Tainted Evidence: Conflicting Ontario Rulings

The Ontario Court of Appeal's decision in R. v. Harrison appears to narrow the circumstances under which evidence obtained by police without a search warrant may be excluded at criminal trials.

Welland Tribune's Tracey Tyler reported on the Harrison case, in which the defendant appealed his conviction on cocaine trafficking charges:

The Ontario Court of Appeal has approved the use of evidence obtained through flagrant police misconduct, saying any black eye caused to the justice system is outweighed by public interest in prosecuting a serious crime.

In a decision that even one of their fellow judges finds intolerable, a majority of the court upheld a trial judge's decision to admit evidence of 35 kilograms of cocaine found in Bradley Harrison's rented SUV - despite the judge's finding an Ontario Provincial Police officer had no legal grounds to stop the vehicle, seriously infringed the Toronto man's charter rights and misled a court while trying to justify his actions.

..."We believe that, without minimizing the seriousness of the police officer's conduct or in any way condoning it, it was open to the trial judge to find that reasonable members of the community could well conclude that the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars, and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission," [Associate Chief Justice Dennis O'Connor and Justice James MacPherson] said in their decision.

The appelate court's rationale in Harrison is evident from the LAW/NET case summary:

..there were circumstances which attenuated the seriousness of the breaches which supported his conclusion. For example, the officer`s conduct was not shown to be systemic in nature, or the result of operational policies or guidelines, or even an order from a senior officer. Further, the breaches did not have a particularly serious effect on Harrison`s Charter rights. He was detained in the roadside stop for only a short period of time. As the trial judge pointed out, the officer did not use any force or physical restraint. The officer did not search Harrison`s person, he only searched the car. Given that Harrison did not own the car, as it had been rented by the passenger, Harrison`s privacy interest in the car was low. As a result, the trial judge`s decision to admit the evidence was open to him. It was not unreasonable to do so and reflected no error in principle.

In a February 14, 2008 decision that goes in an entirely contrary direction, however, Ontario Superior Court Justice Maureen Forrestell nonetheless excluded evidence of cocaine found by four police officers who entered an accused's hotel room without a warrant, using a pass-key voluntarily provided by hotel management.

The Globe and Mail's Kirk Makin comments:

The decision also added to a growing philosophical chasm that is dividing Ontario judges. One faction - led by several Ontario Court of Appeal judges - has become increasingly loath to exclude tainted evidence, particularly in cases involving guns.

The other judicial faction continues to adhere to an approach pioneered in the 1980s by the Supreme Court of Canada, in which evidence gained through illegal police conduct has been frequently rejected for having brought "the administration of justice into disrepute."

- Garry J. Wise, Toronto

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