R. v. Harrison (B.) (2009), 391 N.R. 147 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2009] N.R. TBEd. JL.069
Bradley Harrison (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario, Canadian Civil Liberties Association and Criminal Lawyers’ Association (Ontario) (intervenors)
(32487; 2009 SCC 34; 2009 CSC 34)
Indexed As: R. v. Harrison (B.)
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
July 17, 2009.
Summary:
The accused was found guilty of trafficking in cocaine. He appealed against the conviction, arguing that the 35 kg of cocaine seized in the vehicle driven by him should not have been admitted into evidence because his rights under ss. 8 and 9 of the Charter were violated.
The Ontario Court of Appeal, Cronk, J.A., dissenting, in a decision reported 233 O.A.C. 211, dismissed the appeal. The accused appealed.
The Supreme Court of Canada, Deschamps, J., dissenting, allowed the appeal and entered an acquittal.
Civil Rights – Topic 1508
Property – General principles – Expectation of privacy – [See
Civil Rights – Topic 8368
].
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – The accused was driving a rented vehicle from Vancouver to Toronto – The vehicle also carried a passenger and 35 kg of cocaine worth between $2,463,000 and $4,575,000 on the street – The vehicle had an Alberta licence plate on the back but no plate in the front – The accused was driving at the speed limit when, near Kirkland Lake, Ontario, a police officer in a cruiser decided to stop the vehicle for failure to have a front licence plate – The officer subsequently realized that the vehicle had an Alberta plate and that it was not an offence in Alberta to drive a vehicle without a front licence plate – Nevertheless, for reasons of “integrity for police”, the officer went ahead with stopping the vehicle – The officer asked if there were drugs on board – The passenger nervously answered “yeah” – The officer seized the cocaine – The accused was charged with trafficking – An issue arose under s. 24(2) of the Charter as to the admissibility of the cocaine – The trial judge found that there had been “extremely serious breaches” of the accused’s ss. 8 and 9 Charter rights but nevertheless admitted the cocaine, ruling that the exclusion of the evidence would cause the administration of justice to fall into greater disrepute than its inclusion – The accused was convicted – The Supreme Court of Canada quashed the conviction and entered an acquittal – The cocaine, which was essential to the Crown’s case, was inadmissible – (1) The Charter violation was serious where reasonable grounds for the initial stop were entirely non-existent – (2) The impact of the violation on the Charter-protected interests of the accused was significant, though not egregious: being stopped and subjected to a police search without justification impacted on a motorist’s rightful expectation of liberty and privacy in a way that was much more than trivial – A person in the accused’s position had every expectation of being left alone, subject to valid highway traffic stops – (3) The balancing exercise mandated by s. 24(2) between the police’s “reprehensible” conduct and the “highly reliable evidence tendered on a very serious charge” tipped in favour of exclusion: “allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis ‘would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law “the ends justify the means”‘” – See paragraphs 1 to 43.
Civil Rights – Topic 8369
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Dismissal of charge or acquittal – [See
Civil Rights – Topic 8368
].
Cases Noticed:
R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 2].
R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [paras. 11, 52].
R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 11].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [paras. 12, 45].
R. v. Puskas (J.F.) (1997), 104 O.A.C. 310; 120 C.C.C.(3d) 548 (C.A.), consd. [para. 13].
R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169; 166 C.C.C.(3d) 14 (C.A.), consd. [para. 23].
Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 53].
R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 54].
R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 54].
R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 54].
R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 54].
R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 56].
R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 56].
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. 61].
R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 64].
Counsel:
Marie Henein and Jordan Glick, for the appellant;
James C. Martin and Rick Visca, for the respondent;
Michal Fairburn and Tracy Stapleton, for the intervenor, the Attorney General of Ontario;
Jonathan Dawe, for the intervenor, the Canadian Civil Liberties Association;
Scott K. Fenton, for the intervenor, the Criminal Lawyers’ Association (Ontario).
Solicitors of Record
:
Henein & Associates, Toronto, Ontario, for the appellant;
Public Prosecution Service of Canada, Halifax, Nova Scotia, for the respondent;
Crown Law Office – Criminal, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;
Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;
Fenton Smith, Toronto, Ontario, for the intervenor, the Criminal Lawyers’ Association (Ontario).
This appeal was heard on December 9, 2008, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court was delivered in both official languages on July 17, 2009, and the following reasons were filed:
McLachlin, C.J.C. (Binnie, LeBel, Fish, Abella and Charron, JJ., concurring) – see paragraphs 1 to 43;
Deschamps, J. (dissenting) – see paragraphs 44 to 74.
