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| John L. Hill |
Before entering his plea, he moved to exclude the evidence of the two firearms, alleging that his ss. 7 and 8 Charter rights had been breached. The s. 8 argument failed, with no unreasonable search being found. However, the trial judge accepted that the defendant's right to security of the person, protected by Charter s. 7, had been breached due to the improper deployment of the police service dog. Although the evidence was not excluded, a 48-month sentence was reduced by 11 months. The Crown appealed.
Jaramillo received a global sentence of 37 months at trial, which was further reduced to 12 months with 25 months of credit for time already served. The remaining 12 months were ordered to be completed, with four months in custody and an eight-month conditional sentence comprising four months of house arrest and four months under a curfew. Two years probation would follow.
A warrant was issued on Dec. 22, 2022, on the basis that Jaramillo had committed an aggravated assault on Dec. 9. Police received a tip that Jaramillo could be located at a public storage facility in Campbell River on Jan. 7, 2023. Police were dispatched, including a police service dog named Norco and its handler, Constable England.
During the arrest, Norco remained on a leash under the control of Constable England. He barked and behaved in a manner that caused Jaramillo to feel highly threatened. Nonetheless,
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The trial judge agreed. He observed that, while no one was bitten or physically injured, it did not follow that the deployment of the dog was “well-reasoned.” This deprived Jaramillo of his right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
There were proper grounds for the arrest warrant. However, the court questioned if the RCMP deployment of a police service dog (PSD) in arresting Jaramillo was reasonable. The Appeal Court agreed in its reasons that a degree of institutional nonchalance concerning the use of a Police Service Dog in effecting an arrest was exhibited. (R. v. Jaramillo, 2025 BCCA 77)
Despite the opportunity to make a considered or reasoned decision about when and whether to involve a PSD in the execution of this warrant, this did not occur. Instead, the record revealed a specific presumptive use of the PSD whenever Cst. England responded to a call.
The lawfulness of an arrest under a valid arrest warrant depends upon the reasonableness of the manner of execution chosen by the police. The court held that this approach is necessary to ensure the personal safety of the accused, the officers and the public, which may be nearby.
In this case, there was no formal or informal risk assessment supporting the use of a police service dog.
The actions of the police created a real risk of harm to Jaramillo.
With the barking dog in very close proximity to Jaramillo, there was confusion between what Jaramillo did and what the dog handler expected before turning the dog on Jaramillo. In these particular circumstances, the detachment did not employ any process during the period to consider whether a police service dog should be used, and the specific circumstances here constituted a breach of Jaramillo’s s. 7 rights. The Appeal Court cited R. v. Cao, 2008 BCSC 139 as authority for the proposition that police action during the execution of a warrant requires consideration of the safety of everyone who may be involved.
The record revealed a degree of institutional nonchalance concerning the use of a Police Service Dog in effecting an arrest. The police failed to consider whether the use of a PSD was warranted. Instead, there was “a certain presumptive use of the PSD whenever Cst. England responds to a call.”
Nonetheless, it was not open to the judge to concern himself with what he perceived to be institutional nonchalance in the absence of a supervisory risk assessment before executing the warrant. There was no basis for determining that this constituted an abuse of process or offended the principles of fundamental justice, the second step in the s. 7 analysis.
There are cases where the use of a PSD was permitted even when an accused person had been bitten (R. v. Sharkey, 2022 BCPC 61, and R. v. Roberts, 2018 BCPC 358). Was the decision to bring the dog reasonable? It comes down to a determination of proportionality and reasonableness. The proper focus should have been on Constable England’s decision to attend with the dog during the arrest rather than remaining in the background while others were involved.
The Appeal Court accepted England’s explanation of why Norco’s presence was advisable and concluded that the judge erred in law and principle in his assessment of whether the respondent’s arrest had breached his s. 7 right to security of the person.
It is open when the state misconduct in question relates to the circumstances of the offence or the offender, allowing the sentencing judge to take the relevant facts into account in crafting a suitable sentence without having to resort to s. 24(1) of the Charter. Indeed, state misconduct, which does not amount to a Charter breach but which affects the offender, may also be a relevant factor in determining a suitable sentence.
With this error, the appeal was allowed, and the sentence was varied. Jaramillo will spend 23 months in custody, followed by two years of probation.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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