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| John L. Hill |
Wesley James contested his conviction in Superior Court for trafficking crack cocaine and possessing that drug and fentanyl. The crack cocaine was seized in a convenience store when James was arrested. A search of his car led to the confiscation of cash and scales. More drugs were found in his pants when he arrived at the police station.
The trial judge accepted the evidence of the arresting officers that James was observed selling a small quantity of crack cocaine by placing it on a store shelf. This conduct led to the arrest and subsequent searches. He was convicted and sentenced to three and a half years
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James had raised violations of his Charter rights (ss. 8, 9, and 10(b)) at trial. The trial judge found infringement but chose to reduce the sentence rather than allow a s. 24(2) Charter application to exclude evidence. James appealed.
At trial, James argued that his s. 8 rights not to be subjected to unreasonable search and seizure were breached when the officers admitted that the car search was conducted without a warrant. The trial judge commented that the police had taken a “rather cavalier attitude toward [James’] Charter rights,” which was made more serious by the police being dishonest about the reason for the search. The trial judge also accepted that James had asked to speak to counsel but was denied the right under s. 10(b). Indeed, the trial judge found the arresting officer was dishonest in his testimony about interactions with his client.
The Court of Appeal held that the trial judge erred in applying what has become known as the Grant test to determine whether evidence should be excluded under s. 24(2) of the Charter, given that ss. 8 and 10(b) had been found to have been violated. The Supreme Court of Canada's decision in R. v. Grant, 2009 SCC 32, provided a three-pronged test to determine whether evidence should be excluded. The officers' bad faith in searching and questioning James was a serious infringement, strongly favouring the exclusion of the evidence.
However, the trial judge also believed the drugs would have been found after he was booked into the police station. The second prong looks at the seriousness of the Charter-infringing behaviour. The drugs in the car and on his person were found earlier; the Charter violation speeded up the time when the drugs were found. The drugs found in the vehicle were excluded, but the drugs found in James’ clothing were admitted.
The third prong, which deals with whether the truth-seeking function of the criminal trial process would be better served by admitting the evidence, was found to favour allowing the evidence.
The Appeal Court found that, although a trial judge’s Grant analysis should be given deference, it can be reversed if there is an error in principle or an overriding factual error (R. v. Truong, 2025 ONCA 69).
In its review of the trial judge’s Grant analysis, the Appeal Court found that, although the first prong favoured exclusion, the trial judge underestimated the seriousness of the police misconduct. During this arrest, a pattern of cumulative Charter breaches emerged, which increased the severity of the Charter-infringing state conduct (R. v. Zacharias, 2023 SCC 30).
The trial judge failed to consider the impact of the police officers’ dishonesty. Police dishonesty exacerbates the seriousness of Charter breaches, and it is incumbent on the courts to dissociate themselves from such behaviour (R. v. Harrison, 2008 SCC 34; R. v. Lai, 2019 ONCA 420; R. v. Pino, 2016 ONCA 389).
The trial judge also erred in analyzing the second Grant factor. Although the contraband might have been discovered later, the trial judge failed to recognize that the violation of s. 10(b) rights led to a statement being elicited and an intrusive search (R. v. Jarrett, 2021 ONCA 758; R. v. Whittaker, 2024 ONCA 182).
The trial judge failed to perform the balancing necessary under the third prong. The court must consider and weigh the balance against the truth-seeking interests of the criminal justice system and the need to dissociate the justice system from police misconduct.
The Court of Appeal agreed that by placing crack cocaine on the shelf, he did commit trafficking. However, the Charter breaches meant that evidence found in the car and on his person was deemed inadmissible. The second and third counts of the three-count indictment must be set aside, and acquittals granted.
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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