THE LAWYERS WEEKLY
June 3, 2011 | 13
Top court fails
to set clear
search and
seizure limits
BENJAMIN
GOOLD
Crown policy on
domestic violence
Zero tolerance or one-size-fits-all?
I was recently accosted by an angry
former client in the hallway of my
city’s provincial criminal court. This,
in itself, is not unusual. But on this
occasion she was not angry at me, and
she was not there as an accused criminal; rather, she was the complainant
in a “domestic” assault case. Her husband was the accused. And her anger
was directed at the Crown attorney (or
more specifically the Victim Witness
Assistance Program, the Ontario
Crown’s long-suffering proxy for the
purposes of such cases).
In a criminal case, the complainant
and the Crown attorney are supposed
to be on the same side, so this should
have struck me as out of the ordinary.
But it didn’t—because it wasn’t.
The rigorous Crown and police
policy that has surrounded cases of
alleged domestic violence, particularly
since the time of Ontario’s 1998 Arlene
May/Randy Iles inquest, often leaves
NEIL
MCCARTNEY
the Crown fighting the case on two
fronts: the accused on the one, the
complainant on the other.
My former client had three complaints: (i) she wanted the charge withdrawn (it was an argument that escalated into a shoving match)—and the
Crown wouldn’t do it; (ii) she wanted
deletion of the bail condition barring
her husband from living with her in
their marital home—and the Crown
wouldn’t do it; (iii) she wanted deletion
of the bail condition barring him from
communicating with her—and the
Crown wouldn’t do that either.
When a complainant is dissatisfied
with the prosecution of a “domestic”
case, these are probably the three most
common reasons why.
On May 5, the Supreme Court
of Canada (SCC) missed yet
another opportunity to clarify
what is meant by “good faith” in
the context of s. 24( 2) of the
Charter. In upholding the decision of the Court of Appeal for
Alberta in R. v. Loewen, [2011]
S.C.J. No. 100, the SCC reconfirmed its commitment to the
principles established in R. v.
Grant, [2009] S.C.J. No. 32 and
failed to impose clear limits on
the search and seizure powers of
the police in Canada.
In Loewen, the accused was
stopped for speeding and subjected to a pat-down search
after the officer smelled freshly
burned marijuana coming from
his car. After finding $5,410 in
cash in the accused’s pocket, the
officer then arrested him for
possession of a controlled substance and searched his vehicle.
The search uncovered 100
grams of crack cocaine, and the
accused was convicted of possession of cocaine for the purposes of trafficking.
At trial, the court ruled that
the officer had reasonable
grounds under s. 495(1)(a) of the
Criminal Code for the arrest,
and the search of the accused’s
vehicle did not constitute a
breach of the Charter. The court
also went further, stating that
even if the arrest and subsequent
vehicle search had been unlaw-
ful, the officer had acted in good
faith, and therefore, according to
Grant, the evidence should be
admitted under s. 24( 2) of the
Charter. In the words of the trial
judge, “I do not view the Charter
breach as serious. The officer, in
my view, acted in good faith. The
accused had a reduced privacy
interest in the vehicle, both
because a vehicle was searched
as opposed to a home, and
because the accused was not the
owner of the vehicle.”
In many ways, the decision of
the SCC to dismiss the appeal in
Loewen is unremarkable. Agree-
