R. v. Harrison
Encyclopedia
R. v. Harrison, 2009 SCC 34 is a decision of the Supreme Court of Canada
on section 24(2)
of the Canadian Charter of Rights and Freedoms
. The decision was a companion case of R. v. Grant
, and applied the Supreme Court's new test to determine when evidence obtained from a Charter breach should be excluded.
. They were driving from Vancouver
to Toronto
. Constable Bertoncello of the Ontario Provincial Police
observed that the vehicle had no front license plate, an offence if the car is registered in Ontario. Bertoncello activated his emergency lights and pulled the car over. He then realized the vehicle was registered in Alberta
and was not required to have a front license plate. He was also informed by radio dispatch that the vehicle had been rented in Vancouver. At that time, Bertoncello has no grounds to believe any offence was being committed.
Nonetheless, Bertoncello was suspicious. The vehicle appeared to be "lived-in", which suggested it had been driven directly through from Vancouver. He knew that rental cars were often used by drug couriers
. He knew that it was rare for drivers to drive that stretch of the road at exactly the speed limit, which Harrison had been doing. Finally, Harrison and his friend gave contradictory stories when questioned separately.
Harrison was not able to provide his driver's license
upon request, saying he left it in Vancouver. A computer check by Bertoncello revealed Harrison's license was currently suspended. He then arrested Harrison for driving with a suspended driver's license.
Bertoncello then asked Harrison and his friend if there were any drugs in the car. They both replied in the negative. Other police officers arrived, and Bertoncello began to search the car. He testified that he did so "incidental to the arrest" in order to find Harrison's driver's license - even though the license's whereabouts was irrelevant to the charge.
Bertoncello started the search in the rear cargo area. He found two cardboard boxes. The other occupant of the vehicle advised that they contained dishes and books for his mother. Bertoncello testified that the look and feel of the boxes suggested they did not contain dishes or books, and asked the occupant if the boxes contained drugs or weapons. The occupant became nervous, said "yeah", then said he did not know.
The boxes were opened, and were found to contain cocaine
. Ultimately 35 kilograms of cocaine was found in the vehicle, which was estimated to be worth $4 million.
of the Charter. The judge also found that the search had nothing to do with why Harrison was arrested, and was therefore without lawful authority and violated section 8
of the Charter.
In determining whether the evidence should be excluded under section 24(2) of the Charter, the judge applied the test found in R. v. Collins
. In determining the seriousness of the breach, the judge was highly critical of Bertoncello's actions. He found that the officer's intentions "'was to take whatever steps were necessary to determine whether his suspicions were correct', notwithstanding the lack of any legal basis for the stop or search", and that the officer's actions "can only be described as brazen and flagrant". He also found that Bertoncello's in court testimony was "contrived and defy credibility".
However, the trial judge found that the officer's actions "pale in comparison" with the 35 kilograms of cocaine found in Harrison's vehicle. He therefore found that administration of justice would suffer more if the cocaine was excluded, and admitted the evidence.
upheld the trial judge's decision to admit the evidence, calling it a "close call".
The dissenting judge felt that the majority "downplayed" the trial judge's characterization of Bertoncello's conduct, and felt that the trial judge erred by comparing the officer's actions with Harrison's criminal conduct.
The Court of Appeal's decision received significant media attention and editorials criticized the decision as a significant weakening of the Charter.
The majority applied the new test for section 24(2) of the Charter, enunciated in the companion case of R. v. Grant. The Grant test replaced the test found in R. v. Collins and R. v. Stillman
(which focused on the trial fairness and whether the evidence was conscriptive).
On the Seriousness of the Charter-Infringing State Conduct stage, the majority found that Bertoncello acted recklessly and represented a blatant disregard of Charter rights.
On the Impact of the Charter-Protected Interests of the Accused stage, the majority found that the detention affected the accused's rights to privacy and liberty, and that people on the highway have an expectation that they will be left alone except for valid highway traffic stops. In this case, the impact was significant, but not egregious.
On the Society's Interest in an Adjudication on the Merits stage, the majority found that the cocaine was reliable evidence, and favoured admission.
The majority went on to find that the trial judge placed undue emphasis on the last stage of the test. The test should not turn into comparing the police's conduct with the accused's criminal conduct, and that the public "expect[s] police to adhere to higher standards than alleged criminals." The majority went on to find that given the trial judge's characterization of the officer's conduct, the seriousness of the officer's conduct outweighed the reliability of the evidence.
A dissenting decision was written by Deschamps J.
Following her decision in Grant, Deschamps J. proposed a different test for section 24(2) of the Charter. Deschamps J.'s proposed test would balance the impact on the accused (which includes the seriousness of the officer's conduct) with the reliability of the evidence. Under this test, Deschamps J. concluded that the evidence should have been admitted.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on section 24(2)
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The decision was a companion case of R. v. Grant
R. v. Grant
R. v. Grant is a leading decision of the Supreme Court of Canada on section 9, section 10, and section 24 of the Canadian Charter of Rights and Freedoms. The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of...
, and applied the Supreme Court's new test to determine when evidence obtained from a Charter breach should be excluded.
Background
On October 24, 2004, Bradley Harrison was driving an SUV with a friend near Kirkland Lake, OntarioOntario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
. They were driving from Vancouver
Vancouver
Vancouver is a coastal seaport city on the mainland of British Columbia, Canada. It is the hub of Greater Vancouver, which, with over 2.3 million residents, is the third most populous metropolitan area in the country,...
to Toronto
Toronto
Toronto is the provincial capital of Ontario and the largest city in Canada. It is located in Southern Ontario on the northwestern shore of Lake Ontario. A relatively modern city, Toronto's history dates back to the late-18th century, when its land was first purchased by the British monarchy from...
. Constable Bertoncello of the Ontario Provincial Police
Ontario Provincial Police
The Ontario Provincial Police is the Provincial Police service for the province of Ontario, Canada.-Overview:The OPP is the the largest deployed police force in Ontario, and the second largest in Canada. The service is responsible for providing policing services throughout the province in areas...
observed that the vehicle had no front license plate, an offence if the car is registered in Ontario. Bertoncello activated his emergency lights and pulled the car over. He then realized the vehicle was registered in Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
and was not required to have a front license plate. He was also informed by radio dispatch that the vehicle had been rented in Vancouver. At that time, Bertoncello has no grounds to believe any offence was being committed.
Nonetheless, Bertoncello was suspicious. The vehicle appeared to be "lived-in", which suggested it had been driven directly through from Vancouver. He knew that rental cars were often used by drug couriers
Illegal drug trade
The illegal drug trade is a global black market, dedicated to cultivation, manufacture, distribution and sale of those substances which are subject to drug prohibition laws. Most jurisdictions prohibit trade, except under license, of many types of drugs by drug prohibition laws.A UN report said the...
. He knew that it was rare for drivers to drive that stretch of the road at exactly the speed limit, which Harrison had been doing. Finally, Harrison and his friend gave contradictory stories when questioned separately.
Harrison was not able to provide his driver's license
Driver's license
A driver's license/licence , or driving licence is an official document which states that a person may operate a motorized vehicle, such as a motorcycle, car, truck or a bus, on a public roadway. Most U.S...
upon request, saying he left it in Vancouver. A computer check by Bertoncello revealed Harrison's license was currently suspended. He then arrested Harrison for driving with a suspended driver's license.
Bertoncello then asked Harrison and his friend if there were any drugs in the car. They both replied in the negative. Other police officers arrived, and Bertoncello began to search the car. He testified that he did so "incidental to the arrest" in order to find Harrison's driver's license - even though the license's whereabouts was irrelevant to the charge.
Bertoncello started the search in the rear cargo area. He found two cardboard boxes. The other occupant of the vehicle advised that they contained dishes and books for his mother. Bertoncello testified that the look and feel of the boxes suggested they did not contain dishes or books, and asked the occupant if the boxes contained drugs or weapons. The occupant became nervous, said "yeah", then said he did not know.
The boxes were opened, and were found to contain cocaine
Cocaine
Cocaine is a crystalline tropane alkaloid that is obtained from the leaves of the coca plant. The name comes from "coca" in addition to the alkaloid suffix -ine, forming cocaine. It is a stimulant of the central nervous system, an appetite suppressant, and a topical anesthetic...
. Ultimately 35 kilograms of cocaine was found in the vehicle, which was estimated to be worth $4 million.
Trial
At the Superior Court of Ontario, the trial judge found the detention was based on a hunch or suspicion, and not on reasonable grounds. It was therefore an arbitrary detention and violated section 9Section Nine of the Canadian Charter of Rights and Freedoms
Section Nine of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter, guarantees the right against arbitrary detainment and imprisonment...
of the Charter. The judge also found that the search had nothing to do with why Harrison was arrested, and was therefore without lawful authority and violated section 8
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
of the Charter.
In determining whether the evidence should be excluded under section 24(2) of the Charter, the judge applied the test found in R. v. Collins
R. v. Collins
R. v. Collins [1987] 1 S.C.R. 265 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24 of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter...
. In determining the seriousness of the breach, the judge was highly critical of Bertoncello's actions. He found that the officer's intentions "'was to take whatever steps were necessary to determine whether his suspicions were correct', notwithstanding the lack of any legal basis for the stop or search", and that the officer's actions "can only be described as brazen and flagrant". He also found that Bertoncello's in court testimony was "contrived and defy credibility".
However, the trial judge found that the officer's actions "pale in comparison" with the 35 kilograms of cocaine found in Harrison's vehicle. He therefore found that administration of justice would suffer more if the cocaine was excluded, and admitted the evidence.
Ontario Court of Appeal
A majority of the Ontario Court of AppealOntario Court of Appeal
The Court of Appeal for Ontario is headquartered in downtown Toronto, in historic Osgoode Hall....
upheld the trial judge's decision to admit the evidence, calling it a "close call".
The dissenting judge felt that the majority "downplayed" the trial judge's characterization of Bertoncello's conduct, and felt that the trial judge erred by comparing the officer's actions with Harrison's criminal conduct.
The Court of Appeal's decision received significant media attention and editorials criticized the decision as a significant weakening of the Charter.
Reasons of the court
The majority judgment was written by McLachlin C.J.Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
The majority applied the new test for section 24(2) of the Charter, enunciated in the companion case of R. v. Grant. The Grant test replaced the test found in R. v. Collins and R. v. Stillman
R. v. Stillman
R. v. Stillman [1997] 1 S.C.R. 607, was a leading decision of the Supreme Court of Canada on section 24 of the Constitution of Canada which allowed for the exclusion of evidence that is obtained in a manner that infringes the Charter...
(which focused on the trial fairness and whether the evidence was conscriptive).
On the Seriousness of the Charter-Infringing State Conduct stage, the majority found that Bertoncello acted recklessly and represented a blatant disregard of Charter rights.
On the Impact of the Charter-Protected Interests of the Accused stage, the majority found that the detention affected the accused's rights to privacy and liberty, and that people on the highway have an expectation that they will be left alone except for valid highway traffic stops. In this case, the impact was significant, but not egregious.
On the Society's Interest in an Adjudication on the Merits stage, the majority found that the cocaine was reliable evidence, and favoured admission.
The majority went on to find that the trial judge placed undue emphasis on the last stage of the test. The test should not turn into comparing the police's conduct with the accused's criminal conduct, and that the public "expect[s] police to adhere to higher standards than alleged criminals." The majority went on to find that given the trial judge's characterization of the officer's conduct, the seriousness of the officer's conduct outweighed the reliability of the evidence.
A dissenting decision was written by Deschamps J.
Marie Deschamps
Marie Deschamps is a puisne justice on the Supreme Court of Canada.-Education:She studied law at the Université de Montréal, graduating in 1974 and completing a Masters in 1983 at McGill.-Career:...
Following her decision in Grant, Deschamps J. proposed a different test for section 24(2) of the Charter. Deschamps J.'s proposed test would balance the impact on the accused (which includes the seriousness of the officer's conduct) with the reliability of the evidence. Under this test, Deschamps J. concluded that the evidence should have been admitted.
External links
- Full text of R. v. Harrison - S.C.C.
- Full text of R. v. Harrison - Ont C.A.