Cour d'appel. Le 29 avril ( ) CORAM : MM. les juges Kaufman, Jacques et Rothman DARLENE VAUGHAN HER MAJESTY THE QUEEN

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1 C A N A D A Province de Québec Greffe de Montréal Cour d'appel No: Le 29 avril 1987 ( ) CORAM : MM. les juges Kaufman, Jacques et Rothman DARLENE VAUGHAN c. HER MAJESTY THE QUEEN The Court; - having heard the parties on the merits of the present appeal from a judment of the Court of Sessions of the Peace (Montreal, October 22, 1984, Lefrançois J.), convicting the Appellant on the following charge: À Montréal, district de Montréal, le ou vers le 1er août 1984, Darlène Vaughan a illégalement eu en sa possession des marchandises, d'une valeur de plus de 200 $, la propriété du magasin PIPS, situé au Centre Commercial de la Place Versailles, 7275 Sherbrooke est, à Montréal, et ce, sachant que lesdites choses ont été obtenues punissaéle sur acte d'accusation, commettant ainsi l'acte criminel prévu aux articles 312 et 313 (a) du Code criminel. Having examined the record and proceedings in first instance and deliberated; For the reasons given in the written opinions of all three judges filed with this judgment; DOTH ALLOW the appeal, SET ASIDE the Appellant's conviction and ACQUITS the Appellant.

2 OPINION OF KAUFMAN, J.A. The facts of this case are banal; the legal consequences, however, are great. On August 1, 1984, at about 2:40 p.m., Cst. Robert Gérard intercepted a 1973 Chevrolet Impala at the corner of Sherbrooke and Berri streets in Montreal. His purpose was to "check out" the car, as permitted by the Highway Code. The Chevrolet was driven by the Appellant, Darlene Vaughan. She showed the constable the registration for the car and also her driver's permit. While talking to the driver, the constable noticed that a piece of cloth appeared to cover something on the back seat of the car. His curiosity aroused, he asked the driver "C'est quoi ça, en arrière?", and Miss Vaughan replied that it was clothing -- "my clothing". The constable thereupon, without further questions, lifted the cover and found sweaters and skirts of different sizes, with price tags still attached. A conversation followed but, in the end, the constable took the merchandise and asked Miss Vaughan to follow the police car to the station, which she.did. After further investigation, she was charged with the illegal possession of merchandise recently stolen. At trial, the defence argued that the evidence --the skirts and the sweaters -- had been obtained in violation of the Canadian Charter, and that its admission into evidence would bring the administration of justice into disrepute. The learned trial judge rejected these arguments and convicted the accused. Hence the appeal. The Crown accepts that tho search was in violation of section 8 of the Canadian Charter of Rights and Freedoms, which declares everyone's "right to be secure against unreasonable search or seizure" ("droit la protection contre les fouilles, les perquisitions ou les saisies abusives"). But that is not the end of the matter, for evidence, even,if illegally obtained, is admissable unless, in the words of section 24(2) of the Charter, "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". Given the circumstances of this case, would the admission of the stolen goods -- for that is what they were -- bring the administration of justice into disrepute? The Appellant says it would, and her counsel points, in particular, to the fact that this was a relatively minor offence. The Crown, on the other hand, suggests, first of all, that the constable was in good faith a fact which I accept without hesitation -- and, secondly, that no right-minded citizen would be shocked by the admission of this evidence.

3 Let me say at once that, since Therens (1983), 33 C.R. (3d) 204, good faith alone does not save a situation which otherwise would lead to the exclusion of evidence. However, as I read this case, a constable's good faith is not irrelevant either, and it is one of the factors which a court may consider when faced with this type of problem The gravity of the offence has also been accepted as a factor: see, for instance, R. c. Pohoretsky, (1985) 45 C.R. (3rd) 209 at 231, where the Manitoba Court of Appeal, in a split decision, so held. But this is contested by others, and R. c. Dyment, (1986) 49 C.R. (3rd) 338 at 349 is a case in point. There, MacDonald J., speaking for the Appeal Division of the Supreme Court of Prince Edward Island, strongly opposed this view and, with respect, I agree. (I should add, however, that this case is now before the Supreme Court of Canada.) In my view, the Charter creates a standard which is common to all accused and to all charges they may face. We do not have one standard for the rich and another for the poor; we do not have one standard for cases tried in a superior court, and another for cases heard by magistrates and judges. Nor, as I understand it, do we have one standard for those charged with serious crime, and another for minor infractions. To admit such a disparity would, I think, defeat the purpose of the Charter. To the person charged with receiving, as is the case here, the. admission of evidence is every bit as important as it is to a person charged with a "major" crime. True, the consequences are much less,, but both cases may involve the liberty of the subject, and from that point of view, time in jail is as important as a term in the penitentiary. However, as noted above, this issue is now before the Supreme Court of Canada, and since a decision on that point is not essential to the determination of this appeal, I shall not pursue it further. So what do we have? We have here a constable who stops a car for "verification". The constable's curiosity -- or should I say suspicion -- is aroused by what he sees in the back, and he asks (perfectly properly) what there is under the cover. Certainly, up to that point, there is no illegality. However, the constable then, without asking, leans over and lifts a corner of the cover. That, as the Crown agrees, was an illegal search. Would the admission of the evidence so found bring the administration of justice into disrepute? The jurisprudence fails to give us clear guidance. Some have suggested a "community shock test",. but others think that this is wrong. Good faith was thought to be a reason for admission but, as I said before, this is no longer the case. "Technical" violations have been accepted, but no precise definition of that term can be had, although one can think of cases where, for instance, a

4 warrant was issued, but a name was misspelled. (1) In the end, then, it is the judge who must decide the issue, and he must do so in the light of the facts of each case. With this in mind, I ask myself whether a search such as this would bring the administration of justice into disrepute. With respect to those who differ, I hold the answer to be "yes". Most people would readily agree that peace officers are not entitled to search one's home -- one's castle, to use the ancient expression -- without proper authorization, be it by warrant or by statutory enactment. Most citizens, I think, would also agree that constables cannot, arbitrarily, search a person. (1) See, on this point, the very recent decision of the Supreme Court of Canada in Collins c. The Queen, No , April 9, In my view, the search of a car, which might be called an in-between situation, is equally repugnant. Had the constable asked for permission to search, the Appellant may or may not have consented. Had she refused, then,é in the absence of any reasonable and probable grounds to arrest her -- and neither curiosity nor suspicion is a proper ground -- she would have been entitled to go on her way once the constable had satisfied himself that her vehicle (for which she was originally stopped) functioned properly. No doubt, there are those who will say that this is but another instance where a criminal will go free because of the Charter. Perhaps it is, but I ask myself how this same person would react if his or her home were searched without a warrant, or if he or she were to be accosted on the street by a constable with the demand that he turn his pockets inside out or that she open her purse? The principle involved is greater than the case. The search was illegal and, for the reasons set out above, I would hold that, in the words of section 24(2), "the admission of (the evidence) in the proceedings would bring the administration of justice into disrepute". I would allow the appeal, and since there is no other evidence against the Appellant, a judgment of acquittal should be entered. J.A.OPINION DU JUGE JACQUES Dans les circonstances telles qu'exposées par le juge Kaufman, il y a eu violation de l'article 8 de la Charte canadienne des droits et libertés (Loi constitutionnelle de 1982). Les éléments de preuve obtenus par cette violation doivent être écartés au motif que "leur utilisation est susceptible de déconsidérer l'administration de la justice" suivant l'article 24(2) de la Charte).

5 Le geste du policier allait au-delà de ce qui est raisonnablement permis lorsqu'un policier arrête un automobiliste pour une vérification. La découverte n'a pas eu lieu alors qu'il vérifiait quelque chose qu'il était appelé à vérifier. Il s'agit d'un geste volontaire, posé peut-être de bonne foi, mais sans justification apparente. Pour juger s'il y a lieu de mettre de côté un droit reconnu par la Charte, il faut tenir compte, entre autres, de la nature des objets qui ont été ainsi découverts et du degré de gravité subjective de l'offense mise à jour. Dans ce cas-ci, l'administration de la justice serait déconsidérée (brought into disrepute) si la garantie juridique contre les fouilles abusives était mise de côté. J.C.A. OPINION OF ROTHMAN, J.A. I agree with my colleague, Mr. Justice Kaufman, that in the circumstances of this case, the admission of the evidence that?was illegally obtained by the police sould bring the administration of justice into disrepute and I agree with his reason for concluding that this evidence should be excluded under Sec. 24 (2) of the Charter. I would simply add a word to the reasons given by my colleague. This evidence was obtained as a result of a search that was clearly illegal and the Crown acknowledges that it was done in violation of appellant's rights under Sec. 8 of the Charter. While the police officer may not have been in bad faith, the breach of appellant's rights under the Charter was not merely a technical, trivial or inadvertent lapse. It was a deliberate act without warrant and without any reasonable cause in flagrant violation of appellant's rights. I would dispose of the appeal as my colleague suggests. J.A INSTANCE-ANTÉRIEURE (M. le juge Roch Lefrançois, C.S.P. Montréal , )