This week’s top three summaries: R v Aslami, 2021 ONCA 249: #text message authentication, R v Bielli, 2021 ONCA 222: s10(a) intentional violation, and Cormier c R, 2021 QCCA 620: s.8 by #trespass.
R v Aslami, 2021 ONCA 249
[April 21, 2021] Text Message Authentication and Witness ID from Video [Reasons by Nordheimer J.A. with Janet Simmons and P. Lauwers JJ.A. concurring]
AUTHOR’S NOTE: This case highlights a set of facts that suggests the accused may have been framed and the trial court missed it. While this was the defence offered, in hindsight it appeared quite plausible. The important points to take away are the Court of Appeal’s treatment of text message authenticity and witness identification from video recordings. In terms of text messages, the court acknowledged that fakes are easy and more has to be done to authenticate this sort of evidence than simply have a witness testify that they think it is the accused who is the sender. In terms of the witness identification, the case turned on the less than certain words employed by the identifying witness. While certainty is not a marker of reliability, a lack of certainty is an important factor that undermines the reliability of eye-witness identification.
Facts
[1] Milad Aslami appeals from his convictions on multiple charges related to the firebombing of a home in Ottawa that occurred on November 12, 2016. The issue at trial was whether the appellant was the firebomber. In my view, the trial judge made three serious errors in his analysis that led to the convictions. As a result of these errors, the convictions cannot stand.
[2] The events leading up to the firebombing began with the appellant’s ex-wife having sex with a man, S.F., who had been the appellant’s friend, but was now a bitter enemy. 1 The appellant’s ex-wife, who had only recently separated from the appellant, engaged in this activity as a way of hurting the appellant. She ensured that the appellant learned of her sexual encounter with S.F. when, the day after the sexual encounter, and shortly before the firebombing occurred, she sent the appellant a picture of her and S.F. in bed together.
[3] It was those few hours, after the picture was sent, when the home of S.F.’s former partner (and the mother of his children), was firebombed. At 2:00 p.m., a stolen van was driven into a vehicle parked in the carport of the home. A homemade incendiary device was then thrown through the living room window. Fortunately, the occupants of the home escaped unharmed.
[4] Before and after the firebombing, the appellant’s ex-wife and S.F. received several messages, both by text and on social media platforms. The contents of some of those messages suggested that the sender was involved in the firebombing. At trial, both the appellant’s ex-wife and S.F. testified to their belief that it was the appellant who had sent these messages. Indeed, it was the appellant’s ex-wife who showed the messages she received to the police, which led to the appellant’s arrest.
[5] At trial, the prosecution relied on evidence of the appellant’s motive (revenge for the sexual encounter) and the fact that the appellant had the opportunity to commit the attack. There was also a purported identification of the appellant as the firebomber, from a surveillance video, of which I will have more to say later. A crucial part of the prosecution’s case, however, were the messages received by the appellant’s ex-wife and S.F.
[6] The defence theory was that some, or all, of these messages were, in fact, created by the appellant’s ex-wife and S.F. in order to frame the appellant for the firebombing and cause his removal from Canada. The appellant did not testify, nor did the defence lead any other evidence.
Trial Decision
[7] This was a judge alone trial. The trial judge recognized that the prosecution’s case was largely circumstantial. He referred to the decision in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. The trial judge acknowledged that the prosecution “may need to negative” other reasonable possibilities that arose from the evidence.
Analysis
[10] As I earlier observed, the various messages were central to the prosecution’s case. In my view, the trial judge did not recognize the inherent fallibility of this evidence.
[11] This case demonstrates the risks associated with not paying adequate heed to the dangers that are associated with relying on text and other messages, absent expert evidence explaining how various pieces of software, or “apps”, can be used to generate these messages, and how reliable the resulting messages are in different respects. Put simply, it is too easy to use various pieces of software to create, or manipulate, messages such that they can appear to be from someone when, in fact, they emanate from an entirely different per son. Similarly, the timing of the messages can be altered to suit a particular purpose. [Emphasis by PM]
[12] There were three sources of the messages in this case: SMS text messages, messages from an app called TextNow, and messages on a Facebook page. Each of these different sources has its own particular frailties.
[13] It was part of the defence theory in this case, that these messages could have been sent by the appellant’s ex-wife, on her own or in conjunction with S.F., and could have been made to look like they came from the appellant, in order to frame the appellant for the firebombing. The appellant notes that this conduct would be consistent with the desire of his ex-wife to hurt him, or otherwise get revenge on him, arising from the breakdown of their relationship. It would also be consistent with the longstanding animus that existed between S.F. and the appellant. The appellant asserts that the trial judge’s finding that he authored the messages was based on logically flawed reasoning.
SMS Messages
[14] There is no dispute that the appellant’s ex-wife and S.F. received various SMS messages from someone. The police extracted the SMS messages both from the phone that belonged to the appellant’s ex-wife and from the phone that belonged to S.F.
[15] In the case of the messages from the phone of the appellant’s ex-wife, the cellphone number from which the messages were sent was registered to someone other than the appellant. The only connection between the appellant and that cellphone number was the fact that the appellant’s ex-wife had saved the number as a contact in her phone under the name “Sumal Jan,” with a photo of the appellant. The appellant’s ex-wife testified that “Sumal Jan” was the appellant’s “real name from back home” and what his family called him. The appellant’s ex-wife testified that she also recognized the number as one used by the appellant. She added that she believed that she was communicating with him. A police detective gave evidence that there were several entries on the appellant’s ex-wife’s cellphone for the name “Sumal Jan” that had different phone numbers associated to them.
[16] S.F. also received some SMS text messages on the day of the firebombing, but only a few, and they were sent in the space of two or three minutes. While these messages were extracted from S.F.’s cellphone by the police, the sender’s phone number could not be identified. There was no evidence that the phone number, from which these messages emanated, was connected to the appellant, other than S.F.’s evidence that he thought the messages came from the appellant.
TextNow
[19] A police detective explained how they obtained the TextNow messages from the phone of the appellant’s ex-wife. The detective explained that the messages were contained in screenshots taken by the appellant’s ex-wife, while a detective watched, between 11:26 p.m. and 11:57 p.m. on November 13, 2016, the day the appellant was arrested, and then again in October 2017.
[20] The TextNow messages raise a number of issues. For one, the prosecution did not lead any evidence to establish precisely when the TextNow messages were sent. The police officer testified that the data connected to each TextNow image shows only the time when the screenshot was created and not exactly when each of the captured messages was sent or received. The prosecution also did not lead any expert evidence regarding the functioning of the TextNow app, or its reliability, or any ability to manipulate the date, number, name of the sender , or any other details as to the operation of the app.
[21] The appellant’s ex-wife testified to her belief that the times shown on the screenshots, in the small circles embedded at indefinite intervals between the messages, corresponded with when the TextNow messages were exchanged. However, because the timestamps appear infrequently, often with many messages in between, they only provide, at best, a rough sense of the timing of each message on the day it was sent or received.
Facebook Messages
[22] The third form of messaging was through Facebook. Facebook messages were exchanged between S.F. and someone using a Facebook account with the moniker, “Trustnoone Mob”. S.F. testified that he believed this account was associated with the appellant. He also testified that he believed he had been messaging with the appellant. The messages in question were sent between 2:40 p.m. on November 12, and 3:28 a.m. on November 13. Once again, the messages were obtained by the police through screenshots, taken by S.F. on his cellphone.
Evidentiary Value of the Messages
[23] I accept that there were SMS text messages, sent towards the end of the events leading to the arrest of the appellant, that could be used to support a finding that it was the appellant who sent those text messages to his ex-wife. In particular, the last of the text messages that were sent while the appellant was hiding from the police, who were actively searching for him, could be reasonably concluded to have been sent by the appellant. I should note, however, that even that conclusion is not without its difficulties since, when the appellant was arrested, no cellphone was found on his person and, for reasons that are not explained, the police did not search the residence for one. 2 In any event, those later text messages did not implicate the sender in the firebombing.
[24] The bigger problem for the prosecution, however, is that the case did not rest on the contents of the SMS text messages. Rather, the incriminating messages were obtained from the TextNow app. Indeed, the appellant’s ex-wife testified that “[o]ur whole argument was over the TextNow app.” Unlike the SMS text messages, not only were the TextNow messages obtained in an unusual and not especially reliable way, there was nothing in the content of those messages that objectively established the appellant as the sender nor, as I have mentioned, was there any expert evidence offered regarding the functioning and reliability of the TextNow app.
[25] … The trial judge said: “I find that there are striking similarities in the substantive content, specific terms, tone, grammar and spelling when comparing the messages at tabs 1 and 3.”
[26] In my view, this represents a flawed and unreliable foundation for the conclusion that the trial judge reached. Grammar and spelling are not, generally, unique to a single person. Further, there are many unusual expressions that are routinely used in text messages that do not reflect proper grammar or proper spelling. Further, any person who has ever sent a text message has very likely engaged in spelling errors or, worse, has had their intended language changed by the spell check function.
[28] Further, the reference to “substantive content” is troubling because it effectively assumes that the appellant is the sender. In other words, reliance on the content of the messages engages somewhat circular reasoning. It assumes that, because the sender of the messages knew about the firebombing, it must be the appellant who sent the messages. This approach also fails to give any consideration to the defence position that, in fact, it was the appellant’s ex-wife and S.F. who were sending the messages as a way of framing the appellant.
[29] Last, are the Facebook messages. In my view, these messages had no evidentiary value. There was no evidence whatsoever tying the appellant to these messages, save for the evidence of S.F. that he believed that they came from the appellant. The problem with relying solely on S.F.’s evidence on this point, given the obvious animus between the two, is self-evident. S.F., more than any other person, had reason to falsely implicate the appellant.
[30] As I said at the outset, trial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. The trial judge did not engage in that rigorous analysis in this case. In fairness, the trial judge was not assisted by the prosecution in this task. The prosecution ought to have called expert evidence to address the issues that the evidence posed, but they did not.
Identification Evidence
[32] The first problem arises from a transit video camera that captured footage of the man, who the police believed was the firebomber. The man was wearing what a police officer described as “bright white pants” and a dark jacket. He ran past the camera, at 2:07 p.m., in an area that happens to also include the home of C.C., a friend of the appellant’s ex-wife.
[33] On the day of the firebombing, the appellant arrived at this home, although the exact time when he arrived was a matter of dispute. The appellant asked to use the Wi-Fi to call for a ride. C.C. was not home but her boyfriend, H.M., was, as were C.C.’s children. According to H.M., the appellant stayed for about ten minutes. During that time, the appellant appeared to H.M. to be texting. H.M. testified that the appellant was wearing black jogging pants and possibly a black shirt. C.C. arrived home shortly after the appellant had left. Her children told her excitedly that the appellant had just visited.
[35] … The trial judge then used the timing of the visit to authenticate some of the text messages. …
[36] In my view, there are two problems with the trial judge’s treatment of this evidence. For one, you cannot use the fact that the appellant appeared to be texting to, in some fashion, link the appellant to the various text messages sent. One does not simply follow from the other. For another, it seems curious for the trial judge to dismiss C.C.’s evidence as to when she returned home, given the reason that she gave for establishing when that was, i.e., putting her children down for their regular nap. For yet another, even accepting H.M.’s evidence as to the time (between 1:00 and 2:00 p.m.), it remains a problem for the prosecution as that time is still before the firebombing occurred. It was the prosecution’s position at trial that the appellant visited the home after abandoning the van used in the firebombing.
[38] The trial judge never addresses the evidence about the appellant’s clothing, although its importance in terms of the identification of the appellant, as the firebomber, is obvious.
[39] The appellant’s ex-wife was shown the transit video. There was no dispute that she had sufficient familiarity with the appellant that, in appropriate circumstances, she could give opinion evidence whether a person seen in a video was, or was not, the appellant. The issue here was that the length and quality of the video did not provide those appropriate circumstances. Further, after viewing the video, the appellant’s ex-wife testified in chief that “[i]t looks to be [the appellant]” and then agreed in cross-examination that her evidence was that “[she] guess[ed] it kind of looks like him”. The appellant’s ex-wife did not explain what led her to believe that the person she saw on the video was the appellant.
[40] The trial judge said that the video portion, showing the individual, was “short” (it was five seconds) and that the video’s resolution was “less than ideal”. Indeed, the appellant’s ex-wife agreed that it was “blurry”. The trial judge found that the appellant’s ex-wife’s opinion as to the identity of the person in the video would “clearly fall short” of establishing the identification of the appellant beyond a reasonable doubt, but he found that the evidence was nonetheless not worthless. The trial judge said it could be considered alongside other evidence.
[42] In my view, this evidence was worthless. It had no probative value on the issue of identification. As Hourigan J.A. observed in R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39:
The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence. [Citations omitted.]
The Van
[44] The third serious error involves the evidence of the van that was used by the firebomber. It was a white van with signage on the side. The van belonged to a company that had reported it stolen the day prior to the firebombing. In other words, the van was stolen more than 24 hours prior to the appellant learning of the sexual encounter between his ex-wife and S.F., which is said to have been the catalyst for the firebombing.
[45] There is no evidence implicating the appellant in the original theft of the van nor is there any evidence as to how it came into his possession, assuming of course, that it did come into his possession. The prosecution attempted to avoid this problem by suggesting that the appellant may have stolen the van some time after it was originally stolen. That would mean that the van would have had to have been stolen twice in under 24 hours. The prosecution’s suggestion would involve an incredible coincidence, and one for which there is absolutely no evidence.
[46] The trial judge’s response to this issue was succinct. He said simply that it did not “support a plausible theory that is inconsistent with guilt and it [did] not raise a reasonable doubt”. That was, in my view, an inadequate response to this issue. It was also incorrect.
Summary
[47] As I noted at the outset, this was an entirely circumstantial case. Consequently, the trial judge was required to follow the analytical route set out in Villaroman, where Cromwell J. said, at para. 37:
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Citations omitted.] [Emphasis in original.]
[48] The trial judge purported to comply with this approach, but it is clear that he did not do so. He said that he could see “no other ‘plausible theories/reasonable possibilities’ other than that of the guilt of [the appellant.]” It seems likely that it was the errors, to which I have referred above, that caused him to reach that conclusion.
[50] The problems with the text messages, combined with the evidence of the clothing that the appellant was wearing and his presence at the home of his friend at, or only shortly before, the time that the firebombing occurred, combined with the timing of the theft of the van used in the firebombing, had to raise a reasonable doubt, on any fair and objective view of the evidence, as to the appellant’s guilt. It was certainly sufficient to raise a plausible theory, or reasonable possibility, consistent with the defence theory.
R v Bielli, 2021 ONCA 222
[April 9, 2021] Section 24(2) – Intentional Breaches Based on Case Law [Reasons by S.E. Pepall J.A, with K. van Rensburg and David Brown JJ.A. concurring]
AUTHOR’S NOTE: The facts of this case are particularly troubling for the underlying foundations of s.24(2). In the courts it makes perfect sense to have breach and admissibility determinations conducted separately. It fits a tidy analytical process which lawyers and judges are fond of. However, reality beyond the courtroom is different. For police officers, accused persons, and the general public, breaches only matter if they lead to exclusion of evidence or a similar prosecution-ending result. The rest is mere verbiage. Here, a police officer got prosecutor advice against getting a general warrant that would allow the conducted he wanted to achieve and then did his own research. He found a case from 2011 where on 24(2), evidence from the breach he was planning did not result in the exclusion of evidence (ie. a successful police prosecution). Consequently, the result in that older case did not only deny an accused person in it any remedy from Charter violations, but it emboldened police acting years later to try the same tactic intentionally. This is the side effect of inclusion of evidence after a Charter violation, one that is not actually considered with in the 24(2) test. It’s not just the general public that is being signalled that Charter rights account for little when evidence is not excluded, it is also enforcement officials who may decided to take a similar gamble in the future. Not all law enforcement may be as forthright in their explanation for the breach of Charter rights as this one was, but the case provides an excellent example of what the repercussions of inclusion of evidence truly are.
Facts of the Case
[1] At the centre of this appeal is a planned and intentional breach of s. 10(a) of the Canadian Charter of Rights and Freedoms. The breach formed part of a police ruse designed to search the appellant and his vehicle in furtherance of a larger investigation into illegal gambling in Ontario.
[3] In 2011, the police began an investigation into a suspected criminal organization operating illegal gambling online and in the City of Toronto. The investigation was called Project O’River. Detective Kevin Leahy, an officer with the Combined Forces Special Enforcement Unit, was the lead investigator.
[4] Platinum SB (Sports Betting) operated a betting website. It had a network of betting agents or “bookies”. The bookies dealt directly with the bettors, and the bettors’ losses were physically collected weekly by the bookies and ultimately remitted to management. The appellant was alleged to be one of those collecting the proceeds from the bookies for the benefit of members at the top level of the organization.
[5] The investigative team hoped to arrest prominent members of the organization. The “take-down day” was to be on the occasion of the 2013 Super Bowl party, an annual event where members would congregate early in the year.
[6] By November 2012, the lead investigators believed that the appellant was a central figure within the Platinum SB organization. The police had conducted wiretaps and surveillance and had observed the appellant exchange packages, and on one occasion cash, with at least one person thought to be operating an illegal gaming website that facilitated bookmaking activities and illegal gaming on sports activities. In addition, the appellant was seen meeting with subjects of the investigation on a number of different dates.
[7] The officers suspected that the appellant travelled regularly between London and Toronto on Tuesdays and Thursdays to collect money for Platinum SB. They believed he returned to London with the proceeds of the transactions which might be mixed with other monies when he got home. Det. Leahy testified that the investigation was losing evidence every week.
[8] Det. Leahy wanted to seize evidence from the appellant and his vehicle without disclosing or compromising the ongoing investigation. Undercover officers were engaged in the investigation and their safety was also of concern to him.
[10] Det. Leahy asked Mr. Sabadini whether the police could apply for judicial authorization using a general warrant under s. 487.01 of the Criminal Code, R.S.C. 1985, c. C-46, so as to obtain evidence from the appellant’s vehicle without disclosing the investigation to him. Det. Leahy proposed that, using the Highway Traffic Act, R.S.O. 1990, c. H.8 to stop the appellant, the police would search his vehicle and seize the evidence pursuant to a general warrant, but he would not be arrested. The application judge described Det. Leahy’s discussion with Mr. Sabadini at para. 16 of his reasons:
[W]e had asked whether we could type a general warrant to come up with an excuse for a search of Mr. Bielli’s vehicle under the guise of a general warrant. He [the Crown] told us that was not something you could do because the accused would not know the full jeopardy of the circumstances.
…
He said a Judge would not authorize a warrant in that particular scenario because Mr. Bielli would not know the full jeopardy of the stop.
[11] Thus, Mr. Sabadini explained that he would not be willing to bring that general warrant forward as he did not feel that it would be authorized by a judge because the appellant would not know the full scope of the jeopardy he was in at the time. Det. Leahy testified that the police needed Mr. Sabadini’s endorsement to go ahead with the general warrant.
The Plan
[12] Around two weeks after receiving this advice from Mr. Sabadini, Det. Leahy “hatched a plan” based on R. v. Dibble, 2011 ONSC 399, 230 C.R.R. (2d) 323, a case he learned about from a friend in another unit. There the police told the accused that his vehicle was being searched for a radar detection device when the true purpose of the search was to obtain evidence of narcotics. The Crown in that case conceded that the police breached ss. 10(a) and 10(b) of the Charter. The trial judge found that the police had breached their s. 10obligations to protect an ongoing investigation and not to intentionally circumvent Mr. Dibble’s s. 10 rights. She refused to exclude the evidence seized. Det. Leahy familiarized himself with the Dibble decision and came up with a plan using a ruse. He cleared the ruse with his superior and prepared a typewritten “Operational Plan” (the “Plan”), the goal of which was “to conduct a vehicle stop on BIELLI, search the vehicle and seize evidence in relation to offences being investigated for Project ORIVER.” [Emphasis by PM]
[13] The appellant would be stopped on the highway going to London from Toronto after making his collections. If the appellant did not commit a Highway Traffic Act offence, the officer would initiate a vehicle stop regardless. So as not to put the investigation into jeopardy, the appellant would not be arrested. The vehicle and the appellant would be searched for the evidence the police were seeking.
[14] As Det. Leahy testified:
A: [T]he goal was to get the money on Mr. Bielli prior to him returning home after we had observed him doing these meets.…
A: And the ruse was devised so [as] not [to] raise any suspicion to Mr. Bielli that we’d actually been watching him for a number of months and that he was a subject [of] a larger scale investigation that was occurring at the time.
[15] Det. Leahy acknowledged in cross-examination that the Plan had nothing to do with the arrest of the appellant, it had to do with the seizure of the items in the vehicle. He instructed that the appellant should not be arrested for criminal organization and gaming offences but that he should be told that he was being investigated and detained for possession of proceeds of crime. He specifically instructed that the term “investigative detention” be used and not the term “arrest”. The appellant would not know what he was “actually under investigation for”; he would know he was being investigated for money in the car but not for criminal organization, booking or money laundering charges.
[16] Det. Leahy appreciated that there were some issues with the Plan. He knew that the appellant would not know his full jeopardy and that he might make some self-incriminating remarks or statements. To mitigate the jeopardy, the officers were going to give him his rights to counsel, put him in touch with his lawyer, caution him, and would not elicit any incriminating evidence from the appellant himself, just the evidence of what the police were looking for in the vehicle and on his person.
[17] The appellant was not being told he was under arrest; that was the whole plan according to Det. Leahy. However, in Det. Leahy’s mind, even though the appellant was told he was under investigative detention, he was under arrest.
[18 ] That said, Det. Leahy acknowledged that because the appellant was told he was under investigative detention and presumably the appellant’s lawyer would be advised of the same, the appellant would get legal advice on the basis of being under investigative detention, not on the basis of being under arrest. Moreover, he acknowledged that the police could not search a vehicle incident to an investigative detention in this scenario.[1]Det. Leahy recognized that the appellant was educated in police techniques and might have refused to comply with an unlawful search pursuant to an investigative detention. Therefore the officers were to try and persuade the appellant to comply; they could try telling him that he would be arrested for obstruction, although if he fled, they were not to engage him in a pursuit.
[19] Det. Leahy agreed that the appellant’s lawyer inevitably had to be misled about what was really going on; his lawyer could not be fully informed.
[20] Det. Leahy offered that it was a unique situation. In hindsight it was complex and it would have been prudent to speak with Mr. Sabadini or another lawyer. However, that was not the decision he made. In his mind, the appellant was arrestable for proceeds of crime, gaming offences, and criminal organization offences and they could search him and his vehicle incident to his arrest for those offences.
[22] Under the Plan, P.C. Brisebois was to effect the Highway Traffic Act stop and D.C. Lee would be called in as backup. P.C. Brisebois would approach the car, get the documents from the appellant, and return to the police vehicle to do certain checks. Knowing that the appellant was associated with members of an outlaw biker gang (Hells Angels), as part of the ruse, the officers would return to the appellant’s vehicle, tell him they knew of his association with an outlaw motorcycle gang, and would like to search the car for contraband, and give the appellant his rights to counsel and a caution. Once the officers found the money, they were to stop their search and inform the appellant that he was “being detained [and] investigated for proceeds of crime … and given his rights to counsel, again”. P.C. Brisebois and D.C. Lee were told not to question the appellant. The officers were told that the appellant “would not know the full jeopardy of the circumstances he was in.” Moreover, his lawyer would not be fully informed.
[23] Det. Leahy’s notes after his briefing stated:
Brief PC Joe Brisebois & D/C LEE on scenario. I advise them I have grounds to arrest BIELLI for gaming & crim org related offences at this time but to protect integrity of investigation do not want to arrest him for these offences at this time.
Execution of the Plan
[24] The Plan proceeded to execution on November 30, 2012. P.C. Brisebois stopped the appellant at 10:49 a.m., telling him that his speeding, abrupt lane change, and quick exit raised suspicion. The appellant provided P.C. Brisebois with his driver’s documentation as requested. P.C. Brisebois called D.C. Lee for backup. After conducting checks, P.C. Brisebois told the appellant that he was placing him under investigative detention as records showed his connection with the Hells Angels and that they would be searching his car for contraband and weapons. The appellant, knowing his rights, told the police that they needed a warrant. P.C. Brisebois testified that he gave the appellant two options: investigative detention or be arrested for obstruct. 2 While P.C. Brisebois could not recall the appellant’s exact response, his evidence was that the appellant became compliant and exited his vehicle. He was not arrested for obstruction but was handcuffed, subjected to a pat-down search, placed in the police cruiser, and given his rights to counsel and cautioned at 11:15 a.m. D.C. Lee testified that P.C. Brisebois had placed the appellant under investigative detention as soon as they reached the cruiser.
[25] The appellant spoke with his lawyer, James Lockyer, in private while in the police cruiser. D.C. Lee testified that he placed the call for the appellant and told Mr. Lockyer that the appellant had been placed under investigative detention. The call lasted 23 minutes, from 11:22 a.m. to 11:45 a.m.
[26] P.C. Brisebois searched the car and found cash. He testified that his lawful authority to search the appellant and his vehicle was incident to arrest based on Det. Leahy’s instruction that the police had reasonable grounds to arrest for possession of proceeds of crime. He advised the appellant at 11:55 a.m. that he was being investigated for possession of proceeds of crime. The appellant was given his rights to counsel and cautioned again and the appellant spoke with Mr. Lockyer again, from 12:08 p.m. to 12:16 p.m. At some point, P.C. Brisebois told Mr. Lockyer that the traffic stop was for speeding and an unsafe lane change and that the search was to look for contraband and weapons, based on “affiliation with Hells Angels”.
[27] The officers conducted a more thorough search of the vehicle which they completed at 12:49 p.m. They gave the appellant a receipt for the property taken: $74,835 in cash, a number of cellphones, and a laptop, among other things. Contrary to their instructions, the two officers did question the appellant, but he declined to answer them.
[28] P.C. Brisebois testified that he gave the appellant a verbal warning about his speed and improper lane change but did not issue a Highway Traffic Act ticket because he did not have proper evidence for this. The appellant was released without charges at 1:46 p.m. He had been detained for nearly three hours.
Reporting on the Outcome
[29] The officers completed their paperwork for the stop. The Plan prepared and distributed by Det. Leahy instructed them to complete the necessary reports but that “[n]o mention of Project ORIVER will be included in the report. The OPP Port Credit officer [P.C. Brisebois] will be provided with a project book specific to ORIVER to make notes regarding the briefing to this stop. Duty books of the officer will not have any reference to ORIVER.”
[30] P.C. Brisebois prepared two sets of notes, one set that referred to the traffic stop with no reference to the underlying investigation, the true purpose of the stop, or Det. Leahy’s grounds for arrest, and another set that described Det. Leahy’s Project O’River and the grounds to arrest the appellant. D.C. Lee testified that he similarly kept a Project notebook and an administrative notebook as well that would not mention the Project. P.C. Brisebois testified that it was not typical to have two sets of notes.
The Eventual Arrest
[31] The appellant was not told he was under arrest until over two months later, on February 3, 2013. At that time, and as anticipated at the time of the execution of the ruse, the police raided the annual Super Bowl party. The appellant was arrested as were five others. He was charged with conspiracy to commit an indictable offence, possession of proceeds of crime exceeding $5,000, committing an indictable offence for the benefit of a criminal organization, and two counts of possession of the proceeds of bookmaking exceeding $5,000. A financial audit revealed that Platinum SB grossed over $103 million from 2009 to 2013.
The Trial Decision
[32] The appellant brought a Charter application to exclude the evidence that the police had seized during the course of the traffic stop ruse on November 30, 2012. He alleged that his ss. 8, 9 and 10(a) and 10(b) rights had been violated by the police. The Crown contested the alleged ss. 8, 9, and 10(b) Charter breaches but conceded that the police had violated the appellant’s s. 10(a) Charter rights. The Crown argued that the evidence should be admitted nonetheless.
[33] The application judge determined that there was no s. 8 or s. 9 Charter breach but that the police had breached both ss. 10(a) and 10(b). He nonetheless concluded that the evidence should not be excluded under s. 24(2) of the Charter.
Appeal Issues
[39] The appellant raises three grounds of appeal on his appeal of conviction. First, he submits that the application judge erred in finding that the appellant was under de facto arrest and in finding that his s. 8 Charter right was not infringed. Second, he submits that the application judge’s analysis of the s. 10 breaches was flawed. Third, he argues that the application judge erred in his analysis under s. 24(2) of the Charter. At the suggestion of the Crown and given that the application judge found breaches of ss. 10(a) and 10(b), the appellant’s s. 10 arguments are encompassed in my s. 24(2) discussion.
Did the application judge err in concluding that there was a de facto arrest and that therefore the search was reasonable within the meaning of s. 8 of the Charter?
[62] “Everyone has the right to be secure against unreasonable search or seizure.” So states s. 8 of the Charter.
[63] The Supreme Court has directed that a search is reasonable if it is authorized by a reasonable law and is conducted reasonably: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 10; and R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12. Police may search based on a warrant. Or, if there is no warrant, the police have a common law power to search incident to an arrest. To be valid, the arrest must be lawful, the search must have been conducted as an incident to the arrest, and it must be carried out in a reasonable manner: see R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27. As stated by Lamer C.J. in Caslake, at para. 17, “searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question.”
[64] The power to search incident to arrest is contrasted with the police power to search incident to an investigative detention. The power to search incident to an investigative detention is limited to safety concerns: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 40. There is no dispute that the power to search incident to an investigative detention did not authorize the search of the appellant’s vehicle in the circumstances.
[65] In this case, the Crown relied on the common law power of search incident to arrest to provide the legal authority for the search. The right to search had to arise from the fact of the arrest: Caslake, at para. 13. Thus, the lawfulness of the search turns on whether the appellant was under a de facto arrest. If there was no de factoarrest, the common law power to search incident to arrest could not be relied upon.
[66] The subject of a de facto arrest was addressed by the Supreme Court in R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217 in the context of an alleged breach of s. 9 of the Charter. That case bears some similarities to this one. The accused was the father of a severely disabled daughter who died while in his care. The RCMP began to treat the death as a homicide investigation. The officers attended at the accused’s farm, an officer told Mr. Latimer that what the officer was about to say had very serious consequences, and that Mr. Latimer was being detained for investigation into the death of his daughter. The RCMP officers decided prior to attending at the farm that they did not wish to arrest the accused.
[68] One of the issues to be addressed was whether the appellant had been arbitrarily detained in violation of s. 9 of the Charter. The Supreme Court concluded that the detention was not arbitrary. The RCMP had put the accused under de facto arrest. That arrest was entirely lawful because it was based on reasonable and probable grounds to believe that the accused had taken his daughter’s life. A de facto arrest which is lawful cannot be an arbitrary detention for the purpose of s. 9.
[69] In response to the accused’s argument that no arrest occurred because the officers deliberately chose not to arrest him, Lamer C.J. wrote that notwithstanding what their intention may have been, the conduct of the officers had the effect of putting the accused under arrest. He noted the definition of arrest found in R. v. Whitfield, 1969 CanLII 4 (SCC), [1970] S.C.R. 46: an arrest consists either of (i) the actual seizure or touching of a person’s body with a view to his detention, or (ii) the pronouncing of “words of arrest” to a person who submits to the arresting officer. As such, he declined to accept that only the word “arrest” will suffice to amount in fact to an arrest. At para. 24, he quoted from R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 888, where McLachlin J. (as she then was) wrote for the majority that what counts is:
[T]he substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used.… The question is … what the accused was told, viewed reasonably in all the circumstances of the case….
[71] Lamer C.J. concluded that on the facts of Latimer, a de facto arrest had occurred through the use of words that conveyed clearly that Mr. Latimer was under arrest coupled with the conduct of the officers and the accused’s submission to the authority of the officers: at para. 25. Lamer C.J. was also satisfied that the arrest was lawful and hence concluded that the trial judge had correctly decided that there were reasonable and probable grounds for an arrest and accordingly the accused had not been unlawfully detained.
Analysis
[73] There is no issue that the police had grounds to arrest the appellant when they conducted the vehicle stop on November 30, 2012. It is this alleged arrest that is relevant to the search, not the actual arrest of February 3, 2013.[74] As discussed, the test for a de facto arrest asks what the accused can reasonably be supposed to have understood in light of what he was told, viewed reasonably in all the circumstances of the case.[75] As in Latimer, the police Plan was not to arrest the appellant. Indeed, the Plan did not contemplate an arrest unless the appellant obstructed the police or was in possession of a gun or drugs. Det. Leahy told P.C. Brisebois and D.C. Lee that the appellant was arrestable but instructed that he “not be arrested” for criminal organization and gaming offences. In addition, he instructed the officers not to pursue the appellant if he fled.[77] So from the police perspective, clearly there was no intention to arrest the appellant nor did they formally do so. In addition, there was no intention to tell the appellant that he was under arrest and the officers did not do so. As seen from Latimer, however, the absence of an intention by the police to arrest and the failure to advise the appellant that he is under arrest are not fatal. To reiterate, in addition to what he was told, what counts is “the substance of what the accused can reasonably be supposed to have understood”: see Evans, at p. 888.[78] The appellant did not testify on the voir dire. That said, his circumstances were very different from those of Mr. Latimer. He was no ingenue as far as the criminal justice system was concerned. Det. Leahy testified that he believed that the appellant was educated in the area of police techniques and counter surveillance, and he was someone Det. Leahy believed would possibly know his rights. D.C. Lee also testified as to the appellant’s sophistication.[79] P.C. Brisebois testified that the appellant was told he was under investigative detention. Indeed, P.C. Brisebois was told to use those words. In cross-examination, he confirmed that he was going to convey as much as he could that the appellant was not under arrest. The appellant refused to get out of his car and told P.C. Brisebois that he needed a warrant. P.C. Brisebois gave him “two options”: investigative detention or arrest for obstruction. The appellant chose not to be arrested and instead submitted to an investigative detention. He exited his vehicle, and he and P.C. Brisebois made their way to the police cruiser. It follows that having chosen not to be arrested for obstruction, he would have reasonably understood that he was under investigative detention rather than arrest. Although he was cuffed and sat in the police cruiser for a number of hours, viewed reasonably, one would expect that the appellant would take the police at their word that he was under investigative detention and not under arrest. D.C. Lee also recorded in his notes that “Brisebois placed Bielli under investigative detention”. He also told Mr. Lockyer that P.C. Brisebois had placed the appellant under investigative detention.[80] The police gave the appellant an option and he chose investigative detention. The police planned not to arrest the appellant and they executed that plan. Considering the evidence as a whole, there was no de facto arrest. Again, the test turns on what the accused can reasonably be supposed to have understood. The application judge’s finding that the appellant knew he was under arrest cannot be reconciled with his factual finding that the police told the appellant that if he complied with the search, he would not be arrested. The application judge did not explain why, in light of the option the police gave the appellant, he would have believed himself to be under arrest. In conclusion, I agree with the appellant that the application judge’s finding that there was a de facto arrest was unreasonable and that the search was not incident to arrest. As such, the search was unlawful. The application judge erred in finding that there was no s. 8 breach.
Error in the Charter 24(2) Analysis
[82] In light of my conclusion on s. 8, the Grant factors must be reassessed and the balancing of the factors reconsidered. However, as I will explain, quite apart from the s. 8 breach, I would also conclude that the s. 24(2) decision should not survive scrutiny.[83] At its heart, this case involves the planned and deliberate violation of the Charter. The Crown attorney, Mr. Sabadini, advised the police that a general warrant would not be granted because the appellant would not be advised of his jeopardy. Put differently, the proposed plan would not legally justify the granting of a general warrant. The police did not pursue a general warrant. Rather, based on their reading of Dibble which served as their legal anchor and which involved breaches of ss. 10(a) and 10(b) of the Charter, they pursued a Plan which they knew would result in a Charter violation. This was not an incidental violation; it formed part of the Plan itself. The Plan, as formulated, anticipated a breach of the Charter.
[85] Section 10 ensures that people have a chance to challenge the lawfulness of an arrest or detention. Police are to advise promptly the reasons for the arrest or detention, and individuals then have the right to receive legal advice about their situation from counsel. The information provided pursuant to s. 10(a) serves to inform the advice provided as a result of the invocation of s. 10(b). If the information is inaccurate, it taints the ability of counsel to give meaningful and responsive advice.
[86] In this case, even though the police took steps to attenuate the prejudice to the appellant by facilitating the right to counsel and by at least planning not to question the appellant (even though they ultimately did do so), their approach ignores the foundation of the s. 10(a) right. As McLachlin J., as she then was, said in Evans, at pp. 886-87:
The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to arrest if one does not know the reasons for it. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-153, “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right. [Citation omitted.]
[90] The cases relied upon by the application judge that constituted the “well-recognized existing line of judicial authority” were Dibble, Grant and Campbell, and Whipple. He also referred to the oft-quoted dicta of Lamer J. in the pre-Charter decision of Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 697, to the effect that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules.
[96] These two cases are materially different from that of the appellant. First, the Charter breaches in those cases were not planned in advance. Second, the ruses in those cases developed in dynamic circumstances. The police conduct was immediately responsive to the circumstances that presented themselves. Both Dibbleand Grant and Campbell involved spur-of-the-moment decision making by the police, not a planned, intentional violation of the Charter as occurred here. The cocaine in Dibble and the firearm in Grant and Campbell were dangerous contraband that could cause harm to the public, and the conduct in Grant and Campbell was motivated by safety concerns. Here, there was no urgency to the alleged de facto arrest. Moreover, the s. 10(a) breaches in Grant and Campbell were momentary, and the accused were advised of the real reason for their arrests within just a few minutes, unlike this case. The accused in Dibble was similarly advised of the real reason for his arrest not long after he was stopped, and before he was afforded access to counsel.
[97] The police conduct in Whipple also differed from that in this case. There the police had obtained a general warrant that authorized the police to use a ruse to effect a traffic stop. As in Dibble and Grant and Campbell, the accused was advised of the real reason for his arrest within minutes of the vehicle stop. In addition, unlike the application judge, I do not read Whipple as authorizing police conduct that intentionally breaches s. 10(a). The Alberta Court of Appeal expressly concluded that the warrant did not authorize a breach of s. 10(a) and in any event, there was no breach of s. 10(a). This is in contrast to the case under appeal: the police both planned to breach s. 10(a) and actually breached s. 10(a) as planned. Furthermore, here, the Crown attorney, Mr. Sabadini, had previously advised Det. Leahy that a warrant would not be granted because the appellant would not know the full scope of the jeopardy he was in.
[98] In Evans, Sopinka J. stated in concurring reasons, at p. 875, that the purpose of s. 10(a) is “inter alia, to enable the person under arrest or detention to immediately undertake his or her defence, including a decision as to what response, if any, to make to the accusation.” The accused in Dibble, Grant and Campbell, and Whipplecould undertake their defences shortly after their detentions or arrests whereas here, the appellant was not informed that he was under investigation for possession of proceeds of crime until nearly an hour into his detention and was not charged for over another two months.
[99] Contrary to the conclusion of the application judge, the Plan developed by the police in this case was not based on “a well-recognized existing line of judicial authority”. As explained, the police conduct in those cases was materially different from that engaged by this appeal. Those cases do not support the police conduct in issue. The application judge’s finding that the police in this case had engaged in a legitimate policing technique was an error and infected his analysis of the first prong of Grant.
Good Faith Conduct
[100] Second and as mentioned, the appellant submits that the application judge erred in finding that the police acted in good faith. He argues that, to the contrary, the conception and execution of a plan designed to deliberately breach the appellant’s rights was indicative of bad faith. Det. Leahy knew that a traffic stop ruse was unlawful, there was no urgency to the operation, and he designed the Plan in a way that would ensure that the appellant would remain ignorant long after the operation was completed. The Crown submits that the application judge’s finding of good faith was open to him on the record and is entitled to deference.
[102] … Nonetheless, on discovering the Dibble decision, Det. Leahy made no further inquiries of Mr. Sabadini and instead proceeded with a plan that would necessarily result in a Charter breach. Indeed, the breach was an integral part of the ruse. The breach was planned and deliberate. Dibble did not depend on an absence of any Charter breach; rather it depended on a s. 24(2) rescue. This would have been evident to Det. Leahy, P.C. Brisebois and D.C. Lee, all of whom testified to having read the decision. The application judge failed to consider the reasonableness of the police reliance on Dibble and how the facts in that case differed from the Plan they were pursuing.
[103] In addition, as argued by the appellant, there were no pressing or exigent circumstances here. To use Det. Leahy’s terminology, the excuse for the stop was “practical”. There was no evidence of urgency nor was this a spontaneous police response. Indeed, the police already had plans to conduct a takedown at the annual Super Bowl party a few months later. As stated by Michelle Fuerst J., Fairburn J. (as she then was), and Scott Fenton in “‘Ruse’ Traffic Stop for the Purpose of Conducting Search Incident to Arrest (Two Months Prior to Arrest) is Charter Compliant”, Police Powers Newsletter 2017-1 (January 2017), “it was a strategic mid-investigation decision designed to benefit the investigation at the intended cost of breaching the [appellant’s] rights.” Although I acknowledge that deference is owed to an application judge’s finding of good faith, the finding in this constellation of facts was unreasonable.
[104] … In light of the s. 8 breach and the other s. 24(2) errors I have found, it is unnecessary to consider these arguments. Even accepting the application judge’s findings on these points, as I will explain, on a fresh Grant analysis, the evidence should be excluded.
The Fresh 24(2) Analysis
[107] First, regarding the seriousness of the Charter-infringing state conduct, as I have explained, the police were not relying on a well-established line of authority when they engineered this ruse. On the contrary, the police proceeded with a Plan which they knew or should have known would breach the appellant’s s. 10 rights. The fact that the police also planned to search the appellant incident to arrest without actually arresting the appellant makes the state conduct all the more troubling. The violation of the appellant’s Charter rights was integral to the police Plan. They would not have proceeded with the Plan had it not involved violating the appellant’s Charter rights.
[108] I would also add that the police conduct is elusive of public confidence and ought not to be sanctioned by the court. Put differently, and adopting the language of McLachlin C.J. and Charron J. in Grant, the court should dissociate itself from such police conduct. I fail to see how the police conduct in this case does not threaten the integrity of the criminal justice system. Protection of Charter rights is the operative principle, not planned circumvention for investigative purposes however laudable they may be.
[109] Second, the impact on the appellant’s Charter-protected interests was significant. He was subjected to a search without lawful authority. The appellant was, at least initially, unable to have a meaningful consultation with counsel because the police left him in ignorance of his full jeopardy. His counsel was equally misled about the reason for his detention. Assuming the application judge correctly concluded that the impact of the breach was somewhat mitigated by the semi-accurate information the police provided partway through the ruse, in light of the s. 8 breach, the impact remains serious. I acknowledge that the police attempted to mitigate the impact of the breach by affording the appellant access to counsel, but those steps fall short given that he was misinformed. This factor favours exclusion.
[110] Finally, I accept, as the application judge did, that the third Grant factor, society’s interest in an adjudication of the case on its merits, weighs in favour of admitting the evidence. The weight of this factor is somewhat attenuated because, as the application judge found, while important, this evidence is not crucial to the Crown’s case.
[111] For these reasons, I would exclude the impugned evidence under s. 24(2) of the Charter, allow the appeal from conviction and order a new trial.
Cormier c R, 2021 QCCA 620
[April 19, 2021] Charter s.8 and 24(2) – Police Trespass [Robert M. Mainville, J.A. Patrick Healy, J.A. and Stéphane Sansfaçon, J.A.]
AUTHOR’S NOTE: Can police responding to a noise complaint on an acerage go roving over the property to find the source of the noise? Turns out they can’t. The implied invitation to knock does not extent so far. The Court reiterates that 24(2) does not denote an exclusionary discretion, but rather an obligation to exclude that is not automatic. The distinction is important as it reflects the SCC position on this issue. While the legal onus does not appear to shift to the prosecution, this language is pretty close to that mark.
The Facts
[2] The principal issue before the Court is whether the SCAC erred under section 24(2) in not allowing the appeal against the decision of the trial judge to admit evidence obtained in violation of section 8 of the Charter.
[3] At about 2h00 in the morning of 21 August 2014, two police officers responded in person to a complaint of noise and disturbance from the open spaces of a farm, which was a residential address. The officers entered on the property without lawful authority of any kind.[3] While the officers were on the property, they concealed themselves to avoid observation or detection until they intercepted the appellant as he was driving an all-terrain vehicle. At that point they illuminated their flashlights and identified themselves. The appellant asked the officers to leave the property. The officers detected indications of intoxication by alcohol. The two officers called for assistance and two more officers arrived and joined them on the property with a roadside screening device. A screening test was administered on the property. The appellant failed the test, was arrested and transported to a police station. A breath test was administered, which the appellant also failed.
[4] The prosecution did not dispute on appeal that the entry and presence of the officers on the property was a violation of section 8 of the Charter.[4] The appellant sought the exclusion of evidence obtained following this violation, notably the evidence relating to the screening test and the subsequent breath test.
[6] With regard to the second criterion in Grant, the judge was satisfied that the violation of section 8 was minimal and that the intrusiveness of the police actions was no greater than is typical of most suspected cases of impaired driving. For this reason he concluded that the circumstances did not justify the exclusion of evidence relating to the screening test or the breath test.
General Observations about Grant
[13] Section 24(2) does not confer an exclusionary discretion. It imposes an obligation to exclude evidence if its admission, despite a violation of a substantive right, would bring the administration of justice into disrepute. It also does not create or impose an automatic rule of exclusion once a breach is established. It imposes a rule of exclusion that must be observed according to the relative gravity and effect of the violation in relation to the objectives of criminal justice. Although Grant has been cited over five thousand times, it does not allow an application that would permit a judge to rank relevant considerations in a preferred order of priority. For this reason it is useful to recall from time to time what the Court actually said in Grant about the application of section 24(2) to ensure an interpretation that vindicates the purpose of the provision. [Emphasis by PM]
Seriousness of the Breach
[16] Since Hunter v. Southam Inc.[8] Canadian jurisprudence has affirmed unwaveringly that in the absence of prior authorisation a search or seizure will violate section 8 of the Charter. The law zealously protects the expectation of privacy in premises, especially residential premises, including not only the interior but the exterior precincts. A violation of this expectation is presumptively serious and in practical terms the burden to rebut that conclusion will lie with the state. The “hierarchy of places” referred to by the SCAC[9] that might imply a dilution of the expectation of privacy in land adjacent to a dwelling does not mean that the expectation is reduced to nil.
[17] In the present case the police entered onto the appellant’s property without legal authority of any kind. They were trespassers. Their actions in doing so displayed patent disregard for the legal requirements of prior authorisation. It is difficult to avoid the conclusion that they arrogated to themselves the discretion to disregard the imperatives imposed by section 8.
[18] The Code of Penal Procedure affords no justification, before or after the fact, for the officers’ conduct. Section 83 of the Code expressly disallows entry onto the property unless such entry is allowed by exception under articles 84 or 85 …
[20] There was no urgency to enter the property. There was no apparent danger. There were no exigent circumstances. There was no risk of flight. This was not a perimeter search.[11] In the investigation of a reported noise disturbance, in possible violation of a municipal by-law, it was not impossible or even impracticable to obtain a telewarrant.[12] This was not an approach to private property that could be characterised as a response to an implied invitation to approach.[13] There were alternative courses of action that might well have ended the reported disturbance, such as the illumination of lights on the police car and even a brief use of a siren as warnings. In short, the conduct of the police was manifestly intrusive and disproportionate as a violation of the expectation of privacy. The seriousness of this breach, in patent disregard of the law, is self-evident. Accordingly, the first criterion in Grant militates in favour of exclusion.
Impact on the Protected Interests of the Accused
[22] The violation of section 8 in this case was not only serious. As the officers acted with flagrant disregard for the law, it is equally self-evident that the effect on the appellant’s expectation of privacy was complete. It was as if he had no expectation of privacy protected by section 8. There is nothing before the Court that could explain or justify a different conclusion. No further comment is required except to affirm that the second criterion in Grant militates strongly in favour of exclusion.
Society’s Interests in Adjudication on the Merits
[24] Society always has an interest in the adjudication of cases on their merits, including an accurate and reliable process of fact-finding with respect to relevant evidence. The three criteria in Grant affirm that this interest must sometimes yield to values in the administration of justice that are extrinsic to it. It is now well settled that where the first two criteria militate strongly in favour of exclusion the third will rarely compel admission of evidence obtained in violation of the Charter.[14]
[25] There is no general exception to these principles if the evidence in question is real evidence. The SCAC suggests that such evidence might militate in favour of admission due to an increased measure of inherent reliability, but the Supreme Court in Grant in no way suggested that the third criterion compels the admission of evidence obtained in violation of the Charter. Such a suggestion would effectively contradict jurisprudence that has affirmed, in instances where the first two criteria favour exclusion, that the third will rarely justify admission. Moreover, it would mark a regression to a state of the law that was abandoned when the Charter came into force. At common law, before the Charter, illegally-obtained evidence was admissible if it was demonstrably relevant and probative for accurate and reliable fact-finding.[15] As the Supreme Court noted in its discussion of the third criterion in Grant,[16]that view was repudiated with the express affirmation that the administration of justice must also privilege other values.
[26] This is a case where both of the first two criteria compel exclusion of the evidence obtained in violation of section 8. The seriousness of the violation precludes any cogent argument that a prosecution for driving an all-terrain vehicle “over 80” on one’s own private property in circumstances that disclose no urgency or imminent danger could prevail over a reasonable expectation of privacy protected by a constitutional right that has been flagrantly violated with no demonstrable justification.[17]
Conclusion
[29] As the Court’s conclusion is that the evidence should have been excluded, there remains no evidence for a new trial and there will therefore be an acquittal. At the hearing the respondent agreed that this is the appropriate conclusion in the circumstances of this appeal.
