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Rex v Zacharias: A Set Back for the Right to have Unconstitutionally Obtained Evidence Excluded

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Tyler Alviano and Michael Bury

The Supreme Court of Canada recently released its decision in R v Zacharias, a case dealing with whether Police conduct after an initial traffic stop breached the accused’s section 8 and 9 Charter rights.  In this case, although the accused’s Charter rights were found to be violated the Court declined to exclude this evidence under section 24(2), setting back individuals’ Charter rights and allowing greater latitude in allowing otherwise unconstitutionally obtained evidence to be admitted.

Factual Background

In February 2017, George Zacharias was pulled over for driving a truck with a burnt-out headlight and illegally tinted windows.  While conducting the stop, the officer made observations that aroused suspicion that Mr. Zacharias was transporting drugs.  Based on this suspicion the officer placed Mr. Zacharias under “investigative detention” and called for a sniffer dog.  Mr. Zacharias was placed in the back of the police car until the dog arrived.  The sniffer dog indicated that there were drugs present.  From this, the officer concluded that he had reasonable and probable grounds to arrest Mr. Zacharias for possession.  The police then searched the truck and discovered a large quantity of cannabis and cash, leading to another arrest for possession for the purpose of trafficking, and after a subsequent search he was arrested for a third time for possession of proceeds of crime over $5,000.

At trial Mr. Zacharias argued that the police had breached his section 8 and section 9 rights under the Charter to not be subject to unreasonable search or seizure and not to be arbitrarily detained, respectively.  On this basis he sought to have the drug evidence seized by the police excluded from trial under section 24(2) of the Charter.  The trial judge found that the police breached Mr. Zacharias’ rights under sections 8 and 9 of the Charter in conducting a sniffer search and investigative detention, but held that the evidence should not be excluded under section 24(2).  Mr. Zacharias was subsequently convicted.

On appeal before the Alberta Court of Appeal Mr. Zacharias argued the trial judge failed to consider whether the police’s conduct after these initial violations also breached the Charter. The majority of judges dismissed his appeal. One judge disagreed and would have excluded the evidence.  The Supreme Court of Canada dismissed Mr. Zacharias’ further appeal with three of the five judge panel agreeing that the additional breaches did not raise the seriousness of the state conduct at issue and on balance the evidence should not be excluded.


Section 24(2) of the Charter protects accused individuals from the introduction of unconstitutionally obtained evidence at trial where the admission of such evidence would bring the administration of justice into disrepute.  To determine whether such evidence ought to be excluded, a court will look at three factors set out in the decision of R v Grant: (1) the seriousness of the state conduct in breach of the Charter; (2) the impact of the breach on the accused; and (3) society’s interest in adjudicating the matter on its merits.

These three factors are considered together to determine, on balance, whether the evidence should be excluded.  Regarding factor (1), the Court evaluated the seriousness of the initial breaches, namely the sniffer dog search and investigative detention of Mr. Zacharias that set the sequence of events leading to subsequent Charter breaches into motion.  Through the analysis the Court concluded that the initial breaches were inadvertent and did not reflect a deliberate disregard for Mr. Zacharias’ rights, thus weighing in favour of a less serious breach.  Regarding factor (2), the Court considered the impact of the breaches on Mr. Zacharias’ Charter-protected interests.  Privacy-compromising interests, such as significant detentions and unreasonable searches, were considered substantial and significant.  This coupled with the impact on Mr. Zacharias’ liberty, autonomy and bodily integrity, weighed strongly in favour of exclusion of the evidence.  Last, factor (3), the Court considered whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence.  Here, given the facts of the case, the Court acknowledged the critical nature of the evidence and the seriousness of offences involving large quantities of drugs.  Accordingly, the Court held that the societal interest in adjudication weighed strongly favoured inclusion of the evidence.

In conducting this analysis, the Court considered all Charter breaches taking place throughout this scenario, including those consequential to the initial breach.  The court rejected the automatic exclusion of evidence in situations where there are consequential breaches and stressed the need to assess the cumulative seriousness of all conduct related to each breach of the accused’s rights.  In this case, the initial breach was found to be on the “less serious” end of the spectrum and the subsequent breaches did not raise the overall seriousness of the state conduct at issue.  Thus, on balance, given the cumulative view of the circumstances the Court concluded that the evidence should not be excluded, setting back individuals’ Charter rights.

It is worth noting that Justices Martin and Kasirer penned a strong dissent to this opinion that is more protective of individuals’ Charter rights and may be of value for future litigation on this issue.  In their view, Section 24(2) of the Charter directs courts to have regard to all the circumstances in determining whether admitting evidence would bring the administration of justice into disrepute.  In circumstances where there are consequential, linked or cascading breaches (such as this case), it necessarily results in more significant impacts of the Charter-protected interests of an accused.  All such breaches ought to be given weight under the Grant analysis.  Section 24(2) mandates assessing the cumulative, and potentially compounding, seriousness of all the conduct related to each of the violations at issue, therefore the seriousness of conduct related to all breaches must be considered even if some of them may be said to have been caused by earlier Charter violations. To treat consequential breaches as having an inconsequential effect on the seriousness inquiry would be a departure from settled law. Breaches that, in isolation, may appear minor or technical can contribute meaningfully to the seriousness of the misconduct that a judge must consider when deciding whether to admit or exclude evidence under s. 24(2).  A sequence of state conduct may undermine the rule of law more gravely than would each action, considered individually.  Applying this approach, according to the dissent, suggests that the evidence should be excluded.

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