Law360 Canada (August 28, 2026, 11:14 AM EDT) --

John L. Hill

A recent Newfoundland and Labrador Court of Appeal decision demonstrates the sometimes difficult balance between protecting Charter rights and ensuring that serious criminal charges are decided on their merits.

In R. v. Parsley, 2026 NLCA 23, the Crown appealed the acquittals of five people charged with drug-trafficking offences after a provincial court judge excluded nine kilograms of cocaine found hidden inside a freight crate. The Court of Appeal, in reasons delivered by Chief Justice Daniel M. Boone, agreed with the trial judge that police had violated s. 8 of the Canadian Charter of Rights and Freedoms. But it disagreed with her decision to exclude the cocaine under s. 24(2).

As a result, the acquittals were set aside, and the matter was sent back for consideration of the accuseds’ outstanding Jordan applications to dismiss charges for undue delay and, if those applications failed, to continue the trial (R. v. Jordan, [2016] S.C.J. No. 27).

The case began when a freight-handler manager contacted police about a crate that appeared suspicious. His employees opened the crate to identify the consignee, then resealed it.

When police arrived, however, the crate was open, with no evidence establishing who had reopened it.

Police looked inside and saw floor tiles that did not fill the crate. By comparing its internal and external dimensions, they suspected that it contained a false bottom. The crate was seized. A warrant was subsequently obtained, the false bottom was removed, and nine kilograms of cocaine were discovered.

Police then obtained tracking warrants. Two of the accused eventually picked up the crate and took it to the Parsleys’ residence, where they opened it. Police entered and searched the residence pursuant to warrants and arrested the accused.

The trial judge found violations of s. 8 and excluded the cocaine under s. 24(2). She also invalidated the tracking and subsequent search warrants. Since the Crown had no other evidence to support its case, it called no evidence, and the five accused were acquitted.

Chief Justice Boone began with an important appellate principle. Because the Crown was appealing an acquittal, it could appeal only on a question of law. Moreover, merely demonstrating an error of law was insufficient. Under R. v. Graveline, [2006] S.C.J. No. 16, the Crown had to establish that the error might reasonably be thought, in the concrete circumstances of the case, to have materially affected the acquittal.

The court ultimately found that the exclusion of the cocaine did have such a material effect.

One of the most interesting issues concerned the evidentiary burden. The Crown argued that the accused had the burden of proving that police had opened the crate before looking inside. The court rejected that argument.

The trial judge had found that the accused had a privacy interest in the crate and that police admittedly looked inside without a warrant. That was sufficient to establish the initial s. 8 Charter violation. The Crown’s position was that police had not opened the crate and therefore had lawfully obtained the information revealed by looking inside it. Because the Crown was asserting that proposition, it was required to prove it.

The court therefore upheld the trial judge’s allocation of the evidentiary burden. But there was an important qualification. The trial judge had initially found that she could not determine who had reopened the crate. She later went further and concluded that police must have been involved.

Chief Justice Boone held that conclusion to be an unreasonable inference. The Crown’s failure to prove that police had not opened the crate did not logically establish the opposite proposition — that they had. As the court put it, a court cannot infer that something happened merely because there is an absence of evidence explaining what actually happened.

That was a palpable error, but not an overriding error. It did not undermine the trial judge’s ultimate conclusion that the Crown had failed to establish the lawfulness of the initial police search.

The court next considered the seizure of the crate. Section 489(2) of the Criminal Code permits a warrantless seizure in specified circumstances, but a warrantless seizure is presumptively unreasonable. The Crown therefore had to establish reasonable grounds for believing that the crate had been used in an offence or would provide evidence of one. The test has both subjective and objective components: the officer must honestly believe reasonable grounds exist, and those grounds must objectively exist.

Here, the trial judge found that Corporal Emberley genuinely believed that the crate contained drugs. The problem was the objective component.

The court agreed that the police could not rely upon information obtained through the unlawful examination of the crate. R. v. Zacharias, [2023] S.C.J. No. 30 was important in this respect: illegally obtained information cannot be used to establish the reasonable grounds necessary to justify a subsequent seizure.

The remaining information was essentially that the shipper appeared fictitious, the crate was supposed to contain auto parts but contained ceramic tiles, and the crate appeared to have a false bottom. The court concluded that this information did not amount to objectively reasonable grounds for seizure.

The decision also contains a useful discussion of the role of police expertise. Corporal Emberley had extensive experience investigating drugs, particularly drugs transported by courier. The Crown argued that the trial judge had improperly discounted his expertise. The court rejected that argument.

Police experience can be important when assessing reasonable grounds. But, as the Supreme Court cautioned in R. v. MacKenzie, 2013 SCC 50, police experience is not entitled to automatic judicial deference. An officer’s hunch or intuition cannot substitute for an objectively reasonable basis.

Here, the officer’s expertise concerned courier shipments, while the crate was being transported through a freight operation. Defence counsel had cross-examined him about significant differences between courier and freight practices.

Chief Justice Boone held that the trial judge was entitled to consider those differences and to conclude that some of the officer’s courier-based indicators could not simply be transferred to the freight context. The court therefore upheld the s. 8 finding.

This was where the Crown succeeded. Section 24(2) requires the court to determine whether admitting evidence obtained in violation of the Charter would bring the administration of justice into disrepute. Under R. v. Grant, 2009 SCC 32, three considerations govern:


The trial judge had found the police conduct sufficiently serious to justify exclusion. She regarded the police conduct as an attempt to circumvent Charter protections and expressed concern that admitting the cocaine would effectively endorse a “police state approach” to freight investigations. Chief Justice Boone disagreed.

Her erroneous inference had heavily influenced the trial judge’s conclusion about police misconduct that police were involved in reopening the crate. Once that inference was removed, there was no evidence of deliberate or serious state misconduct. Indeed, the court emphasized that the police officer subjectively believed he had reasonable grounds. The court characterized the s. 8 breach as pulling toward exclusion, but not strongly.

The second Grant factor also did not favour exclusion as strongly as the trial judge had concluded.

The accused had a legitimate privacy interest in the freight crate. But the court distinguished the privacy interest in a commercial shipping container from the much stronger privacy interest normally associated with a person’s home or personal information.

The court noted that the crate was a wooden box travelling through a commercial freight company. Nothing about it implicated the personal integrity or biographical core of the accused. The evidence did not even establish at that stage that either accused had sent the crate or that it was addressed to them.

The search of the Parsleys’ home was more intrusive, but it was conducted pursuant to judicial authorization and was not carried out unreasonably. The court therefore concluded that the second Grant factor pulled only moderately toward exclusion for the Parsleys and only slightly for the other respondents.

The third Grant factor strongly favoured admission. The cocaine was reliable evidence and was crucial to the Crown’s case. The court agreed with the trial judge that excluding nine kilograms of cocaine would impose a high cost on the truth-seeking function of the trial.

The court ultimately concluded that the first two Grant factors did not outweigh society’s interest in having the serious drug-trafficking allegations determined on their merits.

The important point is that the court did not say the Charter breach was insignificant. Rather, it held that the nature of the breach, the limited intrusion on the accuseds’ privacy interests, and the importance and reliability of the evidence meant that admitting the cocaine would not bring the administration of justice into disrepute.

The court also overturned the trial judge’s decision invalidating the tracking warrants. The trial judge had concluded that the Charter violations destroyed any reasonable suspicion capable of supporting those warrants. But the respondents conceded on appeal that the trial judge had not actually been asked to determine their validity. Chief Justice Boone therefore overturned that portion of the decision.

Perhaps the most practically significant part of the decision concerns the remedy. Before the acquittals, the accused had brought Jordan applications alleging unreasonable delay. The trial judge had heard the evidence and argument but did not decide those applications before ruling on the Charter issues.

Once she entered the acquittals, she became functus officio. She no longer had jurisdiction to reopen the case and decide the Jordan motions. Nor did the accused remain “accused” for purposes of s. 11(b) once they had been acquitted.

But simply ordering a new trial would have created another problem. Under R. v. J.F., [2022] S.C.J. No. 17, the constitutional clock resets when a new trial is ordered; only delay during the retrial counts toward a subsequent Jordan application. That would have effectively deprived these accused of the opportunity to have their already prepared Jordan applications determined.

The court called that result “manifestly unfair.” The accused had done what the Supreme Court requires: they had raised their s. 11(b) applications in a timely manner.

The court therefore used its powers under ss. 686(4) and 686(8) of the Criminal Code to fashion a different remedy: the acquittals were set aside, but the matters were remitted so that the Jordan applications could first be decided. Only if those applications were dismissed would the trial continue.

This case offers an important procedural lesson. Chief Justice Boone observed that the predicament could have been avoided if the trial judge had decided the Jordan applications and the Charter applications in the alternative. The court endorsed the reasoning in R. v. Vaillancourt, 2019 ABCA 317, that when multiple potentially dispositive Charter applications are brought together, judicial economy favours deciding each. That observation may prove as useful to trial judges as the court’s substantive discussion of s. 8 and s. 24(2).

Parsley is a useful reminder that a finding of a Charter breach does not automatically lead to exclusion of the resulting evidence.

The court was prepared to uphold a finding that police acted unlawfully in searching and seizing the crate while nevertheless admitting the cocaine. The distinction turned largely on how serious the police misconduct was, how deeply the accuseds’ privacy interests were invaded, and how important and reliable the evidence was. It also reinforces a second principle: police expertise can inform the objective assessment of reasonable grounds, but it cannot immunize police conclusions from judicial scrutiny.

Finally, the case demonstrates the importance of deciding alternative Charter applications. A trial judge who leaves a Jordan application unresolved before entering an acquittal may create an appellate remedy problem that becomes considerably more complicated than the underlying Charter issue.

The court’s final message was therefore nuanced: the police violated s. 8, but the evidence should not have been excluded; the acquittals could not stand; and the accused should nevertheless have their previously filed Jordan applications determined before the prosecution proceeds.
 
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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