Her Majesty the Queen v. Harrison, 2008 ONCA 85

Her Majesty the Queen v. Harrison [Indexed as: R. v. Harrison]

89 O.R. (3d) 161

Court of Appeal for Ontario,

O'Connor A.C.J.O., MacPherson and Cronk JJ.A.

February 11, 2008

Charter of Rights and Freedoms -- Exclusion of evidence -- Police officer stopping and searching rented car driven by accused without reasonable grounds contrary to ss. 8 and 9 of Charter -- Accused telling officer was driving back from Vancouver -- Officer finding 77 pounds of cocaine in vehicle valued between $2.4 and $4.5 million -- Trial judge finding that Charter violations were very serious -- Trial judge describing officer's conduct as blatant and flagrant -- No evidence breach part of systemic breach of rights by this officer or of systemic breaches -- Accused having low privacy interest in car rented by passenger and effect of breaches minor effect as stop brief and accused not personally searched without grounds -- Trial judge having reasonable basis for concluding that Charter violations were not so egregious as to demand exclusion of evidence in view of seriousness of offence -- Evidence reliable and inter-provincial trafficking in large amount of narcotic very serious offence that could not be proven without admission of drugs -- Reasonable for trial judge to conclude that more harm would come to administration of justice by exclusion rather than admission of evidence -- Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).

The accused was charged with trafficking in cocaine. He was driving a car rented in the name of the passenger from Vancouver to Toronto when he was stopped by a police officer without reasonable grounds. He discovered that the accused's licence was suspended and then searched the car. The trial judge did not accept the officer's evidence that he believed that he was justified in searching the car. There were two boxes in the vehicle's rear compartment. The officer opened one of the boxes and observed two bricks of what he believed to be cocaine. In fact, the accused was transporting 77 pounds of cocaine with a street value of between $2,463,000 and $4,575,000. The accused applied at trial to exclude the evidence of the cocaine under s. 24(2) of the Canadian Charter of Rights and Freedoms. The trial judge found that the officer did not have reasonable grounds to stop and search the vehicle and that he knew it. He found that the accused's rights under ss. 8 and 9 of the Charter were violated and that the breaches were very serious. He described the police conduct as "flagrant", and found that the officer did not act in good faith. He found that the breaches of the accused's rights paled in comparison to the criminality of the offence which involved the possession and distribution of a large amount of a dangerous narcotic. The evidence was admitted and the accused was convicted. He appealed.

Held, the appeal should be dismissed.

Per O'Connor A.C.J.O. and MacPherson J.A.: The trial judge's decision to admit the evidence was open to him, and reflected no error in principle. The admission of the evidence would not affect trial fairness. While the Charter violations were serious, they did not fall into the category of the most egregious Charter breaches. The officer did not have a carefully thought-out plan or practice to breach the Charter, and his conduct was not systemic in nature, or the result of operational policies or guidelines. The effects of the breaches on the accused were not particularly serious. The accused's detention at the side of the road was brief: only 15 minutes elapsed between the beginning of the traffic stop [page162] and his arrest for driving with a suspended licence. The effect of the search on the accused's privacy interest was not great. While the officer's conduct was characterized by the trial judge as blatant and flagrant, police conduct is rarely determinative of the s. 24(2) analysis. A trial judge engaged in a proper s. 24(2) analysis can find serious police misconduct and, because of other factors in play, legitimately admit the evidence improperly obtained as the goal of s. 24(2) is to protect the administration of justice, not to punish police misconduct. The trial judge focused appropriately on the serious social evil that is cocaine trafficking. It was open to the trial judge to conclude that a reasonable member of the community could find that excluding from evidence 77 pounds of cocaine as a result of the police action in this case would bring the administration of justice into greater dispute than admitting it.

Per Cronk J.A. (dissenting): On the trial judge's findings of fact, the Charter violations were not only very serious, they were intentional. The trial judge failed to address whether condoning the constitutional misconduct in this case by admitting the evidence of the cocaine would exact a greater toll on the integrity of the justice system than would excluding it. Moreover, when assessing the effect of excluding the cocaine on the reputation of the administration of justice, the trial judge focused, to the virtual exclusion of all other relevant considerations, on the seriousness of the crime alleged and the significance of the cocaine to the Crown's case. This, too, was an error. The police officer's actions were deliberate and disdainful of the rights and freedoms protected by the Charter. Moreover, he attempted to distort the truth-seeking function of the court during his trial testimony by misleading the court about his conduct. Reasonable and informed members of the community would not countenance this type of police misconduct. To admit the evidence of the cocaine would strike at the heart of the values enshrined in the Charter. It was necessary for the court to refuse to condone, and to dissociate itself from, the officer's conduct. While the exclusion of the cocaine would bring the administration of justice into disrepute, in the circumstances of this case, its admission would bring the administration of justice into greater disrepute.

APPEAL by the accused from the conviction entered by Karam J. of the Superior Court of Justice, dated May 29, 2006.

Cases referred to R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 (sub nom. Collins v. R.); R. v. Puskas, 1998 784 (SCC), [1998] 1 S.C.R. 1207, [1998] S.C.J. No. 51, 161 D.L.R. (4th) 65, 227 N.R. 1, 125 C.C.C. (3d) 433, 16 C.R. (5th) 324, quashing (1997), 1997 1159 (ON CA), 36 O.R. (3d) 474, [1997] O.J. No. 4665, 47 C.R.R. (2d) D-8, 120 C.C.C. (3d) 548 (C.A.), consd Other cases referred to Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 2002 SCC 33, 10 C.C.L.T. (3d) 157; Olmstead v. United States, 277 U.S. 438 (1928); R. v. Alkins (2007), 85 O.R. (3d) 161, [2007] O.J. No. 1348, 223 O.A.C. 41, 154 C.R.R. (2d) 281, 218 C.C.C. (3d) 97, 2007 ONCA 264; R. v. B. (L.) (2007), 86 O.R. (3d) 730, [2007] O.J. No. 3290, 227 O.A.C. 133, 227 C.C.C. (3d) 70, 49 C.R. (6th) 245, 2007 ONCA 596; R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341, [1997] S.C.J. No. 81, 34 O.R. (3d) 806, 151 D.L.R. (4th) 443, 216 N.R. 161, 46 C.R.R. (2d) 272, 118 C.C.C. (3d) 405, 29 M.V.R. (3d) 1, 10 C.R. (5th) 65; R. v. Buhay, [2003] 1 S.C.R. 631, [2003] S.C.J. No. 30, 177 Man. R. (2d) 72, 225 D.L.R. (4th) 624, 305 N.R. 158, 304 W.A.C. 72, [2004] 4 W.W.R. 1, 107 C.R.R. (2d) 240, 174 C.C.C. (3d) 97, 2003 SCC 30, 10 C.R. (6th) 205; R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, [1995] S.C.J. No. 39, 124 D.L.R. (4th) 7, 181 N.R. 1, 28 C.R.R. (2d) 244, 97 C.C.C. (3d) 385, 38 C.R. (4th) 265; R. v. Calderon, 2004 7569 (ON CA), [2004] O.J. No. 3474, 122 C.R.R. (2d) 304, 188 C.C.C. (3d) 481, 23 C.R. (6th) 1 (C.A.); R. v. Caprara, 2006 18518 (ON CA), [2006] O.J. No. 2210, 211 O.A.C. 211 (C.A.); [page163] R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 123 Man. R. (2d) 208, 155 D.L.R. (4th) 19, 221 N.R. 281, 159 W.A.C. 208, [1999] 4 W.W.R. 303, 48 C.R.R. (2d) 189, 121 C.C.C. (3d) 97, 13 C.R. (5th) 1; R. v. Chaisson, [2006] S.C.J. No. 11, 256 Nfld. & P.E.I.R. 181, 347 N.R. 282, 773 A.P.R. 181, 206 C.C.C. (3d) 1, 2006 SCC 11, 37 C.R. (6th) 43; R. v. Clayton, [2007] S.C.J. No. 32, 227 O.A.C. 314, 364 N.R. 199, 158 C.R.R. (2d) 81, 220 C.C.C. (3d) 449, 2007 SCC 32, 47 C.R. (6th) 219; R. v. Duguay, 1989 110 (SCC), [1989] 1 S.C.R. 93, [1989] S.C.J. No. 4, 31 O.A.C. 177, 56 D.L.R. (4th) 46, 91 N.R. 201, 38 C.R.R. 1, 46 C.C.C. (3d) 1, 67 C.R. (3d) 252; R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, 124 N.R. 278, 3 C.R.R. (2d) 315, 63 C.C.C. (3d) 289, 4 C.R. (4th) 144; R. v. Grant (2006), 2006 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 213 O.A.C. 127, 209 C.C.C. (3d) 250, 38 C.R. (6th) 58 (C.A.) [Leave to appeal to S.C.C. granted [2007] S.C.C.A. No. 99]; R. v. Greffe, 1990 143 (SCC), [1990] 1 S.C.R. 755, [1990] S.C.J. No. 32, 73 Alta. L.R. (2d) 97, 107 N.R. 1, [1990] 3 W.W.R. 577, 46 C.R.R. 1, 55 C.C.C. (3d) 161, 75 C.R. (3d) 257; R. v. Harris (2007), 87 O.R. (3d) 214, [2007] O.J. No. 3185, 228 O.A.C. 241, 225 C.C.C. (3d) 193, 49 C.R. (6th) 220, 51 M.V.R. (5th) 172, 2007 ONCA 574; R. v. Hynes, [2001] 3 S.C.R. 623, [2001] S.C.J. No. 80, 208 Nfld. & P.E.I.R. 181, 206 D.L.R. (4th) 483, 278 N.R. 299, 624 A.P.R. 181, 88 C.R.R. (2d) 222, 159 C.C.C. (3d) 359, 47 C.R. (5th) 278, 2001 SCC 82; R. v. Jacoy, 1988 13 (SCC), [1988] 2 S.C.R. 548, [1988] S.C.J. No. 83, 89 N.R. 61, [1989] 1 W.W.R. 354, 38 C.R.R. 290, 45 C.C.C. (3d) 46, 18 C.E.R. 258, 66 C.R. (3d) 336; R. v. Kitaitchik, 2002 45000 (ON CA), [2002] O.J. No. 2476, 95 C.R.R. (2d) 135, 166 C.C.C. (3d) 14, 4 C.R. (6th) 38 (C.A.); R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, [1990] S.C.J. No. 117, 51 B.C.L.R. (2d) 157, 121 N.R. 161, [1991] 1 W.W.R. 193, 50 C.R.R. 285, 61 C.C.C. (3d) 207, 1 C.R. (4th) 62; R. v. Law, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10, 208 D.L.R. (4th) 207, 281 N.R. 267, 90 C.R.R. (2d) 55, 160 C.C.C. (3d) 449, 2002 SCC 10; R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 187 Man. R. (2d) 1, 241 D.L.R. (4th) 214, 330 W.A.C. 1, [2004] 11 W.W.R. 601, 122 C.R.R. (2d) 189, 185 C.C.C. (3d) 308, 2004 SCC 52, 21 C.R. (6th) 1; R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, 5 Alta. L.R. (3d) 232, 144 N.R. 50, [1993] 1 W.W.R. 193, 12 C.R.R. (2d) 65, 76 C.C.C. (3d) 481, 16 C.R. (4th) 273, 40 M.V.R. (2d) 204; R. v. Nguyen, [2007] O.J. No. 3570, 229 O.A.C. 71, 51 C.R. (6th) 356, 2007 ONCA 645; R. v. Shankar, [2007] O.J. No. 1406, 222 O.A.C. 267, 153 C.R.R. (2d) 298, 2007 ONCA 280; R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38, 124 D.L.R. (4th) 193, 181 N.R. 161, 28 C.R.R. (2d) 189, 97 C.C.C. (3d) 450, 38 C.R. (4th) 330; R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, 15 B.C.L.R. (2d) 273, 40 D.L.R. (4th) 435, 75 N.R. 321, [1987] 5 W.W.R. 1, 31 C.R.R. 193, 34 C.C.C. (3d) 97, 58 C.R. (3d) 193; R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1; R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 38 Alta. L.R. (2d) 99n, 40 Sask. R. 122, 18 D.L.R. (4th) 655, 59 N.R. 122, [1985] 4 W.W.R. 286, 13 C.R.R. 193, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97, 32 M.V.R. 153; R. v. To, 1992 913 (BC CA), [1992] B.C.J. No. 1700, 16 B.C.A.C. 223 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; R. v. Wise, 1992 125 (SCC), [1992] 1 S.C.R. 527, [1992] S.C.J. No. 16, 133 N.R. 161, 8 C.R.R. (2d) 53, 70 C.C.C. (3d) 193, 11 C.R. (4th) 253 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2) Highway Traffic Act, R.S.O. 1990, c. H.8 U.S. Const. amend. IV Authorities referred to Hogg, P., Constitutional Law in Canada, 5th ed., looseleaf (Toronto: Thomson Carswell, 2007) Roach, K., Constitutional Remedies in Canada (Aurora: Canada Law Book, 1994) [page164]

Marie Henein and Margaret Bojarowska, for appellant. Rick Visca, for respondent.

[1] O'CONNOR A.C.J.O. and MACPHERSON J.A.: -- The primary issue in this appeal is whether the trial judge erred in admitting into evidence a very large quantity (77 pounds) of cocaine seized from a car being driven by the appellant, in light of what the trial judge described as extremely serious breaches of the appellant's ss. 8 and 9 Canadian Charter of Rights and Freedoms rights.

[2] The trial judge found that the police officer involved did not have reasonable grounds to stop and search the car and that he knew it. He described the officer's actions as flagrant. The trial judge did not accept the officer's evidence attempting to explain his actions.

[3] In deciding to admit the evidence, the trial judge considered the appropriate factors under s. 24(2) of the Charter. He decided that the seriousness of the breaches was not sufficient to warrant exclusion. He put it this way: "[the Charter breaches] pale in comparison to the criminality involved in the possession for the purpose of distribution of 77 pounds of cocaine . . ." In reaching this conclusion, the trial judge was very alive to the conduct of the police officer that gave rise to the breaches and to the problems with the police officer's testimony at trial. In the end, however, this experienced trial judge concluded that the harm to the reputation of the administration of justice from excluding the evidence would be greater than that from admitting it.

[4] The trial judge recognized that the breaches did not fall in the most egregious category. While the trial judge did not elaborate to any great extent, there are circumstances which attenuate the seriousness of the breaches which support his conclusion. For example, the officer's conduct was not shown to be systemic in nature, or the result of operational policies or guidelines, or even an order from a senior officer. The actions involved were those of one officer, who had been on the force for four years and who made some flawed decisions during the roadside encounter and later when testifying. And while some might describe the officer's breaches as "deliberate" (the trial judge did not use that word), that description tends to paint a picture of a more planned and premeditated course of action than the record reveals.

[5] In addition, the Charter breaches did not have a particularly serious effect on the appellant's Charter rights. The appellant was detained in the roadside stop for only a short period of [page165] time. As the trial judge pointed out, the officer did not use any force or physical restraint. The officer did not search the appellant's person, he only searched the car. The appellant did not own the car. It had been rented by the passenger. The appellant's privacy interest in the car was low.

[6] In our view, the trial judge's decision to admit the evidence was open to him. It was not unreasonable and reflects no error in principle. His decision deserves deference in this court. We do not suggest that this is an easy case -- far from it. This is a close call and one on which reasonable people could disagree. But, in our view, that makes it precisely the type of case in which deference comes into play.

[7] Thus, we would not interfere with the trial judge's decision to admit the evidence.

A. Background

[8] The appellant, Bradley Harrison, was tried before Justice Karam in the Superior Court of Justice on a charge of trafficking in cocaine. The cocaine was found in the rear area of a rental vehicle which the appellant was driving even though his driver's licence was suspended. The seized cocaine weighed 35 kilograms (77 lbs.) and had a street value of between $2,463,000 and $4,575,000.

[9] At the commencement of the six-day trial, the appellant and his co-accused, Sean Friesen, brought an application to exclude the evidence relating to the seizure of the cocaine. Following a voir dire, the trial judge held that the police had violated the appellant's (and Mr. Friesen's) rights under ss. 8 and 9 of the Charter. However, after engaging in the analysis mandated by R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 33 C.C.C. (3d) 1, the trial judge admitted the evidence under s. 24(2) of the Charter.

[10] The trial continued. Mr. Friesen was acquitted in mid- trial following a successful motion for a directed verdict on the basis that the vehicle rental agreement in his name was hearsay and, accordingly, the Crown could not prove possession. The appellant called a defence and testified.

[11] The trial judge convicted the appellant and sentenced him to five years of imprisonment. The appellant appeals his conviction, but not his sentence. His principal ground of appeal is that the trial judge erred in his Charter s. 24(2) ruling. He also alleges errors in two other determinations by the trial judge: his conclusion that he was in possession of the cocaine and his application of the doctrine of reasonable doubt, through the test set down in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397. [page166]

B. The Facts

(1) The events near Kirkland Lake

[12] The appellant and Mr. Friesen were driving from Vancouver to Toronto, where the appellant lived, when the officer seized the cocaine. As to the circumstances that took him to Vancouver, the appellant testified as follows. He had a fight with his eight-month-pregnant wife in Toronto. He decided to leave her. He flew to Vancouver with a friend, Mike Farrell. After arriving in Vancouver, he reconciled with his wife in a telephone conversation and decided to return home.

[13] On October 22, 2004, he and Sean Friesen, who had rented a Dodge Durango SUV at the Vancouver airport, started to drive to Toronto. They drove continuously, sharing the driving. The appellant did not check whether his own travel bag was in the car when he left Vancouver, nor did he notice two cardboard boxes in the rear of the vehicle.

[14] Two days later, on October 24, 2004, the appellant was driving the vehicle near Kirkland Lake. Constable Brian Bertoncello, an OPP officer with four years' experience, saw the Durango leading a line of eight or nine vehicles. The Durango was driving at the speed limit but missing a front licence plate. Constable Bertoncello decided to stop the vehicle. He activated his emergency lights and manoeuvred into position directly behind the Durango. He then noticed that the Durango had an Alberta licence plate. He testified that he realized that in Alberta it was not an offence to drive a vehicle without a front licence plate. Nevertheless, he decided to stop the vehicle. His reasons for doing so were captured in this exchange with the trial judge during the voir dire: THE COURT: I just have one question, and that is, when you determined that the vehicle, or the operator of the vehicle, wasn't committing any offence, why did you pull him over? A. Ah, continuation of the, ah, the traffic stop. I had my emergency lights already going, um, the, ah, the vehicles behind me. I had been pulling over. Um, my integrity was, ah, was there, the integrity for police, and also now to check up on, to make sure that this person is eligible to drive in the Province of Ontario.

[15] Constable Bertoncello asked the driver, the appellant, for his licence and for the vehicle's registration, insurance and rental agreement. [See Note 1 below] The appellant produced everything except his licence. According to Constable Bertoncello: [page167]

He had searched around the front of the vehicle. Um, he then, ah, got out of the vehicle and checked his pants pocket for a wallet, and then he checked the second back seat. It was an S.U.V., so the second set of passenger seats. He went through his, ah, his clothes quickly, and closed the door; and then he told me that he must've left it in his friend's bag in Vancouver.

[16] While the appellant was looking for his driver's licence, Bertoncello noticed that the SUV was messy and littered with used food and drink containers, giving it what he termed a "lived-in look". This suggested to him that the occupants of the SUV had been travelling virtually "non-stop", with only quick breaks to obtain food.

[17] On further questioning, the appellant told Bertoncello his address and his date of birth, and indicated that he had met Friesen a few months earlier, through a mutual friend. During this exchange, Bertoncello noticed clothing and bags on the back seat of the SUV and a silhouette of two boxes and bags in the rear compartment.

[18] Bertoncello spoke with Friesen separately. Friesen identified himself with an Ontario driver's licence and told Bertoncello that he had travelled with the appellant to Vancouver three days earlier. Friesen said that he had known the appellant, through a friend in Vancouver, for a "year or more". The officer noted that the two men had provided different versions of their association.

[19] Constable Bertoncello went to his vehicle, conducted CPIC and PARIS checks and discovered that the appellant's driver's licence had been suspended. Indeed, the appellant had been served with formal notice of the suspension by an OPP officer only eight days earlier, on October 16, 2004.

[20] Constable Bertoncello arrested the appellant for driving while his licence was suspended. He decided to search the vehicle as an incident to the arrest because the appellant hadn't "identified himself properly in the search for a driver's licence, which I believe could be contained within the motor vehicle". Constable Bertoncello told the appellant that he was going to search for the missing licence.

[21] Constable Bertoncello asked the appellant if there were drugs or weapons inside the vehicle. The appellant replied in the negative. The officer explained his reasons for asking this question in this fashion: Q. Was there a reason why you asked that question? A. Ah, just for personal safety reasons. Um, just like prior to, ah, arresting an individual on the street, I'll ask if they have any drugs or weapons on them for my own safety. I don't want to be, ah, pricked by a needle, or, um, pull a trigger on a handgun or anything like that, that I don't know is around. [page168] . . . . . Q. All right. Were there other factors that you thought of, apart from safety reasons, to mention to Mr. Harrison that there were drugs or weapons inside the vehicle. A. Well, I know from my, ah, training experience, um, including and being inside the Highway Drug Interdiction Course, that, um, Vancouver, being a port city is a city where plenty of drugs are imported into Canada. I also know that Toronto is a destination city where the drugs can be distributed from. Ah, there was a short trip; the rental vehicle was from, ah, Thursday; um, the stop was on Sunday, which, ah, would mean that they had to drive straight through from Vancouver without stopping. Ah, this raised my suspicion, ah, that there could be a possibility of, ah, drugs or weapons, ah, cash, or a combination of all three inside that vehicle.

[22] Constable Bertoncello asked Friesen if there were drugs or weapons in the vehicle and received a negative response. He asked Friesen what was in the two boxes in the vehicle's rear compartment and was told that they contained dishes and books for Friesen's mother. Bertoncello examined and lifted the boxes, which were taped shut. He told Friesen that the boxes seemed solid and he could not hear anything that sounded like dishes. He then asked Friesen again if there were weapons or drugs: Q. What was Mr. Friesen's reaction to your question? A. Um, he didn't really have . . . an answer to the question. And then I, I repeated the question -- if there was any drugs or weapons. And he kind of in a really nervous way, looked down at the ground, and, ah, and kicked the dirt, and he just said, "yeah". And, ah, I asked him what was in it, and he flagged that he was not sure what was inside these boxes.

[23] Constable Bertoncello opened one of the boxes and observed "two bricks of a white substance believed to be cocaine". He arrested Friesen and the appellant for possession of cocaine for the purpose of trafficking. He read the appellant the standard caution. According to the officer, "Harrison advised me that he didn't know about, ah, about the cocaine. He said that, ah, Mr. Friesen had offered to give him a ride to Ontario. He agreed and drove with him. Ah, he also said that the boxes were there from Mr. Friesen."

(2) The trial

[24] The trial of the appellant and Friesen proceeded in Haileybury in the spring of 2006 before Justice Karam.

[25] The trial opened with a voir dire in which Constable Bertoncello and two other police officers who arrived to assist him testified. Neither accused testified. The trial judge held that the two accused were arbitrarily detained contrary to s. 9 of the [page169] Charter and that the search of the vehicle was unreasonable contrary to s. 8. He described these Charter violations as "extremely serious". However, after conducting a full Collins analysis, the trial judge refused to exclude the evidence relating to the cocaine seized in the search because trial fairness was not compromised and the Charter breaches "pale in comparison to the criminality involved in the possession for the purposes of distribution of 77 pounds of cocaine, if such is proven".

[26] Later in the trial, following a motion for a directed verdict, Friesen was acquitted because the trial judge concluded that there was no evidence that he exercised control over the boxes in the vehicle. [See Note 2 below]

[27] At the conclusion of the trial, the trial judge convicted the appellant of trafficking in cocaine. He said:

The sole question before this court at this stage is whether the Crown has proven beyond a reasonable doubt that the accused had knowledge and control of the drugs when stopped by the police. No issue is taken as to whether, if found in possession, the accused is guilty of the charge before the court. . . . . .

The story provided by the accused was, in my view, so unlikely and incredible that I find that I must reject it entirely. . . . . .

In this case, although I am satisfied that the accused was fully aware of the contents of the boxes, at the very least it can be said any failure to investigate amounted to wilful blindness.

Since he was driving when stopped and therefore had charge of the vehicle containing two large sealed boxes with 77 pounds of cocaine, and had been in the vehicle for over 48 consecutive hours, I am satisfied beyond any reasonable doubt that he was aware of the contents of the cardboard boxes, although sealed, and as the driver of the vehicle had control of its contents when stopped by police. The appellant appeals his conviction.

C. Issues

The issues advanced by the appellant are: (1) Did the trial judge err in his Charter s. 24(2) ruling? (2) Did the trial judge err in his interpretation of possession and/or reach an unreasonable verdict on this issue? [page170] (3) Did the trial judge err in his application of the doctrine of reasonable doubt?

D. Analysis

(1) The section 24(2) issue

[28] Section 24(2) of the Charter provides:

24(2) Where . . . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[29] Section 24(2) was written to constitute an intermediate position between the automatic exclusionary rule familiar to American Bill of Rights jurisprudence and the automatic inclusionary rule of the common law for non-conscriptive real evidence: see Collins, supra, at p. 281 S.C.R., 16 C.C.C. The Supreme Court of Canada has consistently rejected analyses of s. 24(2) that would lead to either extreme: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, [2003] S.C.J. No. 30, 174 C.C.C. (3d) 97, at para. 71. Justice Iacobucci described s. 24(2)'s middle- ground approach as follows at para. 57 of R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 185 C.C.C. (3d) 308:

Just as there is no automatic exclusionary rule, there can be no automatic inclusion of evidence either. The focus of the inquiry under this head of analysis is to balance the interests of truth with the integrity of the legal system.

[30] The main purpose of s. 24(2) is to protect the reputation of the administration of justice. In the words of Lamer J. in Collins at p. 281 S.C.R., p. 16 C.C.C., "s. 24(2) is not a remedy for police misconduct".

[31] Because the application of s. 24(2) focuses on the reputation of the administration of justice, the views of the community at large are relevant. That is not to say that courts should always rely on the actual views of the community. Such a populist approach would risk subjecting the Charter to the volatile ebb and flow of majority sentiment and would thus arguably run counter to the very idea of constitutionally entrenched rights. That said, the question of disrepute is not to be analyzed solely from the perspective of judges or the legal community. The standard is that of the reasonable person, and according to Lamer J. in Collins at p. 282 S.C.R., p. 18 C.C.C., "[t]he reasonable person is usually the average person in the community, but only when that community's current mood is reasonable." The reasonable person standard, wrote Lamer J. at p. 282 S.C.R., p. 18 C.C.C. of [page171] Collins, "serves as a reminder to each individual judge that his discretion is grounded in community values".

[32] Section 24(2) directs judges to consider "all the circumstances" in determining whether a Charter violation mandates exclusion. The court in Collins chose to divide the factors involved in this inquiry into three categories: those relating to the effects of the breach on trial fairness, those relating to the seriousness of the constitutional breach, and those relating to the effect of excluding the evidence on the reputation of the administration of justice. Ultimately, however, the question is whether admitting the evidence would bring the administration of justice into disrepute: see Buhay, supra, at para. 72.

[33] Absent a clear legal error in applying the test for exclusion, a trial judge's decision to exclude or admit evidence under s. 24(2) is subject to considerable deference: see, e.g., R. v. Duguay, 1989 110 (SCC), [1989] 1 S.C.R. 93, [1989] S.C.J. No. 4, 46 C.C.C. (3d) 1, at p. 5 C.C.C.; R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, 76 C.C.C. (3d) 481, at p. 488 C.C.C.; R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38, 97 C.C.C. (3d) 450, at p. 500 C.C.C.; R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 113 C.C.C. (3d) 321, at p. 349 C.C.C.; Buhay, supra, at para. 44; Mann, supra, at para. 59; R. v. Chaisson, 2006 SCC 11, [2006] S.C.J. No. 11, 206 C.C.C. (3d) 1, at para. 7. There are good reasons for deferring to a trial judge's determination. As expressed by Arbour J. in Buhay at para. 70, trial judges "have a much better understanding than we do about the likely effects of their decisions on their communities and on those who enforce the law in those communities". Trial judges are in this preferred position because they have more direct contact with the public and with the people involved in the criminal justice process than appellate judges. On a regular basis, trial judges sitting in criminal courts hear from victims, accused persons, witnesses, police officers, defence counsel and frontline prosecutors. They have an opportunity to observe firsthand the way the criminal justice system is functioning and are well positioned to make assessments about the broad range of issues on which appellate courts are required to show deference.

[34] In addition, trial judges handle s. 24(2) issues on a frequent basis and, thus, are accustomed to the complex process of balancing that this section of the Charter mandates.

[35] The trial judge's decision on s. 24(2), therefore, should not be interfered with unless it constitutes an error of law or is unreasonable: see Silveira, supra, at p. 497 C.C.C. and Mann, supra, at para. 59.

[36] This appeal deals primarily with the second and third prongs of the Collins framework. It is noteworthy that courts tend [page172] to defer more to trial judges in their assessment of those prongs than in their assessment of the trial fairness prong of Collins. According to Prof. Kent Roach in Constitutional Remedies in Canada (Aurora: Canada Law Book, 1994) at para. 10.625:

In practice, a trial judge's assessment of the seriousness of the violation and the balance between the harms of admitting or excluding the evidence will often be accorded much deference because they are driven by the trial judge's perception of the facts. In contrast, the issue of whether the fair trial test is engaged because the evidence has been unconstitutionally conscripted from the accused will often be driven by the trial judge's analysis of the complex law surrounding the fair trial test.

[37] The trial judge in this case understood the Collins factors and applied them in a relatively comprehensive fashion.

(a) Trial fairness

[38] The parties conceded, and the trial judge found, that the admission of the impugned evidence would not affect trial fairness. It is important, however, not to skate by this factor too quickly. The trial fairness prong is not merely a mechanical step or a box to be ticked. In the Collins analysis of s. 24(2), trial fairness "is undoubtedly the most important issue and should be given the greatest weight": see Mellenthin, supra, at p. 489 C.C.C. Accordingly, where trial fairness would be negatively affected by the admission of the evidence, this in itself can be sufficient grounds for exclusion, without considering the second and third factors: see Stillman, supra, at p. 350 C.C.C. That, however, is not the case here. It is accepted that the appellant's trial was fair even with the admission of the cocaine seized from the car he was driving.

(b) Seriousness of the breach

[39] The trial judge found that Constable Bertoncello violated the appellant's (and Friesen's) rights under both s. 8 and s. 9 of the Charter. He found that the officer's explanation for stopping the vehicle and detaining its occupants was "contrived and def[ied] credibility". Accordingly, the detention was arbitrary. The trial judge also found that the search of the vehicle after the appellant's arrest was not "truly incidental" to the arrest for driving while under suspension and that "the officer's avowed purpose for the search was certainly not reasonable".

[40] When he came to the second branch of the Collins s. 24(2) analysis, the trial judge used very strong language in his criticism of the police officer. He described the officer's conduct as "brazen and flagrant", stated that "the search was not conducted in good faith", and ultimately characterized the two Charter breaches as "extremely serious". [page173]

[41] We accept the trial judge's findings of fact with respect to the officer's conduct when he stopped and searched the vehicle as well as his findings with respect to the officer's reasons for his actions. The trial judge heard the evidence and was in the best position to assess the officer's credibility.

[42] The trial judge also found, however, that this case did not fall within the most egregious category of Charter breaches. Although his discussion on this point was brief, there was sufficient evidence to support his conclusion. A fair reading of the officer's evidence does not reveal that he had a carefully thought out plan or practice to breach the Charter. The officer suspected that there were drugs in the car. His on- the-scene decision to follow his suspicions without reasonable grounds was a serious mistake. By the time he searched the car, however, it is arguable he had enough information to warrant a search, though on cross-examination, he agreed that he did not have enough information to obtain a warrant. While some might describe the officer's breaches of the Charter as "deliberate" (the trial judge did not use that word), that description, in our view, tends to paint a picture of a more planned and premeditated course of action than the flawed decision-making process the record reveals.

[43] Moreover, from the appellant's point of view, the effects of the breaches were not particularly serious. His detention at the side of the road was brief: only 15 minutes elapsed between the beginning of the traffic stop and the appellant's arrest for driving with a suspended licence. As the trial judge pointed out, during the period of the improper detention, the appellant was not subjected to any physical force or restraint.

[44] Perhaps more importantly, the effect of the search on the appellant's privacy interest was not great. This is not a case involving a search of a person, a residence or an office. The search was of a car, nothing more.

[45] The courts have held that an individual's privacy interest in a vehicle and its contents -- a factor not mentioned in the trial judge's ruling on the voir dire -- are lower than the privacy interest in a person's body, home or office: see R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341, [1997] S.C.J. No. 81, 34 O.R. (3d) 806, 118 C.C.C. (3d) 405, at pp. 417-20 C.C.C.; R. v. Calderon, 2004 7569 (ON CA), [2004] O.J. No. 3474, 188 C.C.C. (3d) 481 (C.A.), at para. 98; R. v. Alkins (2007), 2007 ONCA 264, 85 O.R. (3d) 161, [2007] O.J. No. 1348, 218 C.C.C. (3d) 97 (C.A.), at para. 55. In this case, the vehicle was a rental vehicle. The appellant was not the lessee. He was properly arrested for driving while under suspension. Moreover, the appellant did not testify in the voir dire about any perceived violation of his privacy interest. He did not even look to make sure his own bags were in the [page174] vehicle's rear compartment prior to leaving Vancouver. Indeed, he told Constable Bertoncello that the boxes belonged to Friesen. This denial of ownership is an important factor. Recently, in a similar case in which an officer searched a bag after a young man denied the bag was his, R. v. B. (L.) (2007), 2007 ONCA 596, 86 O.R. (3d) 730, [2007] O.J. No. 3290 (C.A.), Moldaver J.A. observed at para. 71: "Having disclaimed any privacy interest in the bag, the respondent effectively precluded himself from relying on s. 8 of the Charter to impugn the lawfulness of Officer Purches's search."

[46] Thus, we conclude that the effects of the breaches on the appellant's rights that were protected by ss. 8 and 9 of the Charter were relatively minor. There was ample evidence to support the trial judge's conclusion that the breaches did not fall within the most egregious category.

[47] In summary, the trial judge was well aware of the officer's conduct and motives as well as his testimony at trial. He was also aware that the breaches did not fall in the most egregious category. In the end, the trial judge decided that the breaches were not sufficiently serious to warrant excluding the evidence. It is that decision that is at the heart of this appeal.

(c) Effect of admitting/excluding evidence on the reputation of the administration of justice

[48] The final step in the Collins analysis is to evaluate the effects on the administration of justice of excluding the evidence. As Lamer J. wrote in Collins at p. 281 S.C.R., p. 17 C.C.C., "[i]t would be inconsistent with the purpose of s. 24(2) to exclude evidence if its exclusion would bring the administration of justice into greater disrepute than would its admission."

[49] In determining what is better for the reputation of the system of justice, courts take the perspective of a reasonable member of the community. As pointed out above, courts look to the effect of the admission of the evidence on trial fairness and to the seriousness of the Charter breach involved. At the third stage of the Collins test, courts consider the seriousness of the offence, the reliability of the evidence and the importance of the evidence to the case: see R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, 63 C.C.C. (3d) 289, at p. 311 C.C.C.; Buhay, supra, at para. 67; R. v. Kitaitchik, 2002 45000 (ON CA), [2002] O.J. No. 2476, 166 C.C.C. (3d) 14(C.A.), at para. 47.

[50] In applying the third branch of Collins, the trial judge held as follows:

This brings us to the third question to be determined under the Collins test, and that is whether excluding the evidence would have a more serious [page175] impact on the administration of justice than admitting it. This factor relates to the seriousness of the offence and the importance of the evidence to the case for the Crown. In the case at bar, the Crown, it would appear, has no case without the drugs. More significantly, in view of the vast quantity of cocaine in question, these charges are extremely serious. It is important to consider the degree of criminality involved in the possession for the purposes of distribution of 77 pounds of cocaine and the societal damage resulting from that amount of such a dangerous drug.

[51] The trial judge thus found that on two of the three additional factors relevant to the third branch of Collins, the facts of this case pointed in the direction of admitting the evidence. The crime was very serious and the evidence was central to the Crown's case. The trial judge did not mention the third factor -- reliability -- but that factor points in the same direction as the other two.

[52] The appellant contends that the trial judge committed two errors in his analysis under the third branch of Collins.

[53] First, the appellant submits that the trial judge failed to consider whether excluding the evidence would have a more serious impact on the administration of justice than admitting it.

[54] In the final part of his ruling, the trial judge said:

In R. v. Puskas, [See Note 3 below] Justice Moldaver stated at page 7:

To exclude the evidence under these circumstances, where the guilt of the respondent for a serious offence is clearly established by real evidence and where the exclusion of the evidence would result in his acquittal, would, in my opinion, have a greater negative effect on the repute of justice than its admission.

I adopt that statement and find that it applies to the facts of this case. Accordingly, after carefully balancing the seriousness of the breaches against the effect of exclusion, I am satisfied that the evidence should not be excluded. As blatant as the arresting officer's behaviour was in conducting the detention and search and as brazen as his explanation for his actions in this court, they pale in comparison to the criminality involved in the possession for the purposes of distribution of 77 pounds of cocaine, if such is proven.

[55] We do not accept the appellant's argument that the trial judge failed to perform the balancing that Collins mandates. In his reasons the trial judge explicitly mentioned balancing the effects of exclusion against the seriousness of the breach. While his juxtaposition of "the arresting officer's behaviour" with "the criminality involved" may be a slight mischaracterization of the Collins test, which requires a balancing among the effects on trial fairness, the seriousness of the breach, and the effects of excluding the evidence on the administration of justice, it is not [page176] an error of law. Even if such a mischaracterization were, in itself, an error of law, that error would be mitigated by the statement that the trial judge adopted from Puskas, which properly refers to the need to compare the effect on the administration of justice of admitting versus excluding the evidence.

[56] The appellant submits that the trial judge's second error in his consideration of the third branch of Collins was his misapplication of Puskas. He contends that the facts and findings in Puskas were clearly distinguishable from the findings in the present case.

[57] The facts of Puskas, where the police after being issued a warrant seized marijuana plants from a backyard, may indeed be distinguishable in certain respects from those in this case. However, the trial judge, in quoting from Puskas, was not asserting an exact factual analogy, but rather a similar outcome. He was merely saying that in both cases the exclusion of the evidence would cause the administration of justice to fall into greater disrepute than its inclusion. In our view, this does not constitute a legal error.

[58] Moreover, we do not accept the appellant's argument that to admit the evidence in this case would amount to judicial condonation of police misconduct. The very nature of s. 24(2) contemplates that judges will admit evidence in some cases where there has been a breach of the Charter, but the exclusion of evidence would bring the administration of justice into greater disrepute than its admission. A trial judge who so admits evidence should not be viewed as condoning Charter breaches but rather protecting the administration of justice.

[59] In this case, the trial judge underlined the seriousness of the police officer's breaches of the appellant's Charter rights. He described them in detail and, ultimately, characterized them as "blatant and flagrant". His ruling was far removed from being a judicial condonation of the police misconduct; indeed, it was, explicitly, the opposite -- a clear condemnation.

[60] When considering whether admitting the evidence would bring the system into disrepute, it is important to bear in mind that the police misconduct was not shown to be systemic in nature or the result of an operational policy or guidelines or even an order from a senior officer. While clearly the misconduct was serious, the actions involved were those of one police officer, who had been on the force for four years. That officer made some flawed decisions during the roadside encounter and later when testifying. However, this is not a case where it has been shown that there is or even might be an institutional problem. Furthermore, Collins states at p. 280 S.C.R., p. 16 C.C.C., that s. 24(2) of the Charter is not intended as a remedy for police misconduct. [page177]

[61] As the trial judge recognized, police conduct is but one factor in the s. 24(2) analysis. The wording of s. 24(2) and all of the leading cases over 20 years compel trial judges to engage in an analysis of many factors under the Collins analytical framework. There is rarely an automatic equation between police misconduct and exclusion of the evidence.

[62] By way of illustration, had the police officer in this case engaged in more egregious conduct, such as entering the appellant's home without a warrant, or threatening or assaulting the appellant, that may well have tipped the balance in favour of exclusion. The same holds true in terms of the nature and quantity of the drugs seized -- a small amount of marijuana may well have yielded a different result. In our view, this is precisely the dichotomy of result that s. 24(2) envisions and that Collins and its progeny permit.

[63] As mentioned above, we would not characterize the breaches as deliberate. Even if they were deliberate, however, that alone would not lead automatically to exclusion. It is true that in the case law, deliberateness is a factor pointing strongly towards excluding the evidence. As Peter Hogg states in Constitutional Law in Canada, 5th ed., looseleaf (Toronto: Thomson Carswell, 2007) at 41.9(a), "[w]here the police have deliberately violated the Charter in order to obtain incriminating evidence, then the use of the evidence would tend to bring the administration of justice into disrepute". However, a finding that a violation was deliberate does not end the inquiry altogether. The drafters' rejection of the American exclusionary rule (as recorded in Collins at p. 280 S.C.R., p. 16 C.C.C., and subsequent case law) makes clear that s. 24(2) was intended as a balancing test, with no single factor trumping the others.

[64] In short, police conduct is rarely determinative of the s. 24(2) analysis. A trial judge engaged in a proper s. 24(2) analysis can find serious police misconduct and, because of other factors in play, legitimately admit the evidence improperly obtained.

[65] The trial judge's ruling in this case was faithful to the proper analytical approach under s. 24(2). He described the police misconduct in blunt terms. He did not condone it at all -- he condemned it. And then, he admitted the evidence because of his careful assessment of all three Collins factors. In particular, he focused -- appropriately -- on the "serious social evi[l]" that is cocaine trafficking: R. v. Jacoy, 1988 13 (SCC), [1988] 2 S.C.R. 548, [1988] S.C.J. No. 83, 45 C.C.C. (3d) 46, at p. 560 S.C.R., p. 55 C.C.C. The words of Lamer J. in R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, 34 C.C.C. (3d) 97, at p. 1053 S.C.R., pp. 123-24 C.C.C., serve [page178] as a reminder of the often irreparable harms for which cocaine traffickers bear responsibility:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

[66] A similar point, and its logical consequence, admission of the evidence, was made by Cory J. in Silveira, supra, at pp. 504-05 C.C.C., paras. 164, 168 and 169:

The last major factor to be considered in the s. 24(2) analysis is the effect the exclusion of the evidence would have on the administration of justice. The outcome of this issue was not seriously contested by the appellant. The appellant was charged with possession for the purpose of trafficking and trafficking in a hard drug in significant quantities. These are offences that can have a catastrophic effect on society and that carry with them a provision for imprisonment for life. . . . . .

Drug trafficking is a serious crime and the evidence seized was vital to the proof of the case against the appellant. The admission of the evidence would not have an adverse effect upon the reputation of the administration of justice.

In weighing all the factors which must be taken into account when considering s. 24(2) of the Charter, it is apparent that in this case the evidence was properly found to be admissible. (Emphasis added)

[67] There is no doubt that the present case involved the interprovincial transport of a very large amount of cocaine. The seized cocaine was estimated to be worth between $2,463,000 and $4,575,000. The traffickers stood to profit handsomely from the long chain of social ills that would have flowed from the sale of 77 pounds of cocaine.

[68] In our view, a reasonable member of the community could very well find that excluding from evidence such a large quantum of drugs as a result of the police action in this case would bring the administration of justice into greater disrepute than admitting the seized narcotics.

[69] In summary, Collins articulates a three-part test for analysis under s. 24(2) of the Charter. The trial judge engaged in a full and faithful application of the test. Mann states at para. 57 that "[j]ust as there is no automatic exclusionary rule, there can be no [page179] automatic inclusion of evidence either". A long line of cases, from Duguay (1989) to Mellenthin (1992) to Silveira (1995) to Stillman (1997) to Buhay (2003) to Mann (2004) to Chaisson (2006), has placed an umbrella of deference over appellate review of s. 24(2) rulings made by trial judges. In our view, this umbrella must provide equal shelter to decisions to exclude and decisions to admit evidence. Absent a legal error or an unreasonable finding, rulings in both categories should be affirmed. The trial judge in this case committed neither error and his ruling is, therefore, entitled to appellate respect -- and affirmation.

[70] Thus, for the reasons stated, we believe that without minimizing the seriousness of the police officer's conduct or in any way condoning it, it was open to the trial judge to find that reasonable members of the community could well conclude that the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission.

(2) The possession issue

[71] The appellant contends that the trial judge erred in his interpretation of possession, specifically by finding that the appellant had control of the boxes containing the cocaine in the rear of the vehicle. The appellant also submits that the trial judge's finding that the appellant had possession was unreasonable.

[72] We disagree. The appellant testified at the trial. The trial judge rejected his evidence:

The story provided by the accused was, in my view, so unlikely and incredible that I find that I must reject it entirely. The likelihood of his picking up and taking a one- way ticket to Vancouver with Farrell to escape his wife, family and property, only to change his mind within a day, makes sense only to the extent that it dovetails completely with the most incriminating aspects of his possession of the cocaine. The idea that he drove for 48 hours without looking into the back of the vehicle to see the presence of the boxes or even to check to confirm the presence of his own baggage is, in my view, ridiculous. At the same time, his failure to notice the boxes is contradicted by his statement to police when stopped, when he immediately attributed their ownership to Friesen.

The idea that he would decide to move to Vancouver with what amounts to an overnight bag and then spend almost all of his money within two days of arriving there is equally hard to accept.

[73] Against this backdrop, the trial judge turned to the legal issue of possession. He said:

In this case, although I am satisfied that the accused was fully aware of the contents of the boxes, at the very least it can be said any failure to investigate amounted to wilful blindness. [page180]

Since he was driving when stopped and therefore had charge of the vehicle containing two large boxes with 77 pounds of cocaine, and had been in the vehicle for over 48 consecutive hours, I am satisfied beyond any reasonable doubt that he was aware of the contents of the cardboard boxes, although sealed, and as the driver of the vehicle had control of its contents when stopped by police.

[74] In this passage, the trial judge identified the elements of possession -- knowledge and control -- and made permissible findings, based on the evidence, relating to them. We can see no legal error.

[75] Moreover, the trial judge's decision is far removed from being unreasonable. Indeed, the facts in this case invite adoption of the analysis of McEachern C.J.B.C. in R. v. To, 1992 913 (BC CA), [1992] B.C.J. No. 1700, 16 B.C.A.C. 223 (C.A.):

I have reached the conclusion that it would be legitimate, on the broad facts of this case, to infer beyond a reasonable doubt that the accused knew the plastic bag contained a prohibited drug. In fact, I think that would be the only reasonable inference which could be drawn. I believe that not just because the accused was found in physical control of the drugs, but also because of the highly suspicious circumstances and the immense quantity and value of the drugs. These facts make it so unlikely that such a large quantity of drugs would be entrusted to anyone who did not know what was in the bags that such a possibility may safely be rejected. In addition, his antecedent, highly suspicious conduct, most of which was proven affirmatively before he gave his disbelieved evidence, make it impossible to draw any inferences which would displace the legitimate inference which may be drawn from physical possession that he knew what he was possessing.

(3) The reasonable doubt issue

[76] The appellant contends that the trial judge erred in his application of the doctrine of reasonable doubt by failing to apply the W. (D.) test properly, thereby reversing the burden of proof. Specifically, the appellant submits that once the trial judge rejected the appellant's evidence and indicated that he was not left in reasonable doubt concerning it, he needed to continue to the third stage of the W. (D.) analysis and consider whether, on the basis of the evidence he did accept, he was convinced beyond a reasonable doubt of the appellant's guilt.

[77] In our view, this kind of analysis is precisely what the trial judge did. He focused on the crucial issue of possession, made specific findings based on the evidence (set out above), and concluded that possession was proved beyond a reasonable doubt. He did not ignore or misapply the third branch of the W. (D.) analysis.

E. Disposition

[78] We would dismiss the appeal. [page181]

CRONK J.A. (dissenting): --

I. Overview

[79] This case concerns the admission at trial of evidence of a large amount of cocaine, seized from a car being driven by the appellant, in circumstances involving the deliberate breach of the appellant's constitutional rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. Although the trial judge found the breaches to be extremely serious, he nonetheless held that the evidence should not be excluded under s. 24(2) of the Charter. In the trial judge's opinion, the seriousness of the breaches "pale[d] in comparison to the criminality involved in the possession for the purpose of distribution of 77 pounds of cocaine". He thus admitted the evidence.

[80] On the trial judge's findings of fact, the Charter violations were not only very serious, they were intentional. The police officer knew that he did not have reasonable and probable grounds to stop the car or search it. In spite of that, he proceeded. Then, when he testified at the appellant's trial, the officer misled the court about the reasons he stopped and searched the car in an attempt to justify his improper actions.

[81] In these circumstances, this question arises: at what point does serious police misconduct, which led to the discovery and seizure of real evidence of a substantial quantity of drugs, so taint the administration of justice as to require the exclusion of the evidence? The answer requires a delicate balancing of society's commitment to the protection of individual liberties guaranteed by the Charter and its interest in the effective detection and prosecution of serious crime.

[82] My colleagues would uphold the admission of the cocaine primarily on the ground that this court should defer to the trial judge's admissibility ruling. On this record, I disagree. A trial judge's analysis under s. 24(2) of the Charter attracts considerable deference from this court. But appellate intervention is both warranted and required where -- as here -- the decision to admit evidence is tainted by legal error.

[83] With respect, I am of the opinion that the trial judge erred in his approach to the requisite balancing exercise at the final stage of the s. 24(2) analysis mandated by R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 33 C.C.C. (3d) 1. In particular, the trial judge failed to address whether condoning the constitutional misconduct in this case, by admitting the evidence of the cocaine, would exact a greater toll on the integrity of the justice system than would excluding it. Moreover, when assessing the effect of excluding the cocaine on the reputation of the [page182] administration of justice, the trial judge focused -- to the virtual exclusion of all other relevant considerations -- on the seriousness of the crime alleged and the significance of the cocaine to the Crown's case. This too was an error. As a result of these errors, it falls to this court to determine afresh whether the evidence of the cocaine should have been admitted.

[84] This is not a case where a police officer made a good faith error in judgment, misunderstood the extent of his authority, engaged in trivial or inadvertent constitutional violations, or is being held to an unduly harsh assessment with the benefit of hindsight. This is a case where the police officer's actions, both at the time of the detention of the appellant and the search of the vehicle, were deliberate, without legal justification, and disdainful of the rights and freedoms protected by the Charter. Moreover, the officer attempted to distort the truth-seeking function of the court during his trial testimony by misleading the court about his conduct. With respect, these actions were not merely "flawed decisions", "a serious mistake", or the product of a "flawed decision-making process", as my colleagues suggest in their reasons. They were intentional violations of the appellant's constitutional rights that undermine the integrity of the administration of justice.

[85] While it is always distasteful to exclude important and reliable evidence in a serious case such as this, reasonable and informed members of the community would not countenance this type of police misconduct. To admit the evidence of the cocaine, on this record, would strike at the heart of the values enshrined in the Charter. Consequently, in my view, the court must refuse to condone, and must dissociate itself, from such conduct. While the exclusion of the cocaine could bring the administration of justice into disrepute, on the facts and in the circumstances of this case, the admission of the cocaine would bring the administration of justice into greater disrepute.

[86] Accordingly, I would allow the appeal on this ground. Because the evidence of the cocaine should be excluded at trial, and it is essential to the Crown's case, I would set aside the appellant's conviction and enter an acquittal.

II. Facts

[87] In their reasons, my colleagues set out many of the pertinent facts. The following facts require emphasis.

[88] Constable Brian Bertoncello testified on the Charter voir dire that he decided to stop the SUV driven by the appellant because the vehicle's missing front licence plate and the rate of speed of the vehicle (the posted speed limit) aroused his suspicions [page183] "a little bit". He also said that he suspected that the driver might be a suspended driver because he was driving a rental vehicle. [See Note 4 below]

[89] However, when he stopped the vehicle, the officer knew that the absence of a front licence plate on the SUV did not constitute an offence under the Highway Traffic Act, R.S.O. 1990, c. H.8, because the SUV was from Alberta, where no front vehicle plate is required. He also knew that the driver of the SUV was not speeding. Nevertheless, as the trial judge observed, "despite the fact that the SUV was apparently being driven in accordance with the law", Bertoncello stopped the vehicle and questioned its two male occupants, the appellant and his co-accused, Sean Friesen.

[90] When asked why he persisted in pulling over the SUV when he knew that no offence had been committed, Bertoncello attempted to justify his conduct on the grounds that his emergency lights had already been engaged, there were other vehicles travelling behind him, his "integrity" and that of the police were in issue, and he wanted to ensure that the operator of the SUV was eligible to drive in Ontario. He did not suggest, nor does the record indicate, that he had any legitimate highway traffic or public safety concerns when he stopped the SUV. As found by the trial judge, Bertoncello's suspicion that the driver "might be a person suspended from operating a motor vehicle" was "wild speculation" and his professed concern about the effect on other motorists' perception of the "integrity" of the police could "in no way constitute reasonable grounds" for the detention of the appellant.

[91] Once the vehicle was pulled over, Bertoncello told the appellant that he had been stopped because the SUV had no front licence plate. When questioning the appellant, Bertoncello noticed clothing and bags on the back seat of the SUV and a silhouette of two boxes and bags in the rear cargo compartment. After arresting the appellant for driving while suspended, Bertoncello told him that he would be searching the SUV, incident to the appellant's arrest, to look for the appellant's missing driver's licence. The appellant co-operated throughout.

[92] Bertoncello did not ask the appellant or Friesen if he could search the SUV. Moreover, there was no evidence that Bertoncello considered obtaining a warrant to search the SUV. Although my colleagues suggest that "it is arguable" that Bertoncello had enough information to warrant a search of the SUV, the officer admitted that he did not have reasonable grounds to obtain a [page184] warrant to search the vehicle for drugs or weapons. The trial judge agreed, holding that Bertoncello's "avowed purpose for the search was certainly not reasonable".

[93] While he maintained that his search pertained to the appellant's driving offence, Bertoncello testified that he was suspicious of "a possibility" that there were drugs, weapons or cash inside the SUV. Under cross-examination, he admitted that drugs and weapons were always in the back of his mind before and during the vehicle search. He eventually conceded that he searched the SUV for drugs or weapons, as well as for the appellant's driver's licence. He also acknowledged that, apart from the driver's licence, he did not expect to find any other evidence relating to the offence of driving under suspension when searching the SUV. He agreed that the licence itself was not required to prove this offence.

[94] Bertoncello started the search of the vehicle at the back of the SUV. He made no effort to search the two jackets and bags of clothes that he had observed in plain view on the back seat of the SUV. Instead, accompanied by one of two other police constables who had arrived at the scene, Bertoncello opened the unlocked hatchback rear door of the vehicle and noticed two banker's boxes and two duffle bags inside the cargo compartment. The boxes, including their handles, were completely sealed with tape, so that no one could look inside.

[95] Bertoncello first examined the contents of one of the bags in the cargo compartment, which he was told belonged to Friesen. Nothing untoward was discovered. He next opened one of the sealed boxes and discovered packages of a substance that appeared to be cocaine, whereupon he arrested the appellant and Friesen for possession of cocaine for the purpose of trafficking. Only then did Bertoncello ask the appellant about the boxes. The appellant told him that he did not know about the cocaine and "the boxes were there from . . . Friesen". Opening the second box revealed additional packages of cocaine. The two boxes contained a total of 35 kilograms (about 77 pounds) of cocaine, having an estimated street value of approximately $2.4 to $4.6 million.

[96] On subsequent inspection of the SUV at the police detachment, the appellant's driver's licence was found in his jacket, which was on the back seat of the SUV.

III. Analysis

[97] I part company with my colleagues' analysis of the issues in this case on the core question of whether the evidence of the cocaine should have been admitted. Accordingly, these reasons are confined to consideration of that issue. [page185]

(1) The Charter breaches

[98] The Crown accepts the trial judge's findings that the appellant's rights under ss. 8 and 9 of the Charter were breached. So do I.

[99] The trial judge made several crucial findings concerning the Charter violations in this case. These findings are interspersed throughout his ruling and can be summarized as follows: (i) Bertoncello's explanations for stopping the SUV and detaining its occupants were "contrived" and "def[ied] credibility". (ii) When he stopped the SUV, Bertoncello was not acting in "error or ignorance" regarding the scope of his legal authority. To the contrary, on his own admission, he knew that he did not have reasonable grounds to stop the SUV. (iii) The officer's explanation for his search of the SUV was also "contrived", "somewhat incredible" and "extremely difficult to accept as valid". His explanation had "little credibility". (iv) Contrary to his claim to the appellant that the purpose of the search of the SUV was to look for the appellant's driver's licence, Bertoncello's only reason for conducting the search was "to follow up on his suspicion that there might be drugs in the vehicle". (v) The officer's avowed purpose for the search was "certainly not reasonable". (vi) Indeed, the police officer's intention throughout the roadside encounter was "to take whatever steps were necessary to determine whether his suspicions were correct, including searching the vehicle for drugs, notwithstanding the accuseds' Charter protection". (vii) The officer's actions in so doing were "brazen" and "flagrant". (viii) The search "went . . . beyond legal limits" and was not a search incidental to the appellant's arrest for driving under suspension. (ix) Bertoncello was neither "simply careless in assessing [his] authority for his investigation", nor operating on an honest but mistaken belief concerning his authority to conduct the search. (x) There was no reason for Bertoncello "to have been motivated by urgency or the necessity to preserve evidence". [page186] (xi) Bertoncello did not employ physical violence, force, coercion or threats. But he also "made no effort to request consent for the search". (xii) The search "was not conducted in good faith". (xiii) The Charter breaches were "extremely serious".

[100] These findings were open to the trial judge on the evidence adduced on the Charter voir dire, and flowed from his strongly adverse assessment of Bertoncello's credibility. Accordingly, they attract great deference from this court. There is no basis on this record for appellate interference with them.

[101] On the trial judge's findings, I agree that the stop of the SUV and the detention of the appellant were unlawful and violated the appellant's s. 9 Charter rights. I also agree that Bertoncello had no right to search the vehicle incident to the appellant's arrest. The appellant had not been arrested for a drug-related offence but, rather, for driving under suspension. Consequently, any search for evidence incident to arrest had to be restricted to evidence of the driving offence and could not be converted into a search for drugs. See for example, R. v. Caprara, 2006 18518 (ON CA), [2006] O.J. No. 2210, 211 O.A.C. 211 (C.A.), at para. 7. The trial judge correctly held that the warrantless search of the SUV was without reasonable cause, that it was not a valid search incident to arrest, and that it infringed the appellant's s. 8 Charter rights.

(2) Should the evidence be excluded under section 24(2)?

[102] Section 24(2) of the Charter provides:

24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

(i) Controlling principles

[103] The principles that inform a s. 24(2) Charter application are well-settled. Four are particularly relevant in this case. First, in Collins, supra, at p. 267 S.C.R., pp. 16-17 C.C.C., Lamer J. emphasized that the applicable test under s. 24(2) is "whether the admission of the evidence [could] bring the administration of justice into disrepute" (emphasis in original). He also said at para. 31:

[T]he purpose of s. 24(2) is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings. This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial condonation of [page187] unacceptable conduct by the investigatory and prosecutorial agencies. It will also be necessary to consider any disrepute that may result from the exclusion of the evidence. It would be inconsistent with the purpose of s. 24(2) to exclude evidence if its exclusion would bring the administration of justice into greater disrepute than would its admission. (Underlining in original; emphasis added)

[104] More recently, in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, [2003] S.C.J. No. 30, 174 C.C.C. (3d) 97, at para. 72, the Supreme Court of Canada described the s. 24(2) inquiry in this fashion: "The question under s. 24(2) is whether the system's repute will be better served by the admission or the exclusion of the evidence." Justice Arbour explained at paras. 72-73 that the disrepute that may result from the exclusion of the evidence is a necessary consideration under s. 24(2). She elaborated:

At the end of the day, though, the constitutional question is whether the admission of the evidence would bring the administration of justice into disrepute. . . . The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other. (Citations omitted; emphasis in original)

[105] Second, as my colleagues indicate in their reasons, the concept of "disrepute" under s. 24(2) necessarily involves some element of community views. In Collins at pp. 281-82 S.C.R., pp. 17-18 C.C.C., in adopting what he termed the "reasonable person test", Lamer J. endorsed the following test for the application of s. 24(2): "Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?"

[106] However, Lamer J. also said at p. 281 S.C.R., p. 17 C.C.C.:

Finally, it must be emphasized that even though the inquiry under s. 24(2) will necessarily focus on the specific prosecution, it is the long-term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice which must be considered. (Citations omitted)

[107] This caution informs the consideration of community values mandated under s. 24(2). The decision whether to admit evidence is not an uncontrolled, discretionary decision to be based on considerations that are idiosyncratic to a particular community at a particular time. Rather, it is the long-term values of the community at large that are engaged by s. 24(2).

[108] Third, a s. 24(2) inquiry requires consideration of "all the circumstances" bearing on the admission of the challenged evidence. In Collins, the numerous factors to be considered and balanced under s. 24(2) were grouped into three categories, [page188] according to the way in which they affect the repute of the administration of justice: (i) the effect of the admission of the evidence on trial fairness; (ii) the seriousness of the police misconduct; and (iii) the effect on the repute of the administration of justice of excluding or admitting the evidence. This three-staged inquiry remains the governing analytical approach to a s. 24(2) analysis. See for example, R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10, 160 C.C.C. (3d) 449, at para. 33; and Buhay at para. 41.

[109] Finally, the trial judge's findings of fact on a s. 24(2) application attract significant deference from this court. Those findings cannot be overturned absent palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31. Deference also applies to decisions of trial judges on questions of evidentiary exclusion under s. 24(2) of the Charter. See for example, R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 185 C.C.C. (3d) 308, at para. 59; Buhay at para. 44; Law at para. 32; and R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341, [1997] S.C.J. No. 81, 34 O.R. (3d) 806n, 118 C.C.C. (3d) 405, at para. 35.

[110] This principle of deference, however, is subject to important limitations. A trial judge's s. 24(2) ruling must be reasonable and error-free. In R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38, 97 C.C.C. (3d) 450, at para. 144, the Supreme Court of Canada stated:

At the outset, it is appropriate to bear in mind that, in a series of cases, this Court has held that findings of the courts below pertaining to s. 24(2) issues should not be overturned unless there has been "some apparent error as to the applicable principles or rules of law, or . . . a finding that is unreasonable". (Citations omitted; emphasis added) See also, e.g., R. v. Duguay, 1989 110 (SCC), [1989] 1 S.C.R. 93, [1989] S.C.J. No. 4, 46 C.C.C. (3d) 1, at p. 5 C.C.C.; R. v. Greffe, 1990 143 (SCC), [1990] 1 S.C.R. 755, [1990] S.C.J. No. 32, 55 C.C.C. (3d) 161, at p. 182 C.C.C.; R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, 76 C.C.C. (3d) 481, at p. 488 C.C.C.; R. v. Wise, 1992 125 (SCC), [1992] 1 S.C.R. 527, [1992] S.C.J. No. 16, 70 C.C.C. (3d) 193, at p. 222 C.C.C.; and R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 113 C.C.C. (3d) 321, at para. 68.

[111] Where an appellate court is satisfied that the trial judge has fallen into error on a s. 24(2) ruling, the appellate court "may perform the s. 24(2) calculation afresh and determine the admissibility of the evidence": see R. v. Harris (2007), 2007 ONCA 574, 87 O.R. (3d) 214, [2007] O.J. No. 3185 (C.A.), at para. 50; R. v. Nguyen, 2007 ONCA 645, [2007] O.J. No. 3570, 229 O.A.C. 71 (C.A.), at para. 17; and R. v. Grant (2006), 2006 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 209 C.C.C. (3d) 250 (C.A.), at para. 42, leave to appeal to S.C.C. granted [2007] S.C.C.A. No. 99. [page189]

[112] Deference applies with equal force to decisions to admit or exclude evidence under s. 24(2). Section 24(2) rulings are based on an assessment of whether the admission of the evidence would bring the administration of justice into disrepute. This assessment is grounded in factors established through testimony, often requiring an appreciation of the credibility of witnesses. Accordingly, subject to the limitations that I have mentioned, deference is implicated on any appellate review of a Charter s. 24(2) ruling.

[113] With this legal framework in mind, I turn to the trial judge's s. 24(2) ruling.

(ii) The Collins inquiry

[114] The trial judge recognized the three questions that must be addressed under s. 24(2) of the Charter.

Trial fairness

[115] In respect of the first question -- trial fairness -- the trial judge accepted that the admission of the evidence would not render the appellant's trial unfair. He was correct to do so. Both at trial and on appeal, counsel agreed that trial fairness is not engaged in this case. The challenged evidence -- cocaine -- was non-conscriptive, real evidence that existed independently of the violations of the appellant's Charter rights.

Seriousness of the Charter violations

[116] The next question under the Collins inquiry concerns the seriousness of the police misconduct at issue. Particularly strong deference is owed to the trial judge's finding that the police officer's Charter violations were "extremely serious": see Buhay at paras. 47 and 52; Law at paras. 32-38; and R. v. Shankar, 2007 ONCA 280, [2007] O.J. No. 1406, 222 O.A.C. 267 (C.A.), at para. 22. This is especially so in this case, because this key finding flowed directly from the trial judge's adverse assessment of Bertoncello's credibility.

[117] My colleagues state that they accept the trial judge's findings with respect to the officer's conduct and the officer's explanations for his actions, and that they neither minimize the seriousness of the officer's conduct nor condone it. With respect, I conclude that the effect of my colleagues' reasons is to do precisely the opposite. In my view, without acknowledging it, my colleagues mount a significant attack on the findings of fact that were made by the trial judge at the second stage of his Collins analysis, including his key finding that the Charter breaches were extremely serious. Although they attempt to shelter their attack under what they term the "umbrella of deference" that applies to [page190] appellate review of s. 24(2) rulings made by trial judges, in reality, the majority seek to diminish the seriousness of the Charter violations as found by the trial judge in two discernible ways.

[118] The first element of my colleagues' attack on the trial judge's factual findings is their effort to "read down" the seriousness of the Charter breaches as found by the trial judge by injecting their own findings about the police misconduct into the factual matrix of this case. This is revealed by their description of the police misconduct as consisting of "flawed decisions" or "a serious mistake" by Bertoncello, or as flowing from his "flawed decision-making process". With respect, this re-characterization of the police misconduct flies in the face of the trial judge's factual analysis and findings.

[119] Portrayal of the police officer's actions as flawed decisions, mistakes or the product of flawed decision-making equates the officer's actions with mere errors in judgment. Yet the trial judge explicitly found that the officer's conduct in violating the appellant's Charter rights was "brazen" and "flagrant". He further found that the officer was aware that he lacked legal justification for the detention and search of the SUV and that he proceeded in any event. He also held that the officer was not "simply careless", acting in "error or ignorance" or on "an honest but mistaken belief" in assessing his authority during the detention and search. To the contrary, he acted in bad faith. Nor were there urgent or exigent circumstances such as might warrant the search of the SUV. Further, the officer actively sought to mislead the court at trial with his "contrived" and "incredible" explanations for his conduct. These are not the hallmarks of mere flawed decision-making, innocent mistakes or errors in judgment.

[120] My colleagues acknowledge that the deliberateness of a Charter breach is "a factor pointing strongly towards excluding the evidence" obtained as a result of the breach. However, they indicate that they "would not characterize the breaches as deliberate" and stress that the trial judge did not specifically do so.

[121] While it is true that the trial judge did not use the word "deliberate" in describing the breaches, it is clear from his reasons that he did not regard the Charter violations as trivial or technical, nor did he describe them as inadvertent or unintentional. To the contrary, a full reading of his ruling makes it clear that he regarded the breaches as wilful and deliberate. To conclude otherwise is to undercut both the tenor and substance of the trial judge's numerous strongly-worded factual findings, including his findings that the officer's conduct was "brazen" and "flagrant" and that the Charter breaches were "extremely serious". In my view, absent legal error by the trial judge -- which [page191] my colleagues do not assert -- this court may not attempt to ameliorate the nature of the police misconduct where to do so runs afoul of the trial judge's unequivocal factual findings.

[122] Jurisprudence from the Supreme Court of Canada confirms that such an approach exceeds the scope of permissible appellate review. For example, R. v. Chaisson, 2006 SCC 11, [2006] S.C.J. No. 11, 206 C.C.C. (3d) 1, a case cited -- but not otherwise discussed -- by my colleagues in their reasons, also involved alleged breaches of ss. 8 and 9 of the Charter and a subsequent s. 24(2) analysis. In Chaisson, the Supreme Court held that it is impermissible for an appellate court to recast the issues in a constitutional infringement case by substituting its own findings of fact for those of a trial judge. To re-characterize the nature of the police misconduct in this case, notwithstanding the trial judge's clear factual findings, ignores the Chaisson caution.

[123] The second, and related, element of my colleagues' attack on the trial judge's findings regarding the Charter breaches is an attempt to minimize those findings by holding that the breaches did not have "a serious effect on the appellant's Charter rights" and that the effects of the breaches on the appellant's rights were "relatively minor". In several places in their reasons, with little reference to the trial judge's finding that the breaches were "extremely serious", my colleagues emphasize the trial judge's comment that the breaches did not fall within the most egregious category. They defer to this finding by the trial judge and rely on it to embark on their own assessment of the seriousness of the breaches and the police officer's misconduct. With respect, I do not think that my colleagues' approach reflects a fair reading of the trial judge's ruling or the import of his findings. I say this for the following reasons.

[124] First, the trial judge made no finding that the effects of the breaches on the appellant's rights were "relatively minor" or not particularly serious. To the contrary, although the trial judge recognized that the breaches were not the most serious set of Charter breaches imaginable, he explicitly qualified this acknowledgement by stressing that the police officer acted in bad faith and in blatant disregard for more than one of the appellant's Charter rights. For the trial judge, these latter factors were controlling and compelled the conclusion that the breaches were "extremely serious". By focusing on circumstances that they conclude attenuate the seriousness of the Charter breaches, my colleagues afford no deference to and essentially ignore this central finding. In effect, they imply that notwithstanding the trial judge's express finding to the contrary, the breaches were not very serious. [page192]

[125] Second, there is no doubt that the trial judge's overall evaluation of the seriousness of the breaches took into consideration the effects of the police officer's misconduct on the appellant. At the start of his assessment of the seriousness of the breaches, the trial judge referred to Arbour J.'s enunciation in Buhay at para. 52 of the factors that may be taken into account at the second stage of a Collins inquiry, including "the obtrusiveness of the search, the individual's expectation of privacy in the area searched and the existence of reasonable and probable grounds". The trial judge also expressly acknowledged that the breaches involved no force, coercion or threats and observed, more than once, that no violence was involved.

[126] It is thus apparent that the trial judge turned his mind to the effects of the breaches on the appellant from the very outset of his analysis of the seriousness of the police misconduct. His consideration of the effects of the breaches on the appellant was subsumed in his scrutiny of the police officer's misconduct and his overall evaluation of the gravity of the breaches.

[127] Third, while my colleagues state that the illegal search of the SUV was the search "of a car, nothing more", and that the effect of the breaches on the appellant's privacy interest "was not great", the nature of the search and of the appellant's privacy interest was not lost on the trial judge. He was clearly aware that an individual's expectation of privacy in the area searched by the police is a proper consideration when assessing the seriousness of a s. 8 Charter breach. Indeed, the trial judge received submissions on the Charter voir dire from both the Crown and defence counsel regarding the appellant's privacy interest in this case. There is no basis on which to infer that he failed to consider or misapprehended this factor when evaluating the seriousness of the Charter breaches.

[128] Before this court, the appellant accepts that his privacy interest in the rented SUV was not high. This was a proper concession. A person's expectation of privacy in a car is less than in a person's home or office, or with respect to their physical person: see Wise, supra, at p. 228 C.C.C.; Belnavis, supra, at p. 424 C.C.C.; R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 121 C.C.C. (3d) 97, at para. 34; and R. v. Alkins (2007), 2007 ONCA 264, 85 O.R. (3d) 161, [2007] O.J. No. 1348, 218 C.C.C. (3d) 97 (C.A.), at para. 40.

[129] This does not mean, however, that the appellant had no privacy interest in the SUV or its contents. The appellant had control of the SUV when it was stopped. At the time of the stop, insofar as Bertoncello was aware, the appellant had done nothing illegal. The boxes searched were in the rear cargo area of the SUV and were not in plain view. Prior to the search, Bertoncello [page193] had glimpsed only a silhouette of the boxes. In addition, the boxes were tightly sealed and their contents were not visible.

[130] Moreover, the appellant appears to have been driving the SUV with the consent of Friesen, the lessee of the vehicle, with whom he was travelling and apparently sharing the driving from Vancouver. These facts can ground a reasonable expectation of privacy in the vehicle: Belnavis, supra, at para. 23. In R. v. Calderon, 2004 7569 (ON CA), [2004] O.J. No. 3474, 188 C.C.C. (3d) 481 (C.A.), at para. 98, this court accepted that both the driver and the passenger of a rented car had a "reasonably high" expectation of privacy in the locked trunk of the vehicle, where the contents were less visible and accessible than in the interior of a car.

[131] I also disagree with my colleagues that, given this court's recent decision in R. v. B. (L.) (2007), 2007 ONCA 596, 86 O.R. (3d) 730, [2007] O.J. No. 3290 (C.A.), the appellant's denial of ownership of the boxes in the SUV is an "important factor" in this case. In B. (L.), when questioned by the police regarding the ownership of a seemingly discarded backpack, the accused denied that the backpack was his. In those circumstances, this court held that the police were justified in regarding the backpack as having been abandoned and in conducting a search of its contents. The court went on to conclude that no detention of the accused had occurred, the police officers acted in good faith, and any Charter breach that transpired was inadvertent and not a product of wilful or flagrant disregard of the accused's constitutional rights.

[132] The facts in B. (L.) stand in stark contrast to those in this case. Here, the appellant's assertion that the boxes had been placed in the SUV by Friesen was made after the unlawful detention of the appellant and after the illegal search of the vehicle and the discovery of the cocaine. It was not until he was confronted by Bertoncello with the fact that cocaine had been found that the appellant denied ownership of the boxes. Notwithstanding this denial, the appellant made no disclaimer of any privacy interest in the SUV.

[133] In my view, the appellant's privacy interest was a reasonable but reduced one. While his expectation of privacy in the SUV and its contents was certainly not high, it was also not negligible. The fact remains that his privacy interest was violated -- unlawfully and intentionally. While the existence of a reasonable expectation of privacy is highly relevant to the assessment of an inadvertent or good faith breach of the Charter, it is less relevant where -- as here -- the Charter violations were flagrant, brazen and not in good faith.

[134] Moreover, even where the effect of a Charter violation on an accused is minimal, the Supreme Court of Canada has held [page194] that this factor must be weighed against the absence of a reasonable basis for the police conduct in issue. For example, in Mann, supra, the challenged search was held to be unconstitutional and the resulting evidence of marijuana was excluded because the police, in carrying out a permissible pat- down search, also searched an inner pocket on the accused's sweater. The effect on the accused of the extended search appears to have been negligible, since he was already being lawfully detained and searched. Nonetheless, the Supreme Court wrote at para. 56: "While a frisk search is a minimally intrusive search . . . the search of the appellant's inner pocket must be weighed against the absence of any reasonable basis for justification" (emphasis in original). Similarly, in this case, the effects of the search of the SUV and the sealed banker's boxes must be measured in light of the fact that Bertoncello proceeded with the search based on nothing more than a suspicion or hunch that the vehicle might contain drugs or weapons.

[135] Finally, my colleagues stress that the police misconduct in this case was not systemic in nature, indicative of an institutional or operational police policy, or the result of a planned and premeditated course of action or of the officer following a superior's orders.

[136] I do not dispute that the assessment of the seriousness of Charter breaches involves consideration of gradations of gravity, in the context of all the circumstances. However, I do not accept that police misconduct is reduced to constitutional insignificance, or that its effects are minor or de minimis, because only one police officer, acting on his own, knowingly violates a citizen's constitutional rights. The protections afforded by the Charter are not limited to cases where systemic, institutional or premeditated police misconduct or state action is in issue.

[137] For the above reasons, I do not accept that it is open to this court on the facts of this case to suggest that the seriousness of the Charter breaches is diminished because the breaches did not have "a particularly serious effect on the appellant's Charter rights", or because the effects of the breaches on the appellant were "relatively minor". Indeed, contrary to my colleagues' approach, the Crown acknowledged during oral argument before this court that the trial judge's unchallenged factual findings "preclude attenuation of the seriousness of the breaches".

[138] In the end, the effects of the Charter violations on the appellant is but one component of a constellation of factors relevant to the seriousness of the breaches. Having taken the nature and effects of the breaches into account, it was open to the trial judge to hold on the evidence that the breaches were extremely serious. In the absence of legal error, which is not suggested by [page195] my colleagues, the import of that finding cannot be undermined. Given that intentional police misconduct is involved, the real issue on this appeal is whether the harm to the repute of the administration of justice that would be occasioned by the admission of the evidence is constitutionally tolerable.

Repute of the administration of justice

[139] The final question from Collins concerns the negative impact, if any, on the administration of justice that would be occasioned by the admission of the evidence. In ruling that the evidence of the cocaine should be admitted, the trial judge reasoned as follows:

[The third Collins] factor relates to the seriousness of the offence and the importance of the evidence to the case for the Crown. In the case at bar, the Crown, it would appear, has no case without the drugs. More significantly, in view of the vast quantity of cocaine in question, these charges are extremely serious. It is important to consider the degree of criminality involved in the possession for the purposes of distribution of 77 pounds of cocaine and the societal damage resulting from that amount of such a dangerous drug.

In R. v. Puskas, Justice Moldaver stated at [para. 25]:

To exclude the evidence under these circumstances, where the guilt of the respondent for a serious offence is clearly established by real evidence and where the exclusion of the evidence would result in his acquittal, would, in my opinion, have a greater negative effect on the repute of justice than its admission.

I adopt that statement and find that it applies to the facts of this case. Accordingly, after carefully balancing the seriousness of the breaches against the effect of exclusion, I am satisfied that the evidence should not be excluded. As blatant as the arresting officer's behaviour was in conducting the detention and the search and as brazen as his explanation for his actions in this court, they pale in comparison to the criminality involved in the possession for the purposes of distribution of 77 pounds of cocaine, if such is proven.

[140] The appellant argues that the trial judge erred in his approach to the balancing exercise contemplated at the final stage of the Collins inquiry by failing to balance the factors weighing in favour of excluding the evidence against the factors supporting its admission. In so doing, the appellant submits, the trial judge also incorrectly relied on the decision of this court in R. v. Puskas (1997), 1997 1159 (ON CA), 36 O.R. (3d) 474, [1997] O.J. No. 4665, 120 C.C.C. (3d) 548 (C.A.). I agree with these submissions for the following reasons.

[141] The central basis for the trial judge's decision to admit the evidence of the cocaine was the seriousness of the offence charged, given the nature and quantity of the drug seized. This is evident from his statements that "[i]n view of the vast quantity of cocaine in question, these charges are extremely serious" and [page196] "[i]t is important to consider the degree of criminality involved". It is also apparent from his acceptance of the Crown's argument on the voir dire that the seriousness of Bertoncello's conduct "pale[d] in comparison to the criminality involved".

[142] There is no doubt that the offence charged in this case was serious and it involved a large quantity of a dangerous drug. These factors, of course, were proper and necessary considerations at the third stage of the trial judge's s. 24(2) inquiry. The trial judge's concern about the potential damage to society arising from the illegal distribution of such a large amount of cocaine was also legitimate. The devastating effects of cocaine use and the public interest in preventing such use need no elaboration.

[143] But just as police misconduct, by itself, is not determinative of a s. 24(2) assessment, the seriousness of the alleged crime is but one factor, albeit an important one, to be considered at the third stage of the Collins inquiry. The plain language of s. 24(2) requires that the admissibility determination be made after weighing and balancing "all the circumstances". The jurisprudence does not support the proposition that any one factor, including the seriousness of the criminality at issue, "trumps" all other relevant factors on a s. 24(2) analysis. In R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, [1995] S.C.J. No. 39, 97 C.C.C. (3d) 385, at paras. 50 and 51, Iacobucci J. bluntly warned:

I underscore that we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2).

These goals operate independently of the type of crime for which the individual stands accused.

[144] At the third stage of the Collins analysis, the relevant question is not that posed by the trial judge, namely, whether the established Charter violation "pales" in comparison to the criminality involved. Rather, it is whether condoning the constitutional misconduct by admitting evidence obtained in violation of important Charter rights would do more harm to the integrity of the justice system than would excluding evidence that is essential to the Crown's case against an accused charged with a serious crime.

[145] By failing to address this question, the trial judge misunderstood and failed to undertake the requisite balancing exercise under s. 24(2). While the trial judge said that he had "carefully balanced the seriousness of the breaches against the effect of [page197] exclusion" (emphasis added) of the evidence, he made no assessment of the effect on the repute of the administration of justice arising from the admission of the evidence, given the serious Charter violations that he had found, and in light of all the circumstances surrounding those violations. In particular, the trial judge did not advert to the negative impact that admitting the evidence would have on the repute of the administration of justice as a consequence of the judicial condonation of the extremely serious Charter breaches that he found had occurred.

[146] My colleagues write that the admission of evidence where there has been a Charter breach should not be viewed, by itself, as a condonation by the court of the Charter breach. I agree that inherent to the third stage of the Collins analysis is the possibility that unlawfully obtained evidence may be admitted notwithstanding a Charter violation. Thus, for example, if evidence is obtained as the result of inadvertent or inconsequential Charter breaches or when the police acted in good faith, its admission may be justified.

[147] But when a court is faced with evidence that was gathered by the police in deliberate and serious violation of their constitutional obligations, the admissibility scales may tip the other way. The claim that a police officer's intentional constitutional misconduct has been condemned, rather than condoned, by the courts rings hollow when evidence deliberately obtained in serious violation of an accused's Charter rights is relied on to secure a conviction.

[148] It is important to remember that the unlawful obtaining of evidence by the police in violation of an accused's fundamental constitutional rights itself diminishes the integrity of the administration of justice. As Lamer J. emphasized in Collins at pp. 281-82 S.C.R., pp. 16-17 C.C.C., the purpose of s. 24(2) is to avoid exacerbating the damage already caused to the repute of the administration of justice through the "judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies". See also Buhay at para. 70. To similar effect, this court recently noted in Harris, supra, at para. 59:

Were the court to admit evidence obtained through a serious breach of an accused's Charter rights, the admission of that evidence could reasonably be seen as judicial condonation of the unconstitutional conduct of the police. That condonation would tend to bring the administration of justice into disrepute. (Citations omitted)

[149] Also pertinent is the observation of Sopinka J. in R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, [1990] S.C.J. No. 117, 61 C.C.C. (3d) 207, at p. 27 S.C.R., p. 226 C.C.C.: "The Court must refuse to condone, and must dissociate itself from, egregious police conduct" [page198] (citations omitted). And as Iacobucci J. observed in Burlingham, supra, at para. 25, the purpose of the Collins inquiry is "to oblige law enforcement authorities to respect the exigencies of the Charter".

[150] The reliability of the evidence, the amount and type of the drug seized, and the seriousness of the alleged crime do not overwhelm the s. 24(2) analysis at the expense of the consideration of other factors that are relevant to the admissibility determination. Were it otherwise, whenever serious crime is alleged in circumstances where significant constitutional violations lead to the discovery of important, non-conscriptive real evidence, the evidence would be admitted under s. 24(2). This approach must be rejected. It would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law "the ends justify the means". That theory is not the foundation of our constitutional order and system of criminal justice. It would be tantamount to treating s. 24(2) as a rule of virtually automatic evidentiary inclusion in the circumstances of serious crime involving non-conscriptive real evidence of a dangerous drug. The Supreme Court of Canada has clearly rejected this view of s. 24(2): see Buhay at para. 71; and Mann at para. 57.

[151] The following comments by Lamer J., writing for a majority of the Supreme Court of Canada, in Greffe, supra, at pp. 784 and 797 S.C.R., pp. 183 and 193 C.C.C., provide strong support for this conclusion:

As well, and this is a point that bears repetition especially when a very serious crime might go unpunished because of the exclusion of evidence, it is the long-term consequences of regular admission or exclusion of the evidence on the repute of the administration of justice that must be considered. In other words, while I, and surely most people, would like to see the appellant convicted and punished severely for the offences with which he is charged, the long-term effect of admitting evidence obtained in a manner that infringed the Charter on the basis that the offence is a very serious one, would lead to the result that s. 24(2) will only be used to exclude evidence when less serious crimes are involved. . . . . .

There is no doubt that what is at issue in this case is a serious offence, indeed a serious social evil, the possession and importation of drugs. Further, there is no doubt that but for the exclusion of the evidence, the appellant would be convicted of the counts against him. It must not be forgotten, however, that the inquiry under s. 24(2) cannot be focussed solely on the specific prosecution at issue; it is the long-term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice which must be considered. (Emphasis added) [page199]

[152] I recognize, as my colleagues point out, that s. 24(2) of the Charter is not a remedy for police misconduct. Nor, however, is the inquiry under s. 24(2) intended to shield serious and intentional police violations of the Charter. On the trial judge's findings in this case, more than one Charter breach took place without any legal justification in circumstances of deliberate police misconduct carried out in bad faith. These considerations formed an essential part of the full circumstances to be assessed when deciding whether to admit or exclude the cocaine. They demonstrate an unacceptably serious disregard for the appellant's rights under ss. 8 and 9 of the Charter. Although the trial judge considered these factors when evaluating the seriousness of the Charter breaches, he was also obliged to factor them into his admissibility calculus at the final stage of his Collins analysis. He failed to do so in any meaningful fashion.

[153] The trial judge's failure to factor all the relevant considerations into the third stage of his Collins analysis is revealed by his adoption of the passage from Puskas cited above. I agree with the appellant's submission that, in this case, the trial judge's reliance on Puskas was misplaced. Simply put, the factual and legal context in Puskas was entirely different than this case.

[154] In Puskas, the search of an accused's backyard was conducted under the authority of two search warrants, one of which was obtained after the police received information of suspected criminal activity through a Crimestoppers tip. This court concluded that the police officers who conducted the search in reliance on the warrants -- rather than on mere suspicion -- acted in good faith. Moreover, the search itself was of the accused's backyard, where marijuana plants were in plain view.

[155] That is not this case. Here, there were no reasonable grounds to stop the SUV, the detention of the appellant was arbitrary, and the alleged basis of the unlawful detention was used by the police officer as a pretext to conduct an unlawful search for drugs in sealed boxes located in an area of the vehicle where the boxes and their contents were not plainly visible. Consider again the findings of the trial judge: the police officer's actions throughout were brazen, flagrant, wilful and not in good faith.

[156] My colleagues offer the view that, in quoting from Puskas, the trial judge "was not asserting an exact factual analogy, but rather a similar outcome". With respect, this misses the point. On a s. 24(2) analysis, the facts drive the outcome. Where the facts in two s. 24(2) cases are materially different, there is no apt analogy between outcomes.

[157] Finally, on the facts as found by the trial judge, there was an additional important consideration that militated strongly in [page200] favour of the exclusion of the cocaine. The trial judge held that the arresting officer knowingly violated the appellant's constitutional rights and then offered explanations for his conduct in sworn testimony in court that were "contrived", that "def[ied] credibility", and that were "extremely difficult to accept as valid". Thus, the police officer compounded the gravity of his constitutional violations by attempting to mislead the court regarding his conduct during the criminal trial of the person whose fundamental rights were ignored. This suggests an ongoing disregard for the appellant's Charter rights. At the third stage of his Collins analysis, the trial judge referred to this factor only briefly when he alluded to the officer's "brazen. . . explanation for his actions in this court".

[158] In my opinion, in a proper case, the comprehensive analysis of all relevant circumstances required under s. 24(2) can render this type of post-breach police misconduct highly relevant at the third stage of the Collins inquiry. I say this for two reasons.

[159] First, I again underscore that the plain language of s. 24(2) directs that regard be had to "all the circumstances" bearing on the admissibility of the evidence in question. This broad language is sufficient to encompass the entirety of the police conduct relating to the constitutional misconduct under scrutiny. In R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, [2001] S.C.J. No. 80, 159 C.C.C. (3d) 359, at para. [42](https://www.minicounsel.ca/scc/2001/82