R v Harrison, 2009 SCC 34 is a decision of the Supreme Court of Canada on section 24(2) of the Canadian Charter of Rights and Freedoms. The decision was a companion case of R v Grant, 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 with a friend near Kirkland Lake, Ontario. They were driving from Vancouver to Toronto. Constable Bertoncello of the Ontario Provincial Police observed that the vehicle had no front license plate, 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 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 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. 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 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 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.