. According to Justice Cote,
“In the instant case, all police conduct subsequent to the sniff search was based on an intervening discovery of incriminating evidence. The focus of the first Grant factor is on misconduct from which the court should be concerned to dissociate itself. An arrest made on the basis of clear and reliable evidence of a crime is not misconduct from which the court should be concerned to dissociate itself. To hold otherwise artificially distorts the s. 24(2) analysis and represents a shift towards automatic exclusionary rules that have been rejected. The trial judge correctly characterized the arresting officer’s failure to meet the reasonable suspicion standard as miniscule. That conduct only weakly favours exclusion; its impact on Z was moderate; and the evidence is highly reliable and integral to the Crown’s case. On balance, the drug evidence should not be excluded and Z’s conviction should be upheld.”[26]
Thus, because the drugs were found then the Court ought not concern itself with the initial conduct of the police officer. Justice Cote suggests that these types ion inconsequential infringements will never survive a Grant analysis in favor of exclusion. It is good enough that the drugs were found validating the officer’s subjective intent[27].
What is even more striking, relate to consequential breaches of the Charter. In Her judgment she stated that the “proposition that the state cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest is difficult to reconcile with the longstanding s. 24(2) Charter jurisprudence and the framework for warrantless arrests set out in R. v. Storrey [1990] 1 S.C.R. 241”[28]. The Court ought not to assume that because drugs were found validate the subjective mind of the suspicions of the officer to a state more than mere suspicion. Again, it sounds as Justice Cote is stating that the Grant test need not even have to be considered in this case. The majority, including Justice Cote, found that without other misconduct by the police the admission of evidence under the Grant test in this case boils down to the overwhelming consideration that to exclude evidence would be too much a hinderance on the crown case. In comparison Justice Cote is talking outside of the Grant test stating that even if the evidence was found to be obtained unlawfully that the Court would be right to still include that evidence. She first found the officers subjective intent to be sound which leads use to believe the objective test would also be met. Then after conducting the Grant test analysis concludes in the same manner as the other two Justices in the majority, goes on to conclude that even if the Grant test might have pointed to the exclusion of evidence that this too would be wrong.
The majority f the Court found that the first two factors of the Grant test did not outweigh the third. The third was that the evidence was crucial to the crowns case. The second consideration under the Grant test was a consideration as to the impact on the accused. They found that there was only a small intrusion[29]. The entire idea is that the State ought not to detain a person based on a hunch seemed to be lost in this part of the analysis. The first consideration under the Grant test found that the police made their mistake but not on purpose. Then when the police make honest mistakes Charter rights can just disappear? The problem is that when analysis is conducted that does not consider the implications of society beyond the third test. The moral worth of this case represents more than just punishing the drug trafficker. The police in this case seized the drugs and it is not as if they are giving the drugs back whether the person is convicted or not. So, what of the greater picture that this decision represents. When a Charter right is invoked by bad people the public response is easily to the effect ‘no protections for them’. It seems as if the two dissenting Justices may have picked up on this concern as did the initial trial Judge. According to Justice Martin and Kasirier:
“In fairness to the trial judge, we recognize that the additional breaches identified by Khullar J.A. and by this Court were not before her. However, the trial judge identified a breach of Mr. Zacharias’s s. 9 right, resulting from an unlawful investigative detention, and erred in law by not considering this breach within her s. 24(2) analysis. This approach is incompatible with the legal principles this Court articulated in Grant. All state conduct that undermines the rule of law by violating the Charter must be subject to proper judicial scrutiny under all three branches of that test. In our respectful view, our colleagues carry this error forward when they conclude that consequential breaches are unlikely to increase the overall seriousness of Charter-infringing state conduct unless those breaches reflect a “pattern” of misconduct or an “independent” wrong. Less exclusionary weight should not be attached to a breach in respect of any of the branches of the Grant test merely because a court has determined that it was “consequential” to another, earlier breach”[30].
It looks as if the dissenting Justices saw a bigger picture to the degree of the initial trial judges.’ The dissenting view elaborates the importance that proper weighting must be placed on the initial breach. The contrast with the majority, especially Justice Cote represents a higher weighting being placed on the officers’ actions above mere misconduct. The dissent went on to add that every breach of the Charter undermines the rule of law, regardless of the order that they took place in. In determining a section 24(2) analysis, under the Grant test there is an understanding of a grander picture as it relates to looking at the entirety of the circumstances. Those circumstances which must be considered in the rule of law must include a societal effect outside the effects of the crowns case.
Someone has to put the genie back in the bottle. It seems that an easy inference is drawn from the majorities reasoning that the police can simply pull over anyone whom they think and make up an easily prepared excuse for doing so. The question remains then, do we want the State to have this power[31]? What societal interest is served if the dog found no drugs but a box of toys? One cannot help but see the problem here that the people of Canada while they need police to catch the bad guys they don't need to be detained at the side of the road and have their property searched just because a police officer thinks something up. The importance of the rights under the Charter were articulated in the dissenting view of the two Justices:
“In this case, the conclusion that Mr. Zacharias’s Charter rights were breached cannot in itself compel exclusion — but neither can the existence of real, reliable and crucial evidence compel inclusion. Rather, as s. 24(2) of the Charter itself makes plain,
“all the circumstances” are relevant and must be considered at each stage of the test in Grant. Taking into account the seriousness of all of the state conduct that violated s. 8 and s. 9 of the Charter, the impact of that conduct on the accused and society’s interest in proceeding to trial on the merits, we conclude that the administration of justice would be brought into disrepute by admitting the evidence. For that reason, it must be excluded”.[32]
It seems that the Justices believe that the Grant test itself is not flawed but it must include a consideration of the greater interests of the public at large. The Justices seem to recognizing that to allow this one case to proceed to trial would be a mistake because it opens up granting too much power of State interference with the person (a pandora box). A premise that must have been considered is that the State ought never have too much power as the threat or potential threat of abuse of that power outweighs anything else.
Let's examine Justice Cote's and the majorities opinion further. The need for a police officer to act fast in their investigation was never an issue in this case. If there is no need to act fast why would the majority see the officers’ actions as honest bear any weight in assessment of proper conduct; either it was objectively wrong or right[33]. The idea might have been grounded on the decision in R v Fearon (2014) where the court recognized the need for police to act fast to secure evidence in their investigations as it relates to obtaining a search warrant prior to conducting a search[34]. The majority in Zacharias might have thought that the officer was so concerned with acting to secure the drugs or acting so validly in their actions that a few mistakes along the way are excusable. If we accept this then we accept that the majority was intending to send police the signal that if you genuinely believe that you are doing the right thing then we will not hold it against you. Problematically, Justice Cote’s remarks can be construed as meaning no matter how the drugs were found the drug dealers won’t get off on a technicality. For the drug dealers this was a bad ruling but for everyone else who is stopped detained and no drugs are found then we have a problem with sending such a signal by the Court. This is in direct conflict with the two dissenting views regarding the importance of the first part of the Grant test regarding the importance of the rule of law.
“The first line of inquiry mandated by Grant flows from the concern “to preserve public confidence in the rule of law and its processes” (para. 73). Commentators have rightly observed that this “condonation theory” relating to the rule of law is the “key concept” that drives the law in relation to s. 24(2) (D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 469; see also H. Parent, Traité de droit criminel, vol. IV, Les garanties juridiques (2nd ed. 2021), at para. 584). This point is settled in our jurisprudence: seriousness is to be evaluated based on “the extent to which the state conduct at issue deviates from the rule of law” (R. v. McColman, 2023 SCC 8, at para. 57, citing Grant and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22)”[35]).
For the public to be confident in their Constitution and by extension the judicial system, the Court must protect those rights and not condone State conduct that breaches them. The point is that without extenuating the charge of drug trafficking, it might have been better that this case had not made it to trial. The Supreme Court was put into a situation where it would be wrong for the accused to go free, if not just for the accused (appellant in this issue) shier stupidity, while trying to balance the protection of Charter rights. It was clear that the officer’s intentions were just while at the same time the initial actions of the police officer, that include the HTA stop, were very suspect and weighted into the analysis. If the Grant test was weighted correctly as the two dissenting Judges did then the evidence ought to have been excluded.
Conclusion:
This paper disagrees with the way the Supreme Court came to their decision in R v Zacarias. A dangerous president was set, while the Court ultimately came to the overall moral correct conclusion not to overturn the conviction. The Court incorrectly expanded police intrusive powers and policy concerns at the expense of burdening the rights under sections 8 and 9 of the Charter, thus eviscerating rights. The idea that the public is better served by placing a few bad people in jail over the rights of the rest of us is ultimately the Courts justification. The Court purposely “caved in” providing no consideration that police will have more of an incentive to come up with better excuses for being more intrusive on individual privacy; possibly the Grant test must be revisited for this reason as being a death blow to the doctrine of reasonable grounds itself. This ultimately will give way to more not less intrusion of the State. By classifying the actions of the officer as minor infringements and the intrusive actions of the State as simple honest mistakes cannot warrant justification nor can Justice Cote’s remarks that analogize the Grant test to ‘fruits of the poisons tree doctrine. A mistake in analysis might be imbedded in the Grant test itself or how it is better used or understood. This may mean that the Court must clarify how they are bound to one proper consideration exclusively, the majority could have and ought to have made their calculations of the Grant test uniformly and it appears that the dissenting Justices did it correctly. Or the Grant test itself is too broad a test allowing the Court to justify a predetermined outcome. At the same time, The Supreme Court was hard pressed to come up with a good decision in this case because of the obvious guilt of the accused. If there was at common law or by creation of statue such a law stipulating clearly that if you are stupid enough to a) drive with an improper plate and dark tinted windows, b) transport large amount of drugs on a highway that is known as a ‘drug corridor’ and c) if you are known by police as a suspected drug trafficker and get caught with so much marijuana that without a sniffer dog anyone can smell it; automatic jail sentence is imposed for 35 years with no possibility of parole, things would be so much easier (hopefully we were missing four Justices in this ruling for a reason).
[1] R v Zacharias [2023]
[2] This not to say that there was not a broken tail light or that the tint in the car was not too dark, but the purpose in asking this question as to the reality or truthfulness in the officers’ reasons for the initial encounter (the subjective intent) are not easily challenged and law enforcement knows this. It seemed as if the initial trial Judge may have seen this and in their assessment of the circumstances excluded the evidence
[3] R v Fearon [1998] the Court clearly recognized the need for the police to secure evidence as fast as possible in their investigations.
[4] R v Zacharias [2023] the Supreme Court notes that the trial Judge based their conclusions on the Police officers subjective mind was moved by the information on the police data base that showed Mr. Zacharias was under the suspicion of being a drug trafficker. It is easy is it for the State to store information on their data bases that are either false or subjective in nature.
[5] It is possible that the police officer stopped him ran his licence plate and immediately soon after placed him under arrest and Zacharias had no time to do anything such as throw his keys in the car, lock the door and tell the police officer to get a warrant. This would have changed the events.
[6] Ibid
[7] Ibid
[8] R v Zacharias [2023]
[9] R v Grant [2009]
[10] R v Caslake [1998]
[11] R v Caslake [1998] page 415 book
[12] The police officer did not place Zacharias under arrest – the detainment for the sniffer dog search until after the traffic stop
[13] Similar to the dissenting Court of Appeal Justice
[14] For a good example of another suspicious case before the SCC was R v McColman [2016]. It is hard to believe that the police officers in this case were suspicious of the driver of the ATV that he was drunk before the went to his house.
[15] R v Zacharias [2023]
[16] R v Oaks [1986]
[17] R v Zacharias [2023]
[18] Separating the process from that of the US counterpart, “fruits f the poisons tree”
[19] Ibid.
[20] R v Burlingham [1995]. Here the Crown sought to induce all of the evidence.
[21] Here a search had to be reasonable and fit a three-part test for this reasonableness. The issue here is tht it had to be more than mere suspicion for a search to be conducted.
[22] Law enforcement if search is incidental to arrest require a low threshold to search an individual or their property.
[23] R v Grant [2009]. Para 71
[24] Ibid, “Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective”. The idea is to carry the view on how the Court is looked upon and how it looks upon itself by admitting evidence that was obtained unlawfully given everything that happened in the course of obtaining the evidence. So, Breaches of the Charter are on aspect and another is whether the Court basically look bad. This is by an objective standard.
[25] R v Zacharias [2009]
[26] Ibid
[27] R v Grant [2006] “When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system” Keep in mind this is an objective standard as well. So the confidence in the Judicial system in the eyes of the public would concern the public own view of their own protection under the Charter.
[28] Ibid
[29] R v Zacharias [2023]
[30] Ibid, para 108
[31] Again, this is supposed to be part of the Grant analysis as noted above.
[32] Ibid
[33] The Court placed this as impacting subjectivity of officers actions but how can this be differentiated from a well rehearsed excuse?
[34] R v Fearon [2014]
[35] R v Zacharias [2009]
Comments