Le consentement à la fouille d'un accusé peut être vicié en raison d'information erronée transmise par la police concernant la possibilité de le retenir jusqu'à l'arrivée d'une unité canine

R. v. Bergauer-Free, 2009 ONCA 610

Lien vers la décision

[53]         With respect, the motion judge failed to bring the proper considerations to bear in assessing whether the appellant’s “consent” was fully informed and meaningful. On this record, taking the Crown’s case at its highest, those preconditions could not, in my view, be satisfied.

[54]         The appellant’s “consent” was not fully informed because Officer Yousif led him to believe that if he did not consent to the search of his trunk, he could be lawfully detained pending the arrival of the canine unit. That of course, was not accurate; on the contrary, it was misinformation. And that is the context against which Officer Yousif’s comment about bringing in the canine unit must be assessed.

[55]         Leaving aside the fact that in the circumstances, any “search” carried out by the canine unit would itself have been unconstitutional (see R. v. Kang-Brown, [2008] S.C.C. 18), Officer Yousif had no lawful authority to hold the appellant for an additional moment beyond the time required to finalize the traffic ticket. Far from making that known to the appellant and giving him the choice to leave immediately, Officer Yousif led him to believe that he could be kept there pending the arrival of the canine unit. And he did so because he was not about to give up on his “gut instinct” that there was something in the trunk; rather, as he acknowledged, he was going to find out “one way or the other” what was in there.

[56]         How, in these circumstances, the appellant’s purported consent could be said to be “fully informed” escapes me. Telling the appellant that the canine unit could be called in carried with it the connotation that he could be lawfully kept there until it arrived. That was misinformation, hardly the stuff that makes for a finding of “fully informed” consent. Standing alone, that would be sufficient to vitiate the appellant’s purported consent.

[57]         On the facts of this case, however, the misinformation had the further effect of eviscerating any meaningful choice the appellant had available to him. Translated, the message he received from Officer Yousif was: - you can refuse to consent but it will do you no good because I will bring in the canine unit regardless. That amounts to what the United States Supreme Court referred to in Bumper v. North Carolina, 391 U.S. 543 (1968), as “colorably lawful coercion”.  And, as Stewart J. for the majority observed at p. 550: “Where there is coercion, there cannot be consent”. I agree.

[58]         Officer Yousif had no authority to hold the appellant while he brought in the canine unit.  His erroneous representation to the contrary rendered the appellant’s right to withhold his consent illusory and effectively left him with no choice at all. In my view, that too vitiated his purported consent.

[59]         It follows that on this record, taking the case for the Crown at its highest, had the motion judge brought the proper considerations to bear, he could not reasonably have concluded that the appellant fully consented to the search of his trunk and thereby waived his s. 8 rights. Accordingly, that finding cannot stand. Rather, the search of the appellant’s trunk amounted to a violation of his rights under s. 8 of the Charter.

Remedy

[60]         As indicated, in view of my conclusion that the search of the appellant’s trunk was unlawful and constituted a violation of his s. 8 rights, the motion judge’s alternate determination that the handgun was admissible under s. 24(2) is not entitled to deference. While counsel for the appellant invited us to redo the s. 24(2) analysis and make our own determination, in my view, this is not an appropriate case to do so.

[61]         Accepting that the handgun was obtained in a manner that breached the appellant’s rights under s. 8 and s. 9 of the Charter, it is open to question whether the appellant was made aware of his rights to counsel under s. 10(b) of the Charter before he opened the trunk. Without wishing to prejudge the outcome of the s. 24(2) motion at the new trial, that could be a significant factor in assessing the bone fides of Officer Yousif’s conduct and the overall seriousness of the s. 8 and s. 9 breaches and their impact on the appellant’s Charter-protected interests. Also, although Officer Yousif had no legal right in the circumstances to bring in the canine unit, the law on that subject was not entirely clear at the time of the incident and Officer Yousif’s understanding of it is not spelled out in the record. I am not in a position to make those and other assessments that will no doubt figure in the s. 24(2) analysis having regard to the Supreme Court’s recent decision in R. v. Grant, supra.

 

[62]         Accordingly, I would allow the appeal, set aside the conviction and order a new trial.