R. v. Greffe [ S.C.R. 1990] 1 755: Admissibility of evidence -- Bringing administration of justice into disrepute -- Alleged violations of right to counsel and of right to freedom from unreasonable search and seizure -- Accused searched at customs for illegal drugs -- Accused then arrested for outstanding traffic warrants and rectal examination conducted

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Alleged violations of right to counsel and of right to freedom from unreasonable search and seizure -- Accused searched at customs for illegal drugs -- Accused then arrested for outstanding traffic warrants and rectal examination conducted -- Heroin found in anal cavity and accused charged with importing heroin -- Whether or not right to counsel and right to freedom from unreasonable search and seizure infringed -- If so, whether or not real evidence should be excluded -- Canadian Charter of Rights and Freedoms, ss. 8, 10, 24(2).

The R.C.M.P. alerted Canada Customs at Calgary that there was confidential information that appellant was returning with an unknown quantity of heroin. A visual personal search was conducted when nothing was found in a search of appellant's luggage. Appellant was not informed of his right to counsel -- the facts arose before this Court's judgment in Simmons -- and no evidence indicated that appellant had read a poster advising persons not wishing to be searched of their right to have the proposed search reviewed by a justice of the peace, police magistrate or a Senior Customs Officer. No drugs were found. Appellant was then arrested, informed of his right to counsel, and advised that a doctor would perform a body search at a hospital. A condom containing heroin was removed from appellant's anal cavity.

The testimony of the police officers conflicted with respect to appellant's arrest. The notes of one constable indicated that appellant had been arrested for traffic warrants. Another constable testified that appellant had been arrested for importing heroin although his notes indicated no reason for the arrest. The first reference in his notes to charging the appellant with a narcotics offence refers to a time after the rectal search and after the earlier notation in the other constable's notes about arresting the appellant for outstanding traffic warrants. The appellant was ultimately charged with two counts under the Narcotic Control Act, one of unlawfully importing heroin and one of being in unlawful possession of heroin for the purpose of trafficking.

The focal point of the trial was the admissibility of the heroin as evidence. The trial judge excluded the evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms and acquitted the appellant in the absence of any evidence to support the charges against him. He found that the airport arrest was spurious, that appellant's right to obtain and instruct counsel had been tainted and that the violation of that right resulted in a gross infringement of the accused's rights pursuant to s. 8 to be secure against an unreasonable search. A majority of the Court of Appeal held that the trial judge erred in excluding the evidence. Given respondent's concession that ss. 8 and 10(a) and (b) of the Charter had been violated, the only issue to be considered was whether the evidence ought to have been excluded pursuant to s. 24(2) of the Charter.

Held (Dickson C.J. and L'Heureux-Dubé and Cory JJ. dissenting): The appeal should be allowed.

Per Lamer, La Forest, Wilson and Gonthier JJ.: The factors to be balanced in determining whether the admission of evidence in the proceedings would bring the administration of justice into disrepute can be organized into three categories. The first set of factors are those relevant to the fairness of the trial. The second set of factors concerns the seriousness of the Charter violations as defined by the conduct of the law enforcement authorities. The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding the evidence despite the fact that it was obtained in a manner that infringed the Charter. The purpose of the section is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings.

The key component of the Collins "test" to determine the admissibility of evidence in this appeal is the second set of factors, namely the seriousness of the violations of ss. 8 and 10 of the Charter. In respect of the first factor, the fairness of the trial, what was involved was real evidence, the existence of which did not depend on the Charter violations. Therefore, the admission of the evidence at trial would not, generally speaking, render the trial unfair.

Although the Crown conceded that whether there were reasonable and probable grounds to believe that the appellant was in possession of the heroin was a live issue, the Crown at no point established that those grounds existed or even led evidence in support of their existence. The absence of any inquiry to determine whether or not the confidential information amounted to reasonable and probable grounds for believing that the accused was carrying heroin was extremely important since it went to the assessment of the seriousness of the Charter violations, and more specifically the element of good or bad faith on the part of the police in conducting the search.

Confidential information supplied by a reliable informant may provide the "reasonable and probable grounds to believe". A mere conclusory statement made by an informer to a police officer does not constitute reasonable grounds. Highly relevant are whether the informer's tip contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability.

Absent reasonable and probable grounds, the misinformation regarding the reason for the arrest takes on a more serious complexion. Nothing was put on the record on which the trial judge could have assessed whether or not the confidential information gave rise to reasonable and probable grounds for the belief that the appellant was carrying heroin. The conclusion that reasonable and probable grounds existed by reference to the results of the search was in error. The doubt should be resolved against the Crown since it did fail in its obligation to establish those grounds.

The premise that the search proceeded as incident to an arrest for outstanding traffic warrants was unescapable. The trial judge had erred in law by concluding that the police had reasonable and probable grounds based on the results of the search and the record revealed no evidence to support the existence of the grounds beyond a conclusory statement by the police. This conclusion was the most determinative factor in this case.

The violation of the s. 10 right to counsel goes to the very reasonableness of the search. The appellant, if given the reason for the detention and the right to counsel, might have afforded himself an opportunity to contact counsel to have the "confidential information" on which the search allegedly was based tested to see if there were indeed reasonable and probable grounds to conduct the strip search let alone the rectal examination.

The gravity of the Charter violations is increased by a number of factors. The relationship between the violations of ss. 8 and 10 of the Charter renders the violations more serious than if the breach of s. 10 had been very remote from the strip search. The violation is very serious, however, given that the rectal examination was conducted as incident to an arrest for traffic warrants occasioned by unproved suspicion that the appellant was in possession of heroin. It is the intrusive nature of the rectal search and considerations of human dignity and bodily integrity that demand the high standard of justification before such a search will be reasonable.

There was no urgency or immediate necessity to conduct the rectal examination in order to prevent the loss or destruction of the evidence. The detention of the accused in order to facilitate the recovery of the drugs through the normal course of nature would have been reasonable if the police had reasonable and probable grounds for believing that he was a drug courier.

Finally, more than one Charter violation was at issue. The breaches of the appellant's Charter rights were not isolated errors of judgment by the police, but rather were part of a larger pattern of disregard for the appellant's Charter rights.

The seriousness of the cumulative effect of the Charter violations weighed in favour of excluding the evidence, notwithstanding the fact that the evidence recovered was real evidence that existed irrespective of the Charter violations and that its admission therefore would not negatively affect the adjudicative fairness of the appellant's trial.

The Court must also consider the long-term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice. Here, the administration of the justice system would be brought into greater disrepute if this Court were to condone, taking the record as it is given by the police and the prosecution, the practice of using an arrest for traffic warrants as an artifice to conduct a rectal examination of an accused who the police do not have reasonable and probable grounds to believe is carrying drugs. Further, the inference of extreme bad faith on the part of the police which arises from their deliberate failure to provide the appellant with the proper reason for the arrest cannot be condoned. This is especially so when the right to counsel and the right to be secure against unreasonable searches are involved.

This Court's assessment of whether the evidence should be excluded should not be influenced by the knowledge that the appellant must have known that he was in possession of the drugs. To do so would be to import an ex post facto chain of reasoning that finds no place in an inquiry pursuant to s. 24(2) of the Charter.

Per Dickson C.J. and L'Heureux-Dubé and Cory JJ. (dissenting): Whether or not evidence should be excluded under s. 24(2) of the Charter depends on: (1) its effect on the fairness of the trial; (2) the seriousness of the Charter violation; and, (3) the effect of excluding the evidence on the repute of the legal system. No one factor is determinative.

The admission of the heroin would not have a detrimental impact on adjudicative fairness. Real evidence, by its nature, rarely has such an impact.

The factors to be considered in determining the seriousness of the Charter violations generally favoured the admissibility of the evidence.

The arrest for outstanding traffic warrants was irrelevant. Authority for the search was found in the arrest made subsequent to the finding of the drugs. (This arrest was made with due regard for all the appellant's Charter rights.) A search undertaken prior to an arrest may still be incidental to the subsequent arrest, if reasonable and probable grounds existed for that prior search, and therefore legal in terms of s. 450 of the Criminal Code.

The issue of whether reasonable and probable grounds existed was central to a determination of whether the search and seizure complied with s. 8 of the Charter. The "totality of the circumstances" must be examined in making that determination; no one factor should dominate the analysis. Here, the R.C.M.P. had reasonable grounds to arrest and search the appellant and consequently the search was conducted under lawful authority.

The inference that reasonable and probable grounds did not exist cannot be drawn from the fact that little was put in evidence as to the reliability of the informant, who in fact proved reliable. Given the jurisprudential vacuum at the time of the search, the police did all that reasonably could be expected of them in following up the confidential information before deciding to search and arrest the appellant.

The police did not act in "bad faith" in arresting the appellant for outstanding traffic violations. Indeed, the fact that the appellant was advised of his right to retain and instruct counsel indicated that the police acted in "good faith" in their dealings with the appellant.

The conduct of the authorities did not amount to a "pattern of disregard" given that the appellant was informed that he had a right to retain and instruct counsel without delay before he was taken to the hospital for the body cavity search. Although the police violated the appellant's right to be informed promptly of the reason for his arrest, the infringement would be far more grievous if no counsel warning had been given at all. Finally, there is no evidence of malice on the part of the authorities towards the appellant nor of any mistreatment.

The appellant's manifest culpability weighed heavily in favour of the admission of the real evidence. The reasonable person would be shocked and appalled to learn that an accused, unquestionably guilty of importing a sizable amount of heroin, was acquitted of all charges because of what amounted to a slip of the tongue by a police officer when the accused was arrested and read his s. 10 counsel rights.

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