Tim: Some Welcome Clarifications, Diluted by a Tepid Exclusionary Decision
Unlawful Arrest, Supreme Court of Canada, Evidence, Mistake of Law
In R. v. Tim,' the Supreme Court of Canada has provided clear direction on two major issues: most importantly on whether arresting an accused based on a mistake of law is unlawful and subsidiarily on what is needed to demonstrate that evidence was "obtained in a manner that breached an accused's Charter rights so as to trigger s. 24(2). The Court was unanimous in determining that "an arrest based on a mistake of law is unlawful and infringes s. 9 of the Charter." In what amounts to more of a restatement, as opposed to a doctrinal shift, Tim reinvigorates its "generous approach to the 'obtained in a manner' threshold requirement. Unfortunately, as has happened before, these auspicious holdings are undermined by the decision to admit the evidence notwithstanding three Charter infringements: *a breach of s. 9 in the appellant's unlawful arrest; and two breaches of s. 8 in the unreasonable search of the appellant's person and car incident to arrest." Only Brown J. dissents on admissibility, principally on "the seriousness of the Charter-infringing conduct, where he follows the analysis of Veldhuis J.A., who had found a lack of good faith and a failure both to use investigative detention powers and to make further inquiries about the seized substance.
Promisingly, the Court succinctly disposed of the Crown submissions that posited "a fundamental difference between an error going to the scope of the law, and the legal application of the facts to the law 8 and that contended the necessary connection between the breach and some of the evidence was interrupted to render its seizure too remote. However, despite their acceptance that the seriousness and impact criteria of Grant! pulled towards exclusion in varying degrees, the majority concluded that the societal interest in adjudication and the final balancing did "not call for exclusion of the evidence to protect the long-term repute of the justice system." Unfortunately, their findings and reasoning continue the reification of several now deeply embedded concepts in s. 24(2) analyses that were worthy of further scrutiny in general and in their application in this case. The notions that exclusion of evidence "would simply punish the police and that the alleged inexperience of the police officer somehow attenuated the seriousness of the Charter-infringing state conduct were accepted uncritically. Further, the ready characterizations of his misapprehension as "human error, plain and simple," "an honest mistake," implicitly neither derived from "negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards, nor resulting from "a systemic problem or lack of training in the Calgary police force" are arguably inaccurate and do not contribute to the repute of the justice system.
H Archibald Kaiser, "Tim: Some Welcome Clarifications, Diluted by a Tepid Exclusionary Decision" (2022) 79 CR (7th) 112.