R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10
Ka Lam Law, Kam Sun Chan and
2821109 Canada Inc. Appellants
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario Intervener
Indexed as: R. v. Law
Neutral citation: 2002 SCC 10.
File No.: 27870.
2001: October 4; 2002: February 7.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the new brunswick court of appeal
Constitutional law – Charter of Rights – Unreasonable search and seizure – Exclusion of evidence – Safe containing business documents revealing alleged GST violations by accused stolen from accused’s place of business – Safe recovered by police – Police officer not involved in theft investigation but suspecting accused of tax evasion photocopying documents and forwarding them to tax authorities – Whether photocopying of documents constituted unreasonable search or seizure – Whether photocopied documents admissible as evidence of Excise Tax Act violations – Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
A locked safe belonging to the accused was reported stolen and then recovered, open, in a field. The police conducted an investigation of the theft. Before the safe was returned to the accused, an officer, not involved in the investigation of the theft but who suspected the accused of tax violations, photocopied some financial documents found in the safe without obtaining a warrant and eventually forwarded the photocopies to Revenue Canada. The Crown brought summary conviction proceedings against the accused under the Excise Tax Act for contraventions of the reporting requirements and of the obligation to remit taxes. The Crown requested that the photocopied documents be admitted into evidence. The trial judge ruled that the photocopying of the documents was an unreasonable search under s. 8 of the Canadian Charter of Rights and Freedoms, and excluded the photocopies under s. 24(2) of the Charter. Since the Crown did not adduce any further evidence, the trial judge acquitted the accused of all charges. The Court of Queen’s Bench upheld the trial judge’s decision to exclude the evidence. The majority of the Court of Appeal allowed the Crown’s appeal. At issue is whether the photocopied evidence, which revealed alleged GST violations on the part of the accused, ought to be excluded.
Held: The appeal should be allowed.
Police conduct interfering with a reasonable expectation of privacy constitutes an unreasonable search within the meaning of s. 8 of the Charter. Where an individual abandons his property, he effectively abandons his privacy interest in it. However, the mere fact that police recover lost or stolen property is insufficient to support an inference that the owner voluntarily relinquished his expectation of privacy in the item. In this case, the accused retained a residual, but limited, reasonable expectation of privacy in the contents of their stolen safe. The existence of a residual privacy interest does not undermine the police’s obligation to investigate the theft of a stolen item, or to carry out whatever law enforcement responsibility is reasonably associated with its taking. The police’s taking of the accused’s safe was restricted to the investigation of the theft and did not extend to the pursuit of totally unrelated hunches. Further, to the extent the officer was driven by another law enforcement objective, namely, investigation of GST violations, he lacked reasonable and probable grounds to seize the property of the accused, i.e. the papers contained in the safe. The search was unreasonable as none of the recognized exceptions to the warrant requirement was satisfied. Furthermore, the search was not conducted by an “authorized person” under the Excise Tax Act, rendering the statutory defence under that Act unavailable.
The evidence should be excluded. Although admitting the evidence would not affect the fairness of the trial (it being real, discoverable, non-conscripted evidence), and excluding the evidence would compromise the Crown’s case, the resolution of the inquiry under s. 24(2) turns on whether the violation of s. 8 is so serious that it outweighs the State’s interest in admitting the evidence. The officer’s approach, behaviour and disrespect for regular police procedures combined with his failure to leave responsibility for the investigation to taxation authorities when that option was available rendered his conduct sufficiently serious to exclude the photocopied documents. This factor must, however, be weighed against the quasi-criminal nature of the offence and the fact that it was proceeding summarily. The administration of justice would suffer greater disrepute from the admission of the evidence than from its exclusion.
Cases Cited
Applied: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; referred to: R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Dyment, [1988] 2 S.C.R. 417; 143471 Canada Inc. v. Quebec (Attorney General), [1994] 2 S.C.R. 339; R. v. LeBlanc (1981), 64 C.C.C. (2d) 31; United States v. Procopio, 88 F.3d 21 (1996); R. v. Arp, [1998] 3 S.C.R. 339; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Annett (1984), 17 C.C.C. (3d) 332; R. v. Spinelli (1995), 101 C.C.C. (3d) 385; United States v. Sumlin, 909 F.2d 1218 (1990); Coolidge v. New Hampshire, 403 U.S. 443 (1971); United States v. O’Bryant, 775 F.2d 1528 (1985); R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Kokesch, [1990] 3 S.C.R. 3.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Excise Tax Act, R.S.C. 1985, c. E-15, ss. 288 [ad. 1990, c. 45, s. 12], 327.
Authors Cited
Canada. Report of a Task Force Established Jointly by the Department of Communications/Department of Justice. Privacy and Computers. Ottawa: Information Canada, 1972.
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, 3rd ed. St. Paul, Minn.: West Publishing Co., 1996.
APPEAL from a judgment of the New Brunswick Court of Appeal (2000), 225 N.B.R. (2d) 85, 578 A.P.R. 85, [2000] G.S.T.C. 37, 2001 D.T.C. 5656, [2000] N.B.J. No. 76 (QL), reversing a judgment of the Court of Queen’s Bench (1998), 204 N.B.R. (2d) 191, 520 A.P.R. 191, [1998] G.S.T.C. 111, 2001 D.T.C. 5661, [1998] N.B.J. No. 347 (QL), affirming a decision of the Provincial Court. Appeal allowed.
Éric J. Doiron and Michel C. Léger, for the appellants.
Bernard Laprade and François Lacasse, for the respondent.
W. Graeme Cameron, for the intervener.
The judgment of the Court was delivered by
1 Bastarache J. — A locked safe belonging to the appellants was reported stolen and then recovered, opened, in a field in Moncton, New Brunswick. The police conducted an investigation of the theft and, in the course of its investigation, placed the safe in an exhibit room. Before the safe was returned to the appellants, an officer who suspected the appellants of tax violations retrieved the safe, photocopied some financial documents inside and eventually forwarded the photocopies to Revenue Canada. At issue is whether the photocopied evidence, which revealed alleged GST violations on the part of the appellants, ought to be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms in summary proceedings under the Excise Tax Act, R.S.C. 1985, c. E-15. I conclude the evidence ought to be excluded.
I. Factual Background
2 The appellants Law and Chan are the directors of the appellant corporation 2821109 Canada Inc. (“the company”). In 1992, the company began operating a Moncton restaurant, Fu Lam City. A break and enter occurred at the restaurant on October 31, 1993, following which the police were notified of a missing safe. The safe was recovered by the local RCMP after two individuals reported seeing it open and abandoned in a field. It contained a number of documents related to the restaurant, such as chequebooks and a ledger that tracked disbursements.
3 The safe and its contents were entrusted to Constable Michael White, a member of the Forensic Investigation Section of the Moncton Police Force. White completed fingerprinting tests on November 1 and found no identifiable prints. The documents were released to the appellants two weeks later, after repeated inquiries as to whether and when they would be returned.
4 In the meantime, an officer not involved in the investigation, Paul Desroches, expressed an interest in Constable White’s investigation. Corporal Desroches worked for the Criminal Intelligence Unit of the Moncton Police Force; he had been suspicious of the appellants from shortly after the restaurant’s opening. He testified that his suspicions of wrongdoing were not substantiated, but that he had “a gut feeling” that they were not submitting all their taxes and that he “didn’t know what [he] was gonna find”. Prior to the break and enter, Corporal Desroches had copied down the licence plate numbers of several patrons’ vehicles. He was keeping information in relation to a file named “Asian Crimes” and inquired with Revenue Canada as to whether the restaurant’s taxes had been paid. He was told by Revenue Canada that there was nothing irregular about the restaurant’s operations.
5 The day White completed his fingerprinting tests, Desroches learned of the break and enter and heard the police had possession of the appellants’ safe. He told White he was interested in looking at the documents inside and, out of “curiosity”, accompanied another constable to the restaurant site. He also conducted a cursory examination of the documents, many of which contained “Chinese characters” and were unintelligible to him. Desroches proceeded to ask Crown counsel if he could photocopy the recovered documents; it is unclear whether he disclosed his reasons for wanting to do so. Based on the Crown’s advice, Desroches took the documents from forensics and photocopied them over the course of two days. He kept several copies for himself and placed the ledger, along with the other original documents, in a box in an exhibit room. No steps were taken to obtain a search warrant, nor to ask the appellants for their permission to copy the documents.
6 After making the photocopies, Desroches twice contacted an investigator with Revenue Canada, Don Duguay, to offer him copies of the documents. On November 8, Duguay came to the station to meet with Desroches, who took the box of documents out of the exhibit room without signing for it; he testified that this irregularity in procedure was not improper because the documents consisted of “found property” that was not truly an exhibit per se. Constable White remained ignorant of the movement of the items; contrary to normal police procedures, no entries were ever made in the “movement of exhibits” record.
7 Based on information contained in the documents, Revenue Canada investigators searched the appellants’ restaurant in May 1994. Subsequently, pursuant to s. 327 of the Excise Tax Act, summary conviction proceedings were brought against the appellants for eight separate contraventions of the reporting requirements in s. 238 and of the obligation to remit taxes in Part IX (Goods and Services Tax). The respondent requested that the photocopied documents be admitted into evidence in support of conviction. After conducting a voir dire, the Provincial Court judge ruled that the photocopying of the documents was an unreasonable search under s. 8 of the Charter and excluded the photocopies under s. 24(2) of the Charter. The respondent advised that it would not present any further evidence, and the judge acquitted the appellants of all charges.
8 The trial judge’s decision on the voir dire was upheld by Godin J. at the Court of Queen’s Bench. The Crown appealed again to the New Brunswick Court of Appeal, and a majority of the court (Larlee and Ryan JJ.A.) allowed the appeal. In their view, s. 8 of the Charter was not infringed and there was no need to consider the exclusion of evidence under s. 24(2). Rice J.A. dissented, paying considerable deference to the lower court findings. The appellants seek to restore the decision of the trial judge.
II. Relevant Statutory Provisions
9 Canadian Charter of Rights and Freedoms
Everyone has the right to be secure against unreasonable search or seizure.
. . .
(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.
Excise Tax Act, R.S.C. 1985, c. E-15
- (1) An authorized person may, at all reasonable times, for any purpose related to the administration or enforcement of this Part, inspect, audit or examine the documents, property or processes of a person that may be relevant in determining the obligations of that or any other person under this Part or the amount of any rebate or refund to which that or any other person is entitled and, for those purposes, the authorized person may
(a) subject to subsection (2), enter any premises or place where any business or commercial activity is carried on, any property is kept, anything is done in connection with any business or commercial activity or any documents are or should be kept; and
(b) require the owner or manager of the property, business or commercial activity and any other person on the premises or in the place to give to the authorized person all reasonable assistance and to answer all proper questions relating to the administration or enforcement of this Part and, for that purpose, require the owner or manager to attend at the premises or place with the authorized person.
(2) Where any premises or place referred to in paragraph (1)(a) is a dwelling-house, an authorized person may not enter that dwelling-house without the consent of the occupant, except under the authority of a warrant issued under subsection (3).
III. Judicial History
10 At the voir dire, McKee Prov. Ct. J. had no difficulty concluding the photocopies made by Corporal Desroches constituted a “search” within the meaning of s. 8 of the Charter. After noting the search was conducted without a warrant, he went on to consider whether the search was otherwise authorized by law. In his view, the only other source of authorization was s. 288 of the Excise Tax Act, which only authorized specific persons to conduct searches. As Corporal Desroches was neither an inspector nor the Minister under that Act, and as the search was not related to the investigation of the theft of the safe, no authorization existed. McKee Prov. Ct. J. also declined to apply the “plain view” doctrine, noting that while the police were lawfully situated when the search took place, the photocopies were neither discovered inadvertently nor immediately evident to Corporal Desroches. He also noted that neither the appellants' consent nor exigent circumstances could rebut the presumption of unreasonableness. At the Court of Queen’s Bench, Godin J. upheld these findings: (1998), 204 N.B.R. (2d) 191.
11 Both McKee Prov. Ct. J. and Godin J. would have excluded the photocopied evidence pursuant to s. 24(2) of the Charter. Although the latter concluded the evidence was not conscriptive under the first branch of R. v. Collins, [1987] 1 S.C.R. 265, he remarked that “the police took advantage of a criminal act perpetrated against the respondents -- i.e., the break and enter in the restaurant and the theft of the safe -- to gather evidence that would not otherwise have come to their attention” (para. 16). In that sense, the fairness of the trial would be affected, he held. McKee Prov. Ct. J. did not make such a finding; nevertheless, he held that the Charter violation was, in light of all the circumstances, [translation] “sufficiently serious” to justify excluding the evidence under s. 24(2). Citing Corporal Desroches’s approach, behaviour and disregard for normal police procedures, McKee Prov. Ct. J. concluded that to admit the evidence would bring the administration of justice into disrepute.
12 In the Court of Appeal ((2000), 225 N.B.R. (2d) 85), the majority focused on whether the appellants had a reasonable expectation of privacy in the safe such that s. 8 would be triggered. In their view, any such expectation disappeared once the safe was stolen and fell into the hands of the police (at para. 10):
[translation] In my opinion, once the documents have fallen into the hands of the thieves and other individuals, the respondents' reasonable expectation of privacy no longer existed.
Having found no expectation of privacy, the majority felt it unnecessary to consider whether the alleged “search” was conducted in a reasonable manner. That said, they were of the view that the police’s conduct was reasonable. The fact that the investigation of the theft had been initiated by the accused, combined with the fact that the police were legally in possession of the safe when it was opened, persuaded them that Corporal Desroches had the right to photocopy its contents. The majority also concluded that Corporal Desroches acted in good faith throughout the investigation. Because of this, he was authorized to take his investigation of the safe beyond that which was required by its theft. In light of its conclusion that there was no breach of s. 8 of the Charter, the majority of the Court of Appeal did not consider s. 24(2).
13 Rice J.A. dissented, holding that the police’s legal possession of the safe did not authorize them to examine and photocopy its contents. In his view, the appellants retained a privacy interest in those contents and, more particularly, did not relinquish any interest in their confidentiality. Rice J.A. therefore would have found a s. 8 violation. With respect to s. 24(2), Rice J.A. noted that an appellate court should not lightly interfere with a trial judge’s discretion to exclude unlawfully obtained evidence. He cited the majority judgment in R. v. Stillman, [1997] 1 S.C.R. 607, where Cory J. held, at para. 68:
. . . appellate courts should only intervene with respect to a lower court’s s. 24(2) analysis when that court has made “some apparent error as to the applicable principles or rules of law” or has made an unreasonable finding . . . .
Not being able to find an apparent error or unreasonable finding in the decision of McKee Prov. Ct. J., Rice J.A. would have dismissed the Crown’s appeal.
IV. Issues
14 Whether the photocopied evidence ought to be excluded from evidence depends on (1) whether the officer’s conduct constituted an unreasonable search or seizure within the meaning of s. 8 of the Charter; and (2) if so, having regard to all the circumstances, whether the admission of the evidence would bring the administration of justice into disrepute, such that it should be excluded under s. 24(2).
V. Analysis
1. Section 8
(a) Was There a Search or Seizure?
15 It has long been held that the principal purpose of s. 8 of the Charter is to protect an accused’s privacy interests against unreasonable intrusion by the State. Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of the provision: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, R. v. Edwards, [1996] 1 S.C.R. 128. Such conduct may also be characterized as a “seizure”, the essence of which is the “taking of a thing from a person by a public authority without that person’s consent”: R. v. Dyment, [1988] 2 S.C.R. 417, per La Forest J., at p. 431. In this case, there is no doubt the taking of the safe was authorized, inasmuch as the appellants reported its theft to the police. The question that arises is whether the appellants retained a reasonable expectation of privacy in the contents of the safe, having reported the safe’s theft to the police.
16 This Court has adopted a liberal approach to the protection of privacy. This protection extends not only to our homes and intimately personal items, but to information which we choose, in this case by locking it in a safe, to keep confidential: Dyment, supra, per La Forest J., at p. 429. As a 1972 task force on privacy and computers noted, informational privacy “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit”: A Report of a Task Force Established Jointly by the Department of Communications/Department of Justice, Privacy and Computers (1972), at p. 13. While this may be less true of commercial documents than personal ones, this distinction has historically been applied to the regulatory sphere and carries its own limitations: 143471 Canada Inc. v. Quebec (Attorney General), [1994] 2 S.C.R. 339. In other contexts, a proprietor’s control over confidential business documents implicates his individual autonomy and, in turn, “has profound significance for the public order”: Dyment, supra, per La Forest J., at p. 427.
17 Courts have, to be sure, recognized situations where it is unreasonable to expect personal property or information to remain private. It has been held that an individual can effectively abandon his own property by relinquishing any privacy interest in it: see Stillman, supra. It has also been implied that where the police recover property that has been cast off or stolen, they may infer it has been “abandoned” for the purposes of their investigation: R. v. LeBlanc (1981), 64 C.C.C. (2d) 31 (N.B.C.A.), cited in Dyment, supra, at p. 435; see also, United States v. Procopio, 88 F.3d 21 (1st Cir. 1996). Without more, however, the mere fact that the police recover lost or stolen property is insufficient to support an inference that the owner voluntarily relinquished his expectation of privacy in the item. The question remains: on the facts of the case, did the owner have a reasonable expectation of privacy in the item, or had he relinquished it?
18 In this case, the appellants did not voluntarily discard their private documents. On the contrary, the documents were locked in a safe that was stolen out of their place of business and left abandoned by the thieves in an open field. Moreover, the theft of the safe was reported to the police the morning it occurred, well before it was recovered. One can therefore infer the existence of a subjective expectation of privacy: Edwards, supra. In this entire context, I cannot but conclude that the appellants retained a residual, but limited, reasonable expectation of privacy in the contents of their stolen safe. In short, one would have expected the stolen property to remain private following its recovery, as it was before its theft.
19 The existence of a residual privacy interest does not undermine the police’s obligation to investigate the theft of a stolen item, or to carry out whatever law enforcement responsibility is reasonably associated with its taking. Any expectation of privacy must be reasonable. Thus, an unattended suitcase may have to be inspected for explosives, a stray wallet for identification, or a deserted vehicle for evidence of theft. More extensive investigation may be required to determine the motive of the theft, or to identify the perpetrator. However, where the police cannot reasonably conclude the property has been abandoned by its owner, they are limited in their investigation by the privacy interest of the owner as protected by s. 8 of the Charter.
20 As I see it, to conclude otherwise would authorize the police to conduct a full search of any item reported stolen, aided only by an unreasonable suspicion or a hunch. Even if an individual reported something as innocuous as a stolen sweater, the respondent’s logic would permit the police to conduct DNA testing of the sweater to assist an ongoing murder investigation. This is particularly problematic given the range of items people are bound to report stolen: a purse, a computer, a car, perhaps even a mobile home. The unauthorized search of such items is precisely the type of investigative action which the “residual” expectation of privacy, and indeed the search warrant process, is meant to prevent.
21 The respondent cites R. v. Arp, [1998] 3 S.C.R. 339, for the proposition that evidence lawfully obtained by the police for one purpose may, without additional authorization, be used for another. In that case, the accused voluntarily gave scalp and pubic hair samples to the police, who went on to use those samples in an unrelated investigation. In my view, the respondent is hard-pressed to compare bodily samples provided through unconditional and reasonably informed consent (as in Arp) with a safe stolen out of an accused’s place of business (as in this case). While the State cannot be held responsible for such a theft, the accused equally cannot be said to have relinquished all privacy interests in the stolen item. Even had the accused in Arp retained such an expectation of privacy, it was concluded on the facts of that case that the accused’s consent extended as far as the new investigation. Arp does not assist the respondent.
22 The better analogy is to Dyment, supra, in which a doctor collected a vial of free-flowing blood from an unconscious victim for medical purposes. After collecting the blood from the victim, the doctor provided the blood to a police officer, who then tested it to determine whether the victim was intoxicated. A majority of the Court concurred with La Forest J. that any consent to the seizure of blood was “restricted to the use of the sample for medical purposes” (p. 431). A similar finding was made in R. v. Colarusso, [1994] 1 S.C.R. 20, in which a majority of the Court agreed (at p. 55) that where a state actor obtains personal information under lawful circumstances, “the limited purpose for which it was obtained cannot be ignored”. By analogy to this case, the police’s taking of the appellants’ safe was restricted to the purpose of the taking — namely, the investigation of the theft — and did not extend to the pursuit of totally unrelated hunches.
23 The principal reason for this restriction, in my view, is to discourage police procedures whereby “property is seized by one state agent for a purpose for which the prerequisites for search may not be as demanding, and another state agent . . . is permitted to claim the fruits of the search (the resulting information) for use for law enforcement purposes without regard to the rightly stringent prerequisites of searches for those purposes”: Colarusso, supra, per La Forest J., at p. 64. In my view, such a circumvention of the warrant requirement is precisely what occurred in this case. It is true that the property was shared among police officers in this case, rather than passed from a coroner to a police officer, as in Colarusso, supra. Yet this distinction does not assist the respondent. Whatever the relationship between Officers White and Desroches, the former’s authorized taking of the safe could not have liberated the latter from the stringent prerequisites for searching and analysing the safe’s contents.
24 The intervener, the Attorney General for Ontario, cites R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), in which the police searched the accused’s car for drugs under the “pretext” of conducting an investigation under the Liquor License Act. On appeal, the Ontario Court of Appeal held that the lawful search under the Act was not converted into an unlawful or unreasonable search because the officers had an expectation of finding narcotics. The distinguishing feature of Annett, however, is that the full scope of the officers’ search was authorized by statute; thus, the only issue was whether their hidden intentions rendered the search unreasonable. In this case, by contrast, Corporal Desroches lacked explicit authority to examine and photocopy the contents of the appellants’ safe.
25 The best analogy provided by the intervener, in my view, is the scenario in which the police search a car in the course of investigating its theft, as opposed to carrying out an explicit statutory duty. It is clear the police are “lawfully positioned” in such cases, inasmuch as their common law and statutory duties include the protection of property. However, the police’s obligation to search a stolen car is not without its limits. As the intervener acknowledges, “a police officer might be justified in fully inspecting the driver and passenger compartment of a stolen car during the course of an investigation of the theft, but might be precluded, absent a warrant, from searching through computer files contained in a laptop computer locked in the car’s trunk”; see also, R. v. Spinelli (1995), 101 C.C.C. (3d) 385 (B.C.C.A.), per Southin J.A., at para. 36.
26 In my view, the intervener’s own logic supports a s. 8 breach in this case. Corporal Desroches began his investigation of the appellants' safe after the police had completed their investigation of its theft. At all material times the safe was in police custody and, as far as the theft was concerned, ready to be returned to its rightful owner. Corporal Desroches nevertheless examined the documents inside the safe, photocopied them and, for purposes unrelated to the theft, provided copies to another branch of law enforcement. In assessing these actions, I make no judgment as to whether examining, photocopying or even translating documents might, in other contexts, be reasonably necessary to investigate their theft or carry out a legitimate law enforcement objective. Such actions may be necessary where evidence of illegal activity appears on the face of the document, as contemplated by the “plain view” doctrine. Suffice it to say, Corporal Desroches proceeded as though the safe had been abandoned by its owner and, for that reason, infringed the appellants' reasonable expectation of privacy.
27 The respondent attempts to rely on the plain view doctrine, arguing that evidence that comes within the view of a “lawfully positioned” officer may be admissible if it is discovered inadvertently. Many of the authorities cited by the respondent may be characterized as plain view searches: see United States v. Sumlin, 909 F.2d 1218 (8th Cir. 1990); Coolidge v. New Hampshire, 403 U.S. 443 (1971); United States v. O’Bryant, 775 F.2d 1528 (11th Cir. 1985). In this case, I agree with McKee Prov. Ct. J. that the incriminating evidence was neither immediately obvious to Corporal Desroches nor discovered inadvertently. On the contrary, it came to light only after he examined, translated and photocopied several documents. Corporal Desroches admitted there was nothing facially wrong with the documents. He testified they contained a series of numbers and Chinese characters, and that he lacked both accounting expertise and proficiency in Chinese. Not having detected anything incriminating through the unaided use of his senses, Corporal Desroches cannot rely on the plain view doctrine either to establish reasonable and probable grounds to search, or to avoid the requirement of reasonable and probable grounds entirely; see W. R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996), at pp. 395-98.
28 I conclude the police’s conduct in this case amounted to a search within the meaning of s. 8 of the Charter. While a reasonable accused would have expected a certain degree of state intrusion into his stolen safe -- a fingerprint analysis, a security check, an investigation of content for the purpose of identifying the perpetrator of the theft -- he would otherwise have expected the contents of the safe to remain private. Moreover, to the extent the officer was driven by another law enforcement objective (namely, investigation of GST violations), he lacked reasonable and probable grounds to suspect the appellants. Such conduct is precisely what the search warrant process is meant to prevent.
(b) Was the Search Unreasonable?
29 As the Charter only protects against “unreasonable” search and seizure, it was open to the respondent to establish on a balance of probabilities that Corporal Desroches’s conduct was reasonable under the circumstances. In the absence of prior judicial authorization, a search or seizure will be reasonable if it is otherwise authorized by law, and both the law itself and the manner in which the search was carried out are reasonable: Hunter v. Southam Inc., supra; Collins, supra. In my view, none of the recognized exceptions to the warrant requirement is satisfied in the current appeal. I conclude the search was unreasonable.
30 The intervener made the interesting suggestion that by reporting the theft of their safe to the police, the appellants consented to the seizure of its contents, thus waiving their right to privacy. As he put it, the appellants' conduct “represented, at a minimum, unlimited consent by the Appellants for the police to take possession of the safe and its contents”. I disagree. Had the appellants expected the police to open the safe and examine its contents, it is difficult to imagine they would have directed the police’s attention to it, given that it contained incriminating documents. Far from representing the appellants' consent to search the safe, such conduct reveals a certain faith that the police will not search the content of documents in the safe. Moreover, I have considerable difficulty with the implication that someone who reports a theft to the police must place conditions on the subsequent investigation, as though one’s privacy interest must be asserted to be respected. This suggestion runs contrary to s. 8 of the Charter, which guarantees the individual’s right to be secure against unreasonable search and seizure. It is equally true that no request for the return of the safe was required to “re-establish” the appellants' expectation of privacy.
31 Finally, the respondent relies on s. 288(1) of the Excise Tax Act as a source of independent statutory authority to search documents that are relevant to determining tax liability. That section permits an “authorized person”, meaning a person authorized by the Minister, to “inspect, audit or examine” such documents. As noted by the trial judge, however, the police officer in this case was not authorized by the Minister to conduct an audit of the appellants' business; thus, the statutory defence is not available. I conclude the officer’s conduct in this case constituted an unreasonable search within the meaning of s. 8 of the Charter.
2. Section 24(2)
32 Evidence obtained in violation of s. 8 of the Charter will not be excluded unless, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. While the decision to exclude must be a reasonable one, a reviewing court will not interfere with a trial judge’s conclusions on s. 24(2) absent an “apparent error as to the applicable principles or rules of law” or an “unreasonable finding”: Stillman, supra, at para. 68; see also R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 35. In this case, I uphold the trial judge’s finding under s. 24(2) but, for reasons developed below, feel it is necessary to conduct a separate s. 24(2) inquiry.
33 In Collins, supra, this Court grouped the circumstances to be considered under s. 24(2) into three categories: (1) the effect of admitting the evidence on the fairness of the subsequent trial, (2) the seriousness of the police’s conduct, and (3) the effects of excluding the evidence on the administration of justice. Trial judges are under an obligation to consider these three factors. In general, it will be much easier to exclude evidence if its admission would affect the fairness of the trial as opposed to condoning a serious constitutional violation: Collins, supra, at p. 284.
(a) Trial Fairness
34 The concept of trial fairness is ultimately concerned with the continued effects of unfair self-incrimination on the accused; thus, the principal (though not exclusive) considerations at this stage will be the nature of the evidence obtained and the nature of the right violated: Collins, supra, at p. 284. The leading case on this issue is Stillman, supra, which held that the admission of “conscriptive” evidence, whether self-emanating or derivative, would generally affect the fairness of the trial. Evidence will be classified as conscriptive where “an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples”: Stillman, supra, per Cory J., at para. 80.
35 In this case, the photocopied evidence obtained by Corporal Desroches was not conscriptive evidence. It neither emanated directly from the appellants, nor derived from the appellants' compelled co-operation with the state. While it probably would not have been discovered without the constitutional violation, the originals existed independently of that violation and were not reproduced with the appellants' participation. The trial fairness branch of Collins, supra, will not operate to exclude the evidence.
36 In making this finding, I must respectfully disagree with the superior court judge that trial fairness would be implicated by the officer’s having taken advantage of a criminal act perpetrated against the appellants (i.e., a break and enter of their premises) to gather evidence that otherwise would not have come to their attention. In Collins, supra, at p. 284, this Court held that factors relevant to trial fairness include “the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated.” In my view, the behaviour described by Godin J. goes more to the manner in which the appellants’ Charter rights were violated than to the nature of the evidence obtained or the nature of the right violated. I conclude this factor more appropriately informs the seriousness of the Charter breach and does not operate to render the trial unfair.
(b) Seriousness of the Breach
37 At this stage of Collins, supra, the conduct of Corporal Desroches in conducting an unauthorized search, as opposed to the fairness of the subsequent trial, informs the analysis. The seriousness of this conduct depends, first, on “whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant”: R. v. Therens, [1985] 1 S.C.R. 613, at p. 652. Also relevant is whether the police officer could have obtained the evidence by other means, thus rendering his disregard for the Charter gratuitous and blatant: Collins, supra, at p. 285.
38 In my view, the trial judge is entitled to deference on this point. After reviewing the evidence, McKee Prov. Ct. J. concluded that Corporal Desroches’s approach, behaviour and disrespect for regular police procedures rendered his conduct [translation] “sufficiently serious” to exclude the photocopied documents. It appears from the record that Corporal Desroches essentially assumed the role of an Excise Tax official, taking regulatory matters into his own hands when he easily could have left that responsibility to the appropriate body. It is highly unlikely that Corporal Desroches misunderstood the scope of his authority. His disregard for established procedures, combined with his failure to proceed properly when that option was available, are factors supporting the trial judge’s s. 24(2) ruling: see Collins, supra, at p. 285; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-35. I conclude the breach of the appellants’ s. 8 rights was serious in this case.
(c) Effect on the Administration of Justice
39 At the third stage of Collins, supra, the inquiry focuses on whether excluding the evidence would have a detrimental effect on the administration of justice. In general, this turns on whether the unconstitutionally obtained evidence forms a crucial part of the Crown’s case and, where trial fairness is not affected, the seriousness of the underlying charge. In this case, it is conceded the evidence is essential to substantiate the Crown’s case and, for that reason, can only be excluded at the risk of undermining the administration of justice. However, this factor must be weighed against the quasi-criminal nature of the offence and the fact that it was proceeding summarily. Like the trial judge, I conclude it is the admission of this key piece of Crown evidence, not its exclusion, that would risk bringing the administration of justice into disrepute.
(d) Conclusion on Section 24(2)
40 In my view, this case is not unlike Collins, supra, in that admitting the evidence would not affect the fairness of the trial (it being real, discoverable, non-conscripted evidence), yet excluding the evidence would compromise the Crown’s case. The resolution of s. 24(2) thus turns on the second Collins factor, namely, whether the violation of s. 8 is so serious that it outweighs the State’s interest in admitting the evidence.
41 I have already noted the trial judge’s entitlement to deference on this point. In any event, I am of the view the administration of justice “would suffer far greater disrepute from the admission of this evidence than from its exclusion”: Kokesch, supra, per Sopinka J., at p. 35.
VI. Disposition
42 I would allow the appeal.
Appeal allowed.
Solicitors for the appellants: Doiron & Bastarache, Moncton; Michel C. Léger & Associés, Shediac, New Brunswick.
Solicitor for the respondent: The Attorney General of Canada, Ottawa.
Solicitor for the intervener: The Ministry of the Attorney General, Toronto.