Admissibility of controlled substances found in breach of fundamental protections against illegal detention, search and seizure.

R v Aucoin, 2012 SCC 66 (30 November 2012)

The Canadian Supreme Court found that, although minor vehicle infractions should not lead to the detention of the driver or the search and seizure of their property, and that those actions are in breach of the driver’s fundamental rights, the particular circumstances of this case are such that the seized substances, in this case cocaine, are admissible as evidence.


A young man, A, was pulled over by local police when a discrepancy concerning the licence plate was noted. The constable, when asking for the A’s information, smelled alcohol on his breath and asked the driver to get out of the vehicle and go to the police car to provide a breath sample. The results were well below the legal limit but in breach of the provincial zero-tolerance policy for newly licensed drivers.

It was dark, and the constable needed the police car’s interior light to write out the ticket for the motor vehicle infraction. He decided to place A in the police car’s locked rear seat while he wrote out the ticket in the front seat in order to ensure that A not walk away into the crowd that was present that night for a local festival. Before placing him in the rear seat, the constable performed a pat-down search for weapons. He found a hard object in A’s left front pocket and asked him what it was. A replied that it was his wallet. The constable continued the search and felt a soft object in A’s right front pocket. He asked A what it was, and he replied that it was ecstasy. A was then placed under arrest and two baggies containing pills and eight baggies containing a white powdered substance were retrieved from his pocket.

The white powdered substance was later analysed and determined to be cocaine. The pills were analysed and determined not to be a controlled substance. A was charged with one count of possession of cocaine for the purpose of trafficking and one count of possession of a substance held out to be ecstasy for the purpose of trafficking.

A filed a notice alleging that the pat-down search had violated his right, guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, to be secure against unreasonable search and seizure. He asked that the drugs seized as a result of that search be excluded from evidence pursuant to s. 24(2) of the Charter. The trial judge ascertained that A’s Charter rights had not been breached and that the evidence was admissible. A was later convicted on the first count and acquitted on the second, and sentenced to two years imprisonment. He appealed both his conviction and his sentence to the Nova Scotia Court of Appeal. The majority of the Court of Appeal dismissed the appeal, but Beveridge J.A. dissented. A then appealed to the Supreme Court of Canada.

Supreme Court’s ruling

The majority of the Supreme Court found that there was a breach of A’s fundamental rights, but that this breach was not sufficient to exclude the drugs seized from evidence under s. 24(2) of the Charter.

The Court found that although there was a breach of A’s rights because the constable could have found other reasonable means to ensure that A would not flee the scene, and therefore detaining him in the police cruiser was not reasonably necessary, thus constituting unlawful detention under s. 9 of the Canadian Charter of Rights, the breach was attenuated by the good faith of the constable, the fact that the law surrounding police powers in the detention context is still evolving, and finally society’s interest in having this case tried on the merits.

The dissenting view of the Court (two of the seven Supreme Court Judges) however found that it was not reasonably necessary for the constable to detain A in the rear seat of a locked police car in order to write out the summary offence ticket. Less intrusive alternatives existed. Furthermore, even if the detention had constituted a lawful exercise of police powers, it was not reasonably necessary to perform the protective pat-down search. The evidence found as a result of the search was therefore obtained in violation of Mr. Aucoin’s Charter rights. In the circumstances of this case, admitting the evidence would bring the administration of justice into disrepute. The dissenting judges would accordingly exclude the evidence and enter a verdict of acquittal.


Individual rights and liberties are regularly put into balance with “the interests of society” and the policing powers that enforce it. However it is important to remember that it is in the interest of society to secure our human rights. Even if in individual cases such as this one it may seem unfair to let someone off when he was found with controlled substances, it is by making exceptions in individual cases that we set dangerous precedents for our freedom.

The finding of the court that there was indeed a breach of A’s fundamental rights, but that that breach can somehow be attenuated to allow the evidence that was seized as a result of that breach seems somewhat incoherent. It is essential, as the dissenting judges state in their decision, that “absent some statutory exception, the police can only interfere with liberty or privacy interests on reasonable and probable grounds”, and “to admit the evidence would be to condone a situation in which a police officer can insist, without any grounds, that a person be detained in the locked rear seat of a police car and, also without any grounds, that the person be searched. The effect would be to significantly erode public confidence in the rule of law.”

The dissenting opinion echoes the landmark decision for the operation of the Victorian Charter of Human Rights and Responsibilities Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009). Warren CJ of the Supreme Court of Victoria observed that the right to a fair hearing (and the privilege against self-incrimination) are

…rights which define the relationship between the individual and the state and protect people against aggressive behaviour of those in authority.  They reflect the philosophy that the state must prove its case without recourse to the suspect.  They are fundamental to the criminal justice system and their importance should not be underestimated.

The decision can be found online:

Candice Van Doosselaere is a volunteer at the Human Rights Law Centre.