R. v. 2821109 Can. Inc. (2002), 281 N.R. 267 (SCC)
test 12345
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2002] N.R. TBEd. FE.004
Ka Lam Law, Kam Sun Chan and 2821109 Canada Inc. (appellants) v. Her Majesty the Queen (respondent) and The Attorney General of Ontario (intervener)
(27870; 2002 SCC 10)
Indexed As: R. v. 2821109 Canada Inc. et al.
Supreme Court of Canada
McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
February 7, 2002.
Summary:
The accused were charged with having made false or misleading statements with respect to the goods and services tax in connection with the operation of a restaurant. The trial judge acquitted the accused and held that the evidence against them was inadmissible because it had been obtained in violation of the Charter. The Crown appealed.
The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported in 204 N.B.R.(2d) 191; 520 A.P.R. 191, dismissed the appeal. The Crown appealed again.
The New Brunswick Court of Appeal, Rice, J.A., dissenting, in a decision reported 225 N.B.R.(2d) 85; 578 A.P.R. 85, allowed the appeal and ordered a new trial. The accused appealed.
The Supreme Court of Canada allowed the appeal.
Civil Rights – Topic 1508
Property – General principles – Expectation of privacy – A safe containing documents was stolen from a restaurant – The police recovered the safe along with the documents – A police officer suspected the restaurant was not paying GST – Without authorization or search warrant, the officer photocopied some documents found in the safe and contacted Revenue Canada – The restaurant and its two directors were charged with having made false statements concerning the GST – The trial judge acquitted them after excluding the photocopied evidence, which was obtained by a search he deemed unreasonable – The Supreme Court of Canada affirmed the decision – After stating that the officer could not rely on the plain view doctrine, the court held: “[T]he police’s conduct in this case amounted to a search within the meaning of s. 8 of the Charter. While a reasonable accused would have expected a certain degree of state intrusion into his stolen safe — a fingerprint analysis, a security check, an investigation of content for the purpose of identifying the perpetrator of the theft — he would otherwise have expected the contents of the safe to remain private. Moreover, to the extent the officer was driven by another law enforcement objective (namely, investigation of GST violations), he lacked reasonable and probable grounds to suspect the [accused]” – See paragraphs 15 to 31.
Civil Rights – Topic 1524
Property – Personal property – Search and seizure by police – [See
Civil Rights – Topic 1508
].
Civil Rights – Topic 1646
Property – Search and seizure – Unreasonable search and seizure defined – [See
Civil Rights – Topic 1508]
.
Civil Rights – Topic 1650
Property – Search and seizure – Warrantless search and seizure – Plain view doctrine – [See
Civil Rights – Topic 1508
].
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – A safe containing documents was stolen from a restaurant – The police recovered the safe along with the documents – A police officer suspected the restaurant was not paying GST – Without authorization or search warrant, the officer photocopied some documents found in the safe and contacted Revenue Canada – The restaurant and its two directors were charged with having made false statements concerning the GST – The trial judge acquitted them after excluding the photocopied evidence, which was obtained by a search he deemed unreasonable – The Supreme Court of Canada affirmed the decision – After stating that admitting the evidence would not affect the fairness of the trial, the court affirmed the trial judge’s finding that the officer’s conduct was “sufficiently serious” to exclude the photocopied documents – The court opined that the administration of justice would suffer greater disrepute from the admission of the evidence than from its exclusion – See paragraphs 32 to 41.
Police – Topic 3245
Powers – Seizure – Without arrest or warrant – [See
Civil Rights – Topic 1508
].
Cases Noticed:
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 11].
R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, consd. [para. 13].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 15].
R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 15].
R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, consd. [para. 15].
Québec (Sous-ministre du Revenu) et autres v. 143471 Canada Inc. et autres, [1994] 2 S.C.R. 339; 167 N.R. 321; 61 Q.A.C. 81, refd to. [para. 16].
R. v. LeBlanc (1981), 36 N.B.R.(2d) 675; 94 A.P.R. 675; 64 C.C.C.(2d) 31 (C.A.), refd to. [para. 17].
United States v. Procopio (1996), 88 F.3d 21 (1st Cir.), refd to. [para. 17].
R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 21].
R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, consd. [para. 22].
R. v. Annett (1984), 6 O.A.C. 302; 17 C.C.C.(3d) 332 (C.A.), dist. [para. 24].
R. v. Spinelli (J.P.) (1995), 65 B.C.A.C. 272; 106 W.A.C. 272; 101 C.C.C.(3d) 385 (C.A.), consd. [para. 25].
United States v. Sumlin (1990), 909 F.2d 1218 (8th. Cir.), refd to. [para. 27].
Coolidge v. New Hampshire (1971), 403 U.S. 443, refd to. [para. 27].
United States v. O’Bryant (1985), 775 F.2d 1528 (11th Cir.), refd to. [para. 27].
R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 32].
R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, consd. [para. 37].
R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 38].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2) [para. 9].
Excise Tax Act, R.S.C. 1985, c. E-15, sect. 288 [para. 9].
Authors and Works Noticed:
Canada, Privacy and Computers, Report of the Task Force Established Jointly by the Department of Communications/Department of Justice (1972), p. 13 [para. 16].
LaFave, W.R., Search and Seizure: A Treatise on the Fourth Amendment (3rd Ed. 1996), pp. 395 to 398 [para. 27].
Counsel:
Éric J. Doiron and Michel C. Léger, for the appellants;
Bernard Laprade and François Lacasse, for the respondent;
W. Graeme Cameron, for the intervener.
Solicitors of Record:
Doiron & Bastarache, Moncton, New Brunswick; Michel C. Léger & Associés, Shediac, New Brunswick, for the appellants;
The Attorney General for Canada, Ottawa, Ontario, for the respondent;
The Ministry of the Attorney General, Toronto, Ontario, for the intervener.
This appeal was heard on October 4, 2001, by McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.
The judgment of the Supreme Court was delivered in both official languages on February 7, 2002, by Bastarache, J.
