IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REGINA

v.

ZACHERY DANE WEAVER

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE T. GOUGE

The Issue

The Problem

Charter Remedies

1.   Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

2.   Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Section 11 of the Interpretation Act RSC 1985, c. I-21 provides:

The expression “shall” is to be construed as imperative and the expression “may” as permissive.

I therefore turn to the purposes that an order for damages under s. 24(1) may serve. For damages to be awarded, they must further the general objects of the Charter. This reflects itself in three interrelated functions that damages may serve. The function of compensation, usually the most prominent function, recognizes that breach of an individual's Charter rights may cause personal loss which should be remedied. The function of vindication recognizes that Charter rights must be maintained, and cannot be allowed to be whittled away by attrition. Finally, the function of deterrence recognizes that damages may serve to deter future breaches by state actors.

Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[T]he objective of all testimony is the eliciting of information from which conclusions may be drawn. It is therefore fundamental to the litigation process that the court or other tribunal have available to it all relevant evidence, unless some other social value is perceived to exist that takes priority over the ascertainment of the truth.

It is trite that the Saskatchewan Provincial Court acting under the Criminal Code is a court of competent jurisdiction and can grant Charter remedies. In this case, the issue is whether the Provincial Court functioning in its criminal law role can award damages which are a civil remedy.

Dunedin stands for the principle that a criminal court has a full arsenal of criminal law remedies for fashioning an appropriate and just response to a Charter violation but that those remedial powers are confined to the court's criminal sphere and do not include civil remedies such as damages.

The reference to “Dunedin” is to the judgment reported as R v 974649 Ontario Inc. [2001] 3 SCR 675; 2001 SCC 81 (CanLII), [2001] SCJ No. 79; 2001 SCC 81. In that case, the Supreme Court upheld the decision of a Justice of the Peace to award costs against the Crown for a Charter breach in the course of a prosecution under the Provincial Offences Act RSO 1990, c. P.33. However, the Court did so only because the power to award costs was expressly conferred by the Provincial Offences Act, and so was considered to be a criminal law remedy, even though costs are normally considered to be a civil remedy.

A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

Nonetheless, this Court has recognized that there are rare occasions -the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73).

Section 24(2) of the Charter

 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

As I construe Grant, when applying section 24(2) of the Charter, I am not to exclude the evidence because I think it important to change police behaviour. I erred in this respect in R v Karaim [2019] BCJ No. 2339; 2019 BCPC 286 at paragraph 15, and I must not repeat that error in this case. Similarly, I am not to exclude the evidence because Mr. Weaver was badly treated by the police. I must consider only the effect on the public confidence in the administration of justice of receiving or excluding the evidence tendered in this case.

The following factors are important in this case.

a.   While certainly not trivial, the search in this case was less intrusive than, for example, the strip-search of Mr. Ward.

b.   I am satisfied that Constable Eckert, the police officer who searched the wallet in this case, believed that he was entitled to do so. He was mistaken in that belief, and I hope that he has learned something from this case, but I do not consider this to be a deliberate Charter breach. The jurisprudence surrounding the power to search incidental to arrest is less clear and concise than it ought to be.

c.   Trafficking of narcotics is the cause of much human suffering. The rate of overdose fatalities continues to rise. Much of the petty crime which plagues our communities is committed by addicts seeking to raise money to buy drugs. Many incidents of family violence which I encounter in family court are drug-induced. These phenomena affect the daily lives of most citizens. The criminal justice system must operate in way which enhances public confidence in its ability to deter the trade in illicit drugs.

d.   The subtleties of the Charter jurisprudence are obscure to many members of the public. There is a risk that, if I exclude the evidence in this case, members of the public and the press will believe that Mr. Weaver “got off on a technicality”. Such a belief would not be justified. His objection to the search, and to the admissibility of the evidence derived from it, is substantive and well-justified. The conduct of the police was a serious infringement of an important Charter right. However, the focus of the Grant enquiry is on the impact of a decision, one way or the other, upon public confidence in the administration of justice.

e.   Exclusion of the evidence would effectively preclude the adjudication of the case on its merits. Without the evidence in question, Mr. Weaver would almost certainly be acquitted.

For those reasons, I cannot say that it has been established that the admission of the evidence would “… bring the administration of justice into disrepute”.

Disposition

_______________________________

T. Gouge

Provincial Court Judge