Police Have to Play by the Rules, Too - Jayden Wlasichuk
A key feature of the Canadian Charter of Rights and Freedoms are sections 8 and 9, which state:
8. Everyone has the right to be secure against unreasonable search or seizure
9. Everyone has the right not to be arbitrarily detained or imprisoned.
These rights offer Canadians some peace of mind and feelings of safety that law enforcement is not allowed to unreasonably search our person, belongings, or homes. Additionally, there is reassurance that we cannot be arbitrarily detained or imprisoned—fears that have been played on in many Hollywood films for decades. However, just because these rights are prescribed in the Charter does not mean that systems of power, largely police and law enforcement, don’t breach these rights.
The case to be examined in this blog is one concerned with sections 8 and 9 of the Charter and how they were violated by a Brandon Police Officer in the case of R. v. Neubuhr, 2021 MBQB 225 (“Neubuhr”). Neubuhr presented a case to have evidence excluded on the basis that it was obtained through the breach of his ss. 8 and 9 Charter rights. This case is an example of serious Charter-infringing police misconduct that resulted in a serious impact on the accused’s interests. Neubuhr can stand to be an example for police actions that are clear violations of Charter rights, but it also offers commentary on the importance of the Charter in the criminal context, particularly in the application of the three-step analysis required to determine if evidence obtained following an infringement of a Charter right should be excluded.
Additional comments made in the judgement articulate the importance of the Charter in protecting citizens from heavy-handed law enforcement officers and offer space for commentary about how necessary it is for police to be more conscious of their role in our society and in the administration of justice.
Facts of the Case – a Routine Traffic Stop:
On April 24, 2019, a Brandon Police Office ran a routine licence plate check on a vehicle with an Alberta plate. The search results indicated that it was an inactive licence plate for a different vehicle.
The accused was quick to volunteer truthful information to the Arresting Officer about the registration status of the vehicle and that he did not possess a valid driver’s licence. The accused produced an Alberta picture identification card that showed his legal name and allowed the officer to verify his identity. When asked about who the licence plates belonged to, the accused used colloquial language to indicate it was his partner, who he correctly described by name to the Arresting Officer.
Throughout this entire process, the Arresting Officer indicated that, in his mind, everything about the situation was on par with a routine traffic stop and that he never once felt inclined to deploy the drug sniffing dog on patrol with him that night. With this in mind, the Arresting Officer nonetheless chose to call for backup and chose to arrest the accused for driving without a licence, even though the usual response given the facts of the situation at that point in time would have been to serve a notice.
The Supporting Officer then arrived on scene. The Arresting Officer informed the accused of the reason for his arrest and issued the standard Charter cautions; however, the accused was placed in the back of the Arresting Officer’s vehicle without being handcuffed or searched for officer safety.
Facts of the Case – the Impacts of a Single Empty Beer Can:
When attempting to fill out paperwork for the tow truck company, the Arresting Officer returned to the truck to retrieve paperwork. Once at the glove box, the Arresting Officer noted an empty beer can on the floor of the truck; this single empty beer can triggered the Arresting Officer to conduct a bumper-to-bumper search of the vehicle. The Arresting Officer attempted to justify this action in Court, but was unsuccessful.
In the proceeding search of the vehicle, a leather satchel containing drugs was found in the seat of the cab. The bag contained a Ziplock bag with almost one kilogram of methamphetamine and a second bag containing a purple substance that later, once tested, proved to contain just over 250 grams of fentanyl. In addition to the drugs, there was also $800 cash found in the vehicle and $1,800 in cash found in the clothing worn by the accused.
Trial Judgement and the Three-Step Test
The issue in the voir dire heard before the Manitoba Court of Queen’s Bench was whether the arrest of the accused or the subsequent search of his vehicle was done in a lawful manner that did not breach his Charter rights.
The Court found that the initial traffic stop was within the prescribed limits of The Highway Traffic Act, however the subsequent arrest, search of the vehicle, and seizure of the drugs and cash was not lawfully conducted. Rempel J. concluded that the evidence should be excluded after the application of the three-step test. The three-step test for determining if the evidence obtained following the infringement of Charter rights should be excluded is listed below:
1. The seriousness of the Charter-infringing conduct;
2. The impact on the Charter-protected interest of the accused; and
3. Society's interest in an adjudication of the case on the merits.
The first two steps of the test were analysed in a fairly straightforward manner; however, the third step of the test is, in my opinion, the most complex and difficult to justify.
Step Three: Society’s Interests
The third step was acknowledged by the trial judge as the step that often pushes back against the first two questions. In this case, I will acknowledge that I was surprised that this question was satisfied. The dangers posed by fentanyl, in particular, are grave enough that I had originally anticipated the trial judge placing more weight on the impact on society, and I had assumed that the evidence would not be excluded on this basis.
However, the Supreme Court of Canada has cautioned against this third line of inquiry in that it cannot play a disproportionate role in the three-step analysis. With this in mind, the trial concluded that the evidence, which was obtained in violation of Charter rights, should be excluded, even though there is significant harm that could have resulted from the evidence in question had it not been seized by the Arresting Officer.
Charter Protections and the Powers of Police:
The trial judge painted a picture that the Arresting Officer, in this case, acted in gross overreach of the rights of the accused and attempted to balance the dangers that drugs, such as methamphetamine and fentanyl, can have in broader society.
When examining the Arresting Officer’s actions regarding the seriousness of the Charter-infringing conduct, Rempel J. discussed the idea of excusing state misconduct as a good faith infringement of Charter rights. It was specifically noted that the essential feature of analysis under the line of inquiry is the principle that the absence of bad faith on the part of police officers does not constitute the presence of good faith.
I believe this statement is a powerful one, as it articulates to law enforcement that there is not necessarily a binary of good or bad faith in that the absence of one results in the presence of the other, but rather, it articulates that good faith is not an assumption. Acting in good faith should be the standard for law enforcement, as they play a key role in exercising state power over citizens.
In the analysis, Rempel J. stated that, based on the evidence and testimony before the Court, that good faith could not be ascribed to the conduct of the police officers and that their own evidence was a clear reflection that the officers either had no understanding of the limitations on their powers of arrest under the Provincial Officers Act or that they blatantly ignored those limitations. This is particularly concerning to think about—either law enforcement officers were not aware of their limits, or they chose to ignore the limits.
More than Protection from Arbitrary Detention or Searches:
This case is an example of how sections 8 and 9 of the Charter protect more than Canadians’ ability to be free from unreasonable exercises of state power. The ability of Canadians to argue for evidence unlawfully obtained in violation of Charter rights is a key part of the administration of justice, as noted by Rempel J, in stating that admission of the unlawfully obtained evidence would bring the administration of justice into disrepute.
This case stands to be an example for those who are accused as to what their rights are and how to potentially recognize the violation of their Charter rights. However, this is perhaps a stronger example of the interconnected nature of the justice system and the important role that law enforcement officers play in the initial stages of achieving and administering justice. When police do not play their part in line with the rules, the repercussions can include the exclusion of key evidence in finding someone guilty of a crime that could have serious impacts, such as the distribution of methamphetamine and fentanyl.
 Canadian Charter of Rights and Freedoms, ss 8 and 9, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.  R v Neubuhr, 2021 MBQB 225 at para 14 [Neubuhr]  Ibid.  Ibid at para 15.  Ibid.  Ibid at para 16.  Ibid at para 17.  Ibid at para 19.  Ibid at para 27.  Ibid at para 28.  Ibid at paras 28 and 29.  Ibid at para 29.  Ibid at para 4.  Ibid at para 5.  Ibid at para 8.  Neubuhr, supra note 1 at para 44; R v Grant, 2009 SCC 32  SCR 353; R v Harrison, 2009 SCC 34 (CanLII),  2 SCR 494.  Neubuhr, supra note 1 at para 80.  Ibid at para 46.  Ibid at para 61.  Ibid.