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Charter - s.24(2) - Exclusion of Criminal Evidence (3). R. v. Zacharias
In R. v. Zacharias (SCC, 2023) the Supreme Court of Canada considered 'consequential' Charter breaches in the Charter s.24(2) evidence exclusion inquiry, here where an initial Charter breach leads to an unlawful arrest:C. An Unlawful Arrest as a “Consequential” Breach in the Section 24(2) Analysis
[47] Where an arrest is unlawful because it is premised on the results of a Charter breach, it is the initial Charter breach that renders what follows unlawful. In other words, there is a situation of linked or “cascading” Charter breaches (see Blanchard, at para. 34). We use the term “consequential” to refer to such breaches in the s. 24(2) analysis because the subsequent arrest is unlawful only as a consequence of the “initial” breach or breaches that preceded it.
[48] Importantly, an arrest that can be viewed only as a consequential breach is distinct from state action that is characterized by additional or independent misconduct, including conduct that can be considered an “independent” breach of the Charter (such as failing to give an arbitrarily detained accused their right to counsel upon arrest). In those circumstances, the subsequent state action is of a different character and will be factored into the s. 24(2) analysis differently.
[49] A pattern of Charter breaches, for example, may cumulatively increase the seriousness of the Charter-infringing state conduct (see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (“Grant 2009”), at para. 75). Some factual scenarios will raise the issue of cumulative breaches, which may evidence a pattern of misconduct, rather than consequential ones alone, which will likely not (see R. v. Lambert, 2020 NSPC 37, 472 C.R.R. (2d) 1, at paras. 361-65, aff’d 2023 NSCA 8, at paras. 92-103 (CanLII); R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492, at paras. 12 and 30; R. v. Kossick, 2017 SKPC 67, 392 C.R.R. (2d) 250, at paras. 97-98 and 126, aff’d 2018 SKCA 55, 365 C.C.C. (3d) 186; R. v. White, 2022 NSCA 61, 419 C.C.C. (3d) 123, at paras. 44-61; Monney, at para. 120; M. Asma and M. Gourlay, Charter Remedies in Criminal Cases (2nd ed. 2023), at p. 51).
[50] Having set out the foregoing distinction, we now address how such an unlawful arrest — which is a breach only by consequence of its connection to an unlawful search, and which demonstrates no additional state misconduct — should be factored into the s. 24(2) Grant analysis.
(1) The Section 24(2) Grant Analysis
(a) The Seriousness of the Charter-Infringing State Conduct
[51] The first line of inquiry under s. 24(2) asks whether the Charter‑infringing state conduct is so serious that the court must dissociate itself from it. The spectrum of seriousness involves, at one end, “inadvertent or minor violations of the Charter” and, at the other, “wilful or reckless disregard of Charter rights” (Grant 2009, at para. 74; see also Beaver, at para. 120).
[52] An unlawful arrest that is a consequential breach must be factored into the first and second stages of the s. 24(2) analysis, but is unlikely to significantly impact the overall seriousness of the Charter-infringing state conduct. In the absence of additional state misconduct, the focal point for evaluating seriousness is likely to remain the initial breach: in this case, the preceding unlawful search. Where, as in this case, the police conduct is only off the mark to a “miniscule” degree, the seriousness of the initial breach will tend to be on the lower end of the scale. However, in other cases, the initial misconduct may be characterized as more serious; for example, if the police conduct was still inadvertent but further off the mark. In the latter case, while the consequential arrest would still be unlikely to significantly increase the overall seriousness of the misconduct, the seriousness would already be more severe given the focus on the initial breach.
[53] This is consistent with the approach followed in other cases. For example, where a search incident to arrest has been found unlawful only by virtue of the unlawfulness of the preceding arrest and the arrest evidences no other misconduct, greater emphasis is likely to be placed on the arrest itself rather than the “unremarkable” or “normal consequences of the arrest” that follow (see R. v. Loewen, 2018 SKCA 69, [2018] 12 W.W.R. 280, at paras. 77-78; see also Tim, at paras. 49-50 and 84-87). Where it is only the connection to the initial Charter breach that is the source of the misconduct, and where the police honestly believe they are proceeding lawfully, subsequent state conduct is unlikely to meaningfully increase the seriousness of the Charter-infringing state conduct.
[54] At the same time, we do not rule out the possibility that where the initial breach involves deliberate, intentional, or flagrant state misconduct, subsequent actions taken as a consequence of that initial breach may increase the overall seriousness of the Charter-infringing state conduct. The s. 24(2) analysis, of course, will depend on the facts of the case, and all cases will require “an evaluation of the seriousness of the state conduct that led to the breach” (Grant 2009, at para. 73). But where the police honestly believe that they have not committed any initial breach, actions taken on the basis of that initial breach are, to their mind, lawful, and do not demonstrate any heightened disregard for Charter rights or the law. In such a case, the subsequent state action or consequential breach is not deliberate, and therefore should be situated on the less serious end of the scale of culpability (see Tim, at para. 82).
(b) The Impact on the Charter-Protected Interests of the Accused
[55] The impact on the Charter-protected interests of the accused is distinct from the seriousness of the Charter-infringing conduct. As this Court stated in Grant 2009, in order to assess this factor, the court must “look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests” (para. 77).
[56] When additional rights and breaches of those rights are factored into the s. 24(2) analysis, there will necessarily be a more significant impact on the accused that is therefore relevant to the analysis of the second Grant factor. Consideration of all breaches as found is necessary to get an “accurate picture of the effects of the breaches” (C.A. reasons, at para. 51). Section 24(2) of the Charter requires “regard to all the circumstances”. To fail to have regard to the impact of an arrest on an accused where it occurred as a consequence of a preceding Charter breach would fail to take into account “all the circumstances”. The arrest here was unlawful and, therefore, must form part of the s. 24(2) analysis.
[57] Accordingly, we reject the Crown and interveners’ view that we should adopt the approach set out by the Court of Appeal for Ontario in R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224. In Jennings, the court in obiter reasoned that, for s. 8 breaches in breath sample cases, it would be incorrect in the s. 24(2) analysis “to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest” because that would create a categorical rule of exclusion (paras. 27 and 32). Thus, we would not adopt the approach suggested in Jennings in this case. Rather, where a court finds that an arrest is made in breach of the Charter, it will be necessary to consider such a breach in the s. 24(2) analysis, including the impacts on the accused’s Charter-protected interests (see R. v. Reilly, 2021 SCC 38, at para. 3; see also R. v. Au-Yeung, 2010 ONSC 2292, 209 C.R.R. (2d) 140, at paras. 41, 50 and 59). This will be the case whether or not the unlawful arrest can be considered to be a “consequential” breach.
(c) Society’s Interest in an Adjudication on the Merits
[58] The third factor looks to society’s interest more broadly, focusing on the truth-seeking function of a criminal trial (Grant 2009, at para. 79). The court considers factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence (R. v. McColman, 2023 SCC 8, at para. 70). In our view, and in the absence of arguments on this point, consideration of conduct like the additional breaches in this case would not change the analysis for the third Grant factor.
(2) Summary
[59] The foregoing is meant to offer guidance in specific situations. A “consequential” breach is not a new “type” of Charter breach. It will not be necessary or useful in every case to determine whether the sequence of state conduct presents a “consequential” breach. But this operates as guidance for cases where an arrest follows as a consequence of a search, and both are viewed as unlawful on judicial review. In these cases, the court must assess the seriousness of both the search and the arrest. The arrest, given that it is expected in the circumstances, is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct, but it will often result in a more significant impact on the individual’s Charter-protected interests. In this way, the s. 24(2) analysis does not become a rule of automatic exclusion, while at the same time, the court takes fully into account the impact on the Charter-protected interests of the accused. . R. v. Pereira
In R. v. Pereira (Ont CA, 2023) the Court of Appeal briefly considered the Charter s.24(2) evidence exclusion test:[4] Having found that the respondent’s Charter rights had been violated, the trial judge applied the three-part test in R. v. Grant, 2009 SCC 32, and found that the Charter breach was serious, that it had a profound impact on the respondent’s Charter-protected rights, and the failure to exclude the evidence would send the wrong message that the court was condoning the Charter breach in these circumstances. Accordingly, he excluded the evidence and the statements made by the respondent following her detention. . R. v. Lambert
In R. v. Lambert (Ont CA, 2023) the Court of Appeal considered whether Charter s.8 ['search and seizure'] operated ('was engaged') when a wife turned over a computer to the police with evidence of child pornography. In these quotes, the court considers whether Charter 24(2) operates to allow the admission of evidence by the Crown despite a Charter breach:C. SHOULD EVIDENCE BE EXCLUDED PURSUANT TO S. 24(2)?
[98] I would not exclude any evidence as a result of the breaches or potential breaches I have identified. Although there is no question that the “obtained in a manner” precondition to exclusion in s. 24(2) of the Charter would be met with respect to the analysis of both computers, the admission of the results of the forensic analysis of the computers would not bring the administration of justice into disrepute. For convenience I will address the breaches and potential breaches separately in these reasons, but I have considered their cumulative effect.
[99] In determining whether Mr. Lambert has met his onus under the Grant test, he must persuade us, based on: (1) the seriousness of the breaches; (2) the impact of the breaches; and (3) society’s interest in the adjudication of the case on its merits, that, on balance, the admission of evidence would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. The court walks through it's Charter s.24(2) reasoning at paras 100-112.
. R. v. Sureskumar
In R. v. Sureskumar (Ont CA, 2023) the Court of Appeal walks through a Charter s.24(2) Grant analysis:(b) Section 24(2) Analysis
[20] The next step is to conduct a s. 24(2) analysis to determine whether the sticky note should be excluded from evidence. It is worth reiterating that s. 24(2) is a critical component of any application to exclude evidence, because the exclusion of evidence does not automatically follow the finding of a breach. Section 24(2) excludes evidence only in circumstances where its admission would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and its progeny, the Supreme Court has provided an analytical structure that has been carefully calibrated to assist lower courts in determining whether evidence should be excluded. It must be rigorously applied because a finding of a breach of a Charter right standing alone is an inchoate remedy.
[21] In the case at bar, the trial judge conducted a s. 24(2) analysis in the alternative and concluded that she would not have excluded the evidence if there were a Charter breach. Because this was an alternative inquiry, the trial judge’s analysis is not owed any deference by this court. However, her “underlying factual findings must be respected, absent palpable and overriding error”: Grant at para. 129; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 97.
[22] Regarding the first Grant factor – the seriousness of the Charter-infringing state conduct – the trial judge determined that the search for the wallet was undertaken to retrieve identification. She found that it was a brief search, as the officer stopped once she found the wallet and checked the identification. The trial judge further found that the officer had acted in good faith, “believing that she was permitted to look for identification as part of a valid search incident to arrest” and that there was no evidence of a police pattern of ignoring constitutional rights during the investigation.
[23] In undertaking an analysis of the seriousness of state misconduct, intermediate courts of appeal must not exceed their role by recharacterizing the evidence or by departing “from express findings by the trial judge which are not tainted by any clear and determinative error”: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 51.
[24] In the present case, the trial judge’s findings on this branch of the analysis are amply supported by the record and free from error. I accept them as part of my analysis of the seriousness of the state misconduct. It is evident that, although the search was unreasonable, the arresting officer genuinely believed that she was entitled to search the appellant’s car for his wallet for the purpose of confirming his identity. I conclude that the breach was not serious, and this factor militates against excluding the evidence.
[25] Regarding the impact on the rights of the accused, the trial judge made no factual findings but concluded that the impact was “not insignificant” because people enjoy a reasonable expectation of privacy in their vehicles. She found that this factor “tilts towards exclusion, but not overwhelmingly so.” As noted, I am not bound by the trial judge’s analysis, and I disagree with her assessment of the breach’s effect on the appellant’s rights. What is excluded from her analysis is the effect of the discoverability of the sticky note on the impact on the rights of the appellant.
[26] The Supreme Court in Grant, at para. 76, described the focus of an inquiry into the seriousness of the impact of the breach on the Charter-protected interests of the accused as follows: “it calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.”
[27] Later in Grant, in the context of a review of the law of derivative evidence, the court said the following about discoverability, at para. 122:Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry. [28] The Supreme Court in Côté, at para. 66, confirmed that discoverability has, “in appropriate circumstances, a useful role to play in the s. 24(2) analysis where the interest at stake is one other than self-incrimination.” The Supreme Court’s comments about discoverability establish that an assessment of the impact of a Charter breach should consider whether the evidence in issue could have been obtained through other Charter-compliant means. That analysis cannot be speculative. There must be compelling grounds to believe the evidence would otherwise have been obtained. In those circumstances, discoverability is a factor that should be considered in determining the impact of the violation of the rights of the accused.
[29] In the present case, discoverability was a significant factor. An image of the sticky note was found on the appellant’s cell phone after it was searched pursuant to a warrant. As discussed below, I agree with the trial judge’s assessment that the warrant would have issued even if the sticky note information was excluded from the Information to Obtain (“ITO”). Therefore, there can be no doubt that the evidence in issue would have been obtained in a Charter-compliant manner. As a practical matter then, there was minimal impact on the appellant because the same evidence was available and admissible from his cell phone. I conclude that this line of inquiry militates in favour of admission of the evidence.
[30] The third line of the Grant inquiry asks the court to consider society’s interest in an adjudication of a criminal allegation on the merits. The crux of the analysis is whether the truth-seeking function of the criminal trial process is better served by admission or exclusion of the impugned evidence, recognizing that those who transgress the law have a right to be prosecuted according to the law: Grant, at para. 79.
[31] The significance of this line of inquiry should not be underestimated. It is the only part of the Grant analysis that explicitly calls for a consideration of society’s legitimate interests. Given that the whole point of the s. 24(2) analysis is to determine whether a reasonable member of the public, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of impugned evidence would bring the administration of justice into disrepute, a proper understanding of society’s interest in an adjudication on the merits is of vital importance.
[32] The sticky note is reliable evidence on count four. The credit card data correlates to accounts in which unauthorized transactions occurred. Thus, this factor also supports the admission of the evidence.
[33] In balancing the three lines of inquiry, all three favour the admission of the evidence. The sticky note is reliable evidence obtained in good faith after a very brief search of the car with minimal impact on the rights of the appellant. I would not exclude the sticky note from the evidence. . R. v. Mare
In R. v. Mare (Ont CA, 2023) the Court of Appeal, in the course of a bail pending appeal application, the court considers the Charter s.24(2) evidence exclusion appellate SOR:[15] Regarding the merits of the case, the primary argument being made is that the trial judge erred in his s. 24(2) Canadian Charter of Rights and Freedoms analysis after finding a s. 10(b) violation. It is well settled law that, where a trial judge has considered the proper factors and has not made an unreasonable finding, their s. 24(2) analysis attracts deference: see e.g., R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86; R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, at para. 21. Having reviewed the trial judge’s reasons, wherein he cited the correct authority and followed the analytical framework set out in Grant, it would appear that the applicant’s appeal does not clearly surpass the not frivolous criterion. . R. v. Hamouth
In R. v. Hamouth (Ont CA, 2023) the Court of Appeal considered the Charter s.24(2) 'Grant' test for exclusion of evidence, here in the context of a Charter 10(b) right to counsel violation:[26] The trial judge described the s. 10(b) Charter breaches in detail. He then moved to his s. 24(2) analysis, providing reasons on each of the three prongs identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71: the seriousness of the Charter-infringing state conduct (“prong 1”); the impact of the breach on the Charter-protected interests of the accused (“prong 2”); and society’s interest in the adjudication of the case on its merits (“prong 3”). The trial judge concluded that while the Charter-infringing conduct was “serious” and favoured exclusion under prong 1, the impact of the breaches on the appellant’s Charter-protected interests under prong 2 was only “moderate at best” and “weigh[ed] only slightly in favour of exclusion.” He then found that the societal interest in a trial on the merits under prong 3 was “high”. . R. v. Corner
In R. v. Corner (Ont CA, 2023) the Court of Appeal considered the Charter s.24(2) exclusion of evidence Grant doctrine:[142] Section 24(2) of the Charter provides that if evidence is obtained in a manner that infringes or denies the Charter right of the accused, the evidence:[S]hall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [143] Admissibility under s. 24(2) is determined by the well known three-stage analysis first laid out in Grant, at paras. 67-87, and further developed in a series of decisions from the Supreme Court of Canada: see e.g. Lafrance, at paras. 89-101; R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at paras. 116-135; Tim, at paras. 74-80; and R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at paras. 53-56.
[144] The three “Grant” factors are:. The seriousness of the Charter-infringing conduct;
. The impact of the Charter infringement on the individual’s Charter-protected interests; and
. Society’s interest in an adjudication of the case on its merits. ....
[161] There is no doubt that the appellant was lawfully detained on March 1 when interviewed by Detective Horrocks. There is equally no doubt that he had been properly advised of the nature of the charge, his right to counsel, and had spoken to counsel of his choice on two occasions after his arrest and before speaking to Detective Horrocks. However, as the trial judge recognized, a prior Charter breach may taint subsequently obtained evidence even in the face of Charter-compliant police conduct subsequent to the initial breach.
[162] There may be a sufficient nexus between an earlier Charter breach and evidence subsequently obtained after compliance with the Charter to warrant the conclusion that the evidence subsequently acquired by the police was “obtained in a manner” that infringed the accused’s Charter rights. If the nexus is established, the evidence is subject to exclusion under s. 24(2) if the appellant can demonstrate that the admission of the evidence would bring the administration of justice into disrepute: Beaver, at paras. 95-115; Tim, at paras. 76-82.
[163] In Beaver, Jamal J., for the majority, at para. 95, explained the threshold requirement in s. 24(2) in these terms:Section 24(2) of the Charter is engaged only when the accused first establishes that evidence was “obtained in a manner” that breached the Charter. Determining whether evidence was “obtained in a manner” that infringed the Charter involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained. There is “no hard and fast rule”. [Citations omitted.] [164] Jamal J., at para. 97, went on to consider the “fresh start” concept developed in the authorities:A large body of appellate jurisprudence and academic commentary has recognized that evidence will not be “obtained in a manner” that breached the Charter when the police made a “fresh start” from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous. In some cases, the police may make a “fresh start” by later complying with the Charter, although subsequent compliance does not result in a “fresh start” in every case. The inquiry must be sensitive to the facts of each case. [Citations omitted.] ....
[167] The appellant submits that the trial judge erroneously required that there be a “causal relationship” between the Charter breach and the obtaining of the March 1 statements as a prerequisite to a finding that the March 1 statements were obtained in a manner that violated the Charter. It is well established in the jurisprudence that a causal link between the Charter breach and the challenged evidence is not essential to a finding that the necessary link exists between the breach and the challenged evidence to bring that evidence within the reach of s. 24(2): see e.g. Beaver, at paras. 96-99; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46, at paras. 31-32; and R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 24 C.R. (6th) 360 (Ont. C.A.), at para. 45.
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[171] Evidence acquired by the police before a Charter breach can be found to be tainted by a subsequent Charter breach and subject to exclusion under s. 24(2) of the Charter: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 72-78. The applicability of Pino to the present circumstances is open to debate. As I would order a new trial on this ground, and as the matter was not litigated at trial, it is unnecessary and inappropriate to resolve this issue on this appeal. . R. v. Whitfield
In R. v. Whitfield (Ont CA, 2023) the Court of Appeal allows an unlawful search and seizure under Charter s.24(2) (here a hidden camera in an apartment building) on the basis of police 'good faith' (really, a mistake of law):(2) There is no basis to interfere with the trial judge’s s. 24(2) analysis
[27] Absent an error in principle, palpable and overriding factual error or an unreasonable determination, a trial judge’s decision to admit evidence under s. 24(2) of the Charter is entitled to deference on appeal: see e.g., R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, at para. 21, citing Grant, at para. 86. We see no such error in the trial judge’s s. 24(2) analysis in this case.
[28] The appellant argues that the trial judge erred in finding that the police acted in good faith, since they could have sought legal advice before installing the covert camera in 8 Lee Centre Drive. Yet the trial judge’s finding of good faith was firmly grounded in the evidence, namely, her further finding that the police conducted the investigation in accordance with what they genuinely understood to be the relevant legal requirements at that time. Further support for her finding is provided by the fact that the police did in fact obtain judicial authorization to install a covert camera at a different location, because property management at that location did not consent to the installation of the camera.
[29] We also note that there are numerous other cases where police have been found to be acting in good faith where they follow the law as they reasonably understood it at the time, even though that understanding is later shown to be mistaken. For example, in R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, the police obtained subscriber information pertaining to a cell phone seized from the accused without judicial authorization. The investigation was conducted prior to the release of the Supreme Court of Canada’s decision in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, which held that prior judicial authorization was in fact necessary to obtain such information. As a result, in Boutros, the subscriber information had been unlawfully obtained. Nevertheless, the trial judge found that the police had acted in good faith based on the law as they understood it at that time, and the evidence obtained should not be excluded under s. 24(2). That finding was upheld on appeal, with Doherty J.A. concluding that the s. 8 breaches did not support exclusion of the evidence since “[t]he officer who requested the information… acted in good faith and on a reasonable view of the law as it stood.” See also Spencer, at para. 77 and Yu, at para. 145 for similar statements of law.
[30] In the circumstances, it was open to the trial judge to find that the police acted in good faith when they installed covert cameras without prior judicial authorization. We see no basis to interfere with that finding. . R. v. Pera
In R. v. Pera (Ont CA, 2023) the Court of Appeal considers a Charter s.24(2) exclusion of evidence argument:(2) The fresh s. 24(2) Charter analysis
[34] The test for demonstrating that evidence should be excluded under s. 24(2) of the Charter is well established. It requires balancing the following three factors to determine whether, overall, admission of the evidence would bring the administration of justice into disrepute: (1) the seriousness of the Charter-infringing state conduct ; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.
(i) Seriousness of the Charter-infringing state conduct
[35] As the trial judge did not find a Charter breach, her conclusion that any breach was not serious is not entitled to deference. However, absent palpable and overriding error, her findings that the police acted with restraint, treated the appellant with respect and that there is “no indication that the police did not act in good faith” are entitled to deference.
[36] The appellant submits that the trial judge erred in these findings because she failed to take account of the deliberate nature of the s. 10(a) Charter breach, and the manufactured basis for the SFST demand. The appellant also raises breaches of the appellant’s s. 7-protected right to silence when Officer Bromley questioned him following the vehicle stop, a violation of the appellant’s s. 10(b) rights and misconduct by the police in applying for the search warrant.
[37] We have already rejected the appellant’s first two claims. Concerning the alleged ss. 7 and 10(b) breaches, this argument was raised for the first time on appeal. The trial judge made no error in failing to consider it and we decline to consider it on appeal in the circumstances.
[38] As for alleged misconduct in applying for the search warrant, the appellant submits that the evidence demonstrates that Officer Bromley knowingly provided the SW officer with false information and that the SW officer improperly omitted relevant information from the information to obtain (“ITO”). He submits that these factors taint the trial judge’s findings of fact concerning the seriousness of the Charter breaches.
[39] We do not accept these submissions. The appellant abandoned his s. 8 Charter application at trial and did not challenge the validity of the search warrant. Based on our review of the record, we conclude that Officer Bromley told the SW officer the appellant produced marijuana from the glovebox of his car, rather than from a woman’s purse on the floor, a fact Officer Tombs confirmed at trial, because he made an assumption and mistakenly relied on it. We are not persuaded this error amounted to a level of misconduct that should have affected the trial judge’s assessment of the seriousness of the Charter breach. We reach the same conclusion about the SW officer’s failure to include in the ITO the fact that the appellant’s girlfriend claimed the oxycodone or the fact that Officer Bromley failed to inform the appellant of the true reason for stopping him. Preferably, both pieces of information should have been included in the ITO, but neither would have had any impact on whether the search warrant could have been issued.
[40] Overall, while we agree that Officer Bromley breached the appellant’s s. 10(a) Charter rights by failing to inform him he was being investigated for possession of a firearm once he was out his vehicle, we see no basis for interfering with the trial judge’s conclusion that there was no indication that the police did not act in good faith and therefore that any breach was not serious.
(ii) The impact of the breach on the appellant’s Charter-protected interests
[41] In her alternative s. 24(2) analysis, the trial judge concluded the impact of any breach on the appellant’s Charter-protected interests was “meaningful” because he was detained for a significant amount of time and handcuffed at various points during his interaction with police.
[42] Although the police had other valid grounds for detaining the appellant and handcuffing him apart from the firearms investigation issue, none of those grounds panned out and the appellant was not told of the valid basis for investigating him – or given the opportunity to consult counsel concerning that basis – until two hours after he was stopped. In the circumstances, we adopt the trial judge’s finding that the impact of the Charter breach on the appellant’s Charter-protected interests was meaningful. That said, to the extent this factor points towards exclusion of the evidence, it does not point strongly in that direction.
(iii) Society’s interest in an adjudication of the case on its merits
[43] In her alternative analysis, the trial judge found that this factor favours inclusion of the evidence as the guns and drugs are reliable evidence essential to the continuation of the prosecution. We observe as well that this evidence was found during the execution of a lawful search warrant and disclosed serious offences creating a danger to the public. Although the police breached the appellant’s Charter rights, there is no indication that their conduct was such as to require exclusion of the evidence under this factor.
(iv) Conclusion on s. 24(2) analysis
[44] Balancing the three Grant factors, we are not satisfied that admission of the evidence would bring the administration of justice into disrepute.
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