The Significance of Police Misconduct, and Misleading Testimony in the Analysis of the Seriousness of Charter Breaches: An Update

In a previous article1 we discussed the significance of police misconduct in the analysis of s. 8 Charter breaches and the exclusion of evidence in the Supreme Court decisions in Regina v. Grant, Regina v. Harrison and Regina v. Morelli.

As we noted, in its decision in Regina v. Harrison, the Supreme Court of Canada accepted that misleading court testimony by police increased the severity of the breach of the s. 8 Charter right to be free from unreasonable search and seizure. This will increase the likelihood that evidence seized by the police in breach of s. 8 of the Charter will be excluded at any subsequent trial.

In its subsequent decision in Regina v. Coté, the Supreme Court of Canada confirmed:

"While the misleading character of in-court police testimony does not form part of the Charter breach itself, it is a relevant factor under the first branch of the s. 24(2) analysis as a court must dissociate itself from such behaviour: Harrison, at para. 26."2

In Regina v. Coté, the Supreme Court of Canada upheld the exclusion of evidence obtained by the police during a murder investigation where the trial judge had concluded that:

"The warrants were actually sought as an ill-conceived scheme to attempt to remedy the unconstitutionality of the prior searches and that the police had misled the issuing judicial officer [who granted a search warrant] by failing to make full and frank disclosure of their earlier unconstitutional conduct."3

This initial misconduct in the course of obtaining a search warrant was compounded by the fact that, when they testified at trial concerning the circumstances in which the search warrant was obtained, the police were "less than candid …under oath in court in order to minimize the extent of their misconduct".4

The Supreme Court of Canada upheld the exclusion of evidence in this case, even though, had they acted lawfully, the police could have demonstrated they had reasonable and probable grounds to obtain a search warrant. The court concluded that, having regard to the police officers’ consistent and pervasive pattern of disregarding the accused’s Charter rights, the exclusion of the evidence at trial should be upheld.5

As established in its decision in Harrison, and subsequently in R. v. Coté, the Supreme Court of Canada has continued to regard misleading police evidence in obtaining warrants, and in court, as serious aggravating features in relation to Charter violations, which will increase the seriousness of the Charter breach, and the likelihood that evidence obtained in these circumstances will be excluded at trial under s. 24(2) of the Charter.

Since R. v. Coté, several decisions by provincial Courts of Appeal have highlighted the misconduct of law enforcement officers, including misleading testimony at trial, in excluding evidence under s. 24(2) of the Charter.

In R. v. Turpin the trial judge found "a flagrant disregard for Charter requirements" when police unlawfully arrested the accused for possession of stolen property, in order to conduct a warrantless vehicle search for drugs.6 The relevant officer’s testimony was found not to be credible on key points. Given the seriousness of the breach, the trial judge held, and the Court of Appeal affirmed, that:

Admitting the evidence in these circumstances would amount to a judicial declaration that in the administration of criminal law, the end justifies the means if the offence is serious and the evidence is reliable.7

In R. v. He,8 three restaurateurs faced charges of tax evasion. The trial judge found that Canada Revenue Agency (CRA) officers violated the accused’s s. 7 and s. 8 Charter rights by inviting them to participate in a "voluntary" compliance program and, when they refused, making them believe, falsely, that they had no option but to provide records to the officers.9 The trial judge refused to accept the officers’ evidence on key points,10 and excluded the evidence under s. 24(2), finding the Charter infringing conduct to be very serious.11 The B.C. Court of Appeal upheld this ruling, holding that there was an evidentiary basis for the trial judge’s finding that the CRA’s interaction with the taxpayers was deceptive and misleading, and therefore that this factual finding was entitled to deference.12

In upholding the exclusion of the documents obtained by the CRA, the Court of Appeal noted:

"…the reality that what the CRA did in this case was to abuse its powers and mislead [the taxpayer] in order to obtain from the [taxpayer] information from a survey that had nothing to do with the information that is or should be in the books or records of [the taxpayer] or is related to any amount payable by [the taxpayer] … under the ITA or the ETA".

Several recent trial and appellate decisions have also emphasized misleading police trial testimony as a significant factor in excluding evidence under s. 24(2).

In R. v. Willoughby,13 the accused was charged with impaired driving after a police officer found him intoxicated in a parked car on private property. The trial judge found violations of s. 8 and s. 9 but declined to exclude evidence under s. 24(2). On a summary conviction appeal, the Ontario Superior Court rejected the trial judge’s characterization of the Charter-infringing conduct as minimally serious because the trial judge himself had found that the police officer fabricated an important part of his testimony.14 As the Court held in excluding all evidence of impairment and of the accused’s blood-alcohol content:

"To admit the evidence in this case would harm the long-term repute of the administration of justice. It would result in a perception that the fabricated evidence of the police; the concocted explanation for trespassing on private property; the deliberate "backfilling" of the evidence by the police officer, all culminating in an unreasonable search under s. 8 and an arbitrary detention and arrest under s. 9 of the Charter, were being condoned by the Court. This Court must dissociate itself from that police misconduct."15

In R. v. Selvanayagampillai,16 the Court found that police violated the accused’s s. 8 and s. 9 rights when they searched their car, ostensibly for open liquor, and found a large number of fraudulent credit cards. The basis for the search was an alleged admission by one of the accused that a Gatorade bottle in the car contained vodka and orange juice, as well as the contents of the bottle itself.17

The Court found that the police officer fabricated both of these pieces of evidence.18 The court took particular umbrage at the fact that the officer stated under cross-examination, for the first time, that the Gatorade bottle’s contents had somehow spilled out during the original search, making testing for alcohol impossible. These considerations were central to the Court’s decision to exclude the evidence of the search under s. 24(2):

"The ramifications of P.C. Aichman's handling or mis-handling of the Gatorade bottle and lack of reporting the purported spilling of the liquid extended well into the trial process. Time and resources were spent on requesting that the bottle be tested and sending it for testing, all on the potentially false premise that it had originally contained some alcohol. The impact on the administration of justice did not stop there, but affected the trial itself when P.C. Aichman finally testified in cross-examination that the bottle had spilled. That revelation resulted in a mistrial application and a re-calibration of the defence cross-examination of one of the Crown's primary witnesses. The ripple effect of P.C. Aichman's disregard for the accused's Charter rights demonstrates how the actions of one state actor can denigrate the integrity of a prosecution. It is precisely the type of state conduct from which the court must dissociate itself if the administration of justice is not to be brought into disrepute."19

Similarly, in Regina v. Newman20 the court excluded evidence in a murder trial, which had been obtained pursuant to a search warrant, where the court found a series of egregious breaches of the Charter by the police which were found to be part of a systematic, deliberate and planned disregard by the police of the accused’s rights designed to obtain incriminatory evidence from him.21

In excluding the evidence, the court noted that evidence given by the police on the Charter voir dire was at times disingenuous, self-serving, not credible, and less than forthcoming. The court relied on this characterization of the police testimony as an aggravating factor which it took into account in deciding that the evidence must be excluded.22

At the other end of the spectrum, the Supreme Court has repeatedly found that good faith on the part of police officers, reflected in forthright testimony at trial, diminishes the seriousness of a Charter breach. This increases the likelihood that the evidence obtained by a Charter breach will be admitted under s. 24(2) of the Charter.23

In summary, recent trial and appellate jurisprudence continues to confirm that false or misleading testimony to obtain a search warrant, or at trial concerning the circumstance of a search, will increase the seriousness of any breach of the Charter, and will be a significant factor for the court in determining whether to exclude evidence under s. 24(2) of the Charter.

1 58 Criminal Law Quarterly 510

2 Regina v. Coté 2011 S.C.C. 46, per Cromwell, J. at para. 88

3 Regina v. Coté, per Cromwell, J. at para. 83

4 Regina v. Coté, supra, at para. 88

5 Regina v. Coté, supra, at para. 89

6 R. v. Turpin, 2010 SKQB 444 at paras. 59 & 93, cited in R. v. Turpin, 2012 SKCA 50 at para. 107.

7 R. v. Turpin, 2010 SKQB 444 at para. 109, cited in R. v. Turpin, 2012 SKCA 50 at para. 109.

8 2012 BCCA 318

9 R. v. He, 2010 BCPC 457 at para. 35, cited in R. v. He, 2012 BCCA 318 at para. 26.

10 R. v. He, 2010 BCPC 457 at para. 36, cited in R. v. He, 2012 BCCA 318 at para. 26.

11 R. v. He, 2010 BCPC 457 at para. 44.

12 R. v. He, 2010 BCCA 318, at paras. 67-68.

13 2012 ONSC 3139

14 R. v. Willoughby, 2012 ONSC 3139 at para. 14.

15 R. v. Willoughby, 2012 ONSC 3139 at para. 23.

16 2011 ONCJ 873

17 R. v. Selvanayagampillai, 2011 ONCJ 873 at para. 24.

18 Ibid. at para. 60.

19 Ibid. at para. 70.

20 2012 CanLII 74066 (NLSTD)

21 Regina v. Newman, supra, at para. 17

22 Regina v. Newman, supra, at para. 18

23 See, for example, R. v. Aucoin, 2012 SCC 66 at paras. 49-50 and R. v. Cole, 2012 SCC 53 at paras. 86 to 87.