In R. v. Tim, 2022 SCC 12, April 14, 2022, the accused, during a motor vehicle accident investigation, was seen by a police officer trying to hide a small ziplock bag containing a single yellow pill. The officer recognized the pill as gabapentin, which he mistakenly believed was a controlled substance under the Controlled Drugs and Substances Act.  The accused was arrested.

After the accused was arrested, the police conducted four searches. They conducted a pat‑down search of the accused and a search of his car incident to arrest, through which they found fentanyl, other illegal drugs, and ammunition. A second pat‑down search was conducted after the police saw bullets fall out of the accused’ pants, during which a loaded handgun fell from the accused’s pants. Finally, the accused was strip searched at the police station but no more contraband was found.

At trial, the accused applied to exclude the evidence obtained during the searches. He argued that the arrest and the search violated sections 8 and 9 of the Charter. The trial judge dismissed the application, holding that the warrantless arrest did not violate section 9 of the Charter, as the officer had reasonable and probable grounds to believe that an offence had been committed. He admitted the evidence and convicted the accused of several drug and firearm offences. A majority of the Alberta Court of Appeal found no breach of section 8 or section 9 of the Charter and dismissed the accused’s appeal. An appeal was taken to the Supreme Court of Canada.

The appeal was dismissed. The Supreme Court held the “police breached s. 9 of the Charter by arresting the appellant based on a mistake of law about the legal status of gabapentin. They then breached s. 8 of the Charter by searching his person and car incident to the unlawful arrest. However, the subsequent pat-down search of the appellant was a lawful search incident to a parallel investigative detention for the traffic collision investigation. In addition, the strip search at the police station was a lawful search incident to arrest for possession of a prohibited firearm. Although all the impugned evidence was ‘obtained in a manner’ that breached the Charter, I would not exclude it under s. 24(2). The Charter breaches were at the less serious end of the scale of culpability and only moderately impacted the appellant’s Charter-protected interests. On the other side of the ledger, the evidence was reliable and essential to the prosecution of serious offences. In my view, weighing these considerations, the admission of the evidence would not bring the administration of justice into disrepute” (at paragraph 4).

Did the Police Infringe Section 9 of the Charter by Arresting the Appellant Based on a Mistake of Law?

The Supreme Court held that “an arrest based on a mistake of law is unlawful and infringes s. 9 of the Charter…Canadian law has long held that an arrest based on a mistake of law is unlawful, even if the mistake is made in good faith. The concept of ‘reasonable and probable grounds’ for arrest relates to the facts, not the existence of an offence in law.  A police officer makes a mistake of law when the officer knows the facts and erroneously concludes that they amount to an offence, when, as a matter of law, they do not” (at paragraphs 20 and 36).

The Supreme Court concluded that the “arresting officer’s subjective belief that he had reasonable and probable grounds to arrest the appellant was based on a mistake of law, and thus was not — and could not be — objectively reasonable. The arrest was consequently unlawful and arbitrary, contrary to s. 9 of the Charter” (at paragraph 39).

Did Any of the Four Searches Infringe Section 8 of the Charter?

The Supreme Court held that “the first two searches breached s. 8 of the Charter, but the third and fourth searches did not” (at paragraph 44).

The Supreme Court held that “the initial pat-down search of the appellant’s person and the search of his car incident to arrest falter” because “the appellant was not lawfully arrested. Thus, the first two searches necessarily breached s. 8 of the Charter” (at paragraph 50).

The Supreme Court concluded that the “third search was a lawful search incident to investigative detention relating to the traffic collision investigation…[The accused] was lawfully detained as part of a traffic collision investigation, even if he could not be lawfully detained as part of a drug investigation… When there are concealed bullets, there may be a concealed gun. The further pat-down search of the appellant’s person, in which the officer dislodged a loaded handgun by merely touching the outside of the appellant’s pants, was also conducted reasonably. This search did not breach s. 8 of the Charter” (at paragraphs 52, 59, and 64).

In relation to the strip search, the Supreme Court held that it “was incident to [the] weapons arrest, because it was for the purpose of discovering concealed weapons or evidence related to the offence for which the appellant was lawfully arrested…Strip searches unquestionably ‘represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them’… However, the strip search here was minimally intrusive, as it was conducted reasonably, in a manner consistent with this Court’s guidelines for strip searches…It was performed at the police station, it was limited to the appellant’s underwear waistband, and the appellant wore his underwear throughout the search…                        I therefore conclude that the strip search did not infringe s. 8 of the Charter” (at paragraphs 68 and 69).

Section 24(2) of the Charter:

The Supreme Court concluded that “admission of the evidence would not bring the administration of justice into disrepute” (at paragraph 99):

I have concluded that the first line of inquiry under Grant pulls weakly toward exclusion and the second does so moderately, but the third pulls strongly toward admission. In my view, on these facts, the final balancing does not call for exclusion of the evidence to protect the long-term repute of the justice system. A relatively inexperienced police officer made an honest mistake about the legal status of gabapentin, a prescription drug that is traded on the street and that the appellant tried to hide during a lawful traffic collision investigation. That led to an arrest and searches incident to arrest, and to the discovery of a loaded gun, ammunition, and fentanyl — a drug that has been described as “public enemy number one” (R. v. Parranto, 2021 SCC 46, at para. 93, per Moldaver J.). Excluding this evidence would simply punish the police — which is not the purpose of s. 24(2) — and would damage, rather than vindicate, the long-term repute of the criminal justice system.