R V Harrison
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''R v Harrison''

is a decision of the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
on section 24(2) of the ''
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
''. The decision was a companion case of ''
R v Grant ''R v Grant'', 2009 SCC 32 is a leading decision of the Supreme Court of Canada on section 9, section 10 and section 24(2) of the ''Canadian Charter of Rights and Freedoms'' ("''Charter''"). The Court created a number of factors to consider when ...
'', and applied the Supreme Court's new test to determine when evidence obtained from a ''Charter'' breach should be excluded.


Background

On October 24, 2004, Bradley Harrison was driving an
SUV A sport utility vehicle (SUV) is a car classification that combines elements of road-going passenger cars with features from off-road vehicles, such as raised ground clearance and four-wheel drive. There is no commonly agreed-upon definitio ...
with a friend near
Kirkland Lake Kirkland Lake is a town and municipality in Timiskaming District in Northeastern Ontario, Canada. The 2016 population, according to Statistics Canada, was 7,981. The community name was based on a nearby lake which in turn was named after Winnifre ...
,
Ontario Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
. They were driving from
Vancouver Vancouver ( ) is a major city in western Canada, located in the Lower Mainland region of British Columbia. As the List of cities in British Columbia, most populous city in the province, the 2021 Canadian census recorded 662,248 people in the ...
to
Toronto Toronto ( ; or ) is the capital city of the Canadian province of Ontario. With a recorded population of 2,794,356 in 2021, it is the most populous city in Canada and the fourth most populous city in North America. The city is the ancho ...
. Constable Bertoncello of the
Ontario Provincial Police The Ontario Provincial Police (OPP) is the provincial police service of Ontario, Canada. Under its provincial mandate, the OPP patrols provincial highways and waterways, protects provincial government buildings and officials, patrols unincorpo ...
observed that the vehicle had no front
license plate A vehicle registration plate, also known as a number plate (British English), license plate (American English), or licence plate ( Canadian English), is a metal or plastic plate attached to a motor vehicle or trailer for official identificati ...
, an offence if the car is registered in Ontario. Bertoncello activated his emergency lights and pulled the car over. He then realized the vehicle was registered in
Alberta Alberta ( ) is one of the thirteen provinces and territories of Canada. It is part of Western Canada and is one of the three prairie provinces. Alberta is bordered by British Columbia to the west, Saskatchewan to the east, the Northwest Ter ...
and was not required to have a front license plate. He was also informed by radio dispatch that the vehicle had been rented in Vancouver. At that time, Bertoncello has no grounds to believe any offence was being committed. Nonetheless, Bertoncello was suspicious. The vehicle appeared to be "lived-in", which suggested it had been driven directly through from Vancouver. He knew that rental cars were often used by drug couriers. He knew that it was rare for drivers to drive that stretch of the road at exactly the speed limit, which Harrison had been doing. Finally, Harrison and his friend gave contradictory stories when questioned separately. Harrison was not able to provide his
driver's license A driver's license is a legal authorization, or the official document confirming such an authorization, for a specific individual to operate one or more types of motorized vehicles—such as motorcycles, cars, trucks, or buses—on a public ...
upon request, saying he left it in Vancouver. A computer check by Bertoncello revealed Harrison's license was currently suspended. He then arrested Harrison for driving with a suspended driver's license. Bertoncello then asked Harrison and his friend if there were any drugs in the car. They both replied in the negative. Other police officers arrived, and Bertoncello began to search the car. He testified that he did so "incidental to the arrest" in order to find Harrison's driver's license - even though the license's whereabouts was irrelevant to the charge. Bertoncello started the search in the rear cargo area. He found two cardboard boxes. The other occupant of the vehicle advised that they contained dishes and books for his mother. Bertoncello testified that the look and feel of the boxes suggested they did not contain dishes or books, and asked the occupant if the boxes contained drugs or weapons. The occupant became nervous, said "yeah", then said he did not know. The boxes were opened, and were found to contain
cocaine Cocaine (from , from , ultimately from Quechuan languages, Quechua: ''kúka'') is a central nervous system (CNS) stimulant mainly recreational drug use, used recreationally for its euphoria, euphoric effects. It is primarily obtained from t ...
. Ultimately 35 kilograms of cocaine was found in the vehicle, which was estimated to be worth $4 million.


Trial

At the Superior Court of Ontario, the trial judge found the detention was based on a hunch or suspicion, and not on reasonable grounds. It was therefore an arbitrary detention and violated
section 9 is a fictional gendarmerie-style information security and intelligence department from Masamune Shirow's ''Ghost in the Shell'' manga and anime series. In the franchise, its jurisdiction exists under the Ministry of Internal Affairs. In some t ...
of the ''Charter''. The judge also found that the search had nothing to do with why Harrison was arrested, and was therefore without lawful authority and violated section 8 of the ''Charter''. In determining whether the evidence should be excluded under section 24(2) of the ''Charter'', the judge applied the test found in '' R. v. Collins''. In determining the seriousness of the breach, the judge was highly critical of Bertoncello's actions. He found that the officer's intentions "'was to take whatever steps were necessary to determine whether his suspicions were correct', notwithstanding the lack of any legal basis for the stop or search", and that the officer's actions "can only be described as brazen and flagrant". He also found that Bertoncello's in court testimony was "contrived and defy credibility". However, the trial judge found that the officer's actions "pale in comparison" with the 35 kilograms of cocaine found in Harrison's vehicle. He therefore found that administration of justice would suffer more if the cocaine was excluded, and admitted the evidence.


Ontario Court of Appeal

A majority of the
Ontario Court of Appeal The Court of Appeal for Ontario (frequently referred to as the Ontario Court of Appeal or ONCA) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Hall in downtown Toronto, also the seat of the Law Societ ...
upheld the trial judge's decision to admit the evidence, calling it a "close call". The dissenting judge felt that the majority "downplayed" the trial judge's characterization of Bertoncello's conduct, and felt that the trial judge erred by comparing the officer's actions with Harrison's criminal conduct. The Court of Appeal's decision received significant media attention and editorials criticized the decision as a significant weakening of the ''Charter''.


Reasons of the court

The majority judgment was written by McLachlin C.J. The majority applied the new test for section 24(2) of the ''Charter'', enunciated in the companion case of ''R. v. Grant''. The ''Grant'' test replaced the test found in ''R. v. Collins'' and '' R. v. Stillman'' (which focused on the trial fairness and whether the evidence was conscriptive). On the Seriousness of the ''Charter''-Infringing State Conduct stage, the majority found that Bertoncello acted recklessly and represented a blatant disregard of ''Charter'' rights. On the Impact of the ''Charter''-Protected Interests of the Accused stage, the majority found that the detention affected the accused's rights to privacy and liberty, and that people on the highway have an expectation that they will be left alone except for valid highway traffic stops. In this case, the impact was significant, but not egregious. On the Society's Interest in an Adjudication on the Merits stage, the majority found that the cocaine was reliable evidence, and favoured admission. The majority went on to find that the trial judge placed undue emphasis on the last stage of the test. The test should not turn into comparing the police's conduct with the accused's criminal conduct, and that the public "expect police to adhere to higher standards than alleged criminals." The majority went on to find that given the trial judge's characterization of the officer's conduct, the seriousness of the officer's conduct outweighed the reliability of the evidence. A dissenting decision was written by Deschamps J. Following her decision in ''Grant'', Deschamps J. proposed a different test for section 24(2) of the ''Charter''. Deschamps J.'s proposed test would balance the impact on the accused (which includes the seriousness of the officer's conduct) with the reliability of the evidence. Under this test, Deschamps J. concluded that the evidence should have been admitted.


See also

*
List of Supreme Court of Canada cases The Supreme Court of Canada is the court of last resort and final appeal in Canada. Cases that are successfully appealed to the Court are generally of national importance. Once a case is decided the Court will publish written reasons for the deci ...


References


External links


Full text of ''R. v. Harrison''
- S.C.C.

- Ont C.A. {{DEFAULTSORT:Harrison Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases Canadian criminal procedure case law 2009 in Canadian case law