R. v. Greffe, [1990] 1 S.C.R. 755

Marc André Greffe Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. greffe

File No.: 20763.

1989: November 27, 28; 1990: April 12.

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.

on appeal from the court of appeal for alberta

Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute -- Alleged violations of right to counsel and of right to freedom from unreasonable search and seizure ‑‑ Accused searched at customs for illegal drugs ‑‑ Accused then arrested for outstanding traffic warrants and rectal examination conducted ‑‑ Heroin found in anal cavity and accused charged with importing heroin ‑‑ Whether or not right to counsel and right to freedom from unreasonable search and seizure infringed ‑‑ If so, whether or not real evidence should be excluded ‑‑ Canadian Charter of Rights and Freedoms, ss. 8, 10, 24(2).

The R.C.M.P. alerted Canada Customs at Calgary that there was confidential information that appellant was returning with an unknown quantity of heroin. A visual personal search was conducted when nothing was found in a search of appellant's luggage. Appellant was not informed of his right to counsel ‑‑ the facts arose before this Court's judgment in Simmons ‑‑ and no evidence indicated that appellant had read a poster advising persons not wishing to be searched of their right to have the proposed search reviewed by a justice of the peace, police magistrate or a Senior Customs Officer. No drugs were found. Appellant was then arrested, informed of his right to counsel, and advised that a doctor would perform a body search at a hospital. A condom containing heroin was removed from appellant's anal cavity.

The testimony of the police officers conflicted with respect to appellant's arrest. The notes of one constable indicated that appellant had been arrested for traffic warrants. Another constable testified that appellant had been arrested for importing heroin although his notes indicated no reason for the arrest. The first reference in his notes to charging the appellant with a narcotics offence refers to a time after the rectal search and after the earlier notation in the other constable's notes about arresting the appellant for outstanding traffic warrants. The appellant was ultimately charged with two counts under the Narcotic Control Act, one of unlawfully importing heroin and one of being in unlawful possession of heroin for the purpose of trafficking.

The focal point of the trial was the admissibility of the heroin as evidence. The trial judge excluded the evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms and acquitted the appellant in the absence of any evidence to support the charges against him. He found that the airport arrest was spurious, that appellant's right to obtain and instruct counsel had been tainted and that the violation of that right resulted in a gross infringement of the accused's rights pursuant to s. 8 to be secure against an unreasonable search. A majority of the Court of Appeal held that the trial judge erred in excluding the evidence. Given respondent's concession that ss. 8 and 10(a) and (b) of the Charter had been violated, the only issue to be considered was whether the evidence ought to have been excluded pursuant to s. 24(2) of the Charter.

Held (Dickson C.J. and L'Heureux-Dubé and Cory JJ. dissenting): The appeal should be allowed.

Per Lamer, La Forest, Wilson and Gonthier JJ.: The factors to be balanced in determining whether the admission of evidence in the proceedings would bring the administration of justice into disrepute can be organized into three categories. The first set of factors are those relevant to the fairness of the trial. The second set of factors concerns the seriousness of the Charter violations as defined by the conduct of the law enforcement authorities. The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding the evidence despite the fact that it was obtained in a manner that infringed the Charter. The purpose of the section is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings.

The key component of the Collins "test" to determine the admissibility of evidence in this appeal is the second set of factors, namely the seriousness of the violations of ss. 8 and 10 of the Charter. In respect of the first factor, the fairness of the trial, what was involved was real evidence, the existence of which did not depend on the Charter violations. Therefore, the admission of the evidence at trial would not, generally speaking, render the trial unfair.

Although the Crown conceded that whether there were reasonable and probable grounds to believe that the appellant was in possession of the heroin was a live issue, the Crown at no point established that those grounds existed or even led evidence in support of their existence. The absence of any inquiry to determine whether or not the confidential information amounted to reasonable and probable grounds for believing that the accused was carrying heroin was extremely important since it went to the assessment of the seriousness of the Charter violations, and more specifically the element of good or bad faith on the part of the police in conducting the search.

Confidential information supplied by a reliable informant may provide the "reasonable and probable grounds to believe". A mere conclusory statement made by an informer to a police officer does not constitute reasonable grounds. Highly relevant are whether the informer's tip contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability.

Absent reasonable and probable grounds, the misinformation regarding the reason for the arrest takes on a more serious complexion. Nothing was put on the record on which the trial judge could have assessed whether or not the confidential information gave rise to reasonable and probable grounds for the belief that the appellant was carrying heroin. The conclusion that reasonable and probable grounds existed by reference to the results of the search was in error. The doubt should be resolved against the Crown since it did fail in its obligation to establish those grounds.

The premise that the search proceeded as incident to an arrest for outstanding traffic warrants was unescapable. The trial judge had erred in law by concluding that the police had reasonable and probable grounds based on the results of the search and the record revealed no evidence to support the existence of the grounds beyond a conclusory statement by the police. This conclusion was the most determinative factor in this case.

The violation of the s. 10 right to counsel goes to the very reasonableness of the search. The appellant, if given the reason for the detention and the right to counsel, might have afforded himself an opportunity to contact counsel to have the "confidential information" on which the search allegedly was based tested to see if there were indeed reasonable and probable grounds to conduct the strip search let alone the rectal examination.

The gravity of the Charter violations is increased by a number of factors. The relationship between the violations of ss. 8 and 10 of the Charter renders the violations more serious than if the breach of s. 10 had been very remote from the strip search. The violation is very serious, however, given that the rectal examination was conducted as incident to an arrest for traffic warrants occasioned by unproved suspicion that the appellant was in possession of heroin. It is the intrusive nature of the rectal search and considerations of human dignity and bodily integrity that demand the high standard of justification before such a search will be reasonable.

There was no urgency or immediate necessity to conduct the rectal examination in order to prevent the loss or destruction of the evidence. The detention of the accused in order to facilitate the recovery of the drugs through the normal course of nature would have been reasonable if the police had reasonable and probable grounds for believing that he was a drug courier.

Finally, more than one Charter violation was at issue. The breaches of the appellant's Charter rights were not isolated errors of judgment by the police, but rather were part of a larger pattern of disregard for the appellant's Charter rights.

The seriousness of the cumulative effect of the Charter violations weighed in favour of excluding the evidence, notwithstanding the fact that the evidence recovered was real evidence that existed irrespective of the Charter violations and that its admission therefore would not negatively affect the adjudicative fairness of the appellant's trial.

The Court must also consider the long‑term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice. Here, the administration of the justice system would be brought into greater disrepute if this Court were to condone, taking the record as it is given by the police and the prosecution, the practice of using an arrest for traffic warrants as an artifice to conduct a rectal examination of an accused who the police do not have reasonable and probable grounds to believe is carrying drugs. Further, the inference of extreme bad faith on the part of the police which arises from their deliberate failure to provide the appellant with the proper reason for the arrest cannot be condoned. This is especially so when the right to counsel and the right to be secure against unreasonable searches are involved.

This Court's assessment of whether the evidence should be excluded should not be influenced by the knowledge that the appellant must have known that he was in possession of the drugs. To do so would be to import an ex post facto chain of reasoning that finds no place in an inquiry pursuant to s. 24(2) of the Charter.

Per Dickson C.J. and L'Heureux‑Dubé and Cory JJ. (dissenting): Whether or not evidence should be excluded under s. 24(2) of the Charter depends on: (1) its effect on the fairness of the trial; (2) the seriousness of the Charter violation; and, (3) the effect of excluding the evidence on the repute of the legal system. No one factor is determinative.

The admission of the heroin would not have a detrimental impact on adjudicative fairness. Real evidence, by its nature, rarely has such an impact.

The factors to be considered in determining the seriousness of the Charter violations generally favoured the admissibility of the evidence.

The arrest for outstanding traffic warrants was irrelevant. Authority for the search was found in the arrest made subsequent to the finding of the drugs. (This arrest was made with due regard for all the appellant's Charter rights.) A search undertaken prior to an arrest may still be incidental to the subsequent arrest, if reasonable and probable grounds existed for that prior search, and therefore legal in terms of s. 450 of the Criminal Code.

The issue of whether reasonable and probable grounds existed was central to a determination of whether the search and seizure complied with s. 8 of the Charter. The "totality of the circumstances" must be examined in making that determination; no one factor should dominate the analysis. Here, the R.C.M.P. had reasonable grounds to arrest and search the appellant and consequently the search was conducted under lawful authority.

The inference that reasonable and probable grounds did not exist cannot be drawn from the fact that little was put in evidence as to the reliability of the informant, who in fact proved reliable. Given the jurisprudential vacuum at the time of the search, the police did all that reasonably could be expected of them in following up the confidential information before deciding to search and arrest the appellant.

The police did not act in "bad faith" in arresting the appellant for outstanding traffic violations. Indeed, the fact that the appellant was advised of his right to retain and instruct counsel indicated that the police acted in "good faith" in their dealings with the appellant.

The conduct of the authorities did not amount to a "pattern of disregard" given that the appellant was informed that he had a right to retain and instruct counsel without delay before he was taken to the hospital for the body cavity search. Although the police violated the appellant's right to be informed promptly of the reason for his arrest, the infringement would be far more grievous if no counsel warning had been given at all. Finally, there is no evidence of malice on the part of the authorities towards the appellant nor of any mistreatment.

The appellant's manifest culpability weighed heavily in favour of the admission of the real evidence. The reasonable person would be shocked and appalled to learn that an accused, unquestionably guilty of importing a sizable amount of heroin, was acquitted of all charges because of what amounted to a slip of the tongue by a police officer when the accused was arrested and read his s. 10 counsel rights.

Cases Cited

By Lamer J.

Applied: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; considered: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; R. v. Cheecham (1989), 1989 CanLII 5129 (SK CA), 51 C.C.C. (3d) 498; distinguished: R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30; R. v. Wiggins, 1990 CanLII 151 (SCC), [1990] 1 S.C.R. 62; referred to: R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), aff'd 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; R. v. Heisler (1984), 1984 ABCA 30, 11 C.C.C. (3d) 475; Bell v. Wolfish, 441 U.S. 520 (1979); R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93; R. v. Stevens (1983), 1983 CanLII 2784 (NS CA), 7 C.C.C. (3d) 260; R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80; R. v. Morrison (1983), 1983 CanLII 3591 (BC SC), 6 C.C.C. (3d) 256; Hunter v. Southam Inc. 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Pohoretsky, 1987 CanLII 62 (SCC), [1987] 1 S.C.R. 945; R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59; R. v. Hamill, 1987 CanLII 86 (SCC), [1987] 1 S.C.R. 301; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980; R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548.

By Dickson C.J. (dissenting)

R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), aff'd 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980; Mapp v. Ohio, 367 U.S. 643 (1961); Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8, 10, 24(2).

Criminal Code, R.S.C. 1970, c. C‑34, s. 450 [rep. & sub. c. 2 (2nd Supp.), s. 5].

Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 5(1), 10(1).

APPEAL from a judgment of the Alberta Court of Appeal (1988), 1988 ABCA 43, 57 Alta. L.R. (2d) 161, 84 A.R. 96, 41 C.C.C. (3d) 257, 62 C.R. (3d) 272, 34 C.R.R. 234, allowing the Crown's appeal from the accused's acquittal on charges of importing a narcotic and possession for the purpose of trafficking. Appeal allowed, Dickson C.J. and L'Heureux-Dubé and Cory JJ. dissenting.

Lorne W. Scott, Q.C., and Terrence Semenuk, for the appellant.

B. A. MacFarlane, Q.C., and Shelagh R. Creagh, for the respondent.

//The Chief Justice//

The reasons of Dickson C.J. and L'Heureux-Dubé and Cory JJ. were delivered by

The Chief Justice (dissenting) -- I have had the benefit of reading the reasons for judgment of Justice Lamer in this appeal. He has described accurately the facts and the lower court judgments, and I will repeat neither here. I would emphasize at the outset in the strongest terms that the events in question occurred in March 1984, prior to the release of many of the judgments referred to by Lamer J., including: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), upheld by this Court, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495. The police, therefore, had not been alerted to the procedural safeguards which subsequently have been established by this body of jurisprudence. I agree that the sole issue in this case is the application of s. 24(2) of the Canadian Charter of Rights and Freedoms. However, with respect, I find myself in disagreement with Lamer J.'s conclusion that the violations of the legal rights of the appellant in the appeal justify the exclusion of the evidence, namely, the heroin found in the body cavity of the appellant.

The approach which this Court has adopted for the determination of the admissibility of evidence pursuant to s. 24(2) was stated first in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, and I restated the method of analysis, writing for a majority of this Court, in R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, at pp. 558-59:

First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" ([Collins, at] p. 284). One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.

The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.

Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible.

I propose to deal with each set of factors in turn because, in my opinion, no one factor is determinative of the issue.

Fairness of the Trial

In my view, the nature of the evidence strongly militates against its exclusion. In Collins, supra, this Court recognized that real evidence, by its nature, if admitted will rarely have a detrimental impact upon adjudicative fairness (p. 284). More recently, this Court has had occasion to deal specifically with the issue of the admissibility, pursuant to s. 24(2), of real evidence of narcotics found during customs searches at airports. In Simmons, supra, a strip search was conducted upon the appellant Simmons in contravention of her s. 10(b) and s. 8 Charter rights. The search revealed cannabis resin. It was the majority opinion of the Court that the admission of the evidence would not unfairly affect the trial of the appellant (at p. 534):

Unlike the situation in Therens, supra, the accused here was in no way conscripted against herself. The admission of the evidence in this case, in contrast to Therens, would therefore not tend to affect adversely the fairness of the trial process.

Similarly, in Jacoy, supra, the appellant Jacoy's s. 10(b) rights were infringed during a customs search which uncovered cocaine in his personal belongings. Writing for a majority of the Court, I held that the evidence was properly admissible (at p. 559):

Evidence of narcotics is real evidence that existed independently of the Charter violation. This factor distinguishes this appeal from Therens, where the evidence was created by the accused as a result of the violation. Admission of evidence of this latter sort detracts from the fairness of the trial process, real evidence does not.

I find these recent decisions to be of direct application to the case at bar. Although the Charter violation in issue is said to be an infringement of the appellant's counsel rights, the nature of the evidence is real evidence and not self-incriminating statements goaded from the accused by the authorities during the period in which counsel rights were denied. Consequently, the admission of the evidence would not have a detrimental impact upon the trial process. This set of factors, then, strongly favours the admission of the heroin into evidence.

Seriousness of the Charter Violation

The second group of factors to be considered in a determination of the admissibility of evidence pursuant to s. 24(2) can be grouped together under the general heading of the "seriousness of the Charter violation". Unlike Lamer J., I do not find these factors to be dispositive of this appeal. Rather, in my view, they generally favour the admissibility of the evidence.

I agree with Lamer J. that the question whether the R.C.M.P. had "reasonable and probable grounds" for their belief that the accused was in possession of a narcotic is fundamental to the analysis. First, if grounds for that belief were present, then the police were lawfully entitled to arrest the appellant in respect of a narcotics offence pursuant to s. 450 (now s. 495) of the Criminal Code, R.S.C. 1970, c. C-34. Once lawfully arrested, the police indisputably were entitled to conduct a search of the appellant's person for narcotics, on the basis of the legislative authority in s. 450: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158. Thus, if the belief held by the police that the appellant was in possession of heroin is found to be reasonably based, the search itself is "clothed in legality", to use the respondent's turn of phrase, and the failure to arrest for the proper offence can be characterized as a trivial violation of the appellant's Charter rights.

Furthermore, authority for the search can be found in the arrest made subsequent to the finding of the drugs -- an arrest which was made with due regard for all of the appellant's Charter rights. In R. v. Debot, supra, Martin J.A. in the Ontario Court of Appeal recognized the possibility that a search undertaken prior to an arrest may still be incidental to the subsequent arrest, provided that reasonable and probable grounds for the prior search existed (at p. 225):

What constitutes a search incident to arrest is a question of law. . . . I do not think that the fact that the respondent would not have been arrested if drugs had not been found in his possession, precludes the prior search from being incident to the arrest that followed the finding of the drug. This is provided, always, that the officer had reasonable grounds, prior to the search, for arresting the respondent under s. 450 of the Code.

I agree with Martin J.A.'s approach and I find his analysis directly applicable to the facts at bar. If reasonable and probable grounds for an arrest prior to the search existed, then that search is legal in terms of s. 450 of the Criminal Code, despite the fact that the accused was not charged with possession of narcotics at the time. The arrest for outstanding traffic warrants, therefore, becomes irrelevant.

The issue of reasonable and probable grounds also is central to a determination of the reasonableness of the search and seizure in terms of compliance with s. 8 of the Charter, which demands that a search be carried out under lawful, in this case statutory, authority (see Collins, supra, at p. 278). The question of what constitutes "reasonable and probable grounds" has been the subject of considerable judicial comment since the enactment of the Charter, much of it stemming from the judgment of this Court in Hunter v. Southam Inc., supra. In that case, the facts of which are now well known, the Court considered the constitutionality of a warrantless search and held that, at a minimum, "reasonable and probable grounds", established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing a search and seizure. In this regard, I propounded the general principle that "[t]he state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion" (p. 167).

The preconditions to a finding that reasonable and probable grounds for a warrantless search existed have been expanded upon in subsequent cases before this Court, most recently in the context of a warrantless drug search in the case earlier mentioned, R. v. Debot, supra. In that case, Wilson J., writing for a majority of this Court on this issue, elaborated upon the threshold that must be met before this type of search can be justified (at p. 1168):

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated strengths in the other two.

I agree with Wilson J. that the "totality of the circumstances" must be examined in order to determine whether reasonable grounds exist for a search and that no one factor should dominate the analysis.

In the instant case, the R.C.M.P. received a "tip" from an informer and, after background investigation, the police believed that the appellant was returning to Calgary, Alberta on a Canadian Pacific flight from Amsterdam, Holland on March 11, 1984. On the basis of the confidential information and follow-up investigation, they had grounds to believe that the appellant was in possession of heroin. In fact, that belief was so strongly held that when the flight was diverted to Edmonton, Alberta, because of weather conditions, customs inspectors at the Edmonton International Airport were instructed to ensure that the appellant did not leave the aircraft during that unscheduled stop. While I agree with Lamer J. that it would be useful if more detail was present on the record as to the confidential information, and the nature and extent of the background investigation, this is not a case where there was no evidence at all. The evidence indicates that the R.C.M.P. intended to arrest the appellant one week before his flight's arrival, and that they were aware of the flight and its arrival time. They possessed the description of the appellant, the clothing that he was supposed to be wearing and they were aware of the fact that he was expected to be carrying heroin. This was entirely a result of information received and background investigation by the R.C.M.P. Solely from the fact that little was put in evidence as to the reliability of the informant, who in fact proved reliable, I am not prepared to draw the inference that there did not exist reasonable and probable grounds for the belief that the appellant was in possession of heroin.

In addition, as I stated at the outset, in my opinion regard must be had for the fact that the search of the appellant occurred in March 1984. As the respondent correctly submits, the Charter was in its infancy at that time. This Court had not yet pronounced its decision in Hunter v. Southam Inc., supra; nor had the Court yet had the opportunity to deal with the threshold of reasonable and probable grounds in the context of confidential informant information. In Simmons, supra, a majority of this Court recognized that the fact that Charter breaches "occurred not long after the Charter came into force" (p. 535) was relevant to an analysis of the seriousness of the Charter violations and, in particular, to a determination of the good faith of the authorities. Given the jurisprudential vacuum that existed at the time of the search in question, I am unwilling to conclude, based upon the totality of the circumstances of this case, that the R.C.M.P. did not have reasonable and probable grounds for their belief that the appellant was in the possession of heroin. Instead, in hindsight, I think that the police did all that reasonably could be expected of them in following up the confidential information with a background investigation before making a determination to search and arrest the appellant. Consequently, I would not reverse the finding of the trial judge, which was upheld by a majority of the Alberta Court of Appeal, that the police had reasonable and probable grounds.

Having reached this conclusion, unlike Lamer J., I am not prepared to draw an inference that the police acted in "bad faith" in arresting the appellant for outstanding traffic violations. Although this course of action was stupid, the police did have reasonable and probable grounds for arresting the appellant on the charge of importing a narcotic. Indeed, if fault must be placed on anyone, my view is that it lies with Crown counsel who led evidence which provided less than a robust description of the background investigation conducted by the police force. The failure of Crown counsel to properly adduce and emphasize the evidence of reasonable and probable grounds should not, in my opinion, result in the exclusion of evidence necessary to convict a manifestly culpable accused.

It is also important to recall the early date in the history of the Charter of the events in question when one examines whether the violations of the appellant's rights formed part of a pattern of disregard of the Charter. Lamer J. suggests that it is relevant that in conducting a strip search of the appellant the customs inspectors failed to inform the appellant of the reason for his detention or of his right to retain and instruct counsel without delay. Once again, while this earlier violation of the appellant's Charter rights is not unimportant, these facts arose before the judgment of this Court in Simmons, supra, wherein the Court held that an accused was detained within the meaning of s. 10 of the Charter when she was required to undergo a secondary search at customs. In fact, the search occurred prior to this Court's decision in R. v. Therens, supra, the first case which dealt with the meaning of "detention" in s. 10 of the Charter. Consequently, in my view, the failure to inform the appellant of his counsel rights provides no evidence of "bad faith" on the part of the customs inspectors nor can it properly be considered part of a pattern of disregard for Charter rights.

Furthermore, I find it impossible to conclude that the conduct of the authorities amounted to a "pattern of disregard" given that the appellant was informed that he had a right to retain and instruct counsel without delay before he was taken to the hospital for the body cavity search. Although in so doing the police violated the appellant's s. 10(a) Charter right, the infringement surely would be far more grievous if no counsel warning had been given at all. As well, the fact that the appellant was advised of his right to retain and instruct counsel in my view provides evidence that the police acted in "good faith" in their dealings with the appellant.

Finally, there is no evidence of malice on the part of the authorities towards the appellant nor is there any evidence of mistreatment. Had any of these factors been present, I would be more inclined to find a deliberate or flagrant abuse of the Charter rights of the appellant by the conduct of the authorities.

Given my determination that the R.C.M.P. had reasonable grounds to arrest and search the appellant, and that, as a consequence, the search of the appellant which uncovered heroin was conducted under lawful authority; and considering all of the circumstances of this case and in particular the fact that it occurred at an early stage in the Charter's history, I conclude that the seriousness of the violations to the appellant's rights are not of such a magnitude as to favour exclusion of the real evidence.

Effect on the System

The final set of factors for review in a consideration of whether evidence is admissible pursuant to s. 24(2) is the impact upon the repute of the legal system of the admission or exclusion of the evidence. As I indicated in Jacoy, supra, at p. 559, "[t]he administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial". Furthermore, in that case, I stated that in the context of real evidence of narcotics found during a customs search, exclusion of the evidence in general is unjustifiable (at p. 560):

The offence with which the appellant was charged constitute serious social evils. The narcotics are an essential piece of evidence to substantiate the charge. . . . In my view, the decision to exclude the evidence in light of all the circumstances would do violence to the repute of the justice system.

Similarly, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, a majority of the Court held that as a general principle (at pp. 1008-9):

. . . where the breach of the right to counsel was inadvertent and where there was no mistreatment of the accused, exclusion of the evidence rather than its admission would tend to bring the administration of justice into disrepute.

I find these passages equally applicable to the case at bar. In my view, the manifest culpability of the appellant weighs heavily in favour of the admission of the real evidence. I believe that the reasonable person would be shocked and appalled to learn that an accused, unquestionably guilty of importing a sizable amount of heroin, was acquitted of all charges because of what amounted to a slip of the tongue by a police officer when the accused was arrested and read his s. 10 counsel rights. I agree fully with McClung J.A. in the Court of Appeal below that:

. . . a substantial majority of . . . Canadians, concerned with the contagion of serious crime and the social devastation directly traceable to the trade in heroin, would be querulous that the Canadian Charter of Rights and Freedoms ruled out the evidence in this case.

((1988), 1988 ABCA 43, 57 Alta. L.R. (2d) 161, at p. 168.)

To my mind, this type of infringement of the constitutional rights of an accused amounts to the kind of "technical" violation which the general public in the United States frequently derides when an unquestionably culpable accused in that country is acquitted of very serious charges. In this country, the legislature deliberately chose a different rule for the exclusion of evidence, one which allows the courts to avoid the bringing into disrepute of the system of justice that often results from the automatic exclusion of evidence. The instant case provides a graphic example of a situation where the rule should lead to the opposite result from the disposition that might be reached had these facts been governed by the American Bill of Rights, as it has been interpreted in the past by the Supreme Court of the United States: Mapp v. Ohio, 367 U.S. 643 (1961).

Conclusion

In conclusion, then, I find that the integrity of the legal system strongly favours the admission of this evidence. Furthermore, I have determined that there are no concerns relating to the fairness of the trial raised by the admission of this evidence, and that the Charter violations were technical in nature and an example of minor police stupidity. Therefore, the seriousness of the violations does not militate against the admission of the real evidence.

Consequently, I would uphold the decision of the majority of the Court of Appeal of Alberta to admit the evidence and to enter a conviction for importing a narcotic into Canada contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. Accordingly, I would dismiss the appeal.

//Lamer J.//

The judgment of Lamer, Wilson, La Forest and Gonthier JJ. was delivered by

Lamer J. --

Facts

This is a case in which this Court must decide whether the cumulative effect of violations of ss. 8 and 10 of the Canadian Charter of Rights and Freedoms warrants the exclusion of evidence pursuant to s. 24(2) of the Charter. On March 11, 1984, the appellant landed at Calgary on Canadian Pacific flight 383 originating in Amsterdam. Canada Customs at the Calgary International Airport had been alerted by the R.C.M.P. that there was confidential information that the appellant was returning to Calgary from Holland in possession of an unknown quantity of heroin. Customs Inspector France, who was in charge of conducting primary customs inspections, referred the appellant to other customs agents for secondary inspection. The appellant proceeded to the secondary search area where Customs Inspector Lee conducted a search of the appellant's luggage. He found no drugs nor any other illegal or suspicious items. After the search was completed Customs Superintendent McQuay decided, based on information received from the R.C.M.P., to conduct a personal search. The appellant was taken to a private room by Customs Inspectors Lee and Yick, and was informed that a body search was to be done. There was a poster on the wall of the room indicating that a person who does not wish to be searched has the right to have the proposed search reviewed by a justice of the peace, police magistrate or a Senior Customs Officer. There is no evidence that the appellant saw or read the poster. Further, he was not informed of his right to retain and instruct counsel. In fairness to the Customs Inspectors, I note that the facts of this case arose before this Court's judgment in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495. The appellant's clothing was examined. His body was examined and a visual examination was done of the appellant's rectum by asking him to bend over. He was not touched during the examination, which lasted from five to ten minutes. No evidence of drugs was found as a result of the search.

After the personal search, the appellant was taken to an adjoining room. Inspector Yick advised R.C.M.P. Constables Ingraham and Hammond of the results of the search. Constable Hammond testified that at about 5:24 p.m. he entered the room and advised the appellant of his arrest for importing heroin into Canada. Constable Hammond further testified that the appellant was advised of his right to retain and instruct counsel without delay and that he was not obliged to say anything unless he wished to do so. The appellant indicated that he understood. Despite Constable Hammond's testimony that he told the appellant he was being arrested for importing heroin, the officer's notes made at the time do not specify the reason for the arrest:

Wayne and I went into interview room and I sectioned 10 (secondary warning) right to counsel, et cetera. Greffe stated he understood.

By contrast, Constable Ingraham's notes in relation to the arrest read as follows:

Me and Hammond enter secondary room and take custody of Greffe for the traffic warrants. [Emphasis added.]

Constable Ingraham testified that it was fair to say that if the appellant had been arrested at the airport on a charge of importing narcotics, then his notes would probably have said so. Constable Hammond stated that he was aware that there were traffic warrants outstanding for the appellant, and that he mentioned them to him in passing. The Constable did state, however, that he had an independent recollection that he told the appellant he was being arrested for "importing narcotics", although he could not explain why he did not place the reason for the arrest in his notes.

Before leaving the airport Constable Hammond advised the appellant that he would be the subject of a body search by a doctor at a hospital, and was asked if he had any comments to make about any drugs on his person. The appellant made no comment. Upon arriving at the hospital at about 6:05 p.m., the appellant's clothes were removed, and he put on a hospital gown. Dr. Pow arrived at 6:16 p.m., explained the procedure to the appellant and began the examination. A matron and the two R.C.M.P. constables were present in addition to the doctor. A rectal examination was conducted with the doctor's finger and with a sigmoidoscope. The sigmoidoscope was inserted 8 inches into the appellant's anal canal into the rectum. A Kelly grasping forceps was used to remove two articles from the appellant's lower bowel. Dr. Pow removed a condom containing two plastic baggies and tape together with about 40 grams of heroin 33 percent pure by weight. The appellant co-operated during the search though he appeared to express some discomfort according to Constable Hammond. The first time that Constable Hammond's notes refer to the appellant's being charged with a narcotics offence is at 6:32 p.m., after the rectal search was completed and the drugs recovered:

Depart hospital -- R T O when we got in the car I told Greffe that he would be charged with importing a narcotic and would be given the opportunity if he wished to phone a lawyer when we got to the office.

The first reference in Constable Ingraham's notes to charging the appellant with a narcotics offence is similarly at 6:32 p.m., a time after the rectal search, and after the earlier notation in the Constable's notes about arresting the appellant for outstanding traffic warrants. The appellant was ultimately charged with two counts under the Narcotic Control Act, R.S.C. 1970, c. N-1, one of unlawfully importing heroin and one of being in unlawful possession of heroin for the purpose of trafficking.

The Trial

The appellant was tried before Waite J. of the Court of Queen's Bench of Alberta. At the conclusion of the Crown's presentation of its case, the defence indicated that it was not leading any evidence. The focal point of the trial was the admissibility of the heroin as evidence on the two counts against the appellant. The defence submitted, in closing argument, that the evidence should be excluded pursuant to s. 24(2) of the Charter since it was obtained as a result of infringements of the appellant's rights under ss. 8 and 10 of the Charter. In the course of his reasons, the learned trial judge made certain key observations and findings of fact. Waite J. found that the appellant was arrested at the airport for the outstanding traffic warrants. He based this conclusion in part on the absence of any indication of the reasons for arrest in Constable Hammond's notes, and the reference in Constable Ingraham's notes to the effect that the arrest was for outstanding traffic warrants. Further, the trial judge noted that the first reference in either officer's notes to an arrest on the importing charge appears after the rectal exam, and after the heroin was recovered. Waite J. then states the following:

The reasonable conclusion on all of the evidence is that the accused was arrested at the airport on traffic warrants. By that time the accused and his personal property had been thoroughly searched. No narcotics had been found. The traffic warrants proved to be a convenient artifice to keep the accused in custody until the ultimate bodily searches could be conducted. But everything that flowed from that arrest was improper. It is apparent that the police had confidential and reliable information concerning the accused and his suspected attempt to import heroin. That is clear from the recovery of the heroin itself. It is unclear why the accused was not properly arrested at the airport on the correct charge. [Emphasis added.]

I should note, at this point, that it is clear from the trial judge's statement that he based his assessment of the reliability of the confidential information on an ex post facto analysis; he reasoned, incorrectly in my view, that the information received by the R.C.M.P. must have been reliable because the search resulted in the recovery of the heroin. With respect, a conclusion that the police had reliable information about the appellant's attempt to import heroin must be based on more than the fact of a subsequent recovery of the drugs. There must be an independent inquiry into the source and reliability of the confidential information in order to determine whether, in the totality of the circumstances, there existed reasonable and probable grounds to believe the appellant was carrying the heroin or whether there was mere suspicion. Relevant to this inquiry is whether the information received contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the source or means of knowledge is revealed and whether there is any indicia of the reliability of the source of the information, such as the supplying of reliable information in the past: see R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207, (Ont. C.A.), at p. 219 affirmed by this Court, [1987] 2 S.C.R. 1140. I shall return to this aspect of the trial judge's reasons in my analysis of the legal issues arising out of this appeal.

On the basis of his findings, the trial judge drew the following conclusions:

1. The airport arrest was spurious. The reason given for it was false.

2. The right to retain and instruct counsel was tainted. There are vast differences in the seriousness between the two charges mentioned in court. There are equally vast differences in the need that an accused might feel to retain counsel with respect to such diverse charges. As counsel for the accused put it, the right to counsel is relative to what an accused is told. The latter can determine the exercise of the former. Improper advice can vitiate or infringe the charter right to counsel, and it does so in this case.

3. The violation of Sections 10(a) and 10(b) resulted in a gross infringement of the accused's rights pursuant to 8 to be secure against an unreasonable search. It is ludicrous to state it, but state it I must, the rectal search on an arrest for outstanding traffic warrants is totally unreasonable. The accused accordingly is in the same position as he would have been in if his rights under Section 8, Section 10(a) and Section 10(b) had been totally ignored.

In respect of the analysis pursuant to s. 24(2) of the Charter, the trial judge relied on the authority of R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, specifically the judgment of Estey J., to exclude the evidence. The trial judge quoted directly the following passage from Estey J.'s reasons in Therens, supra, at pp. 621-22, which he felt applied to each of the Charter violations in the case at bar:

Here the police authority has flagrantly violated a Charter right without any statutory authority for so doing. Such an overt violation as occurred here must, in my view, result in the rejection of the evidence thereby obtained. We are here dealing only with direct evidence or evidence thereby obtained directly and I leave to another day any consideration of evidence thereby indirectly obtained. To do otherwise than reject this evidence on the facts and circumstances in this appeal would be to invite police officers to disregard Charter rights of the citizens and to do so with an assurance of impunity. If s. 10(b) of the Charter can be offended without any statutory authority for the police conduct here in question and without the loss of admissibility of evidence obtained by such a breach then s. 10(b) would be stripped of any meaning and would have no place in the catalogue of "legal rights" found in the Charter.

The violation by the police authority of a fundamental Charter right, which transpired here, will render this evidence inadmissible. Admitting this evidence under these circumstances would clearly "bring the adminstration of justice into disrepute".

As a result, the trial judge excluded the heroin, and, since there was no longer any evidence before the court to support the charges, found the appellant not guilty on each count.

The Court of Appeal

A majority of the Court of Appeal of Alberta, McClung J.A. with Haddad J.A. concurring, held that the trial judge erred in excluding the evidence pursuant to s. 24(2) of the Charter. Harradence J.A. dissented. The majority was of the view that despite the finding by the trial judge that the police arrested the appellant for outstanding traffic warrants, the appellant was fully aware of the reason for the police investigation of him:

The [appellant] was in no doubt about the realities of his situation from about 5:40 p.m. onward. He had already been strip searched. He had been told of his right to consult counsel. He expressed no wish to do so. Patently, his own awareness of his possession of narcotics, quite severable from any police advice, preceded his arrest.

((1988), 1988 ABCA 43, 57 Alta. L.R. (2d) 161, at p. 167.)

This is the context in which the majority discuss the exclusion of the evidence as a consequence of the s. 10(a) violation. According to McClung J.A., the fact of the constitutionally deficient arrest did not warrant exclusion of the evidence. He held that:

. . . exclusion only lies when the accused supplies a material fact and it is clear, at least on the civil standard of proof, that the fact would not have emerged had the Charter been observed.

In this regard, McClung J.A. reasoned that since the violation of s. 10(a) of the Charter did not create the narcotics, exclusion is not warranted. As regards the seriousness of the violation, the majority concluded at p. 168 that:

. . . the false information, equated by the trial judge to a breach of s. 10(a), was not so serious that exclusion was demanded. I say so because it is clear from the record that the misinformation from the R.C.M.P., amounting to a Charter breach, pales when compared to Greffe's own duplicity in attempting to gain entry into Canada, posing as a routine traveller.

In addition McClung J.A. refers specifically to the judgment of Martin J.A. of the Ontario Court of Appeal in R. v. Debot, supra, in which it was held that an on-the-spot drug search prior to advising a suspect of the right to retain and instruct counsel did not prejudice any interest protected by s. 10 of the Charter. Martin J.A. cited the ease with which drugs may be disposed of as support for this proposition. McClung J.A. was of the view that Martin J.A.'s reasoning in respect of s. 10(b) of the Charter was equally applicable to s. 10(a) (at p. 169):

. . . on-the-spot drug searches, that are fortified by the existence of reasonable and probable grounds of belief that the possessory offence is continuing, do not become unreasonable, and legally vulnerable, by the absence of prior compliance with s. 10(a) of the Charter of Rights and Freedoms, without more.

On the issue of the search itself, the majority found comfort in s. 10 of the Narcotic Control Act, which at the time provided as follows:

10. (1) A peace officer may, at any time,

(a) without a warrant enter and search any place other than a dwelling-house . . . in which he reasonably believes there is a narcotic. . . .

(b) search any person found in such place;

McClung J.A. held that an airport is a "place" for the purposes of the Act, and that the appellant was a "person found in such place". He then concluded at p. 170 that:

If traffic warrants entered the arrest picture, they were only, as the trial judge found, "a convenient artifice". Artifice may not be fatal to the use of evidence subsequently recovered -- subject to the operation of Charter s. 24(2). Rothman v. R., [1981] S.C.R. 640. . . .

Anything recovered pursuant to the search was admissible, therefore, provided that the search itself was reasonable.

In terms of the search itself, the majority notes that a search will be reasonable if it is authorized by law, if the law itself is reasonable and it is carried out in a reasonable manner. In assessing the reasonableness of the search in this case, the majority referred to, and applied the guidelines expressed in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, and those of the Alberta Court of Appeal in R. v. Heisler (1984) 1984 ABCA 30, 11 C.C.C. (3d) 475 which adopted the approach in the American case of Bell v. Wolfish, 441 U.S. 520 (1979). The majority considered the following four factors: (i) the scope of the intrusion (ii) the manner in which the search was conducted (iii) the justification for initiating it and (iv) the place in which it was conducted. In respect of the intrusiveness of the search, McClung J.A. first noted that the appellant freely decided to "bury" the drugs in his own body cavity. He was, therefore, the first to profane his own bodily integrity to try to avoid detection and to discourage the possibility of an internal search because of its repellant nature. McClung J.A. concluded that the appellant chanced the medical intrusion which followed by hiding the drugs where he did, and thereby defined the scope of the intrusion. The search was conducted by an experienced doctor in a hospital, and was done at least without resistance from the appellant if not with his consent. The justification for conducting the search can be found in the reasonable and probable grounds the police had for believing that Greffe had heroin on his person. These grounds existed despite the police misinforming the accused as to the real reason for his arrest. As McClung J.A. put it, at p. 172:

The arrest may have been infirm from the standpoint of the advice escorting it but that does not erase the justification for initiating it. Moreover, the common law obligation to advise a suspect of the reason for his arrest is eased if the surrounding circumstances make that reason clear. Here, the [appellant] knew throughout the precise offence being committed by him and why he was being searched.

Finally, McClung J.A. reiterated that the procedure, though distasteful, took place in a hospital and under medical safeguard.

In sum then, the majority concluded that the evidence should not have been excluded for the following reasons. First, the Charter violations did not create, or result in, evidence of the appellant's guilt. Second, the admission of the evidence would not have negatively affected the adjudicative fairness of the appellant's trial. Third, there was no reason for the court to disassociate itself from the conduct of the police; the search was the consequence of reasonable and probable grounds of belief in the existence of the offence, and the search did not arise under mere suspicion or other arbitrary motivation. Fourth, the alternative of a "bedpan vigil" was not realistic. Waiting for the heroin to pass through the appellant's system ignores the fact that before the actual recovery, the police did not know the amount of heroin involved, its strength, its location in the appellant's alimentary canal or whether the heroin had been protected against accidental dissemination. Therefore, the majority would have admitted the evidence, and thereby allowed the appeal, set aside the verdict of not guilty and directed the entry of a conviction for importing a narcotic into Canada. A conditional stay was entered on the count alleging possession of a narcotic for the purpose of trafficking. The case was remitted to the Court of Queen's Bench for sentencing.

Harradence J.A., in dissent, would have dismissed the appeal. After reviewing the facts, he stated as follows (at pp. 175-76):

With deference to the learned trial judge, regardless of the motive for the execution of the traffic warrants, the arrest was valid and the [appellant] was taken into lawful custody. However, it is not without significance that prior to the bodily search the [appellant] was not taken before the "officer in charge" to determine his eligibility for release on the traffic charges, as provided for in s. 453.1 of the Criminal Code. I have some difficulty relating the strip search carried out by the customs officers to traffic warrants and it is not an unreasonable inference to conclude that the search was instigated as a result of information received from the police with respect to the [appellant's] involvement with narcotics. . . . Where a lawful arrest is used as the cornerstone of a ploy, as it was in this case, to deny an individual his Charter rights in connection with a serious criminal offence, that is the epitome of bad faith. If the police officers were of the view that their advice with respect to Charter rights given on the execution of the traffic warrants was blanket coverage for the narcotic charges upon which they also detained the [appellant], why then did they find it necessary to give the advice on completion of the rectal search?

In the view of Harradence J.A., there was a "gross infringement" of the appellant's Charter rights by the deliberate failure of the police to inform him of his right to retain and instruct counsel without delay in connection with his detention related to the narcotics offence, a detention which gave rise to "significant legal consequences". The police, in telling the appellant he was being arrested for traffic warrants, were aiming at executing a search they feared they might not have been able to execute if the appellant consulted counsel.

In respect of s. 10 of the Narcotic Control Act, Harradence J.A. stated that the police entered the airport to execute a warrant pertaining to traffic charges (at p. 179):

Whatever other purpose they had in mind, it was not to search the Calgary International Airport pursuant to s. 10(1)(a) and it was only if they entered the airport for that purpose that they would be entitled to search the [appellant] pursuant to s. 10(1)(b). As Martin J.A. says in R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80 . . .:

. . . s. 10(1)(b) of the Narcotic Control Act empowers a peace officer who has entered a place without a warrant pursuant to the section to search persons in the premises, there is no power conferred by s. 10 to search a person on the street on reasonable suspicion that he has a narcotic drug in his possession. [Emphasis added by Harradence J.A.]

In these circumstances, the [appellant] was in the same position as a "person on the street".

Nor can it be said that in the circumstances of this case, there was a degree of urgency that required the search to be conducted before the [appellant] was placed under valid arrest.

The appellant was, according to Harradence J.A., not the subject of a valid arrest with respect to the narcotics offences, and as a result the search was unlawful.

Harradence J.A. then applied the principles developed by this Court in Collins, supra, and would have excluded the evidence for the following reasons. Although a rectal search is not per se unreasonable, in this case it was because it was unlawful; therefore the evidence was obtained as a result of an unlawful and unreasonable search. There was no evidence to support the view that the evidence might have been lost or destroyed. Time alone ensured the recovery of the substance by the authorities. The evidence obtained in this case was real evidence, and would not render the appellant's trial unfair. However, the administration of justice would be brought into greater disrepute if the court did not disassociate itself from the conduct of the police by excluding the evidence. The police actions amounted to deliberate, flagrant and serious violations of the appellant's Charter rights in circumstances where there was no sense of urgency or necessity. Therefore, Harradence J.A. would have excluded the evidence, and dismissed the appeal.

Analysis

At the outset, I note that the respondent conceded in her factum and in oral argument the violations to ss. 8 and 10(a) and (b) of the Charter, especially in light of this Court's decisions in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, and R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138. The only remaining issue to be considered is whether the evidence ought to be excluded pursuant to s. 24(2) of the Charter. Section 24(2) of the Charter provides as follows:

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 note that it is not the proper function of this Court, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of courts below in respect of s. 24(2) of the Charter and substitute its opinion for that arrived at by the Court of Appeal: see R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93, at p. 98. In Collins, supra, a majority of this Court examined the factors to be balanced in determining whether the admission of evidence in the proceedings would bring the administration of justice into disrepute. These factors, as this Court noted in Simmons, supra, can be organized into three categories. The first set of factors are those relevant to the fairness of the trial. The second set of factors concerns the seriousness of the Charter violations as defined by the conduct of the law enforcement authorities. The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding the evidence despite the fact that it was obtained in a manner that infringed the Charter. In general terms, the purpose of the section is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings. As I stated in Collins, supra, at p. 281, this further disrepute results from the admission of evidence that would deprive the accused of a fair hearing or from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies. 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.

Before explicitly addressing the issue of whether the evidence should be excluded, I find it necessary to at some length review the nature of the violations in this case and the parties' positions. On the issue of the s. 8 violation, the appellant submits that the finding of the trial judge to the effect that he was arrested at the airport on outstanding traffic warrants was based on a finding as to the credibility of the two police witnesses, Constables Hammond and Ingraham. The appellant further submits that the search did not fall within the statutory authority given by s. 10 of the Narcotic Control Act because the airport, being a public place, is not a "place" for the purposes of the Act: R. v. Stevens (1983), 1983 CanLII 2784 (NS CA), 7 C.C.C. (3d) 260 (N.S.C.A.), and R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80 (C.A.); contra: R. v. Morrison (1983), 1983 CanLII 3591 (BC SC), 6 C.C.C. (3d) 256 (B.C. Co. Ct.) Finally, the appellant submits that this case can be distinguished from Debot, supra, because the trial judge found that the search followed a "spurious" arrest for traffic warrants, a holding based on an assessment of credibility. The appellant states that the trial judge implicitly found that the officers did not have reasonable and probable grounds for the importation charge, or in the alternative, did not fully address the issue of reasonable and probable grounds for the arrest in respect of the possession of the heroin. It was precisely the lack of evidence on the issue of reasonable and probable grounds, it is said, that led this Court to order a new trial in the Collins case.

In respect of the right to counsel violations, the appellant states that whatever knowledge he had in respect of the heroin on his person, this does not relieve the police from complying with s. 10(a) and (b) of the Charter. The appellant submits that his s. 10(a) and (b) Charter rights were infringed by Customs Inspectors Lee and Yick, that his s. 10(a) right to be informed promptly of the reason for his arrest was infringed by Constables Hammond and Ingraham, and, having regard to the trial judge's finding as to the s. 10(a) breach, that his s. 10(b) right to counsel was infringed by the two Constables.

On the application of s. 24(2) of the Charter to these violations, the appellant is of the view that the majority of the Court of Appeal erred as to the applicable principles and rules of law. The appellant notes that the majority erred in holding that exclusion only lies where the accused supplies a material fact which would not have been discovered in the absence of the Charter violation. In this regard, the majority dealt only with the set of factors relating to the fairness of the hearing and ignored the other two sets of factors relating to the seriousness of the violation and the overall effects of exclusion versus admission. In addition, the approach of the majority imposes a notion of a causal link expressly rejected by this Court in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.

The appellant addresses the seriousness of the violations in respect of the rectal search as follows. He submits that the violation of a person's body is the most serious violation and the standard under s. 24(2) may well be different. As support for this proposition, the appellant cites this Court's decisions in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, R. v. Pohoretsky, 1987 CanLII 62 (SCC), [1987] 1 S.C.R. 945; Simmons, supra, and R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548. The appellant therefore, argues that the evidence ought to be excluded for the following reasons. The finding of the trial judge as to what the accused was told upon his arrest at the airport establishes bad faith on the part of the police. More specifically, the use of the traffic warrants as a "convenient artifice" to keep the appellant in custody was a wilful, deliberate, blatant and flagrant violation. The violations cannot be described as inadvertent since they began in fact with the Customs Inspectors, and formed, therefore, a large pattern of disregard for the appellant's rights. Finally, a rectal search incident to a "spurious arrest" for traffic warrants is a serious violation that ought not to receive judicial condonation especially without an express finding of reasonable and probable grounds at trial.

Despite conceding the violations of ss. 8 and 10 of the Charter, the respondent does make two preliminary points in respect of the violations. First, this was not a case where the presence or assistance of counsel at the time of the commission of the offence could have affected the appellant's position. The respondent argues that the police had reasonable and probable grounds to arrest the appellant on the narcotics offence, and although the stratagem used by the police affected the appellant's Charter rights, it did not affect the lawfulness of the search. Once lawfully arrested, the police were entitled, as incident thereto, to search the appellant's person for narcotics. The recovery of the heroin was inevitable. Second, the irony of this case, in the respondent's view, is that the police did have reasonable and probable grounds to conduct the search. No ruse was necessary in the first place. Their story to him about the traffic warrants has, in hindsight, provided the appellant with a "technical" basis upon which to impugn the evidence.

The respondent submits that the majority of the Court of Appeal correctly articulated and applied the principles under s. 24(2) of the Charter. In respect of the fairness of the trial, it is said that the admission of the evidence would not affect the appellant's trial because the evidence is real evidence that was not obtained as a result of the participation of the accused. With respect to the seriousness of the violations, the respondent makes the following points. There was a need to proceed expeditiously with the search. Narcotics are easily disposed of, and the police had to act quickly to preserve the evidence. The rectal search was only conducted as a last resort, and indeed was the final stage of a process that began with a simple luggage search. At all times the appellant was treated courteously and with proper regard for his dignity. The appellant's knowledge that he was carrying the heroin is, in the respondent's view, significant. The failure to provide him with the proper reason for the arrest, though foolish, was not as serious in light of the fact that the appellant knew he had the drugs, and fully understood the reason for the police attention to him.

The respondent would distinguish cases like Pohoretsky, supra, and R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, where this Court excluded real evidence. In Pohoretsky the police seized a blood sample of an accused without consent and while he was unconscious. In Genest, a number of police officers executed a defective warrant on a house by smashing in a door without warning. The respondent submits that in both those cases, unlike the case at bar, the police had no lawful authority to do what they did. In the case at bar, the police searched incident to a lawful arrest, though the search was tainted by the Charter violations. Finally, this is not a case where the integrity of the judicial system would be impugned if the evidence is admitted. The exclusion would suppress the truth and lead to an acquittal of a person knowingly involved in a "serious social evil". Therefore, the respondent submits that there was no basis for excluding the evidence.

In my view the key component of the Collins "test" to determine the admissibility of evidence in this appeal is the second set of factors, namely the seriousness of the violations of ss. 8 and 10 of the Charter. In respect of the first factor, the fairness of the trial, it is apparent that what is involved here is real evidence, the existence of which did not depend on the Charter violations. Therefore, the admission of the evidence at trial would not, generally speaking, render the trial unfair.

On the question of the seriousness of the violations, there is disagreement between the parties as to the nature of the violations although both sides agree that there were violations of ss. 8 and 10 of the Charter. In my view, the core difference centres on whether the police had reasonable and probable grounds to believe that the appellant was in possession, and therefore trying to import into Canada, an illegal narcotic. In some respects the case at bar may be seen as somewhat analogous to the Collins case where the disposition was based in part on the need to clarify the existence of reasonable and probable grounds of the police. I find it necessary then, to refer to the record of the case at bar to assess the existence of such grounds in order to better evaluate the seriousness of the Charter violations.

At trial, Customs Inspector Lee testified that he was given an "alert" regarding the appellant, more specifically that he was coded as "hot". This advice was in the form of an R.C.M.P. "lookout" that the appellant "may be carrying some narcotic". Customs Inspector France, the primary customs inspector, also testified that he was given the same "lookout" sheet that included the name and description of the appellant. Constable Hammond testified that on the basis of "confidential information received and background investigation" he had "grounds to believe . . . that he [Greffe] was going to be in possession of an unknown amount of heroin". After that statement, the following important exchange took place at the trial:

Mr. Scott [Defence Counsel]: My Lord, I admit that statement only for the obvious purpose that that is the basis.

The Court: It's information to him and nothing more.

Mr. Scott: Very good, I just wanted to put that on the record. Thank you.

Mr. Fenwick [Crown Counsel]: That's right, My Lord. I might state on the record that the reasonable and probable grounds are an issue and that is what the evidence directed towards not the fact or the contents. [Emphasis added.]

Significantly in my view, although the Crown conceded that reasonable and probable grounds to believe that the appellant was in possession of the heroin was a live issue, the Crown at no point in the trial established that those grounds existed or even led evidence in support of their existence. The only other references to the grounds were indirect. Constable Hammond in cross-examination stated that "[i]t was my intention for the entire week prior that he [Greffe] would be arrested upon his arrival for importing narcotics". Constable Ingraham said the following in his testimony:

The matter of -- of being at the airport at the time of the incident was to investigate a drug related matter to begin with and not the traffic warrants.

There are no further references, explicit or implicit, to reasonable and probable grounds.

In his reasons, the trial judge drew the conclusion that the police had confidential and reliable information concerning the appellant's attempt to import the heroin. This was clear, the trial judge stated, from the recovery of the heroin itself. As I noted above, the trial judge erred in engaging in this type of ex post facto analysis. It was incumbent upon the Crown to establish at trial, if it could, the basis upon which the police claimed to have reasonable and probable grounds to believe that the appellant was in possession of the heroin. This would have been done through an inquiry into the source and reliability of the "confidential information" in the possession of the police. At the appellate level, the majority of the Court of Appeal relied on the trial judge's finding to conclude that the police had reasonable and probable grounds to believe the appellant was in possession of the heroin.

In my view, nowhere in the procedural history of this case is there any proper inquiry into the basis on which the police originally formed the opinion that the appellant was carrying the heroin. Obviously, in retrospect they were right, and the trial judge points this out, but this is simply looking to the result of the search as confirmation. What should have happened is that the police should have been asked at trial about the confidential information to determine if, in the totality of the circumstances, there existed reasonable and probable grounds to believe the accused was carrying the heroin. The absence of this inquiry is extremely important since it goes to the assessment of the seriousness of the Charter violations, and more specifically the element of good or bad faith on the part of the police in conducting the search.

With reference to confidential information received by the police, the recent decision of the Saskatchewan Court of Appeal in R. v. Cheecham (1989), 1989 CanLII 5129 (SK CA), 51 C.C.C. (3d) 498 is of some note. In that case, the police seized "certain plant material" after a warrantless search of a truck driven by the accused. The search was based on a tip received by a confidential informant that the accused was in possession of marijuana. The Court of Appeal upheld the trial judge's determination that the search was unreasonable and that the evidence ought to be excluded. Tallis J.A. quoted the following passage from the trial judge's reasons at p. 501:

In the instant case I know nothing whatsoever about the informer. For reasons never disclosed to me, I was not favoured with the presence of Cst. Volek [the police officer who passed on the "tip" to the arresting officer] in the witness‑box. As a result, it is impossible to make any judicial determination as to the veracity or reliability of the informer. Since I cannot make such a determination, it is equally impossible for me to make a determination, whether reasonable and probable grounds existed. This being so, it follows that the Crown has failed to demonstrate the existence of the necessary grounds and the search must be held unlawful and a violation of . . . s. 8 of the Canadian Charter of Rights and Freedoms.

At page 502 of the judgment, Tallis J.A. continues with another significant quote from the trial judge about the respective roles of the Crown, the police and the court:

It is not for the court to determine what evidence the Crown will adduce, but equally the court will not act upon a deficiency of evidence. Nor will it embark upon speculation.

When police officers act on information which is hearsay two or three times removed it is not correct to ask a court to endorse those actions without making available to the court all of the preceding facts and circumstances. Were a court to simply accept what is stated by the last person in the chain as reliable and accurate would be to abdicate to the police the judicial function.

The leading case in the area of assessing confidential information is Debot, supra, a decision by Martin J.A. of the Ontario Court of Appeal. The Court of Appeal held that information supplied by a reliable informant may provide the "reasonable and probable grounds to believe" in order to justify the granting of a search warrant. That reasoning is applied by the court when the issue is reasonable and probable grounds to justify a warrantless search, as in the case at bar. The test for assessing the information is as follows, at pp. 218-19:

I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search. . . . Highly relevant . . . are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

In the case at bar all that is on the record is a bald statement by the officer in respect of "confidential information received and background investigation". The Crown conceded at trial that the existence of reasonable and probable grounds was an issue, and yet they did not put on the record anything on which the trial judge could have assessed if the confidential information gave rise to reasonable and probable grounds. If the confidential information did not meet the standard set out by Martin J.A. in Debot, then the subsequent misinformation regarding the reason for the arrest takes on a more serious complexion, indeed in my view a fatal one, than it otherwise would if reasonable and probable grounds for the officers to believe that the appellant was carrying heroin existed. In my view, this case is not like that of Collins, supra, where an erroneous ruling by the trial judge following a clearly unfounded objection by the defence prevented the Crown from leading evidence to support the existence of reasonable and probable grounds. In the case at bar the Crown had every opportunity to elicit from the police the kind of information referred to by Martin J.A. in Debot, information that may have substantiated the claim that the police had reasonable and probable grounds to believe the appellant was carrying heroin. For whatever reason, no such evidence was led, and as a result the only way the trial judge could reach the conclusion that the reasonable and probable grounds existed was to refer to the results of the search, a chain of reasoning that is, with respect, in error. Unlike in Collins, where this Court resolved the uncertainty as regards the existence of reasonable and probable grounds by ordering a new trial, in the case at bar I would resolve the doubt against the Crown, which had the burden of persuasion, and did not meet that burden. As I stated in Collins, at p. 278, reiterating the words of Dickson J. (as he then was) in Hunter v. Southam Inc., supra, at p. 161:

. . . once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.

In Collins it was the incorrect ruling of the trial judge that prevented the Crown from leading evidence of the basis for the police officer's grounds for searching Ms. Collins. In the case at bar the Crown simply did not lead the necessary evidence to establish the existence of reasonable and probable grounds. The consequences of this failing of the Crown must rest with it, since it is the Crown's obligation to establish those grounds. Since the trial judge in this case erred in law by concluding that the police had reasonable and probable grounds based on the results of the search, and since the record reveals no evidence to support the existence of the grounds beyond a conclusory statement by the police, I find myself unfortunately given no other choice but to proceed on the premise that the search proceeded as incident to an arrest for outstanding traffic warrants and not on the basis of reasonable and probable grounds of belief that the appellant was in possession of heroin. This, in my view, is the most determinative factor in this case.

In assessing the seriousness of the Charter violations in this case, one must not disregard the fact that the appellant's rights were infringed even before the rectal exam took place. Indeed, it is necessary to briefly refer to the strip search that took place at the airport, conducted by Customs Inspectors Lee and Yick. It is clear that in conducting a secondary search of this kind, the customs inspectors detained the appellant. As the Chief Justice noted in Simmons, supra, at p. 521:

. . . when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10.

In the case at bar, the appellant was not informed of the reason for the detention nor was he informed of the right to retain and instruct counsel without delay. In the case of a customs strip search, the Customs Act provides for a review of the search before it takes place by a police magistrate, justice of the peace or a chief officer at the border who shall, if there is no reasonable cause for the search, discharge the person. The importance of being given the opportunity to retain counsel in such a situation was underscored by the Chief Justice in Simmons, supra, at p. 531:

Counsel could also have ensured that the statutory standard of reasonable cause to suppose had been satisfied and assured the appellant that there were proper grounds to warrant a search. In my view, the denial of the appellant's right to counsel cannot avoid having an impact on the reasonableness of the subsequent search of the appellant.

Although the Court has not been asked to decide the point, I am of the view that the denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act. A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. [Emphasis added.]

Even before the rectal exam took place then, the appellant, if given the reason for the detention and the right to counsel, might have afforded himself an opportunity to contact counsel to have the "confidential information" on which the search allegedly was based tested to see if there were indeed reasonable and probable grounds to conduct the strip search let alone the rectal exam. The case at bar is one where, as I stated in R. v. Debot, supra, at pp. 1147‑48 the violation of s. 10 of the Charter goes to the very reasonableness of the search. In my view, the relationship in this case between the violations of ss. 8 and 10 of the Charter renders the violations more serious than if the breach of s. 10 was very remote from the strip search.

A further consideration in assessing the seriousness of the Charter violations is the nature of the searches in this case, which progressed from the search of baggage and frisk of outer clothing to the strip search to, finally, the rectal examination. In respect of the body cavity type of search, the Chief Justice in Simmons, supra, stated the following at p. 517:

The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, to emetics, and to other highly invasive means. . . . Searches of the third or bodily cavity type may raise entirely different constitutional issues for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection.

I hasten to add that in this case the fact that a rectal examination was conducted as incident to an arrest for traffic warrants and absent any evidence on the record of reasonable and probable grounds for the belief that the appellant was in possession of heroin, makes the unreasonable search an extremely serious violation of the appellant's Charter rights. Indeed, it is the intrusive nature of the rectal search and considerations of human dignity and bodily integrity that demand the high standard of justification before such a search will be reasonable. To paraphrase somewhat my statement in Collins, supra, at p. 288, we cannot accept that police officers subject persons to rectal examinations incident to arrests for traffic warrants when they do not have reasonable and probable grounds to believe that those people are actually in possession of drugs. It is imperative that the Court, having regard for the long-term consequences of admitting evidence obtained in these circumstances, dissociate itself from the conduct of the police in this case which, always on the assumption that they merely had suspicions, was a flagrant and serious violation of the rights of the appellant. Indeed, in this case the absence of proof of reasonable and probable grounds, or even of "objective articulable facts" to support the officer's suspicions, makes the unreasonable search a more serious Charter violation: see Simmons, supra, at p. 535, and Jacoy, supra, at p. 560.

Further, I am not persuaded that there was any urgency or immediate necessity to conduct the rectal search to prevent the loss or destruction of the evidence. If indeed there were reasonable and probable grounds for the police to believe that the appellant was a drug courier, grounds that were never established by the Crown, then surely the detention of the accused in order to facilitate the recovery of the drugs through the normal course of nature would have been reasonable. Finally, and this is an important consideration in this case, it should be noted there was more than one Charter violation at issue. The breaches of the appellant's Charter rights were not isolated errors of judgment by the police, but rather were part of a larger pattern of disregard for the appellant's Charter rights: see Genest, supra, at p. 87. In sum then, I conclude that the violations of the appellant's Charter rights were very serious. On the record as it now stands, we have violations of ss. 8 and 10(a) based on the finding that the appellant was subjected to a rectal search incident to an arrest for traffic warrants. Added to this there is the violation of s. 10(b) of the Charter by the Customs Inspectors who failed to advise the appellant of the right to retain and instruct counsel before they subjected him to the strip search at the airport. This is a situation, as I noted above, where there is a link between the violation of the right to counsel and the reasonableness of the subsequent search since counsel may have had a role to play in seeking a review of the grounds for the search before it took place. In short then, this case can be described as one where the seriousness of the cumulative effect of the Charter violations militates in favour of excluding the evidence.

I say this in full recognition of the fact that the evidence recovered was real evidence that existed irrespective of the Charter violations, and whose admission therefore would not negatively affect the adjudicative fairness of the appellant's trial. It must be recalled, however, that in addition to the consideration of a fair trial, the Court must also consider whether by admitting the evidence it would be condoning unacceptable conduct by the police. It is in that context that I now turn to a consideration of the third set of factors, namely the effect of exclusion as opposed to admission of the evidence. 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. As the Chief Justice noted in Genest, supra, at p. 82:

While the purpose of the rule is not to allow an accused to escape conviction, neither should it be interpreted as available only in those cases where it has no effect at all on the result of the trial. The consideration whether to exclude evidence should not be so closely tied to the ultimate result in a particular case.

In balancing the long-term consequences of regularly admitting the evidence in this case in the light of how it was obtained against the consequences of excluding it, I conclude that the balance tips in favour of exclusion. The administration of our system of justice will be brought into greater disrepute if this Court were to condone, taking the record as it is given to us by the police and the prosecution, the practice of using an arrest for traffic warrants as an artifice to conduct a rectal exam of an accused who the police do not have reasonable and probable grounds to believe is carrying drugs. In fact, even if reasonable and probable grounds existed, support for which was not established by the Crown, there is still the admission by the Crown that the police deliberately failed to provide the appellant with the proper reason for the arrest, thereby infringing his rights under s. 10(a) of the Charter. The Crown refers to this as "foolish" and a "blunder", but in fact, it amounts to the police deliberately misleading the appellant and using that deception as an artifice to conduct a highly invasive rectal search. Whatever the motives for this deception, it can only lead to an inference of extreme bad faith on the part of the police in that they wilfully circumvented the Charter, a factor which further supports the exclusion of the evidence in this case. This is especially so when what is involved is a violation of the right to counsel as well as a violation of the right to be secure against unreasonable searches. It would be easy, but at the same time very dangerous, to allow the knowledge that the appellant must have had in respect of his possession of the drugs, to influence this Court's assessment of whether the evidence should be excluded. To do so would be to import an ex post facto chain of reasoning that finds no place in an inquiry pursuant to s. 24(2) of the Charter.

I would further note that a majority of this Court has, in two appeals in which judgment has recently been pronounced, R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, and R. v. Wiggins, 1990 CanLII 151 (SCC), [1990] 1 S.C.R. 62, admitted evidence of recorded conversations obtained in violation of s. 8 of the Charter. Those cases are, however, clearly distinguishable from the case at bar. In both Duarte and Wiggins the police acted in good faith reliance on a statutory provision of the Criminal Code, specifically s. 178.11(2)(a), which they, very reasonably, believed permitted them to act as they did. In this regard also see my judgment in R. v. Hamill, 1987 CanLII 86 (SCC), [1987] 1 S.C.R. 301, at p. 308, a case dealing with police reliance on writs of assistance. The case at bar, however, is completely different. There is no element of good faith reliance by the police on a previously unchallenged procedure. Indeed, on the record as it now stands before this Court, there can only be an inference of bad faith in light of the rectal search incident to an arrest for outstanding traffic warrants.

Therefore, and not without great hesitation given the manifest culpability of the appellant, of a crime that I consider heinous, I conclude that the integrity of our criminal justice system and the respect owed our Charter are more important than the conviction of this offender. Accordingly, the evidence obtained as a result of the Charter violations should be excluded, and the appellant's acquittal at trial restored. I reach this conclusion based on the seriousness of the cumulative effect of the various violations of ss. 8 and 10(a) and (b) of the Charter, and especially in the absence in the evidence of proof for the claim that the police had reasonable and probable grounds for the belief that the appellant was in possession of drugs, the proof of which rested with the Crown. To admit the evidence in this case would be tantamount to stating that the Crown has satisfied its burden in establishing reasonable and probable grounds for a warrantless search when the police testify that those grounds are based on "confidential information received and background investigation". To adopt this position would, in my view, be an abdication of the proper judicial function to the police, and would be dangerously regressive especially in this case where what is at issue is a highly invasive rectal search. To repeat, this Court cannot condone rectal searches incident to an arrest for outstanding traffic warrants. I would, accordingly, allow the appeal, exclude the evidence and restore the appellant's acquittal.

Appeal allowed, Dickson C.J. and L'Heureux-Dubé and Cory JJ. dissenting.

Solicitors for the appellant: Singleton Urquhart, Calgary.

Solicitor for the respondent: John C. Tait, Ottawa.