In R v Strauss, the Ontario Court of Appeal quashed multiple convictions for which the appellant had been sentenced to 11 years in prison. The Court of Appeal differed sharply with the Superior Court’s decision to admit evidence from a search that, although sanctioned by a warrant, was conducted following a warrantless search of the same premises. In a 3-0 ruling, the Court of Appeal emphatically affirmed the s.8 Charter right to be secure against unreasonable search and seizure.
This case revolves around the police investigation into 29 weapons that were stolen in February of 2012 in Cambridge, Ontario. The investigation into the theft led to an arrest, and the arrested individual told police that he had sold the weapons to the appellant – a member of the Hells Angels Motorcycle Club. The police conducted free-ranging warrantless searches of properties in the area surrounding the location of the alleged transaction, but were unable to locate the weapons. They later became aware of properties connected to the appellant in that vicinity, and it is two searches of one of those properties that are at issue in this case.
In the first search, officers entered the property and conducted a warrantless search of a barn – picking the lock to gain entry. During the search, they discovered 16 weapons among other contraband. They made no attempt to obtain a warrant, and the officers testified that they were aware that there was no lawful authority for the search. The senior investigating officer testified that he was aware that the resultant evidence might be excluded. Although there was a prosecutor involved with the case at the time, the senior investigating officer did not contact her or inform her about the illegal search.
While the police considered the appellant a suspect, he was not arrested – but was instead arrested weeks later, on an unrelated bail order. While in custody, the appellant spoke to the individual who had originally been arrested for the theft of the weapons, and mentioned a hidden compartment in the barn that had not been discovered during the first search. That individual again informed the police, who used that information to apply for and receive a warrant to search the premises. That search yielded the remainder of the missing weapons, as well as additional contraband.
The lower court excluded the results of the first search, but admitted the results of the second search. The question at issue at the Court of Appeal was whether admitting the results of the second search constituted a reversible error, with the court concluding that it did.
The Court of Appeal determined that the lower court had improperly applied the Grant factors, which are used to determine whether evidence should be excluded under s.24(2) of the Charter. The factors are: (1) the seriousness of the Charter-infringing state conduct; (2) the impact on the Charter-protected interests of the appellant; and (3) society’s interest in an adjudication on the merits. The thrust of the court’s reasoning is set out at paragraphs 46-54 of the decision.
In its treatment of the first Grant factor, the lower court had determined that the Charter-infringing conduct was indeed serious, but concluded that there were other elements impacting that seriousness:
- In obtaining the warrant for the second search, the police did not attempt to mask the illegality of the first search
- The senior investigating officer took responsibility for that illegal search
- The appellant was not under arrest in connection with the first search when he made the comments that were the basis for the second search.
The Court of Appeal rejected in strong terms all three of the other components relied on by the lower court at the first stage of Grant, finding them to be “incapable of diminishing the seriousness of the breach” (para 47).
Addressing the relevance of the police acknowledgement of the first illegal search, the Court of Appeal held that “[i]t is axiomatic that there be truthful disclosure” in applications for search warrants: “[a]nything less would compound the police misconduct” (para 48). The Court of Appeal also found that the lower court had glossed over the fact that the application for the search warrant was “not full and frank” in several ways, including that it misstated the search as being “to secure these weapons” when in fact the officers did not have reasonable grounds to believe the weapons were even on the property.
Regarding the fact that the senior officer took responsibility for the illegal search, the Court of Appeal quoted the Supreme Court of Canada in Kokesch: “[t]he Crown would happily concede s. 8 violations if they could routinely achieve admission [of evidence] with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds” (para 50). The court also noted the deeply problematic nature of that line of reasoning for the efficacy of the Charter: “to rely on an after-the-fact acknowledgement of wrongdoing as a way to diminish the seriousness of a breach, and thereby achieve admission of the evidence, would give the police a licence to engage in misconduct and render the Charter’s protection meaningless” (para 50).
Finally, the Court of Appeal found that it “was irrelevant to the seriousness of the Charter breach” that the appellant made the statement that served to underpin the warrant while in detention on another charge (para 51).
The Court of Appeal also noted several important factors that the lower court failed to address: “(i) that the officers knew what they were doing was illegal; (ii) that they did not speak to the prosecutor assigned to the case; (iii) that the [warrantless] search and seizure was a series of deliberate breaches involving a perimeter search, a forced entry, and the involvement of officers from two police forces; and (iv) the untold number of private properties the police searched before” they became aware of the properties connected with the appellant (para 52).
The Court of Appeal concluded its decision by noting that Grant stands not for the punishment of the police, but instead for the “preservation of public confidence in the rule of law and its processes” (para 53). The Court of Appeal chided the lower court for having “failed to give effect to the systemic nature of the police misconduct”: while “[m]inor or inadvertent breaches may only minimally undermine public confidence”, “[w]ilful and ongoing disregard of Charter rights will have a negative effect on public confidence”. The Court of Appeal held that the breaches in this case “were deliberate and ongoing” and quoted Grant to say that those breaches “’require that the court dissociate itself from such conduct’ particularly when the conduct ‘was part of a pattern of abuse’” (para 53). Noting that “[a] senior investigating officer and his team made a conscious decision to “gamble” with the law and the courts” and “[t]o admit the evidence under these circumstances would reward and ultimately permit this conduct”, the Court of Appeal found that “[t]he trial judge impermissibly diminished the seriousness of the Charter breach and, in doing so, erred in his analysis” (para 54).
This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.