A recent Ontario Court of Appeal endorsement of a trial judge’s exclusion of evidence arising from a warrantless search further reveals that police are not abiding by the Charter, legal observers say.
The province’s high court agreed with Justice Donald Ebbs’ acquittal last year of Jesse Nartey on multiple firearm and drug-related charges after two police officers discovered about a half-pound of marijuana, two bags of crack cocaine and two loaded guns during a Highway Traffic Act stop.
Justice Ebbs found the police were on a “fishing trip” after a computer check revealed Nartey had been convicted of possession for the purposes of trafficking and was subject to two firearm prohibitions. The traffic stop became an improper investigative detention, and a pat-down search of the accused and the subsequent search of his vehicle were contrary to Charter standards, he ruled.
The Court of Appeal, in R. v. Nartey  O.J. No. 1550, dismissed the Crown’s appeal. Justices Robert Sharpe, David Watt and Alexandra Hoy pointed that the trial judge characterized the senior officer as trying to “tailor his evidence to fit a pattern” allowed by the courts, and, as a result, determined that the drugs and weapons found during the searches were inadmissible as evidence “to avoid bringing the administration of justice into disrepute.”
Queen’s University law professor Don Stuart said this case is among hundreds where trial judges are excluding evidence either because they have cited deliberate Charter violations by the police, where officers have failed to read an accused his or her rights, or because police are “completely ignorant or careless about Charter rights.”
Stuart recently supervised Queens’ graduate student Ariane Asselin’s LL.M. thesis in which her research discovered that trial judges excluded evidence in 72 of 98 cases (half of them in Ontario) involving Charter violations across the country in 2012.
“If anybody is upset about the exclusion of evidence as a remedy under the Charter, they should put pressure on the police to abide by it or put the Charter into their training so they can do a proper job,” he said. “But it seems to be something that the police are not so interested in doing, and I don’t see any pattern of the police disciplining themselves for an officer who gets a case thrown out because he or she lied or didn’t follow the Charter.”
Stuart believes that instead, police seem to be encouraged to be proactive and stop people without reasonable suspicion and “risk allegations of racial profiling.”
He pointed out that the Supreme Court of Canada has in two leading cases — R. v. Grant  2 S.C.R. 353, in which Stuart served as co-counsel to the Canadian Civil Liberties Association as intervener, and R. v. Harrison  2 S.C.R. 494 — set out steps to determine when evidence obtained from a Charter breach should be excluded.
“The main criteria are the seriousness of the violation and whether or not it was deliberate, ignorant or careless,” explained Stuart, “and the Supreme Court has left it to the discretion of trial judges based on the seriousness of the Charter violations and less so on the seriousness of the offence.”
Toronto criminal defence lawyer Patrice Band said Grant clarified the s. 24(2) analysis for determining whether the justice system’s repute would suffer by police misconduct by distinguishing between the admission of evidence obtained from technical breaches of people’s rights that don’t taint the actual finding of evidence and rights violations that lead to the discovery of evidence, as was the case in Nartey.
“If it were not for the breaches of his rights to freedom from arbitrary detention and unreasonable search and seizure, the evidence would not have been discovered,” explained Band, a Law Society of Upper Canada certified specialist in criminal law who practises in association with Cavalluzzo Shilton McIntyre Cornish LLP.
By contrast, in R. v. Morris  O.J. No. 1583, the appellate court triumvirate involved in the Nartey endorsement dismissed an appeal from a man who was convicted in 2011 of several firearms-related offences and breach of a Criminal Code s. 109 order not to possess firearms following an HTA stop that led to a vehicle search and the seizure of weapons and drugs.
The Court of Appeal noted that the trial judge found that police stopped Kwesi Morris to verify his driver’s licence, ownership and insurance documentation after a CPIC check of his vehicle’s licence plate resulted in such warning signs as “armed and dangerous” and “violent.”
Police ended up searching him and the vehicle when they “detected the odour of fresh marijuana emanating from the car” and Justice Alison Harvison Young ruled the officers had reasonable grounds to arrest Morris.
Although Justice Harvison Young found that a Charter s. 10(b) breach occurred when police failed to advise the appellant of his right to counsel and questioned him before his arrest, the infringement was “relatively minor” and “there was no nexus between the breach and the discovery of the evidence.”
Ontario Ministry of the Attorney General spokesman Brendan Crawley said it would be “inappropriate” to comment on the Nartey decision while it is within the 60-day appeal review period. Nartey’s counsel, Timothy Breen, did not respond to an interview request.
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