Another day another Charter violation

Law360 Canada (February 11, 2025, 11:01 AM EST) --

John L. Hill

 A June 9, 2022, Toronto Star investigation by Rachel Mendleson and Steve Buist with the help of Western University’s Law School examined more than 600 cases and found that police are not often told when judges find they violated the Charter. Further, the reporting found that officers rarely face consequences. Yet Charter violations continue to occupy Appeal Courts’ dockets.

Consider the case of Khamphou Khamvongsa, whose appeal was recently decided by the British Columbia Court of Appeal (R. v. Khamvongsa, 2025 BCCA 33), handed down on Febr. 5.

In May 2019, Vancouver Police received information from confidential informers that three drug traffickers were operating out of three apartments in buildings located on East Hastings Street. Khamvongsa was named as one of the alleged traffickers and was accused of working with two others. He lived in one of the apartments along with his mother and sister.

At trial, a voir dire was held to determine if the justice authorized to grant a search warrant was satisfied that there were reasonable grounds to believe an offence had been committed under the Controlled Drugs and Substances Act. It was found that the Information to Obtain (ITO) the search warrant contained no direct evidence from anyone that a drug offence would be found in Khamvongsa’a apartment. Nor did the ITO provide a basis to assess the credibility and reliability of the police informants. The judge found that the affiant who prepared the ITO specified “erroneous and misleading” facts. After making findings of fact, the trial judge concluded that the warrant could not survive scrutiny under s. 8 of the Charter (the right not to be subject to unreasonable search and seizure).

Once a violation of s. 8 was found, it was to be decided if Charter s.  24(2) should be invoked to exclude the evidence obtained from the search at trial. The trial judge examined the Supreme Court of Canada's decision in R. v. Grant, [2009] 2 S.C.R. 353. That inquiry necessitated first determining the seriousness of the Charter-infringing state conduct; secondly, the impact on the Charter-protected interests of the accused; and thirdly, society's interests in the adjudication of the case on its merits with the burden resting with the accused to show that the evidence’s admission would bring the administration of justice into disrepute. On the first issue, the judge found no bad faith in the writing of the affidavit or a deliberate attempt to mislead the court. There was an intrusive search of the accused’s unit, but the judge remained unconvinced that admission of the seized evidence would bring the administration of justice into disrepute. The evidence was admitted, and Kharmvongsa was convicted. He then appealed.

His appeal was based on the ITO's misleading nature and his belief that admission would discredit justice.

The Appeal Court looked to R. v. Morelli, 2010 SCC 8, where a charge of possessing child pornography was quashed after finding the ITO was carelessly drafted, materially misleading and factually incomplete. To emphasize the importance of complete disclosure in the drafting of an ITO, the Appeal Court quoted and emphasized from Morelli these words: “… Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.” The court also cited R. v. Booth, 2019 ONCA 970, to the same effect. Complete and honest information is crucial. It was pointed out in R. v. Araujo, 2000 SCC 65 that ex parte warrant applications are not adversarial. Without cross-examining the contents, the judicial officer must depend on the affiant to make full and fair disclosure.

After a careful review of pertinent authorities, the Court of Appeal concluded that the trial judge’s s. 24(2) analysis reflected a material error in principle warranting the setting aside of the order, quashing the conviction, and ordering a new trial. This will result in further delay and be costly to the accused and the province of British Columbia.

Would the drafting of ITOs be more precise if costs were assessed against the Vancouver police in such cases? There is no indication that the results of this appeal were publicized in local media. As the Toronto Star investigative report found, in most provinces and territories, there are no formal systems to ensure that police forces — or the officers themselves — are notified of these rulings. Even in the most egregious cases, consequences for the officers involved appear rare.

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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