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Charter - s.24(2) - Exclusion of Criminal Evidence (4). R. v. Shirley
In R. v. Shirley (Ont CA, 2024) the Ontario Court of Appeal considered the 'Grant' Charter s.24(2) evidence exclusion doctrine:[18] The trial judge then turned to s. 24(2). He found that this case was very similar to this court’s decision in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, where the trial Crown had proceeded only under step 5 and the grounds in the redacted ITO were insufficient to survive s. 8 review. The trial judge seemed to think that Blake stood for the proposition that “it would be very difficult” to succeed in excluding evidence under s. 24(2) in a case like this, where the Crown had only attempted to defend a s. 8 challenge on the basis of step five.
[19] At the same time, the trial judge noted that since Blake, there have been numerous authorities that reinforce what was said in Garofoli, that where necessary, the Crown can proceed under step six and ask the reviewing court to look behind the redactions to determine whether the issuing justice “could” have issued the warrant.
[20] The trial judge seemed to suggest some conflict between Blake and those newer authorities:In my view, the debate between Blake and [R. v. Learning, 2010 ONSC 3816] remains largely unresolved. Blake remains binding authority. Despite the encouragement by courts for the Crown to resort to step six to uphold the work of law enforcement, I see no mechanism to force them to do so. [21] To the trial judge, the only way to “reconcile” the authorities was to do a case-specific analysis by applying the criteria from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He did just that and, ultimately concluded that the admission of the evidence would not bring the administration of justice into disrepute.
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Analysis
[22] The appellant argues that the trial judge erred by analogizing this case to Blake. Specifically, the appellant points to the fact that in Blake, Doherty J.A. concluded that even though the Crown proceeded under step five, the accused did nothing to put a full version of facts before the court. This augured against a successful s. 24(2) application, because it could not be said that the police had acted in bad faith. He said, at para. 17:In summary, the Crown was content to have the reasonableness of the search determined exclusively on the basis of the redacted information. The defence did not challenge the validity of the confidential informant claims, seek access to the identity of those informants nor challenge the editing done by the Crown to protect the identity of those informants. In my view, these positions taken on the voir dire have significance in the s. 24(2) analysis. [23] The appellant argues that the trial judge erred in this case by analogizing to Blake, because in this case the defence did not merely acquiesce in what was tantamount to a Crown concession of a s. 8 breach. Instead, the appellant proactively consented to the Crown relying upon the summary of information contained in the redacted appendix. He says that this defence approach distinguishes this case from Blake because here the defence did all that they could to have the relevant information properly placed before the court.
[24] The appellant says that he finds support for his position in this court’s decision in Herta. He maintains that Herta stands for the proposition that if the Crown elects to defend an ITO under step five of Garofoli alone, and fails on the Garofoli standard of review, then the first prong of Grant, involving the seriousness of the state conduct, cannot resolve in a finding of good faith. The appellant argues that in these circumstances, the seriousness of the state conduct will fall in the middle of the seriousness spectrum.
[25] We do not read Herta in this way. While the trial Crown in Herta also failed to defend a heavily redacted ITO on the basis of step six of Garofoli, the s. 24(2) holding did not turn on that litigation choice. Rather, the s. 24(2) holding in Herta, and more specifically the holding on the seriousness of the police conduct, turned on what was specifically described as “sloppy” and “careless” drafting of the ITO. It had nothing to do with the Crown’s litigation choices.
[26] We emphasize that it is entirely for the Crown to decide how to proceed on a Garofoli review. There will be times where the Crown will quite reasonably, with a view to efficiency and maximizing protection for confidential informants, decide not to proceed under step six. This was one of those cases. Here, the Crown did not simply “mail in” a s. 8 breach. Rather, the Crown took active steps to produce a Crown summary that, at a minimum, described features of the confidential appendix that would have assuaged the issuing justice’s concerns over the strength of the information provided by the informants. The Crown obtained the defence consent to proceed on the basis of that summary, along with the redacted information. The defence was prepared to agree with its accuracy. And the trial judge was invited to look behind the redactions if he had any concern over the accuracy of the summary.
[27] If anything, the Crown’s actions demonstrated a carefully thought-out, responsible litigation plan that was designed to efficiently respond to the s. 8 application, all the while protecting the informants. The fact that the trial judge was not prepared to consider the summary on the s. 8 application did not mean that the police should have been found to have acted in bad faith under s. 24(2). Nor did it mean that they could not have been found to have acted in good faith. While it is true that the appellant cooperated on the s. 8 motion, such that the summary was placed before the reviewing judge, that summary demonstrated the care with which the affiant had approached his responsibilities, by providing information that addressed the strength of the information provided by the informants.
[28] In the end, the trial judge knew that he had to conduct a “case specific” analysis. He did just that and concluded that the s. 24(2) application should be dismissed. We see no reason to interfere in that decision. . R. v. Whittaker
In R. v. Whittaker (Ont CA, 2024) the Court of Appeal nicely states the Charter s.24(2) evidentiary exclusion provision [from Grant (SCC, 2009)], then followed by it's fresh s.24(2) analysis regarding the case before it:Section 24(2)
[28] Section 24(2) is not an automatic exclusionary rule that mandates the exclusion of evidence whenever it is collected in an unconstitutional manner. The question is whether the admission of the evidence would bring the administration of justice into disrepute. The answer to this question turns on the seriousness of the Charter-infringing state conduct, its impact on the Charter-protected interests of the accused, and on society’s interest in the adjudication of the case on its merits: Grant, at paras. 71, 102-103.
[29] The objective is not to assign blame, punish the police, or deter future Charter breaches, but to “preserve public confidence in the rule of law and its processes”. A s. 24(2) analysis must focus on the “broad impact [the] admission of the evidence [would have] on the long-term repute of the justice system”: Grant, at paras. 70-73.
[30] Charter violations in the collection of evidence vary on the spectrum of seriousness. On the one end are inadvertent, technical, and minor Charter breaches. On the other end is the reckless disregard of Charter rights as well as systemic patterns of Charter-infringing conduct. The more serious the breach, the more it will pull towards exclusion of the evidence: Beaver, at para. 120; Grant, at para. 74.
[31] On the question of impact, the “extent to which the Charter breach actually undermined the interests protected by the right” must be carefully evaluated: Beaver, at para. 123; Grant, at para. 76. The potential impact also falls along a spectrum. The greater the impact, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. The presence, or absence, of a causal connection between the violation and the evidence sought to be excluded, while not determinative, is a factor to consider at this stage. Like the first factor, the more serious the breach, the more it will pull towards exclusion of the evidence: Beaver, at para. 123.
[32] The third factor, society’s interest in the adjudication of a case on its merits, asks whether the truth-seeking function of the criminal trial process would be better served through the admission or exclusion of the evidence. The more reliable and important the evidence to the Crown’s case, and the more serious the offence, the stronger the societal interest in an adjudication on the merits will be. This factor will almost always pull in favour of admission of the evidence: Beaver, at para. 129; Grant, at paras. 79-83, 115.
[33] All of these factors must be weighed together to assess whether the admission of the evidence would bring the administration of justice into disrepute. Where the first two factors make a “strong case for exclusion”, the third will rarely, on its own, justify admission. That said, “where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission”: Beaver, at paras. 117, 133-34. As Doherty J.A. put it in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62 and 63:The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interest in an adjudication on the merits, pulls in the opposite direction toward the inclusion of the evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.] [34] Even in circumstances where the second factor does not pull strongly towards exclusion, admission may still bring the administration of justice into disrepute. As the Supreme Court held in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para 141:[It is] possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion. [Emphasis in original.] ....
E. THE S. 24(2) ANALYSIS AFRESH
[54] Where, as here, a trial judge’s s. 24(2) ruling is unreasonable or impaired by errors in principle, this court is entitled to intervene and conduct the s. 24(2) analysis afresh: R. v. Campbell, 2019 ONCA 258, 145 O.R. (3d) 357, at para. 23; Grant, at para. 129.
[55] As I have explained, the breach of the appellant’s s. 10(b) rights cannot be viewed as anything other than serious. His access to counsel upon arrest was not merely delayed – it was denied altogether for a prolonged period due to carelessness. The only available conclusion is that the first Grant factor pulls towards exclusion of the firearm and ammunition.
[56] Similarly, the impact of the breach on the appellant’s Charter-protected interests was significant. The police completely denied him a constitutional right which has been termed a “lifeline for detained persons”: Rover, at para. 45. The appellant was not only unable to obtain legal advice, but also did not have the psychological benefit of speaking to counsel to understand his rights, or the opportunity to get information from counsel on how he could go about regaining his liberty. The second Grant factor thus also pulls towards exclusion of the evidence.
[57] As for the third Grant factor, it is undisputed that society’s interest in an adjudication on the merits almost always favours admission of the evidence: McGuffie, at paras. 62-63. That is also the case here given the relatively serious nature of the offences. The real question is whether the pull towards inclusion by the third factor outweighs the pull towards exclusion by the first and second factors. In my view, it does not.
[58] As I noted above, the Supreme Court held at para. 134 of Beaver that where the first two Grant factors “make a strong case for exclusion” of the evidence, the third factor “will seldom tip the scale in favour of admissibility”. This is not one of those rare cases.
[59] In so concluding, I am mindful of the Supreme Court’s decision in R. v. Omar, 2019 SCC 32, [2019] 2 S.C.R. 576, which expressed substantial agreement with the dissenting reasons of Brown J.A. in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1 (“Omar (ONCA)”). Of particular relevance are Brown J.A.’s conclusions that 1) the third Grant factor should not be subordinated to a position where it plays no practical role in the balancing exercise, and 2) firearms should not be treated as fungible with any other piece of evidence given their “distinctive nature”, namely their “lethal threat” to public safety: Omar (ONCA), at paras. 119, 135.
[60] Yet Brown J.A. also recognized that these principles are not absolute and, practically speaking, “there is no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence”: Omar (ONCA), at paras. 122-23. Indeed, the overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute.
[61] In the circumstances of this case, it would. The breach of the appellant’s s. 10(b) rights was so serious and injurious of his Charter-protected interests that no amount of public clamour for a conviction could tip the scales towards inclusion. The integrity of the justice system would be compromised if, in these circumstances, this court were to effectively vindicate the inexcusable Charter breach by the police. Simply put, the administration of justice is better served by excluding the evidence than by admitting it. . R. v. Foreshaw
In R. v. Foreshaw (Ont CA, 2024) the Court of Appeal considered the Charter s.24(2) exclusion of evidence provision, here the leading Grant (SCC, 2009) case with a simple summary:[103] ... It is worth reiterating that section 24(2) excludes evidence only in circumstances where its admission would bring the administration of justice into disrepute. The framework from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, must be rigorously applied because a finding of a breach of a Charter right standing alone is an inchoate remedy: R. v. Sureskumar, 2023 ONCA 705, at para. 20.
[104] Regarding the first Grant factor – the seriousness of the Charter-infringing state conduct – any breach was minor in nature. The accused was provided his rights to counsel at least four times and he spoke to duty counsel before being interviewed. If there was a breach in D.C. Smith’s initial interaction with the appellant, it was not the result of deliberate or systemic misconduct. Instead, it resulted from a situation where the officer did not happen to have his memo book with him at the time of the arrest. This factor militates in favour of inclusion of the evidence.
[105] The impact on the appellant’s rights – the second Grant factor – was also minimal. There is no causal connection between the initial provision of the appellant’s rights and the statement because, before he was interviewed, the appellant was advised of his rights three more times and consulted with duty counsel. The absence of a causal connection mitigated the impact on the appellant’s Charter-protected interests: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 125. Consequently, this factor also militates in favour of inclusion of the evidence.
[106] The third Grant factor asks the court to consider society’s interest in an adjudication of a criminal allegation on the merits. The analysis focuses on 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.
[107] The appellant’s statement was an important piece of evidence. While it was not determinative of the appellant’s guilt or innocence, it provided insight into his veracity when dealing with the police. Thus, this factor also supports the admission of the evidence.
[108] In balancing the three lines of inquiry, all three favour the admission of the evidence. Therefore, I would not exclude the statement from the evidence. . R. v. Williams
In R. v. Williams (Ont CA, 2023) the Court of Appeal considered Charter s.24(2) evidence exclusion doctrine, here in a Charter s.9 'detention' context:Should the evidence be excluded pursuant to s. 24(2)?
[67] If an appellate court comes to a different conclusion than the trial judge regarding whether a Charter right was breached, the appellate court is entitled to undertake a fresh s. 24(2) analysis, accepting the underlying findings of fact made by the trial judge not tainted by error: R. v. Reilly, 2020 BCCA 369, at para. 120, aff’d 2021 SCC 38; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 138.
[68] I have concluded that the trial judge erred in finding that no breach of s. 9 occurred. The appellant was arrested for breach of the undertaking in the absence of reasonable and probable grounds for that arrest. I have also concluded that the trial judge did not err in concluding that no breach of s. 8 occurred. Although the search was not justified as one that was incidental to the arrest for breach of the undertaking, it was a search that was authorized under s. 12(3) of the CCA.
[69] A s. 9 breach will warrant a s. 24(2) analysis where it is sufficiently connected, temporally and contextually, to the evidence sought to be excluded, even if that evidence was obtained during a constitutionally sound search: R. v. Cuff, 2018 ONCA 276, 359 C.C.C. (3d) 415, at para. 30. Conducting a fresh s. 24(2) analysis, I reach the same conclusion as the trial judge – the evidence of the loaded firearm should not be excluded. In my view, the admission of the evidence would not bring the administration of justice into disrepute.
[70] The first Grant factor is the seriousness of the Charter-infringing state conduct. The focus is on whether there has been misconduct from which the court should dissociate itself, situating the conduct on a scale of culpability and considering surrounding circumstances that exacerbate or attenuate its seriousness: R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at paras. 57-59.
[71] Here, there was no wilful or reckless disregard of Charter rights, or a systemic pattern of Charter infringing conduct. It was reasonable for the police to keep track of the consent on Versadex, so that it would be immediately accessible. It was reasonable for the police, in conducting the operation that led to the appellant’s arrest, to have Officer Yeo at a computer at the station, ready to access databases, including CPIC and Versadex, and provide results to the officers at the scene. The arrangements were consistent with Charter compliance. The Charter breach – the arbitrary deprivation of the appellant’s liberty – occurred because of a mistake – the failure to search Versadex for the consent. This is a search that should have been done, but nothing in the circumstances exacerbates that misconduct. The trial judge found the police did not “take a short cut, or cut corners, or act capriciously on a mere whim, nor were they cavalier…indifferent or thoughtless.”
[72] I do not agree with the trial judge that the police conduct was “barely along the fault line”. It is important, when two databases are being maintained, to access both when required. I find the misconduct to be of moderate seriousness, but I do not find it to be egregious. It pulls slightly in favour of exclusion.
[73] However, the second factor, the impact on the appellant’s Charter-protected interests, was minimal. The search and discovery of the firearm did not impact his Charter rights, as the search was justified under the CCA. The firearm was in fact discovered by a Charter compliant search. “[When evidence is] independently discoverable, the impact of the breach on the accused is lessened and admission is more likely”: Grant, at para. 125. Although the appellant refers to having been arrested at gun point, the trial judge found that Officer Girgis “had his service revolver at the low ready position given what he knew” about the appellant’s prior firearm conviction, but that no physical force was used and the police were not overbearing or heavy handed in their conduct. The deprivation of liberty under this arrest was short. The firearm was discovered shortly after the arrest for breach of the undertaking, and the appellant was lawfully rearrested for possession of a firearm immediately after the search revealed its presence.
[74] The second Grant factor does not favour exclusion.
[75] The third Grant factor, society’s interest in the adjudication of the case on its merits, strongly favours admission. The evidence was reliable and crucial to the Crown’s case on a serious charge: “Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system”: McColman, at paras. 69-71, 73.
[76] Balancing the factors and considering all of the circumstances, the evidence should not be excluded under s. 24(2) of the Charter. . R. v. Sadek
In R. v. Sadek (Ont CA, 2023) the Court of Appeal considered Charter s.24(2) evidence exclusion issues (here grounded in Charter s.8 'search and seizure'), here where police had 'sealed' vehicles, and as well entered into a residence and stayed there (without "informed consent" of the occupants), until a warrant was issued [called a 'freezing']:[29] Considering all of these factors together, admitting the evidence obtained in the searches of the vehicles would not bring the administration of justice into disrepute. The trial judge excluded the fruits of the search of the appellant’s apartment and expressed strongly that the conduct in relation to the apartment was an intrusive breach of Charter rights and was unjustified. We see no error in the conclusion that it would not bring the administration of justice into disrepute to admit the evidence seized from the vehicles. The exclusion of the items seized from the apartment, which had a close connection to the serious Charter breaches related to the apartment, was sufficient to express that the courts, as institutions responsible for the administration of justice, do not condone the intrusive Charter breaches by the police directly related to the apartment: Grant, at para. 72; R. v. O’Brien, 2023 ONCA 197, 424 C.C.C. (3d) 108, at paras. 31, 61. . R. v. Griffith
In R. v. Griffith (Ont CA, 2023) the Court of Appeal considered an appeal where a trial judge allowed Charter-breaching evidence [Charter s.24(2) (Grant)]. In these quotes the issue was 'discoverability' - ie. whether the evidence would have been 'discovered' anyway, despite the Charter breaches:[19] The findings of the trial judge are entitled to deference. As this court stated in R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, at para. 21: “The three-prong Grant inquiry requires trial judges to find facts and engage in nuanced balancing exercises, ones that call for the weighing of numerous factors and competing interests. Strong deference is owed to determinations that arise from that process.” Absent an error in principle, palpable and overriding factual error, or an unreasonable determination, a s. 24(2) decision is entitled to deference: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.
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(2) The trial judge did not err in his discoverability analysis
[29] The Supreme Court in Grant set out three factors to assess and balance in applying s. 24(2):(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. (at para. 71) [30] The appellant argues that the trial judge erred by double counting the discoverability of the evidence in the Crown’s favour in his Grant analysis. Specifically, it is argued that discoverability was wrongly considered under both the first and second prong of the Grant analysis.
[31] The appellant relies on R. v. O’Brien, 2023 ONCA 197, 424 C.C.C. (3d) 108, for the proposition that discoverability can not be used to favour exclusion in the first and second prongs of the Grant analysis. In O’Brien, police officers infringed the defendant’s s. 8 rights by compelling him to produce passwords to his electronic devices. One device was not password-protected. The Crown on appeal argued that the fact that police did not need the password to search that device diminished the seriousness of the breach. Justice Paciocco rejected that submission: “The fact that evidence was discoverable without a breach is relevant and potentially important to the second Grant factor … but has nothing to do with the seriousness of the police misconduct”: at para. 28. The appellant argues that the trial judge made this same error.
[32] Specifically, the appellant argues that the trial judge inappropriately attenuated the seriousness of the breaching conduct because the police could have found the drugs through a lawful search pursuant to the investigative detention. The appellant focuses on the trial judge’s statement at para. 40:However, the evidence was that Det. Valencia only did a pat-down search of Griffith looking for a weapon. As part of the pat-down search, Det. Valencia was entitled to “pat-down” the satchel worn by Griffith, which is what he did. Det. Valencia testified that before he opened the satchel, he felt something “hard” in it which alarmed him as it might have been a gun. Only then did he open the satchel and find the cocaine and glass jar with marijuana. In my view, therefore, the manner of the search was reasonable having regard to the potentially dangerous situation. But for Det. Correia’s order to place Griffith under arrest, it would have been an entirely lawful search. This minimizes the seriousness of the breach and in these circumstances the breach of s. 8 also does not favour exclusion. [33] The appellant argues that this constitutes inappropriate double counting of the evidence’s discoverability because, subsequently, under the second prong of the Grant analysis, the trial judge recognized that the evidence would have been discovered in the absence of the Charter breaches. This is because Det. Valencia would have conducted a safety search of the appellant during his investigative detention and therefore found the drugs even without the appellant’s arrest.
[34] We do not see any application of O’Brien to the circumstances of this case. Contrary to the appellant’s submission, the trial judge did not use discoverability to weigh in favour of exclusion in the first prong of the Grant analysis. Instead, the trial judge concluded that, at para. 38: “the direction to arrest Griffith by Det. Correia, while unjustified, was an action taken in good faith by an officer acting in the heat of the moment in a dangerous situation. In my view, therefore, the breach of s. 9 of the Charter was not serious and does not favour exclusion.” The trial judge added that the search, while “technically unauthorized” as it flowed from the unauthorized arrest, was permissible had the appellant remained in investigative detention.
[35] It was this fact, and not the inevitable discovery of the evidence, that formed the basis for the trial judge’s conclusion that the breach was not serious and did not favour exclusion. The trial judge did not refer to discoverability in this section of his reasons and we do not accept the appellant’s argument that his conclusion on the first prong of Grant relied on the discoverability of the evidence.
[36] On the second prong of Grant, the impact of the breaches on the appellant’s constitutional rights, the trial judge appropriately concluded that, “the evidence was ‘independently discoverable’ and the impact is reduced.” This conclusion was available to the trial judge and did not constitute double counting for the purposes of the Grant analysis.
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