Case information

Charter of rights — Remedy — Exclusion of evidence — Whether majority of Court of Appeal erred in law by excluding evidence under s. 24(2) of Canadian Charter of Rights and Freedoms on basis that its admission would have brought administration of justice into disrepute.

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The police had grounds to arrest the respondent’s brother but mistakenly arrested the respondent instead. Before the mistake was discovered, police found a gun and drugs in the respondent’s possession. The respondent was charged with unauthorized possession of a loaded firearm and related offences, possession of a controlled substance for the purpose of trafficking; and possession of proceeds of crime under $5,000. At trial before judge alone in the Ontario Superior Court of Justice, the question was whether the arrest and search were lawful despite the fact that police arrested the wrong man. The trial judge held that the respondent’s rights under ss. 7, 8 or 9 of the Canadian Charter of Rights and Freedoms were not violated, but found there was a breach of the respondent’s s. 10(b) right to counsel. Despite this Charter breach, the trial judge was satisfied that the evidence should not be excluded under s. 24(2). The respondent was convicted of the offences charged.

The Ontario Court of Appeal was unanimous that the trial judge erred in finding that the mistake, arrest and subsequent search of the accused were lawful. The arrest was unlawful and violated the accused’s rights under s. 9 of the Charter and the search conducted pursuant to the arrest violated the accused’s Charter rights under s. 8. However, the court divided on whether the evidence should be excluded after conducting a fresh analysis under s. 24(2) of the Charter. A majority of the Court of Appeal allowed the appeal, excluded the evidence and substituted acquittals on all counts. Pomerance J.A., dissenting, would have dismissed the appeal, concluding that despite the additional Charter violations, the evidence was properly admitted.