- Robson Crim
Mistakes of Law: Should Evidence be Excluded? - Alec Borger
While we hope that police officers and legal officials thoroughly understand the application of law in their duties, it would be ignorant of us to expect them never to make a mistake. Of course, this is why there are rules for mistakes of law and errors in judgements. This blog will specifically focus on mistakes of law relating to evidence obtained in a way that infringes on Charter rights. In such cases, section 24(2) of the Charter is activated in order to determine whether or not evidence obtained in a way that infringed on an accused’s Charter rights is admissible. In the recently decided case R v Tim, the Supreme Court of Canada (SCC) majority ruled that while the appellant’s (Tim) s. 8 and s. 9 Charter rights were breached by police officers obtaining the evidence, the evidence would still be included as the infringements did not bring the administration of justice into disrepute. As a result, the appeal was dismissed. First, the facts and holding of the Tim case will be summarized, followed by an explanation of the dissenting opinion. Next, I will examine the process of admitting evidence under section 24(2) of the Charter and explain my opinion on the holding of the case. Lastly, I will discuss related jurisprudence and argue that the interpretation of section 24(2) should be more clear-cut in order to ensure public confidence in the system of law.
On October 8, 2016, Sokha Tim hit a road sign in his vehicle and continued driving until his car stopped working. After emergency crews reached the scene, a police officer asked to see his driver’s licence, registration, and proof of insurance, to which he acknowledged. When Tim opened the door of the vehicle, the officer noticed him trying to hide a small ziplock bag containing a pill, which the officer correctly identified to be gabapentin, but incorrectly determined was a controlled substance under the CDSA, and arrested Tim without delay. After the arrest, four separate searches were conducted and revealed two types of ammunition, a loaded handgun, and pills of fentanyl which lead to him being convicted of drug and firearm related charges. There are three main issues that were addressed to reach the ruling: (1) Did the arrest based on a mistake of law infringe on s. 9 of the Charter? (2) Did the four searches infringe on s. 8 of the Charter? (3) If Charter rights were infringed on, should the evidence found be excluded under s. 24(2) of the Charter?Tim appealed to the Court of Appeal of Alberta, which dismissed the appeal with the majority ruling that no breach of s. 8 or s. 9 of the Charter occurred. Tim then appealed to the SCC.
With regard to the first issue, a majority of the SCC concluded that since the officer understood the facts but mistakenly arrested the appellant, it constitutes an unlawful arrest which violates Tim’s s. 9 Charter rights. Next, the majority concluded that of the four searches, the initial search of the person and search of the vehicle were invalid because the arrest was deemed unlawful, therefore the first two searches violated the appellant’s s. 8 Charter rights. As for the final issue, the majority found that although all the evidence was obtained in a manner that infringed on the appellant’s Charter rights, it would not bring the administration of justice into disrepute, and should be admitted. As a result, the appeal was dismissed.
Justice Brown accepted the majority’s conclusions about the Charter infringements, but disagreed with the application of the facts to section 24(2) of the Charter. He believed that the officer did not act in good faith and made no effort to investigate the legality of the pill that was seen, which would have been the reasonable next step instead of making the arrest. As such, Justice Brown felt the appellant’s s. 8 and s. 9 Charter rights and expectation of privacy were violated to a serious degree.
Admissibility of Evidence: How Much Room for Error Do Police Officers Have?
As stated in the Charter, the purpose of section 24(2) is to “maintain the good repute of the administration of justice.” Focusing on the long-term interests of the public, courts assess the effect of admitting evidence under section 24(2) with respect to:
The seriousness of the Charter-infringing state;
The impact of the breach on the Charter-protected interests of the accused; and
Society’s interest in the adjudication of the case on its merits
In R v Tim, the disagreement between the majority and the dissent was over the seriousness of the infringements. The goal of this step of the process is not to punish the police for serious breaches, but to ensure public confidence in the rule of law. Admitting evidence obtained through minor or accidental violations may minimally undermine public confidence, but admitting evidence obtained through a reckless disregard for Charter rights would have a serious negative effect on public confidence and possibly bring the justice system into disrepute. Although the police officer made an honest mistake, I agree with Justice Brown that the actions the officer took should constitute a serious violation of the appellant’s Charter rights. In the circumstances of the arrest, a reasonable officer should have used their investigative authority to determine if the drug was actually illegal before rushing to make the arrest and subsequent searches. By dismissing this appeal on the grounds that the violation of rights was not serious enough to require evidence to be inadmissible, it is encouraging police officers to act on instinct in situations where there is no immediate threat to their safety. If police officers can act on assumptions rather than the law, it is undermining the privacy interests of the public and should not be promoted through law. I understand that police officers will make mistakes because they are human, but I am concerned that officers can get away with mistakes such as the one against Tim, in which the officer completely disregarded the proper steps a reasonable person would take before coming to a conclusion based on their own faulty knowledge.
The next step in determining if evidence should be admissible is to consider the degree to which the accused’s Charter rights were violated. The majority held that while the first two searches of his person and vehicle violated his Charter rights, the next search of his person and following strip search did not, so the final two searches were not included in the analysis. I disagree with the majority’s decision to not address the discoverability aspect since it cannot be determined with confidence whether or not the incriminating evidence would have been discovered without the breach of Charter rights. It seems clear to me that if the arresting officer only performed a routine traffic stop as they should have, none of the other evidence would have been discovered. This also allowed the court to rule out the final two searches regarding the admissibility of the evidence. While I understand that the second search of his person and the strip search may have been justified for safety reasons based on the handgun found, I don’t agree that these searches should have been left out of the analysis. A strip search is one of the most invasive procedures to discover evidence and can have a large impact on human dignity. It is stated in Grant, “An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.” Since the entire encounter was a concurrent situation, I challenge that all four searches should be included under section 24(2) of the Charter even if the last two were justified due to the previous breaches of s. 8 and s. 9 beforehand. In doing so, this would most likely bring the administration of justice into disrepute.
The third inquiry is designed to serve the truth-seeking function of the trial process, and focuses on reliability of the evidence. It is clear that in this case the reliability of physical evidence found is high and the truth-seeking function would be better served if the evidence was included, which was unanimously agreed on by all parties in the court.
The Future of Section 24(2) in the Charter
Concerning the admissibility of evidence in other cases, R vGrant is the new leading case that established the three step tests examined in the previous section of this blog. In Grant, the accused’s rights were violated to obtain evidence of marijuana and a firearm for which he was convicted of charges for. The police made an error in procedure leading to the evidence being discovered, and it was ruled that the violation of the accused’s Charter rights was significant enough for the appeal to be allowed on the trafficking charge. Just as in Tim, the evidence for the firearm charge was not dropped even with the significant violation of rights. If we allow society’s interest in controlling firearms to dictate what evidence should be admissible even with significant Charter violations, it defeats the purpose of the entire process as guns obtained in a manner that does not grossly violate the accused would always be admitted under the third step. Even though the Charter violations seemed to be to a worse degree in Tim, the entire appeal was dismissed whereas in Grant, the appeal for the drug charge was granted. I am not arguing that we should never admit guns or evidence that has been obtained through a Charter violation, but I am stating that there needs to be a more clear line as to how big a mistake an arresting officer can make before evidence is excluded. The public has a right to expect not to have their rights infringed on, but also to know to what extent their rights can be infringed on by arresting officers when they acquire evidence
 R v Tim, 2022 SCC 12 at para 74 [Tim].  Ibid at para 100.  Ibid at para 5.  Ibid at para 6.  Ibid at para 7.  Ibid at paras 8-13.  Ibid at para 18.  Ibid at paras 41, 43.  Ibid at para 48.  Ibid at para 100.  Ibid at para 101.  Ibid at para 102-103.  Ibid at 103.  Canadian Charter of Rights and Freedoms, s. 24(2), Part I of the Constitution Act, 1982.  Ibid.  Tim, supra note 1 at para 103.  R v Grant, 2009 SCC 32 at para 73 [Grant].  Ibid at para 74.  R v Tim, 2020 ABCA 469 at para 85 [ABCA].  Ibid at para 87.  Ibid at para 90.  Tim, supra note 1 at para 95.  Ibid at para 94.  ABCA, supra note 19 at para 91.  Grant, supra note 17 at para 78.  Tim, supra note 1 at para 96.  Ibid at para 97.  Grant, supra note 17 at paras 4-8.  Ibid at para 149.