R. v. Keel
R. v. Keel (No. 2)
Newfoundland District Court
Oral reasons: September 27, 1985
Counsel: David Day, Q.C., for the Crown
Wayne Dymond, for the accused
Barry, D.C.J. [orally]:
1 The principal questions raised by the accused's application under s. 24 of the Canadian
Charter of Rights and Freedoms for exclusion of his voluntary statements from the evidence
being adduced in this case by virtue of s. 24(2) of that section are as follows:
1. Having already found that the search of the accused's person in the van of Constable
Jagoe involved a detention within the meaning of s. 10(b) of the Charter so as to impose
an obligation upon him to inform the accused of his right to consult with and be advised
by legal counsel within the meaning of that provision, I have now to determine whether
the search of the accused's person was an unreasonable one within the meaning of s. 8 of
2. If in either or both cases the Charter rights of the accused were violated by the police
the infringements were of such a nature as to entitle the accused to a remedy under s.
24(1) of the Charter, am I required under subs. 2 of that section to exclude the evidence
of the accused's voluntary statement made two hours later at the police detachment at
Whitbourne, and also the black substance found in an envelope near the scene of the
search of the accused on the highway and the certificate of analysis of the content of that
substance alleged to be hashish.
2 First I will deal with the propriety of the search of the accused's person. It is well known that
such searches are, as a general rule, unlawful unless authorized by statute or permitted in special
circumstances under the common law. Constable Jagoe stated that the search was made under the
authority of the Narcotic Control Act, Revised Statutes of Canada 1970, c. N-1. Under s. 10(1) of
that Act searches may be conducted in any one of the following ways:
10.(1) A peace officer may, at any time,
(a) without a warrant enter and search any place other than a dwelling house, and under
the authority of a writ of assistance or a warrant issued under this section, enter and
search any dwelling-house in which he reasonably believes there is a narcotic by means
of or in respect of which an offence under this Act has been committed;
(b) search any person found in such place;
3 In this case, no search warrant or Writ of Assistance had been issued authorizing a search of
the vehicle in which the accused was found or the person of the accused. The search was
conducted upon the following grounds:
(a) The eyes of the accused were glassy and he appeared to be under the influence of a
(b) The accused and his companion acted suspiciously; and
(c) Information obtained by Constable Corcoran as a result of a computer search through
his police information centre.
Of these three grounds, I discount the third one because the contents of the radio message
received in response to the Constable's request for a records search was not given in evidence.
The first two were grounds of suspicion only, without factual basis other than observation of the
appearance and conduct of the accused. There are three principal grounds which in, my view,
would justify a search without a warrant:
1. Where an arrest is being made.
2. Where the consent of the accused was obtained.
3. In circumstances demanding immediate search, where it is impractical to obtain a
warrant providing the police officer had reasonable grounds upon which to base his belief
that there were narcotics in the motor vehicle or upon the person of the accused.
4 Here, consent for a body search was not given; there were no grounds to justify an arrest;
and there was no urgency requiring the police to conduct a body search at that time or at that
place. There is no doubt in my mind that in these circumstances the search was unlawful.
5 The next question is whether the search was unreasonable in the circumstances. Some
authorities equate unreasonableness with illegality. No doubt this may be generally true, but in
my view, not always. One can envision reasonable searches which may, nonetheless, be illegal
and illegal searches which may be reasonable; such as the case where the illegality may arise
through a technical error. All the circumstances of the search must be considered. The type of
search conducted is a factor to be taken into account when considering the gravity of the
violation of the Charter. A strip search is an extreme measure to adopt to ascertain whether a
person is in possession of a narcotic. In this instance, it involved the accused having his clothing
removed in a suburban type motor vehicle visible to passers by. At the time the search was
conducted, the constable had no reason to believe that the accused was carrying a narcotic on his
person. In fact, the search proved this not to be the case. Accordingly, I have concluded that the
search was not only unlawful, but it was unreasonable in the circumstances.
6 If, in fact, reasonable grounds for the search had existed at that time, Constable Corcoran
could have arrested the accused and then conducted him to his detachment where a proper search
could have been carried out. This search was, in my view, a breach of s. 8 of the Charter of
Rights, which guarantees to all citizens the right to be protected against such searches in the
following terms and I quote:
8. Everyone has the right to be secure against unreasonable search or seizure.
The search involved an unlawful detention and although no detention should have taken place in
those circumstances, nevertheless, the police having embarked upon such course should have
advised the accused before commencing the search that he would have an opportunity to consult
legal counsel and be informed of his rights. Section 10(b) of the Charter guarantees such a right
and the deprivation of it was a flagrant breach of the Charter. I quote that provision as follows:
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right.
7 I have to consider whether these infringements require me to find that the accused is entitled
to a remedy under s. 24(1) of the Charter and particularly whether the appropriate remedy is the
exclusion of the voluntary statement of the accused along with the black substance alleged to be
hashish and the certificate of analysis. In so doing, I must again take into account all the
circumstances of the occasion from the time the car in which the accused had been travelling was
stopped by the police until his voluntary statements were made. In doing so, I have arrived at the
1. That the violation of the accused's Charter rights are sufficiently grave to warrant an
application on his part under s. 24(1) of the Charter.
2. The actions of the police constables at the time of these violations in detaining the
accused and in conducting an unlawful strip search, were such as would bring the
administration of justice into disrepute.
3. That in my view, the accused is entitled to pursue a remedy under s. 24(1).
4. That there is no connection between the violations of the accused's Charter rights, as
mentioned above, and a subsequent finding of a black substance said to be hashish. This
substance could have been found and would likely have been found by Constable Jagoe
in any event. Nor is there any evidence to suggest that the voluntary statement of the
accused was obtained or influenced by these violations, considering that it was made after
he was given a police caution and advised of his right to counsel and that approximately
two hours had elapsed since the body search. In arriving at this conclusion, I have also
taken into account the fact that the accused has not stated that the violation of the Charter
right has in any way prejudiced him in respect of the subsequent proceedings at the police
8 In view of these conclusions, I do not believe that the admission of the evidence sought to be
excluded, although of a nature to bring the administration of justice into disrepute, nevertheless,
would not cause such a community shock as to cause it to cry out for the exclusion of all
evidence subsequently obtained. If a causal connection existed showing prejudice to the accused,
I would take a different view, but such is not the case here. Furthermore, if a lack of good faith
on the part of either of the two constables were established, a different situation would have to be
dealt with. There is no evidence of bad faith on the part of either of the police officers here;
perhaps overzealousness, misguided feelings of urgency or even culpable ignorance, but no
grounds upon which to make a finding of bad faith. I think the community would disapprove of
the peremptory manner in which the accused was first dealt with by the two constables and I
think they would feel that some action should be taken to prevent reoccurrence. However, it is
well known that the possession and the trafficking of drugs in our society are amongst the major
criminal activities with which the police have to contend. It is also well known that these crimes
are regressive and have a demoralizing effect upon society as a whole and upon the maintenance
of law and order.
9 Surely, in such a case as this where the evidence proposed by the prosecution was not
obtained through any violations of the Charter, the exclusion of such evidence is not in the
public interest, nor do I believe the public would condone it. Having said that, I find that the
accused has established that there was a violation of his rights and is entitled to a remedy but not
to a remedy consisting of the exclusion of evidence unconnected with the violations.
10 The most recent authority upon this point is R. v. Therens,  1 S.C.R. 613, 59 N.R.
122, 40 Sask.R. 122,  4 W.W.R. 286; 18 C.C.C.(3d) 481; 18 D.L.R.(4th) 655; 32 M.V.R.
153; 45 C.R.(3d) 97, where it was held by Estey, J., with the concurrence of Judges Beetz,
Chouinard, and Wilson that the evidence directly obtained by a Charter violation in that case
should be excluded since the police had violated a fundamental right of the accused. I quote the
statement of Estey, J., at page 107 C.R. as follows:
I fear the police flagrantly violated a Charter right without any statutory authority for so
doing. Such an overt violation as occurred here must, in my view, result in the rejection
of the evidence thereby obtained. We are here dealing only with direct evidence or
evidence obtained directly and I leave to another day any consideration of evidence
thereby indirectly obtained.
In the same case Lamer, J., with the concurrence of Dickson, Chief Justice stated:
That in order to meet the requirements for exclusion of evidence under Section 24(2) not
only must there be a violation of a Charter right, but there must be some connection or
relationship between the infringement and the obtaining of evidence.
As to what may be a proper remedy for the infringement of the accused's Charter rights in this
case, I am prepared to hear counsel again at a later stage in the trial. In dealing with the matter I
would like to hear the views of counsel as to whether this court is a court of competent
jurisdiction within the meaning of s. 24(1) of the Charter, bearing in mind that this is
fundamentally a court of criminal jurisdiction. So constituted under the Criminal Code to deal
with criminal matters. It may well be that the appropriate remedy in this case is a civil remedy.
However, I will leave it to counsel to deal with it as they may wish at a later stage.
11 So following upon these considerations, I must hold that while the application under s.
24(1) is in order, yet the further application under subs. (2) of that section is rejected.
END OF DOCUMENT