Police Officer Conduct Can Affect The Admissibility Of Evidence

• Published date: 23 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Alexander Holburn Beaudin + Lang LLP
• Author: Mr David McKnight and Naomi Krueger

In R v Aujla, 2021 ONSC 2417, R v Beresaw, 2021 ABPC 107, and R v Coutu, 2020 MBCA 106, the Ontario Superior Court of Justice, the Alberta Provincial Court, and the Manitoba Court of Appeal considered different aspects of what constitutes a breach of the Canadian Charter of Rights and Freedoms (the "Charter") when police obtain evidence from a suspect and when that evidence should be excluded.

These cases provide different examples of when police conduct will result in the exclusion of evidence. In Aujla, the court admitted evidence despite a technical breach of the Charter. In Beresaw, the court excluded evidence as a result of a breach of the Charter, and in Coutu, the court found there was no breach of the Charter at all.

R V AUJLA, 2021 ONSC 2417

In Aujla, the accused was observed exiting a warehouse known to contain illegal narcotics with a block of an unknown substance wrapped in plastic wrap. The accused was then seen placing the substance in the front seat of his car and driving away. Later that afternoon, an officer located the subject vehicle and witnessed the accused change lanes without signalling. The officer initiated a traffic stop, approached the vehicle, and began asking the accused where he had been and if he could search a grocery bag sitting in the passenger seat. The accused refused and was arrested for possession of a controlled substance. The accused was searched for weapons and means of escape. During the search, the officer located $695 dollars in bills, $5.25 in change and a small black rock that resembled heroin. At that point, the officer advised the accused of his right to counsel. A second officer searched the accused's vehicle. The officer told the accused any drugs recovered from the vehicle would be seized and tested. The accused was released unconditionally after he requested to speak to a lawyer. The officer did not facilitate contact with a lawyer because the accused was immediately released. He was subsequently arrested roughly three weeks later for possession of a controlled substance based on the evidence obtained at the traffic stop.

The accused brought an application to exclude the evidence on the basis that the arresting officer violated his sections 8, 9, 10(a), and 10(b) Charter rights. He argued that the police had no reasonable grounds to pull his vehicle over or detain him, and the traffic stop was used by the officer as a ruse in order to conduct a search of his vehicle without a warrant, thereby violating...