R. v. Weaver, 2022 BCPC 127

Citation: R. v. Weaver 2022 BCPC 127 Date: 20220623 File No: 85714-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ZACHERY DANE WEAVER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Crown: J. Rutherford Counsel for the Defendant: M. Ritzker Place of Hearing: Nanaimo, B.C. Date of Hearing: April 25, 2022 Date of Judgment: June 23, 2022

The Issue [1] Mr. Weaver is accused of possession of methamphetamine, heroin and fentanyl for the purpose of trafficking. The Crown seeksto introduce evidence that those drugs were found in Mr. Weaver’s wallet and backpack when they were searched at the time of his arrestfor obstructing a police officer. In reasons which I rendered on April 25, 2022, cited as [2022] BCJ No. 749; 2022 BCPC 73, I concludedthat the search of Mr. Weaver’s wallet infringed his rights under

section 8 of the Canadian Charter of Rights & Freedoms. The presentquestion is what remedy, if any, should be imposed for that infringement. [2] Mr. Ritzker, for Mr. Weaver, submits that I should exclude the evidence of the drugs which were found in the wallet. Ms.Rutherford, for the Crown, submits that the evidence should be received. Neither counsel proposed any other remedy. The Problem [3] I am not attracted by the position of either party. Ms. Rutherford’s position, if accepted, would deny Mr. Weaver any remedy forthe infringement of his Charter rights. Mr.

Ritzker’s position, if accepted, would deny access to material evidence in relation to anallegation of a very serious criminal offence. For that reason, I have considered what other remedies might be available. Charter Remedies [4]

Section 24 of the Charter provides (underlining added): 1. Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction 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 anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, 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. [5] Subsections 1 and 2 of

section 24 have different objectives and are governed by different principles. [6] Section 24(1) is permissive and empowering, and, on its face, imposes no constraint on the remedies which may be granted. Bycontrast, section 24(2) is imperative, and addresses only one of the remedies which may be granted. [7] In Ward v. Vancouver (City) 2010 SCC 27 , [2010] SCJ No. 27; [2010] 2 SCR 8, Chief Justice McLachlin said atparagraph 25 (italics in the original): 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 thegeneral 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 beremedied. The function of vindication recognizes that Charter rights must be maintained, and cannot be allowed to be whittled away byattrition.

Finally, the function of deterrence recognizes that damages may serve to deter future breaches by state actors. [8] By contrast, in R v Grant 2009 SCC 32 , [2009] 2 SCR 353; 2009 SCC 32, Chief Justice McLachlin and JusticeCharron said at paragraphs 69 – 70: 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 theadministration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach doesnot 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, butrather 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 justicesystem. [9] Those two passages make it clear that compensation, vindication and deterrence of future police misconduct are legitimateobjectives in crafting a remedy under section 24(1), but are not relevant factors when considering an application under section 24(2). [10] When considering an application under section 24(2), it is also necessary to have regard to the following principle, adopted inL.L.A. v A.B. (SCC), [1995] 4 SCR 536 at paragraph 66: [T]he objective of all testimony is the eliciting of information from which conclusions may be drawn.

It is therefore fundamental to thelitigation process that the court or other tribunal have available to it all relevant evidence, unless some other social value is perceived toexist that takes priority over the ascertainment of the truth. [11] If I were able to award Charter damages in this case, I could admit the evidence of the drugs found in Mr. Weaver’s wallet andaward damages to Mr.

Weaver, thereby serving the public interest in the adjudication of drug trafficking charges on their merits, while,at the same time, delivering to the police the message that there are constraints on their powers to search incidental to arrest and thatthose constraints must be respected. The latter factor is of some importance because the police habitually conduct themselves as if theirpowers of search are co-extensive with their powers of arrest. They think that, whenever they arrest someone, they are entitled to searchthe body and possessions of the person whom they have arrested.

As I tried to explain in my earlier decision in this case, they aremistaken. If, as Ms. Rutherford suggests, I take no action as a consequence of the Charter breach in this case, police officers will be

encouraged in their mistaken understanding of their powers to search incidental to arrest. [12] However, In R v Wetzel 2013 SKCA 143 , [2013] SJ No. 757; 2013 SKCA 143 at paragraphs 93 – 94, Justice Jacksonsaid (bold italics added, underlining in the original): It is trite that the Saskatchewan Provincial Court acting under the Criminal Code is a court of competent jurisdictionand can grant Charter remedies. In this case, the issue is whether the Provincial Court functioning in its criminal law role can awarddamages 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 justresponse to a Charter violation but that those remedial powers are confined to the court's criminal sphere and do not include civilremedies 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 , [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 theCrown for a Charter breach in the course of a prosecution under the Provincial Offences Act RSO 1990, c. P.33. However, the Court didso only because the power to award costs was expressly conferred by the Provincial Offences Act, and so was considered to be a criminallaw remedy, even though costs are normally considered to be a civil remedy. [13] In light of Wetzel and Dunedin, it is clear that I cannot award a civil remedy in this case.

It will be apparent that I consider that tobe an unfortunate state of affairs, and I hope that the issue will be reconsidered someday by a court of higher authority than this one. [14] There is a criminal law remedy which could be ordered under section 24(1), and which would serve to capture the attention of thepolice. I could order a stay of proceedings in this case on the ground of police misconduct: R v Singh [2013] OJ No. 5727; 2013 ONCA750; R v Martin [2022] OJ No. 1806; 2022 ONCJ 170 at paragraphs 243 – 247.

I am mindful of the following passage from R v Babos2014 SCC 16 , [2014] 1 SCR 309; 2014 SCC 16 @ paragraphs 30 - 31: 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 isdeprived 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 ofprocess will be warranted (R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68).

These cases generally fall into twocategories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conductcreates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para.73). [15] The police misconduct in this case was much less serious than that considered in Singh.

The concern in this case is not policebrutality, but rather the failure of the police to change their investigative practices in the face of repeated admonitions from this court, tothe effect that their practices infringe upon the Charter rights of Canadians: R v Karaim [2019] BCJ No. 2257; 2019 BCPC 275; R v Fast2020 BCPC 256 , [2020] BCJ No. 2202; 2020 BCPC 356; R v Minnes [2021] BCJ No. 2827; 2021 BCPC 319.

Shortly put, it istime for the police to conduct themselves in accordance with their constitutional responsibilities. [16] In this case, a stay of proceedings under section 24(1) of the Charter would be an appropriate sanction to achieve the objective ofdeterrence identified by Chief Justice McLachlin in Ward @ paragraph 25. However, I think that it would be premature. I am not awareof a previous case in which the police have been bluntly warned that unconstitutional searches (purporting to be “searches incidental toarrest”) are likely to result in a stay of proceedings in any ensuing prosecution.

I hope that these reasons will serve to deliver thatwarning. Section 24(2) of the Charter [17] In Grant, Chief Justice McLachlin and Justice Charron said at paragraph 71: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), 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 theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould 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 changepolice 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 thaterror in this case. Similarly, I am not to exclude the evidence because Mr.

Weaver was badly treated by the police. I must consider onlythe 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.

Hewas 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 [ 18 ] I conclude that the evidence of the drugs found in the wallet should not be excluded under the authority of section 24(2). _______________________________ T. Gouge Provincial Court Judge