R. v. Zacharias, 2022 ABCA 1122023 SCC 30 (40117)

“Z was pulled over in a traffic stop because of a burnt‑out light and illegally tinted windows. The police officer made several observations that resulted in placing Z under investigative detention and calling for a sniffer dog to scan for drugs. After a pat‑down search, the officer placed Z in a police vehicle until the sniffer dog arrived. The dog signalled that drugs were present and Z was arrested for possession of a controlled substance. The police then searched Z’s truck, including duffel bags located in the truck box under a tonneau cover. The police discovered a large quantity of cannabis and cash. Z was arrested for possession for the purpose of trafficking, handcuffed, and driven to a police detachment. He was then searched and arrested for possession of proceeds of crime over $5,000.

Z alleged that the police had breached his rights under ss. 8 and 9 of the Charter during the investigation and that the drug evidence seized by the police should be excluded under s. 24(2) of the Charter. The trial judge found that the sniffer dog search and investigative detention breached Z’s ss. 8 and 9 Charter rights but held that the evidence should not be excluded under s. 24(2) because excluding the evidence would bring the administration of justice into disrepute. Z was convicted of possession of 101.5 pounds of marijuana for the purpose of trafficking. He appealed, arguing that the trial judge erred by failing to consider the consequences that flowed from the unlawful investigative detention and sniffer dog search. A majority of the Court of Appeal dismissed the appeal. “

The SCC (3:2) dismissed the appeal.

Justices Rowe and O’Bonsawin wrote as follows (at paras. 2-3, 6-10, 23-25, 52, 59):

“In our view, the arrests that followed the sniffer search in this case were also in violation of the Charter. The state cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest. Where the court finds a breach of the Charter has occurred, the breach must be considered in the s. 24(2) analysis. However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct under the s. 24(2) analysis. Rather, a consequential breach will be most relevant to the impact on the Charter-protected interests of the accused.

For the reasons that follow, while we accept that the arrests and searches incident to arrest in this case constituted additional violations of the Charter, we would affirm the decision not to exclude the evidence under s.  24(2) of the Charter.

When Constable MacPhail ran the appellant’s name and identification through the police database, he discovered an entry from 2014 related to drugs. The file was locked down and he had to call the Real Time Information Centre for further information. The Information Centre informed Constable MacPhail that the appellant was the subject of “a complaint of unknown reliability but was said to be an individual tied to the distribution of large quantities of marihuana and cocaine” (A.R., vol. I, at p. 14).

According to Constable MacPhail, the information from the Real Time Information Centre confirmed his suspicions that the appellant was transporting drugs. In addition to the 2014 entry on his record, he made the following observations and inferences: (i) Highway 1, the route the appellant was travelling, was a known drug corridor and Calgary a known destination for drugs; (ii) the appellant’s story of visiting his sister for “a couple of days” was inconsistent with the large amount of luggage; (iii) it was suspicious that the luggage was in the cab of the truck rather than the box; (iv) the type of tonneau cover on the truck bed was often used by drug couriers; (v) “Back the Blue” stickers like the one the appellant had on his window were often used to avoid being pulled over; (vi) the appellant’s claim that his son had purchased the truck with the decal on it was inconsistent with the fact that the truck was registered in the appellant’s name; and (vii) the appellant was extremely nervous, albeit less so over time.

Constable MacPhail placed the appellant under investigative detention and called for a sniffer dog. The appellant declined the opportunity to speak to counsel. Constable MacPhail conducted a pat-down search of the appellant’s front pocket area and placed him in a police vehicle. After around 20 minutes, the sniffer dog arrived with its handler and signalled that drugs were present. Constable MacPhail concluded that he had reasonable and probable grounds to arrest the appellant for possession of a controlled substance and did so.

Upon placing the appellant under arrest, Constable MacPhail conducted a search of the appellant’s truck, including of duffel bags located in the truck box. He discovered 101.5 pounds of cannabis, some cannabis pastries or edibles, a jar with a substance he took to be cannabis, and $12,600 in cash. Constable MacPhail re-arrested the appellant for possession for the purpose of trafficking. The appellant was then removed from the first police car, handcuffed, and driven to the Banff police detachment in a second police vehicle. At the detachment, the appellant was required to strip to one layer of clothing and remove his shoes. He was arrested for a third time for possession of proceeds of crime over $5,000. He was released from police custody at 1:37 a.m., approximately six hours after arriving to the detachment and seven hours after being pulled over.

At the voir dire, Constable MacPhail testified that he had been an RCMP officer for 14 years. At the time of the appellant’s arrest, he was part of the Roving Traffic Unit, which specializes in detecting and intercepting criminals travelling on the highway. Constable MacPhail had been a member of this unit for 8½ years and, in that time, had conducted between 12,000 to 15,000 traffic stops. Constable MacPhail had also acted as an RCMP instructor for the past 3 years and taught over 15 courses on traffic enforcement investigations.

This Court has made clear that such new issues should be entertained only in “exceptional circumstances” (R. v. J.F., 2022 SCC 17, at para. 40, citing Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3). Nevertheless, we conclude that the issue of whether police conduct in this case breached s. 8 or 9 of the Charter should be considered by this Court. The legal question on which the Court of Appeal diverged requires this Court to consider the dissenting judge’s path of reasoning.

Like Khullar J.A., we are of the view that addressing this issue would not result in unfairness to the Crown. The appellant, in making his argument, alleges “nothing further other than the fact that [the arrests, searches, and detention in question] occurred” (A.F., at para. 70). The Crown does not dispute that these events occurred. At the voir dire, the Crown adduced evidence from the arresting officer Constable MacPhail, the backup officer, and the dog handler. In the Court of Appeal, the Crown did not suggest it would have called any further evidence, except in relation to the strip search, which is no longer at issue (C.A. reasons, at para. 48). With respect to the legal issues before this Court, the Crown has had ample opportunity to respond to the positions taken in the reasons for the majority and the dissent in the Court of Appeal. The appellant’s arguments rely on undisputed facts relating to his arrest; they can therefore be fairly considered on appeal. Given that no further evidence was given on these events, however, the Court will only consider the bare fact that this police conduct occurred. In other words, while it is appropriate for this Court to consider the fact of the appellant’s arrest after the sniffer search, there were neither submissions nor evidence seeking to establish any circumstances of the arrest that were improper. In this way, no prejudice results to the Crown. Given the absence of prejudice, the importance of having the issue resolved by this Court, and with the benefit of the dissenting reasons below, we would exercise our discretion to address this new issue (see Guindon, at para. 20; see also J.F., at paras. 40-41).

An unlawful arrest that is a consequential breach must be factored into the first and second stages of the s. 24(2) analysis, but is unlikely to significantly impact the overall seriousness of the Charter-infringing state conduct. In the absence of additional state misconduct, the focal point for evaluating seriousness is likely to remain the initial breach: in this case, the preceding unlawful search. Where, as in this case, the police conduct is only off the mark to a “miniscule” degree, the seriousness of the initial breach will tend to be on the lower end of the scale. However, in other cases, the initial misconduct may be characterized as more serious; for example, if the police conduct was still inadvertent but further off the mark. In the latter case, while the consequential arrest would still be unlikely to significantly increase the overall seriousness of the misconduct, the seriousness would already be more severe given the focus on the initial breach.

A “consequential” breach is not a new “type” of Charter breach. It will not be necessary or useful in every case to determine whether the sequence of state conduct presents a “consequential” breach. But this operates as guidance for cases where an arrest follows as a consequence of a search, and both are viewed as unlawful on judicial review. In these cases, the court must assess the seriousness of both the search and the arrest. The arrest, given that it is expected in the circumstances, is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct, but it will often result in a more significant impact on the individual’s Charter-protected interests. In this way, the s. 24(2) analysis does not become a rule of automatic exclusion, while at the same time, the court takes fully into account the impact on the Charter-protected interests of the accused.”