George Zacharias Appellant v. His Majesty The King, 2023 SCC 30

SUPREME COURT OF CANADA Citation: R. v. Zacharias, 2023 SCC 30 Appeal Heard: May 15, 2023 Judgment Rendered: December 1, 2023 Docket: 40117 Between: George Zacharias Appellant and His Majesty The King Respondent - and - Attorney General of Ontario and Attorney General of Alberta Interveners Coram: Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ. Joint Reasons: (paras. 1 to 76) Rowe and O’Bonsawin JJ. Concurring Reasons: (paras. 77 to 105) Côté J. Joint Dissenting Reasons: (paras. 106 to 161) Martin and Kasirer JJ. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

George Zacharias Appellant v. His Majesty The King Respondent and Attorney General of Ontario and Attorney General of Alberta Interveners Indexed as: R. v. Zacharias 2023 SCC 30 File No.: 40117. 2023: May 15; 2023: December 1 .

Present: Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ. on appeal from the court of appeal of alberta Constitutional law — Charter of Rights — Search and seizure — Arbitrary detention — Consequential breaches — Remedy — Exclusion of evidence — Police suspecting illegal drug activity following lawful traffic stop of accused — Police detaining accused and conducting several searches — Accused arrested and charged with drug related offences — Trial judge finding initial search and investigative detention breached accused’s Charter rights but declining to exclude evidence — Whether arrests and searches consequential to initial violation further breached Charter — Whether breaches warrant exclusion of evidence — Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 24(2) .

Z was pulled over in a traffic stop because of a burnt-out light and illegally tinted windows. The police officer made several observations that resulted in placing Z under investigative detention and calling for a sniffer dog to scan for drugs. After a pat-down search, the officer placed Z in a police vehicle until the sniffer dog arrived. The dog signalled that drugs were present and Z was arrested for possession of a controlled substance. The police then searched Z’s truck, including duffel bags located in the truck box under a tonneau cover. The police discovered a large quantity of cannabis and cash.

Z was arrested for possession for the purpose of trafficking, handcuffed, and driven to a police detachment. He was then searched and arrested for possession of proceeds of crime over $5,000. Z alleged that the police had breached his rights under ss. 8 and 9 of the Charter during the investigation and that the drug evidence seized by the police should be excluded under s. 24(2) of the Charter .

The trial judge found that the sniffer dog search and investigative detention breached Z’s ss. 8 and 9 Charter rights but held that the evidence should not be excluded under s. 24(2) because excluding the evidence would bring the administration of justice into disrepute. Z was convicted of possession of 101.5 pounds of marijuana for the purpose of trafficking. He appealed, arguing that the trial judge erred by failing to consider the consequences that flowed from the unlawful investigative detention and sniffer dog search. A majority of the Court of Appeal dismissed the appeal.

Held (Martin and Kasirer JJ. dissenting): The appeal should be dismissed. Per Rowe and O’Bonsawin JJ.: The arrests and the searches incident to arrest following the sniffer dog search and investigative detention constituted breaches of Z’s rights under ss. 8 and 9 of the Charter . They must be considered when determining whether the evidence should be excluded under s. 24(2) of the Charter .

However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter -infringing state conduct. In the instant case, additional Charter breaches occurred in a sequence of events: an arrest followed as a consequence of the sniffer dog search, searches followed incident to arrest, and additional arrests followed.

These additional consequential breaches do not raise the seriousness of the state conduct as these breaches were breaches only because of the officer’s miscalculation in assessing the grounds for suspicion; the focal point under s. 24(2) remains the initial breaches that set the sequence of state conduct into motion. Balancing the Grant factors applicable to determine whether evidence should be excluded under s. 24(2) , the evidence should not be excluded . The Criminal Code sets out strict standards for when police may exercise powers of arrest.

The police must demonstrate reasonable and probable grounds to believe that the person arrested committed an offence. Where the arrest is without a warrant, the arresting officer must honestly believe that the suspect committed the offence in question and those subjective grounds must be justifiable from an objective point of view. Reasonable grounds however cannot be supplied by actions that involved violations of the Charter .

Where grounds for arrest are based on evidence that was unlawfully obtained, the court must excise this evidence from the factual matrix and determine whether the police had reasonable and probable grounds for arrest having regard to the totality of the circumstances known to the officer based on the remaining evidence. Warrantless arrests are often carried out in dynamic situations and police are not required to inquire into the constitutionality of prior investigative steps before acting on the information they yielded.

However, they are required to consider whether they are acting within constitutional limits when they act. Canadians have a legitimate

expectation that the police will know and comply with the law, especially the Charter. In the case of an arrest made without a warrant, itis even more important for the police to demonstrate they had reasonable and probable grounds for the arrest. In a situation of linked or cascading Charter breaches, a subsequent arrest may be unlawful only as a consequence of theinitial breach or breaches that preceded it. An arrest that can be viewed only as a consequential breach is distinct from state action that ischaracterized by additional or independent misconduct.

An unlawful arrest that is a consequential breach must be factored into the firstand second stages of the s. 24(2) Grant analysis, but is unlikely to significantly impact the overall seriousness of the Charter-infringingstate conduct absent additional state misconduct. The first Grant factor asks whether the Charter-infringing state conduct is so seriousthat the court must dissociate itself from it. In the absence of additional state misconduct, the focal point for evaluating seriousness islikely to remain the initial breach.

In these circumstances and where the police honestly believed they were proceeding lawfully,subsequent state conduct should be situated on the less serious end of the scale of culpability. The second Grant factor looks to theCharter-protected interests of the accused engaged by the infringed right and the degree to which the violation impacted on thoseinterests. A consequential breach will be most relevant at this stage. When additional rights and breaches of those rights are factored intothe analysis, there will necessarily be a more significant impact.

Consideration of all breaches is necessary to get an accurate picture ofthe effects of the breaches. To fail to have regard to the impact of an arrest that occurred as a consequence of a preceding Charter breachwould fail to take into account all the circumstances. The third Grant factor examines society’s interest in an adjudication of the case onthe merits. Consideration of additional breaches may not change the analysis for this Grant factor.

In the instant case, the state cannot rely on the evidence unlawfully obtained from the sniffer dog search to satisfy thereasonable and probable grounds requirement for Z’s subsequent arrests. The police breached ss. 8 and 9 of the Charter in conductingthe sniffer dog search and by holding Z in investigative detention while waiting for a sniffer dog to arrive. The arresting officer’ssubsequent subjective belief that Z was in possession of a controlled substance relied primarily on the results of the sniffer dog search;therefore, the first arrest for possession was unlawful.

Because the first arrest was unlawful, the subsequent searches breached s. 8 of theCharter and the second and third arrests constituted breaches of s. 9 of the Charter. The placement of Z in the police vehicle in handcuffsand at the police detachment were continuations of the s. 9 breaches. Even considering the consequential breaches, the first Grant factor does not strongly favour exclusion of the evidence. Theconsequential Charter breaches are not characterized by additional or independent misconduct and were not intentional.

The focal pointremains the initial breach, which was inadvertent, not wilful, and which does not show a pattern or attitude of disregard for Charterrights or the law. The second Grant factor moderately favours exclusion. The sniffer dog search was brief, minimally intrusive andfollowed a lawful stop and detention for traffic infractions. However, as a result, Z was arrested, handcuffed, brought to the policestation, detained for several hours and the police obtained significant evidence against him. The arrests and searches incident to arrestresulted in more significant impact on Z’s Charter-protected interests.

The third Grant factor strongly favours admission of the evidence.The evidence was real, reliable, and crucial to the Crown’s case. Given the large quantity of cannabis, the offence is serious and there isa strong societal interest in adjudication of the case on its merits. Balancing the Grant factors, the first two are insufficient to outweighthe third; thus, overall the circumstances favour admission of the evidence. Per Côté J.: There is agreement that the appeal should be dismissed.

However, the proposition that the state cannot rely onunlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest is difficult to reconcile with thelongstanding s. 24(2) Charter jurisprudence and the framework for warrantless arrests set out in R. v. Storrey, (SCC),[1990] 1 S.C.R. 241. A Charter breach that leads to incriminating evidence being uncovered will inevitably result in an arrest or otherinvestigative steps by the police.

Absent independent or additional police misconduct, the Court has never treated such arrests orinvestigative steps as separate Charter breaches in its s. 24(2) analysis. A decision to arrest must be made quickly in volatile and rapidlychanging situations based on available information which is often less than exact or complete. In the instant case, the circumstancesknown to the arresting officer at the time of the arrest included the sniffer dog’s clear and unequivocal indication of controlledsubstances in Z’s vehicle.

The focus of the s. 24(2) analysis should be on the investigative detention while awaiting the arrival of the dogfor the sniffer search. The presence of additional breaches was not argued at trial and has little, if any, impact on the s. 24(2) analysis. The reasonable and probable grounds standard for a warrantless arrest is based on the totality of the circumstances known tothe officer at the time of the arrest. The analysis under s. 24(2) must be conducted from the perspective of a reasonable person standingin the shoes of the arresting officer.

Operating after-the-fact, automatic excision of unconstitutionally obtained information would nullifythe subjective focus by artificially altering the information on which the arresting officer relied at the time. It is artificial and inconsistentwith the reasonable and probable grounds standard to hold that an arrest made based on clear and reliable evidence of a crime isunlawful. This understanding is why the Court has declined to apply the logic behind excision to the context of warrantless arrests.

Toclassify all subsequent police conduct as Charter-infringing merely because it flows from the results of an initial breach comesdangerously close to the fruit of the poisoned tree doctrine eschewed by s. 24(2). In the instant case, all police conduct subsequent to the sniff search was based on an intervening discovery of incriminatingevidence. The focus of the first Grant factor is on misconduct from which the court should be concerned to dissociate itself. An arrestmade on the basis of clear and reliable evidence of a crime is not misconduct from which the court should be concerned to dissociateitself.

To hold otherwise artificially distorts the s. 24(2) analysis and represents a shift towards automatic exclusionary rules that havebeen rejected. The trial judge correctly characterized the arresting officer’s failure to meet the reasonable suspicion standard asminiscule. That conduct only weakly favours exclusion; its impact on Z was moderate; and the evidence is highly reliable and integral tothe Crown’s case. On balance, the drug evidence should not be excluded and Z’s conviction should be upheld. Per Martin and Kasirer JJ. (dissenting): The appeal should be allowed.

Section 24(2) of the Charter directs courts to haveregard to all the circumstances in determining whether admitting evidence would bring the administration of justice into disrepute.Consequential, linked or cascading breaches necessarily result in more significant impacts on the Charter-protected interests of anaccused. All such breaches must be given weight under the Grant analysis. Section 24(2) mandates assessing the cumulative, andpotentially compounding, seriousness of all of the conduct related to each of the violations at issue. Applying this approach, s. 24(2)directs that the evidence should be excluded.

The first line of inquiry mandated by Grant is an evaluation of the seriousness of the state conduct. Seriousness is focused

on the rule of law. All state action that violates the Charter necessarily deviates from the rule of law. However, not all conduct thatviolates the Charter deviates from the rule of law to the same extent. There is a sliding scale or spectrum.

Relevant considerations thatmay inform the assessment of the gravity of the offending conduct include the extent to which the conduct reflects deliberate disregardfor Charter standards, whether the conduct was part of a pattern and the social values that underlie the Charter rights that were violated.The full range of relevant values entrenched in the Charter should be considered, and where multiple rights are violated, the court mustconsider how the state conduct implicates each underlying value and how those values interact.

All Charter-infringing state conductmust be factored into the analysis, therefore the seriousness of conduct related to all breaches must be considered even if some of themmay be said to have been caused by earlier Charter violations. To treat consequential breaches as having an inconsequential effect on theseriousness inquiry would be a departure from settled law. Breaches that, in isolation, may appear minor or technical can contributemeaningfully to the seriousness of the misconduct that a judge must consider when deciding whether to admit or exclude evidence unders. 24(2).

Thus, it would be an error of law to decline to analyze the extent to which each consequential breach reflects seriousCharter-infringing state conduct. A cumulative approach is mandated by the emphasis that the Grant analysis gives to the totality of thecircumstances. The Court’s jurisprudence has never suggested that a relationship between two breaches eliminates the need to assesstheir cumulative seriousness. A sequence of state conduct may undermine the rule of law more gravely than would each action,considered individually.

The analysis is not a mathematical exercise and there is no necessary requirement that the seriousness of thewhole be the sum of the constituent parts. In the instant case, with respect to the first Grant line of inquiry, the initial unreasonable search may not have been in itselfgrave: the sniffer dog search and initial investigative detention breached Charter standards but inadvertently and without negligence, anda systemic failing was not evident in the record. However that does not exhaust the relevant considerations.

Increasingly invasive steps,which represent progressively more serious ways in which the state conduct undermined the rule of law, were taken at each stage of thepolice action. The subsequent breaches at issue in this case include the pat down search and the search of the truck and of the dufflebags. In addition, the initial detention and each of the three arrests violated s. 9. Further, confinement in a police vehicle, handcuffing,and being taken to the detachment constituted arbitrary detentions.

Thus, while the subsequent breaches did not deliberately violateCharter rights, the entire course of conduct does reflect serious state misconduct. On the spectrum of seriousness, the conduct at issuepulls between moderately and strongly towards exclusion, resting closer to a strong pull than a moderate one. The second Grant line of inquiry considers the seriousness of the impact of the Charter breaches on the Charter-protectedinterests of the accused.

Under this line of inquiry, the cumulative seriousness of the impacts on the accused’s Charter-protectedinterests flowing from the same state conduct considered under the first line of inquiry should be assessed. In the instant case, theimpacts were substantial and they increased in severity at each stage of interference. The privacy-compromising impact of anunreasonable vehicle search will generally militate in favour of exclusion, notwithstanding the fact that a vehicle attracts a lesserexpectation of privacy than a dwelling house. More substantial was the impact of police officers’ opening of Z’s duffel bags.

Openingduffel bags covered by a tonneau in the box of the truck significantly intruded upon Z’s privacy interests. Moreover, the breaches of s. 9were substantial and prolonged. Z was handcuffed, confined to a police vehicle, and arrested three times. He was unlawfully detained forapproximately seven hours, including several hours in the police detachment. These sustained deprivations had substantial impacts onZ’s liberty, autonomy and bodily integrity. Accordingly, the second line of inquiry pulls strongly in favour of exclusion of the evidence.

Finally, the third Grant line of inquiry considers whether the truth-seeking function of the criminal trial process would bebetter served by admission of the evidence or by its exclusion. In the instant case, the evidence is highly reliable and is undoubtedlycritical to the Crown’s case. The offences are serious, in view of the very large quantity of drugs at issue. Accordingly, the third line ofinquiry strongly favours the admission of the evidence.

On balance, however, the third factor is not enough to overwhelm the cumulative seriousness of the Charter-infringingconduct along with the impact on Z’s Charter-protected interests. In these circumstances, the administration of justice would be broughtinto disrepute by the admission of the evidence. The evidence should therefore be excluded. Cases Cited By Rowe and O’Bonsawin JJ. Overruled: R. v. Love, 2022 ABCA 269, [2023] 1 W.W.R. 296; R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224;applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; considered: R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241; R. v.Monney (1997), (ON CA), 153 D.L.R. (4th) 617, rev’d on other grounds (SCC), [1999] 1 S.C.R. 652;R. v. MacEachern, 2007 NSCA 69, 255 N.S.R. (2d) 180; R. v. Blanchard, 2011 NLCA 33, 308 Nfld. & P.E.I.R. 91; R. v. Pelucco, 2015BCCA 370, 327 C.C.C. (3d) 151; R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415; referred to: R. v. J.F., 2022 SCC 17; Guindon v.Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. Beaver, 2022 SCC 54; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; R. v.Stillman, (SCC), [1997] 1 S.C.R. 607; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; R. v. Tim, 2022 SCC12; R. v.

Grant, (SCC), [1993] 3 S.C.R. 223; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4S.C.R. 335; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643; R. v. Lambert, 2020 NSPC 37, 472 C.R.R. (2d) 1, aff’d 2023 NSCA 8;R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492; R. v. Kossick, 2017 SKPC 67, 392 C.R.R. (2d) 250, aff’d 2018 SKCA 55, 365C.C.C. (3d) 186; R. v. White, 2022 NSCA 61, 419 C.C.C. (3d) 123; R. v. Loewen, 2018 SKCA 69, [2018] 12 W.W.R. 280; R. v. Reilly,2021 SCC 38; R. v. Au-Yeung, 2010 ONSC 2292, 209 C.R.R. (2d) 140; R. v. McColman, 2023 SCC 8; R. v.

Vu, 2013 SCC 60, [2013] 3S.C.R. 657; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Cole, 2012 SCC53, [2012] 3 S.C.R. 34; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. By Côté J. Considered: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R.v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. McColman, 2023 SCC 8; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R.v. Love, 2022 ABCA 269, [2023] 1 W.W.R. 296; R. v.

Jennings, 2018 ONCA 260, 45 C.R. (7th) 224; referred to: R. v. Tim, 2022 SCC12; R. v. Beaver, 2022 SCC 54; R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607; R. v. Caslake, (SCC), [1998]

1 S.C.R. 51; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408; R. v. Paterson, 2017 SCC15, [2017] 1 S.C.R. 202; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Lafrance, 2022 SCC 32; R. v. Chehil, 2013 SCC 49, [2013] 3S.C.R. 220; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; Kosoian v. Société detransport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335; Frey v. Fedoruk, (SCC), [1950] S.C.R. 517; R. v. Grant, (SCC), [1993] 3 S.C.R. 223; R. v. Reilly, 2021 SCC 38. By Martin and Kasirer JJ. (dissenting) R. v.

Plaha (2004), (ON CA), 188 C.C.C. (3d) 289; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R.v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Simmons, (SCC), [1988] 2 S.C.R. 495; R. v. Le, 2019 SCC34, [2019] 2 S.C.R. 692; R. v. Tim, 2022 SCC 12; R. v. Beaver, 2022 SCC 54; R. v. McColman, 2023 SCC 8; R. v. Harrison, 2009 SCC34, [2009] 2 S.C.R. 494; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335; Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2; R. v.

Sharma, (SCC), [1993] 1 S.C.R. 650; R. v. Paterson, 2017 SCC 15,[2017] 1 S.C.R. 202; Hamel v. R., 2021 QCCA 801, 72 C.R. (7th) 132; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v.Lyons, (SCC), [1987] 2 S.C.R. 309; R. v. Reilly, 2021 SCC 38; R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224; R. v.Love, 2022 ABCA 269, [2023] 1 W.W.R. 296; R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492; R. v. Boudreau-Fontaine, 2010QCCA 1108; R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433; R. v. Kossick, 2018 SKCA 55, 365 C.C.C. (3d) 186; R. v.

Culotta, 2018ONCA 665, 142 O.R. (3d) 241, aff’d 2018 SCC 57, [2018] 3 S.C.R. 597; R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114; R. v. White,2022 NSCA 61, 419 C.C.C. (3d) 123; R. v. Greffe, (SCC), [1990] 1 S.C.R. 755; R. v. Vu, 2013 SCC 60, [2013] 3S.C.R. 657; R. v. Lafrance, 2022 SCC 32; R. v. Huynh, 2013 ABCA 416, 8 C.R. (7th) 146; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59;R. v. Shinkewski, 2012 SKCA 63, 289 C.C.C. (3d) 145; R. v. Askov, (SCC), [1990] 2 S.C.R. 1199; R. v. Côté, 2011 SCC46, [2011] 3 S.C.R. 215; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v.

Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495; R. v. Cole,2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R.631. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2). Criminal Code, R.S.C. 1985, c. C-46, ss. 495(1)(a), 507. Traffic Safety Act, R.S.A. 2000, c. T-6. Authors Cited Asma, Matthew, and Matthew Gourlay. Charter Remedies in Criminal Cases, 2nd ed. Toronto: Emond Montgomery, 2023. Coughlan, Steve, and Glen Luther. Detention and Arrest, 2nd ed. Toronto: Irwin Law, 2017. Fontana, James A., and David Keeshan.

The Law of Search and Seizure in Canada, 12th ed. Toronto: LexisNexis, 2021. Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020. Parent, Hugues. Traité de droit criminel, t. IV, Les garanties juridiques, 2e éd. Montréal: Wilson & Lafleur, 2021. Stuart, Don. “Uncertainty on Charter Section 24(2) Remedy of Exclusion of Evidence” (2023), 86 C.R. (7th) 255. Vauclair, Martin, Tristan Desjardins et Pauline Lachance. Traité général de preuve et de procédure pénales 2023, 30e éd. Montréal:Yvon Blais, 2023.

APPEAL from a judgment of the Alberta Court of Appeal (Wakeling, Crighton and Khullar JJ.A.), 2022 ABCA 112, 44Alta. L.R. (7th) 5, [2022] 8 W.W.R. 231, 506 C.R.R. (2d) 174, [2022] A.J. No. 400 (QL), 2022 CarswellAlta 772 (WL), affirming theconviction of the accused for possession of cannabis for the purpose of trafficking. Appeal dismissed, Martin and Kasirer JJ. dissenting. Rubinder Dhanu, Rebecca J. K. Gill and Uphar K. Dhaliwal, for the appellant. Amber Pashuk and Kyra Kondro, for the respondent. Jeremy Streeter and Jacob Millns, for the intervener the Attorney General of Ontario.

Tom Spark, for the intervener the Attorney General of Alberta. The following are the reasons delivered by Rowe and O’Bonsawin JJ. — I. Overview [1] The appellant, George Zacharias, was pulled over on the highway for a traffic stop. After a sniffer dog gave apositive indication for drugs in the appellant’s vehicle, police searched the vehicle and seized over 100 pounds of marijuana. Theappellant was convicted of possession of marijuana for the purpose of trafficking.

The trial judge found that the police had breached theappellant’s rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms in conducting a sniffer search and investigativedetention. This appeal is about the lawfulness of the state actions which followed those initial Charter breaches and whether the various

breaches warrant exclusion of the evidence under s. 24(2). [ 2 ] In our view, the arrests that followed the sniffer search in this case were also in violation of the Charter . The state cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest. Where the court finds a breach of the Charter has occurred, the breach must be considered in the s. 24(2) analysis.

However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter -infringing state conduct under the s. 24(2) analysis.

Rather, a consequential breach will be most relevant to the impact on the Charter -protected interests of the accused. [ 3 ] For the reasons that follow, while we accept that the arrests and searches incident to arrest in this case constituted additional violations of the Charter , we would affirm the decision not to exclude the evidence under s. 24(2) of the Charter . Accordingly, the appeal is dismissed. II. Facts [ 4 ] On February 17, 2017, the appellant was pulled over on Highway 1 near Banff by Constable MacPhail of the Royal Canadian Mounted Police (“RCMP”).

The stop was a traffic stop initiated as a result of a burnt-out light and illegally tinted windows on the appellant’s truck. After pulling over the appellant, Constable MacPhail made several observations that resulted in him placing the appellant under investigative detention and calling for a sniffer dog to scan for drugs. [ 5 ] During the initial stop, Constable MacPhail asked the appellant questions about where he was travelling and why. When he requested the appellant’s driver’s licence and registration, the appellant responded that his wallet had been stolen and offered his passport instead.

Constable MacPhail described the appellant as “extremely nervous” and noted that his hands were shaking. This nervousness diminished over time. He also observed a large amount of luggage in the truck and a commercial grade tonneau cover concealing the contents of the truck box. [ 6 ] When Constable MacPhail ran the appellant’s name and identification through the police database, he discovered an entry from 2014 related to drugs. The file was locked down and he had to call the Real Time Information Centre for further information.

The Information Centre informed Constable MacPhail that the appellant was the subject of “a complaint of unknown reliability but was said to be an individual tied to the distribution of large quantities of marihuana and cocaine” (A.R., vol. I, at p. 14). [ 7 ] According to Constable MacPhail, the information from the Real Time Information Centre confirmed his suspicions that the appellant was transporting drugs. In addition to the 2014 entry on his record, he made the following observations and inferences: (

i) Highway 1, the route the appellant was travelling, was a known drug corridor and Calgary a known destination for drugs; (ii) the appellant’s story of visiting his sister for “a couple of days” was inconsistent with the large amount of luggage; (iii) it was suspicious that the luggage was in the cab of the truck rather than the box; (iv) the type of tonneau cover on the truck bed was often used by drug couriers; (v) “Back the Blue” stickers like the one the appellant had on his window were often used to avoid being pulled over; (vi) the appellant’s claim that his son had purchased the truck with the decal on it was inconsistent with the fact that the truck was registered in the appellant’s name; and (vii) the appellant was extremely nervous, albeit less so over time. [ 8 ] Constable MacPhail placed the appellant under investigative detention and called for a sniffer dog.

The appellant declined the opportunity to speak to counsel. Constable MacPhail conducted a pat-down search of the appellant’s front pocket area and placed him in a police vehicle. After around 20 minutes, the sniffer dog arrived with its handler and signalled that drugs were present. Constable MacPhail concluded that he had reasonable and probable grounds to arrest the appellant for possession of a controlled substance and did so. [ 9 ] Upon placing the appellant under arrest, Constable MacPhail conducted a search of the appellant’s truck, including of duffel bags located in the truck box.

He discovered 101.5 pounds of cannabis, some cannabis pastries or edibles, a jar with a substance he took to be cannabis, and $12,600 in cash. Constable MacPhail re-arrested the appellant for possession for the purpose of trafficking. The appellant was then removed from the first police car, handcuffed, and driven to the Banff police detachment in a second police vehicle. At the detachment, the appellant was required to strip to one layer of clothing and remove his shoes. He was arrested for a third time for possession of proceeds of crime over $5,000.

He was released from police custody at 1:37 a.m., approximately six hours after arriving to the detachment and seven hours after being pulled over. [ 10 ] At the voir dire , Constable MacPhail testified that he had been an RCMP officer for 14 years. At the time of the appellant’s arrest, he was part of the Roving Traffic Unit, which specializes in detecting and intercepting criminals travelling on the highway. Constable MacPhail had been a member of this unit for 8½ years and, in that time, had conducted between 12,000 to 15,000 traffic stops.

Constable MacPhail had also acted as an RCMP instructor for the past 3 years and taught over 15 courses on traffic enforcement investigations. III. Judicial History A. Alberta Court of King’s Bench [ 11 ] The trial judge identified the primary issue before her to be whether Constable MacPhail had reasonable suspicion to enter into an investigative detention and deploy a sniffer dog. She concluded he did not, as the only objective element for suspicion was a police database entry from 2014 which was unconfirmed and of unknown reliability.

As a result, the trial judge found that the police had breached the appellant’s ss. 8 and 9 Charter rights by virtue of the sniffer dog search and investigative detention. [ 12 ] However, the trial judge went on to conclude that the evidence should not be excluded under s. 24(2) . First, with respect to the seriousness of the state conduct, there was no evidence of a deliberate or systemic breach of the Charter . Constable MacPhail’s failure to meet the reasonable suspicion standard was “miniscule” and not the result of negligence.

While he did not meet the requisite standard, “he was extremely close to crossing it” (A.R., vol. I, at p. 21). Second, with respect to the impact of the breach on the Charter -protected interests of the appellant, the trial judge noted that the search was of a vehicle on a public highway. This did not attract

a high expectation of privacy, as would be so in the case of a home or computer. The search also did not demean the appellant’s dignity. Finally, with respect to society’s interest in an adjudication on the merits, the trial judge found that the evidence was both highly reliable and the only evidence for the prosecution’s case. She also noted that the offence was serious despite the legalization of marijuana, given the quantity. After conducting her s. 24(2) analysis, she concluded that excluding the evidence would bring the administration of justice into disrepute. B.

Alberta Court of Appeal, 2022 ABCA 112 , 44 Alta. L.R. (7th) 5 [ 13 ] The appellant appealed his conviction, arguing that the trial judge erred in her s. 24(2) analysis on the voir dire . In particular, he argued that the trial judge erred by failing to consider the consequences that flowed from the unlawful investigative detention and sniffer dog search. [ 14 ] A majority of the Court of Appeal dismissed the appeal (per Wakeling and Crighton JJ.A.).

The majority agreed with the Crown that trial judges are not required to consider conduct that might be relevant to a Charter -protected interest if that conduct was not argued by the parties and no findings were made in respect of it. It was not surprising that the trial judge only made findings on the investigative detention and sniffer dog search, as these were the only assertions set out in the appellant’s Charter notice.

The majority concluded that entertaining the new arguments raised on appeal would undermine the role of the trial judge. [ 15 ] The majority also concluded that while the trial judge had failed to consider the s. 9 breach — the investigative detention — under the second factor of the s. 24(2) test, this did not affect the result. [ 16 ] Khullar J.A. (as she then was), dissenting, would have allowed the appeal, excluded the evidence, set aside the conviction, and entered an acquittal.

She agreed with the trial judge that the first and third factors of the s. 24(2) test did not pull toward exclusion of the evidence. However, after a fresh analysis of the second factor, she concluded that, on balance, the evidence should be excluded. [ 17 ] In Khullar J.A.’s view, the record was sufficient to consider the new Charter breaches alleged by the appellant and the Crown would not be prejudiced by the court doing so.

She concluded that the trial judge had failed to consider several breaches of the appellant’s ss. 8 and 9 rights: the pat-down search; the search of the truck and its contents; the three arrests; and the detention which continued when the police placed the appellant in the police vehicle, handcuffed him, and detained him at the police detachment. Khullar J.A. considered these breaches at the second stage of the s. 24(2) test and determined that the impact of the breaches on the appellant’s Charter -protected interests strongly favoured exclusion of the evidence. On balance, the factors pulled toward exclusion.

IV. Issues [ 18 ] This appeal raises the following two issues. [ 19 ] First, should this Court consider the new issues raised by the appellant for the first time at the Alberta Court of Appeal? [ 20 ] Second, did the trial judge properly consider all of the relevant Charter -infringing state conduct? Answering this raises two further questions. First, did the police commit further breaches of the appellant’s Charter rights by relying on the results of the unlawful sniffer dog search? And second, if so, how are these breaches to be factored into the s. 24(2) analysis? V. Analysis A.

New Issues on Appeal [ 21 ] The trial judge, based on the arguments before her, found two breaches of the Charter : s. 8 was breached, by virtue of the unlawful sniffer dog search, and s. 9 was breached, by virtue of the roadside investigative detention leading up to and during the sniffer dog search. On appeal before the Alberta Court of Appeal, the appellant argued that the trial judge had failed to consider several other breaches of ss. 8 and 9 of the Charter ( paras. 43-44).

These arguments engaged new issues beyond those raised at the voir dire . [ 22 ] The appellant asks this Court to consider the new issues which the majority below declined to address, arguing that there is a sufficient record, no prejudice to the respondent, the Crown, and that a purposive and generous approach to the Charter requires the court to consider whether other state action constituted a breach of the appellant’s Charter rights.

The Crown, on the other hand, argues that the record is insufficient to address the new issues because it “could have elicited additional evidence” in order “to flesh out the record” on several points, including the scope of the pat-down search, the reasons why Constable MacPhail placed the appellant in the back of the police car, and the circumstances of the appellant’s detention at the station (R.F., at para. 47).

In addition, the Crown argues it would be unfair to allow the appellant to shift so far from his trial strategy and that there is no broader interest served by addressing the new issues. [ 23 ] This Court has made clear that such new issues should be entertained only in “exceptional circumstances” ( R. v. J.F. , 2022 SCC 17 , at para. 40 , citing Guindon v. Canada , 2015 SCC 41 , [2015] 3 S.C.R. 3 ). Nevertheless, we conclude that the issue of whether police conduct in this case breached s. 8 or 9 of the Charter should be considered by this Court.

The legal question on which the Court of Appeal diverged requires this Court to consider the dissenting judge’s path of reasoning. [ 24 ] Like Khullar J.A., we are of the view that addressing this issue would not result in unfairness to the Crown. The appellant, in making his argument, alleges “nothing further other than the fact that [the arrests, searches, and detention in question] occurred” (A.F., at para. 70). The Crown does not dispute that these events occurred. At the voir dire , the Crown adduced evidence from the arresting officer Constable MacPhail, the backup officer, and the dog handler.

In the Court of Appeal, the Crown did not suggest it would have called any further evidence, except in relation to the strip search, which is no longer at issue (C.A. reasons, at para. 48). With respect to the legal issues before this Court, the Crown has had ample opportunity to respond to the positions taken in the reasons for the majority and the dissent in the Court of Appeal.

[25] The appellant’s arguments rely on undisputed facts relating to his arrest; they can therefore be fairly considered onappeal. Given that no further evidence was given on these events, however, the Court will only consider the bare fact that this policeconduct occurred. In other words, while it is appropriate for this Court to consider the fact of the appellant’s arrest after the sniffersearch, there were neither submissions nor evidence seeking to establish any circumstances of the arrest that were improper. In this way,no prejudice results to the Crown.

Given the absence of prejudice, the importance of having the issue resolved by this Court, and with thebenefit of the dissenting reasons below, we would exercise our discretion to address this new issue (see Guindon, at para. 20; see alsoJ.F., at paras. 40-41). 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 basedon the results of an unlawful search. Lower courts across the country have reached divergent conclusions on the question of whethersuch arrests are lawful.

As we will explain, a principled approach to the Charter mandates that police cannot rely on unlawfully obtainedevidence in order to conduct a warrantless arrest. Where the grounds for arrest are based on evidence that is subsequently found to havebeen unlawfully obtained, the court must excise this evidence from the factual matrix in order to determine whether the police hadreasonable and probable grounds for arrest. [27] In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, this Court explained that in order to safeguard theliberty of Canadians, the Criminal Code, R.S.C. 1985, c.

C-46, sets out strict standards for when police may exercise powers of arrest. Inorder to obtain a warrant for arrest, the police must demonstrate that they have reasonable and probable grounds to believe that theperson 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 awarrant (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 thepolice 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 subjectivegrounds must be justifiable from an objective point of view.

In evaluating whether the officer had reasonable and probable grounds forarrest, 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, KhullarJ.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 ofthe Charter accords with principle and policy.

Indeed, this conclusion is a logical extension of the applicable principles in other contextswhere an initial Charter breach forms the basis for subsequent state action. An unlawful search, for example, cannot furnish the requisitegrounds for a search warrant (R. v. Feeney, (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, (SCC), [1997] 1 S.C.R. 607, at para. 27; R. v. Caslake, (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, (SCC), [1993] 3 S.C.R. 223, explained the rationale that animates this rulein the search warrant context: in excluding justification for state conduct that is itself unconstitutional, “the state is prevented frombenefiting from the illegal acts of police officers” (p. 251).

In the same vein, a search incident to arrest is invalid if the arrest was notlawful because “the legality of the search is derived from the legality of arrest [and] if the arrest is later found to be invalid, the searchwill 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 thepolice 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 tominimize the impact of earlier unconstitutional actions that lead to a cascading series of well-meaning investigative steps. To allow thepolice 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 beless 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 — woulddramatically expand police powers at the expense of civil liberties. This would leave people at the mercy of what particular policeofficers happen to understand the law to be and would create disincentives for the police to know the law. Canadians rightly expect thepolice 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 whetherthere 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), (ON CA), 153 D.L.R. (4th) 617 (Ont. C.A.), rev’d on other grounds (SCC), [1999] 1 S.C.R. 652, the Court ofAppeal 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 theimproperly 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 rulesof exclusion” (I.F., at para. 16). The question of whether there has been a violation of the Charter is distinct from whether the evidenceobtained 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 courtconsiders the totality of the circumstances in order to determine, on balance, whether admission of the evidence will bring theadministration of justice into disrepute. [46] We turn now to how this analysis is to be undertaken, with a brief note on terminology. 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 breachthat renders what follows unlawful.

In other words, there is a situation of linked or “cascading” Charter breaches (see Blanchard, atpara. 34).

We use the term “consequential” to refer to such breaches in the s. 24(2) analysis because the subsequent arrest is unlawfulonly 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 ischaracterized 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 stateaction 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-infringingstate 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 issueof 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 ; R. v. Lauriente, 2010BCCA 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’d2018 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. Asmaand 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 byconsequence of its connection to an unlawful search, and which demonstrates no additional state misconduct — should be factored intothe 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 courtmust dissociate itself from it.

The spectrum of seriousness involves, at one end, “inadvertent or minor violations of the Charter” and, atthe 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 ofadditional state misconduct, the focal point for evaluating seriousness is likely to remain the initial breach: in this case, the precedingunlawful search. Where, as in this case, the police conduct is only off the mark to a “miniscule” degree, the seriousness of the initialbreach will tend to be on the lower end of the scale. However, in other cases, the initial misconduct may be characterized as moreserious; for example, if the police conduct was still inadvertent but further off the mark.

In the latter case, while the consequential arrestwould still be unlikely to significantly increase the overall seriousness of the misconduct, the seriousness would already be more severegiven 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 beenfound unlawful only by virtue of the unlawfulness of the preceding arrest and the arrest evidences no other misconduct, greater emphasisis 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 theconnection to the initial Charter breach that is the source of the misconduct, and where the police honestly believe they are proceedinglawfully, 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, orflagrant state misconduct, subsequent actions taken as a consequence of that initial breach may increase the overall seriousness of theCharter-infringing state conduct.

The s. 24(2) analysis, of course, will depend on the facts of the case, and all cases will require “anevaluation of the seriousness of the state conduct that led to the breach” (Grant 2009, at para. 73). But where the police honestly believethat they have not committed any initial breach, actions taken on the basis of that initial breach are, to their mind, lawful, and do notdemonstrate any heightened disregard for Charter rights or the law.

In such a case, the subsequent state action or consequential breach isnot 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 theinfringed 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 amore significant impact on the accused that is therefore relevant to the analysis of the second Grant factor. Consideration of all breachesas 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 Charterrequires “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. VI. Application [ 60 ] Having set out the relevant principles, we now apply those principles in the circumstances of this case.

(1) The Additional Charter Breaches [ 61 ] Turning first to the violation stage, it is useful to recall the three arrests that took place in this case: (

i) the first arrest for possession, based on the results of the sniffer dog search; (ii) the second arrest for possession for the purpose of trafficking, based on the searches (incident to arrest) of the interior of the vehicle and the duffel bags; and (iii) the third arrest for possession of proceeds of crime, also based on the search incident to arrest of the vehicle and its contents. [ 62 ] Constable MacPhail testified to his grounds for the first arrest on the voir dire : “I was told by [the officer who deployed the sniffer dog] that I could place the accused under arrest for possession of a controlled substance, as his sniffer dog had provided a positive indication and sit confirmation to an odour of a controlled substance inside the vehicle” (A.R., vol.

II, at p. 38). In other words, Constable MacPhail’s subjective belief that the appellant was in possession of a controlled substance relied primarily on the results of the sniffer dog search. As the trial judge’s conclusion that this sniffer search was unlawful is not at issue, we conclude that the subsequent arrest for possession was also unlawful.

Without the sniffer dog search, the police would not have had reasonable and probable grounds for arrest. [ 63 ] It is settled law that a lawful arrest is a prerequisite to a valid search incident to arrest ( Stillman , at para. 27 ; Caslake , at paras. 13-14 ; Tim , at paras. 49-50 ).

Therefore, in light of our conclusion that the first arrest was unlawful, we agree with Khullar J.A. that the searches of the cab of the truck, the box of the truck, and the duffel bags inside the vehicle incident to arrest were also unlawful and constituted a further breach of s. 8 of the Charter . [ 64 ] Finally, given our conclusion that an unlawful search cannot provide the requisite grounds for an arrest, the second and third arrests are also unlawful. They were based on the results of these unlawful incidental searches.

Without the unlawful searches, the police would not have had the requisite grounds for either arrest. The three arrests in this case therefore constituted further breaches of s. 9 of the Charter . The placement of the appellant in the police vehicle (with handcuffs after the first arrest) and at the police detachment are further continuations of the s. 9 breaches occasioned by the arrests and investigative detention.

(2) The Section 24(2) Grant Analysis [ 65 ] Having determined that the arrests and the incidental searches constituted breaches of ss. 8 and 9 of the Charter , those breaches must be factored into the s. 24(2) analysis. In addition, the Court of Appeal was correct to note, unanimously, that the trial judge erred in failing to consider in her s. 24(2) analysis the s. 9 breach she found, relating to the investigative detention. Where the trial judge has failed to consider a relevant factor, it is necessary to perform a fresh s. 24(2) analysis ( R. v. Vu , 2013 SCC 60 , [2013] 3 S.C.R. 657 , at para. 67 ).

Within this fresh analysis, the trial judge’s findings of fact remain relevant and warrant deference, absent palpable and overriding error (see Grant 2009, at para. 129; Beaver , at para. 118 ). (

a) The Seriousness of the Charter -Infringing State Conduct [ 66 ] The trial judge found that Constable MacPhail knew the applicable standard and sought to apply it, and that he was

only off the mark to a “miniscule” degree. In her words, there was “no evidence of a deliberate or systemic breach” (A.R., vol. I, at p. 20). Although the trial judge failed to include the investigative detention in her s. 24(2) analysis, her findings on the sniffer search remain relevant, given that both state actions share the requisite standard of “reasonable suspicion”.

This finding — that Constable MacPhail was “extremely close” to the standard of reasonable suspicion — reduces the seriousness of both the unlawful sniffer search and the investigative detention, the two Charter breaches she found (see, e.g., R. v. Chehil , 2013 SCC 49 , [2013] 3 S.C.R. 220 ; R. v.

MacKenzie , 2013 SCC 50 , [2013] 3 S.C.R. 250 ). [ 67 ] On appeal, this Court has recognized that additional Charter breaches occurred in the sequence of events: the arrest which followed as a consequence of the sniffer search; the searches that followed incident to arrest; and the additional arrests that followed from those searches. There was nothing to indicate that those breaches were state misconduct, save that they were consequential on the sniffer search being unlawful.

It was entirely unremarkable, for example, that the police would arrest the appellant after finding over 100 pounds of cannabis in his vehicle. The arrests (and searches incident) were not characterized by additional or independent misconduct. [ 68 ] Further, the Charter breaches identified by the trial judge were not found to be intentional; it could not be said the police knew from the outset that they were acting beyond their lawful authority. Importantly, these additional breaches were breaches only because of the officer’s miscalculation in assessing the grounds for suspicion.

These additional “consequential” breaches, therefore, do not raise the seriousness of the state conduct in this case; the focal point of this analysis remains the initial breaches that set the sequence of state conduct into motion. [ 69 ] The Charter -infringing state conduct in this case was inadvertent and not wilful; it does not show a pattern or attitude of disregard for the appellant’s Charter rights or the law. Therefore, even considering the additional breaches on appeal, this factor does not strongly favour exclusion. (

b) The Impact on the Charter -Protected Interests of the Accused [ 70 ] First, in terms of the breaches found by the trial judge, the sniffer dog search was of a relatively “brief and non- intrusive” nature ( MacKenzie , at para. 133 , per LeBel J., dissenting). Where a s. 8 violation has occurred, this inquiry focuses on “the protected interests of privacy, and more broadly, human dignity” ( Grant 2009, at para. 78; R. v. Cole , 2012 SCC 53 , [2012] 3 S.C.R. 34 , at para. 91 ; R. v. Le , 2019 SCC 34 , [2019] 2 S.C.R. 692 , at para. 136 ).

This Court has found that sniff searches are “minimally intrusive” ( Chehil , at paras. 1 and 28 ; MacKenzie , at para. 86 ). As the trial judge noted, this search of the exterior of the appellant’s motor vehicle occurred on a public highway, which is a relevant factor. [ 71 ] The s. 9 violations engage concerns over protecting the appellant’s “individual liberty from unjustified state interference” ( Grant 2009, at para. 20; Le , at para. 152; Beaver , at para. 127 ).

While the investigative detention unlawfully restricted the appellant’s liberty and movement, the appellant was first lawfully detained for the traffic infractions ( see Tim , at para. 92 ).

While the sniffer dog search prolonged this detention, the fact that the appellant was lawfully stopped in the first place remains relevant. [ 72 ] Second, while the additional breaches found on appeal did not heighten the seriousness of the Charter -infringing state conduct under the first Grant factor, they necessarily result in a more significant impact for the second Grant factor, the Charter - protected interests of the accused.

As in McColman , as a result of the investigative detention and sniffer dog search, the appellant was arrested, and then brought to the police station, where he was detained for several hours. The undisputed circumstances of this arrest (including the fact that he was handcuffed) are relevant to assessing the impact on his liberty. In terms of his privacy interests, the police obtained significant evidence against the appellant. Unlike in McColman , the police in this case went further and conducted a search of the appellant’s vehicle and its contents (including duffel bags).

This Court has held that motorists have a reduced expectation of privacy in their vehicles ( R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494 , at para. 30 ; Tim , at para. 93 ). The search of the duffel bags involves a greater intrusion on the appellant’s privacy interests. [ 73 ] Taken together, the arrests and searches which flowed from those arrests resulted in a more significant impact on the appellant’s privacy, liberty, and dignity. The second Grant factor, therefore, moderately favours exclusion. (

c) Society’s Interest in an Adjudication on the Merits [ 74 ] The evidence in this case — the drugs, drug paraphernalia, and cash — was real, reliable, and crucial to the Crown’s case. Given the large quantity of cannabis (over 100 pounds), this is a serious offence. Both of these elements mean that there is a strong societal interest in adjudication of the case on its merits. This remains so even when the additional breaches are factored in. This third Grant factor, therefore, strongly favours admission of the evidence. (

d) Balancing [ 75 ] The first two Grant factors favour exclusion, albeit not strongly for the first and moderately for the second. We pause to note, briefly, that it was incorrect for the dissenting judge to state that either of the first Grant factors would favour admission (C.A. reasons, at para. 63). The first two branches never favour admission — at most, they can weakly favour exclusion (see Le , at para. 141). [ 76 ] As mentioned, the third Grant factor tends strongly in favour of admission of the evidence.

The pull of the first two factors in this case is insufficient to outweigh the third; thus, overall the circumstances favour admission. This conclusion is consistent with other decisions of this Court that involved a less serious Charter breach, a significant or moderately intrusive impact, and evidence that was real, reliable, and crucial to the Crown’s case (see, e.g., Grant 2009, at para. 140; Vu , at para. 74 ). Thus, having balanced the factors, we would affirm the decision to admit the evidence and dismiss the appeal. The following are the reasons delivered by C ôté J. —

I. Introduction [77] I agree with my colleagues Rowe and O’Bonsawin JJ. that the appeal from the Alberta Court of Appeal’s decision(2022 ABCA 112, 44 Alta. L.R. (7th) 5) should be dismissed. However, I do not agree with their proposition that the state “cannot relyon unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest” (para. 2; see also Martin andKasirer JJ.’s reasons, at para. 107).

While this Court has never directly considered the issue, my colleagues’ position is, in my respectfulview, difficult to reconcile with both (1) this Court’s longstanding jurisprudence on s. 24(2) of the Canadian Charter of Rights andFreedoms, and (2) the framework for warrantless arrests set out in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. [78] First, a Charter breach that leads to incriminating evidence being uncovered will inevitably result in an arrest or otherinvestigative steps by the police.

Absent independent or additional police misconduct, this Court has never treated such arrests orinvestigative steps as separate Charter breaches in its s. 24(2) analysis. [79] Second, the objective judicial assessment of a police officer’s subjective grounds for a warrantless arrest must bebased on the “totality of the circumstances known to the officer at the time of the arrest” (R. v. Tim, 2022 SCC 12, at para. 24, citingStorrey, at pp. 250-51).

In evaluating the officer’s objective grounds for arrest, “courts must recognize that, ‘[o]ften, the officer’sdecision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer canafford. The officer must make his or her decision based on available information which is often less than exact or complete’” (R. v.Beaver, 2022 SCC 54, at para. 72, quoting R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 750, perDoherty J.A.). [80] In this case, my four colleagues’ view of whether Cst.

MacPhail had reasonable and probable grounds for arrest isnot based on the circumstances known to him at the time of the arrest, which included the sniffer dog’s clear and unequivocal indicationof controlled substances in the appellant’s vehicle. Rather, it hinges entirely on a retroactive judicial assessment of the lawfulness of thesniff search. However, the focus of this Court’s s. 24(2) analysis should be — and always has been — on that initial search (and in thiscase, the accompanying investigative detention while awaiting the arrival of the dog).

The presence of additional “breaches” was notargued at trial and has little, if any, impact on Rowe and O’Bonsawin JJ.’s s. 24(2) analysis, with which I am in substantial agreement. Iwould dismiss the appeal and uphold the appellant’s conviction. II. Analysis [81] My colleagues Rowe and O’Bonsawin JJ. restate their conclusion as follows: “. . . reasonable [and probable] groundsfor lawful arrest cannot be supplied by actions that involved violations of the Charter . . .” (para. 30; see Martin and Kasirer JJ.’sreasons, at para. 107, where this “sound proposition” is endorsed).

They view this conclusion as a “logical extension” of the principlesapplicable in other contexts where an initial Charter breach forms the basis for subsequent state action, referring in this regard to searchwarrants and searches incident to arrest (Rowe and O’Bonsawin JJ.’s reasons, at para. 30, citing R. v. Feeney, (SCC),[1997] 2 S.C.R. 13; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607; R. v. Caslake, (SCC), [1998] 1 S.C.R.51; Tim). [82] To understand why these contexts are distinguishable, it is necessary to review this Court’s s. 24(2) jurisprudence andits jurisprudence relating to Storrey in some detail.

I consider each in turn below before discussing the implications of my colleagues’approach. A. Section 24(2) of the Charter

(1) Our Court’s Section 24(2) Jurisprudence [83] If, as my colleagues conclude, a lawful arrest cannot be based on unlawfully obtained evidence, then this Court hasneglected or failed to consider a host of additional Charter breaches throughout its s. 24(2) jurisprudence. The accused’s arrest — madedirectly on the basis of unlawfully obtained evidence — would have been a Charter breach in, among others, R. v. Grant, 2009 SCC 32,[2009] 2 S.C.R. 353 (“Grant 2009”); R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215;R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R.

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