R v. Sahota, 2026 BCPC 9
Background
In November 2021, police conducted surveillance on individuals believed to be street level traffickers as part of a dial-a-dope investigation, including surveillance on a suspected driver near a location referred to as Collings Place in Delta, BC. The lead investigator (the “Lead”) observed a white Acura MDX leased to the accused near Collings Place and formed the belief that the accused was operating and managing a stash house for the dial-a-dope operation.
By December 2021, the Lead concluded the suspects were aware of the surveillance at Collings Place, and he instructed team members to expedite the search warrant applications.
Shortly before 3:00 pm on December 2, 2021, the Acura arrived at Collings Place and parked in the driveway. Based on a “hunch”, the Lead decided to arrest the driver without knowing who it was. Another officer, at the Lead’s direction, drove his cruiser toward the driveway and blocked the vehicle. He then exited the cruiser and drew his firearm and pointed it at the driver who then identified himself as the accused.
After 25 minutes of discussion, the Lead, in consultation with his sergeant, decided to conduct a warrantless search of Collings Place to prevent the destruction of evidence. Using a key found on the accused, a team of officers conducted a warrantless clearing search that lasted two to three minutes.
Shortly after 4:00 pm, the search warrant arrived, which the officers executed immediately. During the execution of the search warrant, police located controlled substances in various kitchen cupboards, including 450 grams of cocaine and 481 grams of fentanyl, as well as three restricted or prohibited firearms, all of which were loaded or with readily accessible ammunition.
Pursuant to section 24(2) of the Charter, the accused sought the exclusion of the evidence located in Collings Place, the key found on his person, and all the evidence located from his vehicle.
Exclusion of Evidence
Section 24(2) of the Charter provides that evidence obtained in a manner that infringes other Charter protected rights must be excluded if, in all the circumstances, its admission would bring the administration of justice into disrepute. The Crown conceded the threshold elements of the test and the sole issue was the final balancing, which looks at three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter protected interests; and (3) society’s interest in the adjudication of the case on its merits.
Seriousness of Charter-infringing State Conduct
The first aspect of the test requires the court to assess the nature and gravity of the police conduct that infringed the Charter, assessed along a spectrum of culpability from inadvertent, technical or minor, to deliberate, willful, or reckless.
In this case, the trial judge found the police breached the accused’s section 8 and 9 Charter rights seven times over several days, including arbitrary arrest and warrantless searches of Collings Place.
While the Lead made the decision to arrest in a “reasonably dynamic” situation, the judge found that the prior police observations of the accused were “extremely limited”, consisting of being present at Collings Place for one day, and his vehicle being present on two days. Compounding the deficiencies was the Lead’s decision to make an arrest without confirming the accused’s identity or consulting his sergeant. The arrest of the accused was described as serious, careless and demonstrated insufficient regard for the accused’s section 9 rights.
The warrantless search of Collings Place, although brief, also constituted a breach of section 8. The 25-minute period between the arrest and police conducting the search diminished any purported urgency to preserve evidence as there was no specific indicia of urgency, as is required to establish the exigent circumstances required to justify a warrantless search. The risk of destruction of evidence was described as a “general concern that exists in virtually every drug investigation of this nature”.
In addition, the Court found that the gravity of the unreasonable search flowing from the invalid warrant fell in the middle of the seriousness spectrum, and that the Lead unintentionally gave misleading testimony by relying on facts not in his mind at the time he made the decision to arrest, and by trying to justify his conduct by “reshaping the factual matrix”.
In totality, the Court found the Charter infringing conduct to be serious and described a strong need to disassociate itself from the police conduct in this case.
Impact of the Charter-Protected Interests of the Accused
The second line of inquiry requires the court to assess the extent to which the Charter breach actually undermined the accused’s protected interests, ranging from technical to intrusive.
The Court ruled the accused’s arbitrary arrest, and the unreasonable search of his person and cellphone, all had a “very significant” impact on the accused’s liberty, privacy, and dignity. The Crown unsuccessfully attempted to argue that Collings Place was more akin to a warehouse as opposed to a residence, minimizing its impact on the accused. The Court concluded that Collings Place had been lived in, and that the accused had a reasonable, although reduced, expectation of privacy in that location. This factor also strongly favoured exclusion of the evidence.
Society’s Interests in an Adjudication on the Merits
The final aspect of a section 24(2) analysis requires the court to assess whether the truth-seeking function of a criminal trial would be better served by admitting the evidence or excluding it. In this case, exclusion of evidence would gut the Crown’s case and result in an acquittal.
While the public has a heightened interest in the prosecution of serious offences, the Court was careful to consider that the “short-term clamour for a conviction” must not give way to the potential long-term damage to the reputation of the administration of justice.
Given the impugned evidence was real, reliable, and critical to the Crown’s case, the third line of inquiry favored admission.
Final Balancing
On final balancing, the Court found that the first and second lines of inquiry both heavily favoured exclusion of evidence. Where these factors strongly support exclusion, the third factor rarely tips the scales. While exclusion of evidence may invoke immediate criticism, section 24(2)’s focus is on public confidence in the justice system, viewed in the long term. As a result, the Court concluded that the admission of evidence would bring the administration of justice into disrepute and would appear to condone the police misconduct.
R v. Cromwell, 2024 NSPC 53, 2025 NSCA 37
Background
In April 2023, the accused was involved in what was described as an “extreme act of road rage” that involved the pointing of a handgun. Police were called and performed a high-risk takedown of the accused. Following his arrest, he was handcuffed, and the officers performed a search of his person for weapons, finding nothing. They conducted a second search and again found nothing, before placing the accused in the back of their police car.
Coincidentally, at the same time, his mother was working in the area and police allowed her to speak to the accused through the open window of the police car. During their conversation, one officer described hearing what sounded like a plastic rustling noise. After the accused was taken to the police station, he was thoroughly searched. And again, the police did not locate anything on his person.
After leaving the accused alone in the interview room, police decided to perform a visual strip search in a room that was not subject to video monitoring. Four officers were present for the search. The accused allegedly stated he had nothing to hide but was told that force would be used if he did not comply. He removed all his clothing, and a large plastic baggie allegedly fell from behind. The accused was directed to turn around, and baggies were visibly noted in the crack of his buttocks. The accused was asked to remove the baggies himself but refused to do so. An officer removed the bags, and a total of 41 individual baggies containing crack or crack cocaine were located.
No formal report was prepared by any of the officers on the strip search, and one officer present did not prepare notes of his involvement despite being mentioned as present.
The accused was charged with possession of cocaine for the purpose of trafficking, and a number of other offences including assault with a weapon, possession of a prohibited weapon, uttering threats, and assault.
At trial, the accused challenged the constitutionality of the search, arguing that it violated his section 8 Charter rights, seeking a stay of proceedings.
Strip Searches
In R v. Golden, 2001 SCC 83, the SCC recognized that strip searches are inherently humiliating and cannot be carried out simply as a matter of routine policy.
In addition to the arrest being lawful and the search incidental to that arrest, police must establish they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. The strip search must also be conducted in a reasonable manner, following the principles set out in Golden.
Trial Decision
The only evidence police could point to in justifying the strip search was the officer hearing a plastic rustling sound while the accused was seated in the police car, and a generalized statement that drugs are often found in circumstances where firearms are seized. In this case, the trial judge found that the police did not have the required objective and subjective grounds to conduct the “most intrusive and degrading search available to police”, commenting that the police could have employed other investigative techniques following the three pat downs where nothing was found.
The trial judge also found that the strip search was not conducted in a reasonable manner, as:
- the granting of the strip search took seconds, with no formal documentation or checklist, and solely based on what one officer thought he heard;
- there was no need to have four officers present during the search as the accused was compliant at all times;
- the accused only removed his clothes as he was told force would be used, and not voluntarily;
- the strip search was carried out in a room with a door open as an officer was standing in the doorway;
- there was no structure to the search, and the accused was completely naked;
- a trained medical professional was not offered or requested when the accused refused to remove the baggies himself; and
- there were no notes taken despite four officers being present.
The trial judge found that, despite exclusion of evidence being an available remedy, the offensive and degrading conduct warranted a stay of proceedings in order to adequately address the harm done to the justice system.
Appeal Decision
The Crown appealed the trial decision on remedy and did not contest the judge’s conclusion that the strip search was unreasonable. The Crown argued that the judge erred in not limiting the stay to the drug charges, so that the weapons and violence related charges could proceed to trial.
The Court of Appeal found that the case involved two “discrete events”, the first being the circumstances of the arrest leading to the firearms and violence charges. That evidence was not connected to or “tainted” by the strip search. The Court ultimately allowed the appeal, and found that the trial judge erred, among other things, in failing to draw a distinction between the charges related to the gun and violence related offences when assessing an appropriate remedy for the section 8 Charter breach. The stay in relation to those charges was vacated and remitted to the Provincial Court for trial before a different judge.
Conclusion
In Cromwell, the drug related charges were stayed due to a lack of reasonable and probable grounds to conduct a strip search, and the unreasonable manner in which the search was conducted.
In Sahota, the judge acknowledged that the decision to exclude evidence would result in the accused being acquitted of very serious charges. She found that the following words from the Supreme Court of Canada in Le, 2019 SCC 34 at para 164, were apt to the case:
…those who feel this is the wrong result should understand that “[t]his unpalatable result is the direct product of the manner in which the police chose to conduct themselves” – and not of an indifference on the part of this Court towards violence, drugs, or community safety.
Cromwell and Sahota are examples of situations where police were ultimately correct in their theory but made fatal mistakes in the manner in which the searches were conducted. As made clear by the trial judgments, more investigation was required. Officers must be cognizant of the various ways in which they can infringe on Charter protected interests against arbitrary arrest and unreasonable search and seizure, and which can lead to the exclusion of evidence and ultimately a stay of proceedings.
If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.
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