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Criminal - Arrests (Warrant and Warrantless). R. v. Zacharias
In R. v. Zacharias (SCC, 2023) the Supreme Court of Canada considered 'consequential' Charter breaches in the Charter s.24(2) evidence exclusion inquiry, here where an initial Charter breach leads to an unlawful arrest:C. An Unlawful Arrest as a “Consequential” Breach in the Section 24(2) Analysis
[47] Where an arrest is unlawful because it is premised on the results of a Charter breach, it is the initial Charter breach that renders what follows unlawful. In other words, there is a situation of linked or “cascading” Charter breaches (see Blanchard, at para. 34). We use the term “consequential” to refer to such breaches in the s. 24(2) analysis because the subsequent arrest is unlawful only as a consequence of the “initial” breach or breaches that preceded it.
[48] Importantly, an arrest that can be viewed only as a consequential breach is distinct from state action that is characterized by additional or independent misconduct, including conduct that can be considered an “independent” breach of the Charter (such as failing to give an arbitrarily detained accused their right to counsel upon arrest). In those circumstances, the subsequent state action is of a different character and will be factored into the s. 24(2) analysis differently.
[49] A pattern of Charter breaches, for example, may cumulatively increase the seriousness of the Charter-infringing state conduct (see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (“Grant 2009”), at para. 75). Some factual scenarios will raise the issue of cumulative breaches, which may evidence a pattern of misconduct, rather than consequential ones alone, which will likely not (see R. v. Lambert, 2020 NSPC 37, 472 C.R.R. (2d) 1, at paras. 361-65, aff’d 2023 NSCA 8, at paras. 92-103 (CanLII); R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492, at paras. 12 and 30; R. v. Kossick, 2017 SKPC 67, 392 C.R.R. (2d) 250, at paras. 97-98 and 126, aff’d 2018 SKCA 55, 365 C.C.C. (3d) 186; R. v. White, 2022 NSCA 61, 419 C.C.C. (3d) 123, at paras. 44-61; Monney, at para. 120; M. Asma and M. Gourlay, Charter Remedies in Criminal Cases (2nd ed. 2023), at p. 51).
[50] Having set out the foregoing distinction, we now address how such an unlawful arrest — which is a breach only by consequence of its connection to an unlawful search, and which demonstrates no additional state misconduct — should be factored into the s. 24(2) Grant analysis.
(1) The Section 24(2) Grant Analysis
(a) The Seriousness of the Charter-Infringing State Conduct
[51] The first line of inquiry under s. 24(2) asks whether the Charter‑infringing state conduct is so serious that the court must dissociate itself from it. The spectrum of seriousness involves, at one end, “inadvertent or minor violations of the Charter” and, at the other, “wilful or reckless disregard of Charter rights” (Grant 2009, at para. 74; see also Beaver, at para. 120).
[52] An unlawful arrest that is a consequential breach must be factored into the first and second stages of the s. 24(2) analysis, but is unlikely to significantly impact the overall seriousness of the Charter-infringing state conduct. In the absence of additional state misconduct, the focal point for evaluating seriousness is likely to remain the initial breach: in this case, the preceding unlawful search. Where, as in this case, the police conduct is only off the mark to a “miniscule” degree, the seriousness of the initial breach will tend to be on the lower end of the scale. However, in other cases, the initial misconduct may be characterized as more serious; for example, if the police conduct was still inadvertent but further off the mark. In the latter case, while the consequential arrest would still be unlikely to significantly increase the overall seriousness of the misconduct, the seriousness would already be more severe given the focus on the initial breach.
[53] This is consistent with the approach followed in other cases. For example, where a search incident to arrest has been found unlawful only by virtue of the unlawfulness of the preceding arrest and the arrest evidences no other misconduct, greater emphasis is likely to be placed on the arrest itself rather than the “unremarkable” or “normal consequences of the arrest” that follow (see R. v. Loewen, 2018 SKCA 69, [2018] 12 W.W.R. 280, at paras. 77-78; see also Tim, at paras. 49-50 and 84-87). Where it is only the connection to the initial Charter breach that is the source of the misconduct, and where the police honestly believe they are proceeding lawfully, subsequent state conduct is unlikely to meaningfully increase the seriousness of the Charter-infringing state conduct.
[54] At the same time, we do not rule out the possibility that where the initial breach involves deliberate, intentional, or flagrant state misconduct, subsequent actions taken as a consequence of that initial breach may increase the overall seriousness of the Charter-infringing state conduct. The s. 24(2) analysis, of course, will depend on the facts of the case, and all cases will require “an evaluation of the seriousness of the state conduct that led to the breach” (Grant 2009, at para. 73). But where the police honestly believe that they have not committed any initial breach, actions taken on the basis of that initial breach are, to their mind, lawful, and do not demonstrate any heightened disregard for Charter rights or the law. In such a case, the subsequent state action or consequential breach is not deliberate, and therefore should be situated on the less serious end of the scale of culpability (see Tim, at para. 82).
(b) The Impact on the Charter-Protected Interests of the Accused
[55] The impact on the Charter-protected interests of the accused is distinct from the seriousness of the Charter-infringing conduct. As this Court stated in Grant 2009, in order to assess this factor, the court must “look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests” (para. 77).
[56] When additional rights and breaches of those rights are factored into the s. 24(2) analysis, there will necessarily be a more significant impact on the accused that is therefore relevant to the analysis of the second Grant factor. Consideration of all breaches as found is necessary to get an “accurate picture of the effects of the breaches” (C.A. reasons, at para. 51). Section 24(2) of the Charter requires “regard to all the circumstances”. To fail to have regard to the impact of an arrest on an accused where it occurred as a consequence of a preceding Charter breach would fail to take into account “all the circumstances”. The arrest here was unlawful and, therefore, must form part of the s. 24(2) analysis.
[57] Accordingly, we reject the Crown and interveners’ view that we should adopt the approach set out by the Court of Appeal for Ontario in R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224. In Jennings, the court in obiter reasoned that, for s. 8 breaches in breath sample cases, it would be incorrect in the s. 24(2) analysis “to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest” because that would create a categorical rule of exclusion (paras. 27 and 32). Thus, we would not adopt the approach suggested in Jennings in this case. Rather, where a court finds that an arrest is made in breach of the Charter, it will be necessary to consider such a breach in the s. 24(2) analysis, including the impacts on the accused’s Charter-protected interests (see R. v. Reilly, 2021 SCC 38, at para. 3; see also R. v. Au-Yeung, 2010 ONSC 2292, 209 C.R.R. (2d) 140, at paras. 41, 50 and 59). This will be the case whether or not the unlawful arrest can be considered to be a “consequential” breach.
(c) Society’s Interest in an Adjudication on the Merits
[58] The third factor looks to society’s interest more broadly, focusing on the truth-seeking function of a criminal trial (Grant 2009, at para. 79). The court considers factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence (R. v. McColman, 2023 SCC 8, at para. 70). In our view, and in the absence of arguments on this point, consideration of conduct like the additional breaches in this case would not change the analysis for the third Grant factor.
(2) Summary
[59] The foregoing is meant to offer guidance in specific situations. A “consequential” breach is not a new “type” of Charter breach. It will not be necessary or useful in every case to determine whether the sequence of state conduct presents a “consequential” breach. But this operates as guidance for cases where an arrest follows as a consequence of a search, and both are viewed as unlawful on judicial review. In these cases, the court must assess the seriousness of both the search and the arrest. The arrest, given that it is expected in the circumstances, is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct, but it will often result in a more significant impact on the individual’s Charter-protected interests. In this way, the s. 24(2) analysis does not become a rule of automatic exclusion, while at the same time, the court takes fully into account the impact on the Charter-protected interests of the accused. . R. v. Zacharias
In R. v. Zacharias (SCC, 2023) the Supreme Court of Canada considered the validity of arrests (both warrant and warrantless) grounded in evidence obtained by Charter breach:B. Arrests Made as a Consequence of a Charter Breach
[26] This appeal raises the question of whether the police breached the appellant’s Charter rights by arresting him based on the results of an unlawful search. Lower courts across the country have reached divergent conclusions on the question of whether such arrests are lawful. As we will explain, a principled approach to the Charter mandates that police cannot rely on unlawfully obtained evidence in order to conduct a warrantless arrest. Where the grounds for arrest are based on evidence that is subsequently found to have been unlawfully obtained, the court must excise this evidence from the factual matrix in order to determine whether the police had reasonable and probable grounds for arrest.
[27] In R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, this Court explained that in order to safeguard the liberty of Canadians, the Criminal Code, R.S.C. 1985, c. C-46, sets out strict standards for when police may exercise powers of arrest. In order to obtain a warrant for arrest, the police must demonstrate that they have reasonable and probable grounds to believe that the person they are seeking to arrest has committed an offence. Section 507 of the Code provides for a review mechanism whereby a justice, upon receipt of an information, determines whether the requisite grounds for arrest have been made out.
[28] The same standard of reasonable and probable grounds applies where the police arrest an individual without a warrant (Storrey, at p. 249). Section 495(1)(a) of the Code grants police the power to arrest individuals without judicial authorization if, on reasonable grounds, the police believe the person has committed or is about to commit an indictable offence. The test for whether the police were acting within their authority to conduct a warrantless arrest has both a subjective and an objective component (pp. 250-51). Subjectively, the arresting officer must honestly believe that the suspect committed the offence in question. In addition, those subjective grounds must be justifiable from an objective point of view. In evaluating whether the officer had reasonable and probable grounds for arrest, the court must conduct the analysis from the perspective of a reasonable person standing in the shoes of the arresting officer (R. v. Beaver, 2022 SCC 54, at para. 72).
[29] In considering whether the police had reasonable and probable grounds to arrest the appellant in this case, Khullar J.A. concluded that “reasonable and probable ground[s] cannot be supplied by the results of an unlawful sniffer dog search” (para. 54). We agree.
[30] The conclusion that reasonable grounds for lawful arrest cannot be supplied by actions that involved violations of the Charter accords with principle and policy. Indeed, this conclusion is a logical extension of the applicable principles in other contexts where an initial Charter breach forms the basis for subsequent state action. An unlawful search, for example, cannot furnish the requisite grounds for a search warrant (R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 59). Similarly, a lawful arrest is a pre-requisite for any search conducted incident to it (R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 13-14; R. v. Tim, 2022 SCC 12, at paras. 49-50).
[31] This Court in R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, explained the rationale that animates this rule in the search warrant context: in excluding justification for state conduct that is itself unconstitutional, “the state is prevented from benefiting from the illegal acts of police officers” (p. 251). In the same vein, a search incident to arrest is invalid if the arrest was not lawful because “the legality of the search is derived from the legality of arrest [and] if the arrest is later found to be invalid, the search will be also” (Caslake, at para. 13).
[32] The need to ensure that the state cannot rely on conduct that violates the Charter applies regardless of whether the police are knowingly in breach of the law. The policy rationale is two-fold.
[33] First, respect for the Charter and robust protection of civil liberties mandates that the state not be permitted to minimize the impact of earlier unconstitutional actions that lead to a cascading series of well-meaning investigative steps. To allow the police to rely on their misconduct in such a way would fail to give meaningful effect to rights protected under the Charter.
[34] Furthermore, allowing the state to rely on Charter violations “through the back door” could incentivize police to be less careful in adherence to the law. For example, as this Court held in Tim, at para. 30:Allowing the police to arrest someone based on what they believe the law is — rather than based on what the law actually is — would dramatically expand police powers at the expense of civil liberties. This would leave people at the mercy of what particular police officers happen to understand the law to be and would create disincentives for the police to know the law. Canadians rightly expect the police to follow the law . . . . While the fact that the police erred unknowingly or in good faith will be considered at the s. 24(2) stage, it has no bearing on whether there has been a further violation of the Charter as a consequence of the initial misconduct.
[35] This conclusion is also supported by the preponderance of the jurisprudence. In R. v. Monney (1997), 1997 CanLII 979 (ON CA), 153 D.L.R. (4th) 617 (Ont. C.A.), rev’d on other grounds 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, the Court of Appeal for Ontario analogized the warrantless arrest context to search warrants. Rosenberg J.A., writing for the majority of the court, concluded that, similarly, when considering the validity of a warrantless arrest, “facts obtained as a result of a breach of the Charter . . . are excised from the [grounds for arrest]. The court must then determine whether the [arrest would have been valid] without the improperly obtained facts” (para. 98).
[36] In R. v. MacEachern, 2007 NSCA 69, 255 N.S.R. (2d) 180, the Nova Scotia Court of Appeal accepted the Crown’s concession that the arrest in question was unlawful in light of it being based on an earlier breach of s. 10(b) of the Charter. In that case, a sniffer dog detected drugs in the appellant’s backpack. The police detained and questioned the appellant without informing him of his right to counsel. In response to his answers to police, the appellant was arrested for possession. The Crown conceded in its factum on appeal that without the appellant’s responses to the police, the officer did not have a subjective belief that the appellant was illegally in possession of drugs and had thereby committed an offence. The court agreed with the Crown that as a result, the arrest was unlawful.
[37] In R. v. Blanchard, 2011 NLCA 33, 308 Nfld. & P.E.I.R. 91, the Newfoundland and Labrador Court of Appeal agreed with the court below that as the initial sniffer dog search of the appellant’s car was unlawful and led to a further search and arrest, the subsequent search and arrest were also in violation of the Charter (para. 34). Both the search warrant and the warrantless arrest were based on the results of the illegal sniff search (para. 13). The Court of Appeal characterized these breaches as a “cascade of Charter violations” (para. 34).
[38] Similarly, in R. v. Pelucco, 2015 BCCA 370, 327 C.C.C. (3d) 151, the majority of the British Columbia Court of Appeal agreed with the trial judge that the arrest at issue was unlawful, given that it was based on evidence that had been discovered unlawfully. In that case, unbeknownst to the appellant, the police had seized the cellphone of the person to whom he was arranging to sell cocaine. When the appellant arrived to complete the sale, he was arrested and drugs were found in his truck as well as, following execution of a search warrant, his home. The trial judge concluded that the search and seizure of the original buyer’s cellphone was unlawful, as was the search of the appellant’s vehicle and backpack. Therefore, the arrest, which was “based on” evidence uncovered from these unlawful searches, was also unlawful (para. 23). The Court of Appeal agreed (para. 72).
[39] Finally, we note that this Court has endorsed similar reasoning. In R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415, a police officer became suspicious when he noticed the appellant and a passenger sitting in a dark car behind a closed service station. When he approached the vehicle, he saw the occupants react with shock and thought he saw the appellant throw something to the other side of the car. He ordered the occupants to exit the vehicle, detaining them, and arrested the appellant after seeing a bag of marijuana in the car. The trial judge concluded that the appellant’s rights under ss. 8, 9 and 10(b) of the Charter had been violated: “. . . ‘but for the [arbitrary] detention the marijuana [found by the police officer] on the floor [of the appellant’s automobile] would not have been discovered and but for the marijuana on the floor being discovered, there would have been no right to arrest these men’” (para. 4). This Court held that the trial judge was entitled to conclude on the facts as stated that the appellant’s ss. 8, 9 and 10(b) rights had been violated (para. 7).
[40] While some courts have reached the opposite conclusion on this question, we do not find their reasoning persuasive. The intervener the Attorney General of Alberta points to the recent decision of R. v. Love, 2022 ABCA 269, [2023] 1 W.W.R. 296, in which the Alberta Court of Appeal declined to apply the automatic excision rule to grounds for arrest premised on unlawful searches. The Court of Appeal based its decision on criticism of the automatic excision rule in the search warrant context and its conclusion that automatic excision in the arrest context “would nullify the subjective focus [and objective aspect] of the Storrey test” (para. 94).
[41] The rule that reasonable and probable grounds for arrest cannot be supplied by the results of unconstitutional state conduct does not conflict with the test set out in Storrey. As set out above, the Storrey test requires that the police have a subjective belief, that is also objectively reasonable, that the arrestee has committed an offence. The onus is on the state to establish that these grounds exist (Storrey, p. 250). In order to ensure that the state is not able to rely on violations of the Charter, the reviewing judge must excise evidence that has been unconstitutionally obtained at the outset of this inquiry. Once this evidence has been removed from the factual matrix, the court applies the Storrey test to determine whether reasonable and probable grounds exist, having regard to both the subjective and objective components. In this inquiry, the court considers the totality of the circumstances known to the officer at the time of the arrest, but does not include evidence found to have been unconstitutionally obtained.
[42] Both the Attorney General of Alberta in its intervener submissions and the Alberta Court of Appeal in Love emphasize that unlike when drafting an information to obtain a search warrant, warrantless arrests are often carried out in dynamic situations (I.F., at para. 37; Love, at paras. 91-92). This is true. Nonetheless, the purpose of preventing police from being able to rely on unlawful conduct is not to prevent them from acting in the dynamics of the moment. The same constraint that should guide police in their interactions with individuals continues to apply: such actions must comply with the Charter. Thus, police are not required to take an additional step “to inquire into the constitutionality of prior investigative steps before acting on the information they yielded” (Love, at para. 92; see also I.F., Attorney General of Ontario, at para. 18, arguing this suggests police should be “required to stop their investigation”). Rather, police have been and continue to be required to consider whether they are acting within constitutional limits when they act. In short, the police need to respond to exigencies, but in doing so must be mindful of the authority that the law confers and also the constraints that the law imposes.
[43] Canadians have a legitimate expectation that the police will know and comply with the law, especially the Charter (Tim, at para. 30; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 6; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 67). This applies no less in dynamic situations. As this Court highlighted in Storrey, “[i]n the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest” (p. 249 (emphasis added); see also S. Coughlan and G. Luther, Detention and Arrest (2nd ed. 2017), at p. 91). This rule is also consistent with the principles that apply in the search warrant and search incident to arrest contexts.
[44] Before turning to how breaches of the Charter resulting from earlier breaches are to be factored into the s. 24(2) analysis, we pause to note the important difference between excision and exclusion. Where grounds for arrest are based on unconstitutionally obtained evidence, that evidence is to be excised from the factual matrix. However, we leave open the possibility of situations where, even after this evidence is excised, the arresting officer still meets the standard of reasonable and probable grounds for arrest. For example, if police arrest an individual after conducting an unlawful search, but the evidence uncovered from the search is only one contributing factor to the decision to arrest, the arrest will still be lawful if the balance of the evidence suffices to establish reasonable and probable grounds.
[45] The automatic excision rule also does not, as suggested by the Attorney General of Ontario, create “categorical rules of exclusion” (I.F., at para. 16). The question of whether there has been a violation of the Charter is distinct from whether the evidence obtained as a result of that violation should be excluded from trial. The latter question is dealt with at the s. 24(2) stage, where the court considers the totality of the circumstances in order to determine, on balance, whether admission of the evidence will bring the administration of justice into disrepute.
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