“Excluding Evidence or Upholding Convictions? The Fine Line in R v Tim

Featured in Robson Crim
Sep 16
6 min read

Authors: KB and GS

S. 24(2) of the Canadian Charter of Rights and Freedoms is designed to allow for courts to exclude evidence that is obtained illegally and is a fundamental violation of a citizen's rights. However, R v Tim, a 2022 SCC case involving the validity of a conducted search, blurs the line on this right in some lenses.^[1] Although there was an admission of an illegal search, the SCC ruled to uphold the conviction regardless, as the violation was not done in a reckless manner.^[2] This brings up an interesting dilemma: while there is a standard for including an illegal search in convictions, the Court allowed further exceptions that may serve society’s interest in addressing crime. However, this allowance may also lead to adverse consequences.

Facts

The accused, Mr. Sokha Tim, hit a roadside sign and continued to drive for one kilometre until the car broke down.^[3] When police arrived on scene, they asked the accused for identification documents. When the accused opened his door, the officer saw an attempt to hide a ziplock bag with the pill gabapentin.^[4] The officer correctly recognized the pill but mistakenly believed it to be a controlled substance. This mistaken assumption is referred to as a mistake of law.^[5] The accused was immediately arrested for possession of a controlled substance.

After the arrest, police undertook four searches of the accused.^[6] They initially conducted a pat down search of the accused and then a car search at the scene. During the car search, the police found fentanyl, other illicit drugs, and ammunition. The police conducted a second pat down search during which, bullets and a loaded handgun fell from the accused’s pants.^[7] The last search was a strip search at the police station where nothing else was found.

Mr. Tim sought to exclude the evidence, claiming that the searches breached his rights under s. 8 and 9 of the Charter.^[8] At trial, the judge concluded that the officer had reasonable and probable grounds to believe that an offence had been committed and therefore the searches were conducive to a lawful arrest. The trial judge found that the officer’s belief was reasonable, as he had experience seeing gabapentin trafficked with other illegal drugs. On appeal, the majority upheld the conviction.^[9]

The Supreme Court’s Decision

The case then came to the Supreme Court to determine if an “arrest of an individual based on a mistake of law and subsequent searches infringed the individual’s rights against arbitrary detention (s. 9) and unreasonable search and seizure (s. 8) guaranteed under the Canadian Charter of Rights and Freedoms, and if so, whether the evidence obtained should be excluded under s. 24(2).”^[10]

The majority decision stated that arrests based on a mistake of law cannot be lawful, as allowing police to make arrests based on their incorrect interpretation of the law would unjustly expand police powers.^[11] This expansion may disincentivize the police from accurately knowing the law they are enforcing. The Court stated that the police had obtained the evidence in a manner that breached the accused’s s. 8 and 9 Charter rights.^[12] The Court determined that the first two searches were a result of a mistake of law, whereas the third and fourth searches were lawful as they were causally connected to the traffic collision and the subsequent weapons offence.

After finding that the police had breached s. 8 and 9, the Court turned to a s. 24(2) analysis to determine the admissibility of the evidence obtained by the Charter breach. The Court stated that s. 24(2) does not create an automatic exclusionary rule and therefore requires determining whether an admission of the evidence would “bring the administration of justice into disrepute.”^[13] Ultimately, the Court found that the evidence should not be excluded under s. 24(2). Jamal J. stated that in an effort to balance all elements of inquiry (which will be discussed later) the Court felt that the admission of the evidence would not bring the administration of justice into disrepute.^[14] The SCC ultimately dismissed the appeal and upheld the conviction.

Analysis

Increasingly admitting evidence due to mistakes of law could be a very dangerous development for the justice system. However, there may be incidents where it is reasonable to admit evidence that was obtained through an illegal search. S. 24(2) of the Charter creates a rule for determining whether evidence obtained in a manner inconsistent with Charter rights should be admitted. The inquiry for s. 24(2) considers the following: 1) the seriousness of the Charter right violating conduct; 2) the impact of the breach on the Charter protected right; and 3) society’s interest in bringing the case up on its merits.^[15] In this case, the SCC appeared to focus on the inexperience of the officer and the classification of his mistake of law as merely inadvertent. While this may be a fair characterization of the breach, this nonetheless creates a grey area in the application of s. 24(2). The question remains, where is the line drawn on what is an inadvertent mistake rather than a serious breach?

S. 24(2) must be applied strictly upon law enforcement by the Canadian courts, as it deals with guaranteed rights for citizens, and the infringement of those rights should not be considered minor in any capacity. While the Court determined the violation in this case was inadvertent and not reckless, applying s. 24(2) in a broad manner that is lenient towards Charter violating conduct undermines the goals of the justice system. While the majority claims the evidence was obtained in relation to a traffic collision investigation, the unlawful search and seizure was in relation to an unrelated suspected crime. Additionally, the Court cited society’s need for truth-seeking in admitting the evidence, but admitting evidence based on a mistake of law – except for in the most egregious cases – will only allow for more opportunities for police to disregard the law and their Charter duties.^[16] Essentially, allowing inadvertent Charter breaches to lead to admissible evidence undermines the goals of the justice system and risks bringing the administration of justice into disrepute.

On a larger scale, this case can be viewed in one of two ways. Firstly, from the perspective of the state and police, it is seen as a win, as they were able to lawfully arrest an individual committing several crimes while preventing them from escaping justice on a technicality and ultimately protecting society. However, through another lens, this case can be seen as an individual’s Charter rights being infringed upon in a manner that perpetuates an existing problem. From this perspective, the justice system is designed with strict requirements and laws regarding searches to ensure that individual rights are not violated. Therefore, a mistake of law by the state's agents should be excluded not only in extreme circumstances, as the rules governing illegal searches are designed to protect individuals, not to assist police in their investigations.

While these are opinions left up to the court’s discretion, there is an existing problem this decision perpetuates. Illegal searches and stops systemically impact racialized communities at a greater rate. A possible interpretation of R v Tim is that it lessens the burden on police officers to accurately know the law they are enforcing, since mistakes of law – as long as they are not reckless – are permitted and can lead to convictions. This may lead to larger infractions by enforcement agents, with these infractions disproportionately impacting racialized communities. In Toronto, a study examining 7,114 searches found that Black people accounted for 22.6% of police enforcement in the area, despite representing only 10% of the city's population.^[17]

Whether these searches are lawful or not, racialized communities face disproportionate police attention. Loosening the standard of s. 24(2) could lead to systemic impacts on the aforementioned communities. This is an important factor to consider given that these safeguards and regulations are designed to protect individuals and be enforced strictly. These systemic issues can lead to a decreased trust in police or the state, which ultimately may bring the administration of the justice system into disrepute, contrary to the intention of s. 24(2). While this may be an extreme example, it is important to consider the impact of relaxing regulations and rights of a society and how it shapes public perception.

Conclusion

R v Tim exemplifies the difficulty in balancing the three inquiries in a s. 24(2) analysis. The Court took a rather loose implementation of the test and ultimately chose to admit evidence that was in clear and arguably egregious violation of an accused’s Charter rights. Additionally, the increasing allowance of mistakes of law may lead to disproportionate harms against racialized communities that are already subject to increased police searches.