Sent on behalf of the Criminal Defence Lawyers Association (Calgary):

Response to National Post Comment, Jamie Sarkonak: “Trudeau judge abuses Charter to free man busted with a loaded Glock”

The Criminal Defence Lawyers Association of Calgary (CDLA) on occasion makes public comment on issues of importance in the criminal justice system in Alberta. As judges are not permitted to make statements in the media defending their decisions, the CDLA will on occasion make comment about decisions at issue in the press. On July 2, 2025, an opinion piece in the National Post made several unsubstantiated claims about the decision in R v Khan, 2025 ABKB 357.

Jamie Sarkonak claims an Alberta Judge’s liberal interpretation of the Charter is to blame for Canada’s rise in crime. However, Ms. Sarkonk’s article misstates the law in Canada and omits important portions of the Judge’s decision. Moreover, Ms. Sarkonak’s claim fails to acknowledge that police reported crime has generally decreased since the advent of the Charter in 1982. 

The Canadian Charter of Rights and Freedoms establishes foundational principles and rights that govern Canadian society. One such principle is that there must be a limit on the government’s power. In Canada, this limit is realized through, among other things, sections 7 – 14 of the Charter. Section 8 of the Charter protects everyone from unreasonable search or seizure while section 9 protects everyone from being arbitrarily detained or imprisoned. 

To ensure we don’t live in a police state, the Charter provides a remedy for people whose Charter rights have been infringed. One such remedy is the exclusion of evidence that was obtained in breach of the Charter. The rationale behind excluding evidence is not to give the accused a free pass or to punish the police. Rather, the exclusion of evidence ensures we live in a society governed by laws. Ensuring government accountability appears to be a proposition Ms. Sarkonak staunchly supports. 

Once the law and the facts surrounding Haider Aftab Khan’s case are clarified, the Charter demanded the handgun be excluded from the trial. Indeed, to permit such evidence into the trial would undermine the values the Charter seeks to uphold.

First, in Canada a police officer can affect a warrantless arrest if he has reasonable grounds to believe the person has committed an offence. The officer’s subjective grounds must be objectively justifiable. An objective justification ensures we are not governed by the subjective belief of a police officer. This protects us from being arbitrarily detained. 

Second, Ms. Sarkonak noted the judge “called BS” on Mr. Khan’s version of events, but she failed to mention the judge also did not believe the arresting officer’s version of events. Justice Jugnauth gave eight reasons why he could not accept the arresting officer’s testimony. The most compelling of the eight reasons are that the officer gave testimony that was contradicted not only by his own testimony, but also by physical evidence (the prescription bottle), and the testimony of his police partner. 

The arresting officer testified the label on the prescription bottle was so defaced and scratched that you could not read the label and you could see the blue bottle underneath. When shown a picture of the blue bottle and challenged on cross examination, the officer admitted you could read most of the words on the pill bottle and that the blue was in fact not showing through. 

The interaction between Mr. Khan and the police occurred at 1AM. The arresting officer testified there was sufficient light from light posts and ambient light from businesses on Whyte Avenue to allow the officer a good view of the interior of the vehicle. The only problem with this is the officer had already testified the interaction occurred on 77^th Avenue, five blocks from the ambient lights of Whyte Avenue. The officer’s lack of reliability or credibility on this was exacerbated when his police partner confirmed “it was dark outside, with just dim street lighting.”

Given the Court’s findings of the arresting officer’s lack of credibility and reliability, his evidence could not be accepted. The only reasonable conclusion was that the officer did not have a good view of the interior of the vehicle where pill bottle had been and therefore did not have reasonable grounds (objective or otherwise) to arrest Mr. Khan. The absence of reasonable grounds made the state interference with Mr. Khan unlawful (arbitrary).  

When the police search someone incidental to an unlawful arrest the resulting search is unreasonable and a breach of that person’s section 8 Charter right. In this case, the warrantless search of Mr. Khan followed an unlawful arrest and was therefore an unreasonable search. 

The Justice was then required to determine whether the repute of the justice system required him to exclude evidence the police obtained via multiple infringements of Mr. Khan’s Charter rights. 

Ms. Sarkonak criticized the judge’s decision to exclude the evidence because in 2010 the Supreme Court of Canada ruled that beating someone to the point of breaking his ribs and puncturing a lung was not enough to “get evidence tossed out.” The case Ms. Sarkonak referred to is R v Nasogaluak. However, Ms. Sarkonak is wrong. Nasogaluak has nothing to do with excluding evidence; after the accused there pled guilty, he applied for a sentence reduction due to the police use of excessive force. 

When the state obtains evidence by breaching someone’s Charter rights, the presiding justice needs to determine whether admitting the evidence into the trial would “bring the administration of justice into disrepute.” Failing to exclude evidence could convey to the public that courts effectively condone the state’s failure to comply with the Charter 

The Court considers the following three factors when considering whether admitting the evidence would bring the administration of justice into disrepute:

1. Seriousness of the Charter-infringing state conduct: This considers the nature of the police misconduct, including whether it was deliberate, reckless, or a result of a good faith error.
2. Impact of the breach on the Charter-protected interests of the accused: This assesses how the violation affected the accused’s rights, such as their privacy or liberty.
3. Society’s interest in the adjudication of the case on its merits: This considers the importance of admitting the evidence to ensure a trial based on evidence. This factor is especially important in serious cases. However, this factor cannot become a “rubber stamp” for including the evidence.

The Justice carefully explained why the evidence must be excluded. First, the Justice noted the state conduct was serious. The arresting officer was not compelled to act quickly. This was a routine traffic stop. The officer’s actions were a clear violation of well-established rules governing state conduct. 

Next, the Justice considered the impact the arresting officer’s conduct had on Mr. Khan. In this case, the impact was profound. Without lawful grounds, Mr. Khan was removed from the vehicle; handcuffed in public view; and both his person and the vehicle were searched. The state conduct significantly infringed Mr. Khan’s privacy and liberty. 

Finally, the Justice noted he was dealing with a serious offence which the public has a heightened interest in prosecuting. In addition, the evidence seized was essential to the Crown’s case. However, society’s interest in prosecuting one case does not give the police carte blanche to violate Charter rights.

Charter remedies, like the exclusion of evidence, ensure the Charter is not just a piece of paper. The remedies signal to society that the state is expected to follow the law. Excluding evidence is not about a free pass, it is not about punishing the police, it is about ensuring we live in a democratic society governed by the rule of law. 

For more information, please contact:

Criminal Defence Lawyers Association (Calgary)

admin@cdla.ca