An experienced drug investigator, by chance, observed an afternoon meeting between two men. The meeting occurred in a lightly-travelled parking lot in the afternoon. The accused pulled in driving a truck. A short time later, the second male approached on foot. The pedestrian got into the vehicle into the front passenger seat. There was a conversation that lasted less than a minute. The two faced each other, with arm movements that could have indicated a hand-to-hand transaction, but the investigator’s viewpoint didn’t allow for confirmation of that. The pedestrian left on foot. A female passenger in the truck moved from the back seat to the front and the vehicle drove off.
The drug investigator formed the view there had been a drug transaction. He believed there were reasonable grounds to arrest the accused. After following the vehicle for about 15 minutes, he directed a uniformed officer to stop the vehicle and arrest the two occupants. The uniformed officer did as directed. The drug investigator arrived within a couple of minutes of the stop of the vehicle and immediately commenced a search of the truck, incident to the arrest by his colleague. He found cocaine, cash and three cell phones.
At trial (2012 ABQB 378), the Crown conceded there had been a breach of section 9 of the Charter (in other words, that there had been an unlawful detention). The issue before the trial judge was whether a remedy would flow from that breach.
In a decision released December 12, 2013 (2013 ABCA 416), the Court of Appeal for Alberta concluded that the trial judge erred in commencing the analysis from the perspective of an illegal detention, because what was at issue was an unlawful arrest. The trial judge had commenced his analysis of the Charter issues with reference to governing cases on investigative detention. Such a detention, the trial judge correctly noted, requires reasonable grounds to suspect an offence. As well, detention must be reasonably necessary in the circumstances confronting the investigator: R. v. Squire, 2012 ABQB 194. In this case, however, the investigating officer had not directed an investigative detention. Rather, the officer directed an arrest, then commenced a search incident to that arrest.
What the trial judge called a “close call” with respect to whether an investigative detention was justified was not near a “close call” by the higher standards of reasonable grounds to believe than an offence had been committed. The Court of Appeal, while noting that a trial judge’s decision to admit or exclude evidence under s. 24(2) of the Charter will generally be given deference by an appellate court, concluded that intervention was warranted in this case because the trial judge had made an error as to the applicable principles of law.
Considering the section 24(2) analysis according to the principles in R. v. Grant, 2009 SCC 32 anew, the Court of Appeal noted:
- The unlawful arrest was a serious breach of the accused’s Charter rights.
- The impact of the breach was serious. It involved not merely a detention, but an arrest and search of a motor vehicle.
- The evidence was essential to the Crown’s case and, being physical evidence, was highly reliable; however, that factor “should not overwhelm the s. 24(2) analysis”.
Ultimately, the Court of Appeal concluded:
In this case, after having balanced the three factors from Grant, we have concluded that the challenged evidence should be excluded under s. 24(2). Not only did the trial judge minimize the seriousness of the Charter breaches by considering them only through the investigative detention lens, he also overemphasized the only factor weighing in favour of admission.
An acquittal was entered, as the Crown’s case could not succeed without the excluded evidence.
Image Credit: United States Drug Enforcement Agency. Link.