Nous convenons que le juge du procès a fait erreur dans son analyse fondée sur le par. 24(2) de la Charte canadienne des droits et libertés en considérant comme un facteur atténuant les comportements policiers qui respectaient la Charte.
Le juge Moldaver — Nous sommes d’avis de rejeter le présent pourvoi, essentiellement pour les motifs exhaustifs exposés par la juge Griffin au nom des juges majoritaires de la Cour d’appel. Nous convenons que le juge du procès a fait erreur dans son analyse fondée sur le par. 24(2) de la Charte canadienne des droits et libertés en considérant comme un facteur atténuant les comportements policiers qui respectaient la Charte.
[101] While there was an absence of systemic misconduct, it does not mitigate against the seriousness of the Charter‑infringing conduct. The court in McGuffie, at para. 67, explicitly disapproved of this type of reasoning. In that case, the court said:
Systemic or institutional abuse of constitutional rights may be an aggravating factor rendering police misconduct more serious. The absence of evidence of systemic non‑compliance with Charter requirements by the police is not a mitigating factor. The police are expected to comply with the law, especially the Charter.
[102] In my view, the judge erred in principle in treating the Charter‑compliant conduct of other officers as attenuating the seriousness of Constable Sinclair’s misconduct. The Charter‑compliant conduct could not mitigate or offset the seriousness of the Charter breaches. Rather, it simply did not further aggravate the already serious Charter breaches.
Procéder à la mise en balance globale dans le cadre des deux premiers facteurs énoncés dans Grant a pour effet d’affaiblir tout pouvoir d’exclusion que pourraient avoir ces facteurs. Le texte de l’arrêt Grant est clair : cette mise en balance se fait à la fin.
Nous convenons également que le juge du procès a fait erreur en procédant erronément à la mise en balance globale — la question de savoir si l’admission de la preuve est susceptible de déconsidérer l’administration de la justice — dans le cadre des deux premiers facteurs énoncés dans R. c. Grant, 2009 CSC 32, [2009] 2 R.C.S. 353. Le texte de l’arrêt Grant est clair : cette mise en balance se fait à la fin (par. 85). Les juges doivent d’abord décider si chacun des trois facteurs milite en faveur de l’admission ou de l’exclusion de la preuve avant de se demander si — eu égard à l’ensemble des facteurs — l’admission de la preuve est susceptible de déconsidérer l’administration de la justice. Procéder à la mise en balance globale dans le cadre des deux premiers facteurs énoncés dans Grant a pour effet d’affaiblir tout pouvoir d’exclusion que pourraient avoir ces facteurs. Ce type d’analyse compromet l’objectif et l’application du par. 24(2).
[114] As this Court observed in Robertson at para. 51, the evaluative exercise of whether the admission of evidence obtained in a manner that infringed a Charter right would, having regard to all the circumstances, bring the administration of justice into disrepute is the question to the end of which the three lines of inquiry identified in Grant are undertaken. Robertson adopted the reasoning in McGuffie, which, shortly afterward, the Supreme Court of Canada endorsed in Le at paras. 141–142.
[115] While the trial judge assessed the effect on the administration of justice at each stage of the Grant analysis, such an assessment cannot replace the overall weighing and balancing exercise at the end of all three s. 24(2) inquiries. By considering the effect on the administration of justice of each Grant factor independently, rather than considering all three of the factors collectively, the judge overly compartmentalized what is meant to be a broad analysis. In doing so, he failed to properly weigh and balance the results of each inquiry with the others to determine whether, on an overall assessment, the administration of justice would be brought into disrepute by admission of the evidence. The wording of s. 24(2) itself is plain: “having regard to all the circumstances”. The judge erred in principle by failing to undertake the broader inquiry mandated by s. 24(2).
[116] In compartmentalizing his analysis and concluding separately for each of the first two stages of the Grant inquiry that admission of the evidence would not bring the administration of justice into disrepute, the judge made it inevitable that he would come to the same conclusion on the last stage of the Grant inquiry, which typically favours admission of the evidence. Indeed, it led to the foregone conclusion that the evidence would be admitted because there were no competing factors to balance by way of an overall assessment.
[117] Had the trial judge conducted the correct analysis, he would have properly concluded that, considered together, the seriousness of the cumulative breaches and their impact on the Charter‑protected rights of the appellant favoured exclusion of the evidence.
[118] Likewise, had the judge properly conducted an overall assessment of the Grant factors, rather than each one in isolation, the judge would have realized that the seriousness of the breaches and their impact on the Charter‑protected rights of the appellant outweighed society’s interest in the adjudication of the case on its merits. In McGuffie, Doherty J.A. wrote:
[61] After Grant, at paras. 71‑86, the admissibility of evidence under s. 24(2) is approached by examining:
• the seriousness of the Charter‑infringing state conduct;
• the impact of the breach on the Charter‑protected interests of the accused; and
• society’s interest in an adjudication on the merits.
[62] 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 interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33‑34.
[63] 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: see e.g. Harrison, at paras. 35‑42; Spencer, at paras. 75‑80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75‑103; Aucoin [R. v. Aucoin, 2012 SCC 66], at paras. 45‑55. 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: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81‑89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98‑112. 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: see e.g. Grant, at para. 140.
[119] The Supreme Court of Canada in Le, citing McGuffie and other jurisprudence, reasoned the same way. Of specific relevance to this case, the Court in Le said, “[w]here the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility” (at para. 142). This principle is well‑established in the jurisprudence, as is evident from Côté, Morelli (followed in McGuffie), and R. v. Paterson, 2017 SCC 15 (also cited in Le). While this principle cannot be rigidly applied in all cases, it is particularly apt in the present case. I conclude the trial judge erred by failing to consider and apply it.
[120] Having found the trial judge erred in his s. 24(2) analysis, this Court owes no deference to his conclusion that the evidence obtained in the execution of the search warrant was admissible: Le at para. 138. This Court must therefore undertake a fresh and independent analysis, accepting the underlying findings of fact made by the trial judge not tainted by the errors: Robertson at para. 63, citing R. v. Vu, 2013 SCC 60 at para. 67.
1er critère de Grant : Les juges qui président des procès ne peuvent choisir quelles sont les conduites attentatoires de l’État pertinentes à prendre en considération.
Avec égards, toutefois, nous ne pouvons souscrire à la conclusion des juges majoritaires de la Cour d’appel selon laquelle le juge du procès a adéquatement tenu compte de l’ensemble de la conduite attentatoire pertinente de l’État dans le cadre du premier facteur énoncé dans Grant. Le premier juge a pris en considération les comportements attentatoires de l’État liés à seulement deux des trois violations de l’art. 8. L’omission de considérer la conduite de l’État qui a entraîné la troisième violation — la fouille des lieux à des fins sécuritaires — constituait une erreur. Indépendamment de la question de savoir si la troisième violation a ou non été causée par les deux premières, et du fait qu’elle a été considérée nécessaire dans la foulée de l’entrée illicite de l’agent Sinclair, il s’agissait néanmoins d’une violation des droits garantis à M. Reilly par l’art. 8 de la Charte et elle doit être examinée dans le cadre du premier facteur énoncé dans Grant. Les juges qui président des procès ne peuvent choisir quelles sont les conduites attentatoires de l’État pertinentes à prendre en considération.
[103] The appellant alleges the judge erred by failing to take into account relevant legal principles or relevant evidence. He identifies this error as occurring when the judge focussed exclusively on the actions of Constable Sinclair and failed to consider the conduct of the other officers who either acquiesced or participated in Constable Sinclair’s Charter‑infringing conduct. By way of example, the appellant notes that the judge commended Constable Adzijaj for his conduct, notwithstanding the fact that he followed Constable Sinclair into the appellant’s residence. Constable Adzijaj knew at the time he entered the appellant’s residence that he was violating the appellant’s s. 8 rights, so his actions are tantamount to a willful breach. Further, Corporal Chen and Constable Pare entered the home immediately after Constables Sinclair and Adzijaj and participated in clearing the residence. The appellant says the judge erred by failing to consider all of the officers’ conduct in assessing the seriousness of the Charter breaches.
[104] Respectfully I cannot agree with these submissions.
[105] It is clear from the above analysis of the first asserted error that the judge did consider the conduct of the other officers. He was aware of how their actions contributed to the Charter breaches, and described their evidence in detail in his ruling (at paras. 35–48). Further, the judge’s finding that Constable Adzijaj acted professionally was consistent with the submissions of defence counsel at trial.
[106] The fact is that Constable Sinclair put all of the officers in a difficult and dangerous situation once he entered the home. The police were briefed that the appellant could be armed and could be hostile to police.
[107] Constable Sinclair’s serious misconduct created the cascade of events that led to the other police entering and searching the home. While also a breach of the appellant’s s. 8 Charter right, the clearing search followed upon the warrantless entry and warrantless arrest. It would not have occurred but for those breaches. Once inside and having made the arrest, the police simply cleared the residence of the only other person present to prevent the destruction of evidence and for safety purposes.
[108] The appellant characterizes the alleged error in not taking into account the participation of the other officers in the Charter breaches as “failing to take into account relevant legal principles” or “failure to take into account relevant evidence”. It seems to me that the appellant is challenging certain of the judge’s underlying findings of fact without identifying palpable and overriding error. I would not sustain the appellant’s arguments on the second alleged error.
The law is clear that even though the evidence might have been discoverable by entirely lawful police conduct, if there is a sufficient temporal and contextual link between the evidence and either preceding or subsequent police breaches of an accused’s Charter rights, the accused will have met the requirement of showing that the evidence was obtained “in a manner” that infringed the accused’s Charter rights
[66] As a preliminary matter, the Crown submits the judge erred in implicitly finding a sufficient causal, temporal or contextual nexus between the s. 8 Charter violations and the obtaining of the evidence so as to engage the evaluative analysis in s. 24(2).
[67] The threshold issue to engage a s. 24(2) analysis is whether the accused has shown on a balance of probabilities that the evidence was “obtained in a manner” that infringed the accused’s Charter rights.
[68] The threshold question requires a connection between the Charter violation and the evidence obtained. The connection may be causal, temporal, contextual, or some combination of the three, but it must be more than remote or tenuous: R. v. Wittwer, 2008 SCC 33 at para. 21.
[69] At trial, the appellant submitted there was a causal, temporal, and contextual link between the unconstitutional conduct and the impugned evidence. The Crown did not respond to this submission, and it appears the judge assumed the required connection was undisputed as he did not explicitly address it in his ruling.
[70] However, on appeal the Crown disputes the existence of the requisite connection between the Charter violations and the evidence seized in the execution of the search warrant. The Crown says there is no causal connection between the unconstitutional police conduct and the evidence obtained by the warrant. The Crown says the evidence would have been obtained by the valid warrant in any event. While conceding a temporal and contextual link between the unconstitutional conduct and the seized evidence, the Crown argues the connection is too tenuous and remote to trigger s. 24(2).
[71] The law is clear that even though the evidence might have been discoverable by entirely lawful police conduct, if there is a sufficient temporal and contextual link between the evidence and either preceding or subsequent police breaches of an accused’s Charter rights, the accused will have met the requirement of showing that the evidence was obtained “in a manner” that infringed the accused’s Charter rights: R. v. Lauriente, 2010 BCCA 72; R. v. Pawar, 2020 BCCA 251; R. v. Pino, 2016 ONCA 389.
[72] In Lauriente, the accused was suspected of having a marijuana grow operation. In the course of a one week investigation there were several breaches of the accused’s Charter rights: by police trespassing on his property and five days later by their unauthorized highway stop of him for the purpose of gathering information and taking his photograph. There were also breaches of a co‑accused’s Charter rights. Two days after the highway stop, the police searched the property with a properly authorized search warrant and obtained the evidence in dispute. The trial judge held that the search warrant was valid. However, the judge excluded the evidence pursuant to s. 24(2) based on the Charter breaches, and verdicts of acquittal followed.
[73] On appeal, the Crown in Lauriente argued that the judge erred in the application of s. 24(2), submitting the Charter breaches had no temporal or causal connection to the evidence gathered pursuant to the valid search warrant. This Court rejected that argument and dismissed the appeal, holding at para. 49:
Here, the warrantless perimeter search of Mr. Lauriente’s property, and the highway stop of his vehicle for the purpose of taking his photograph and gathering further information from him, were tactical investigative methods chosen by the police to further the investigation which were sufficiently temporally linked to the evidence discovered upon execution of the warrant to justify the trial judge in moving to the second stage of the s. 24(2) analysis.
[74] As stated in Lauriente at para. 47, the fact that the validity of the warrant is upheld, even where it was based in part on information obtained from a Charter breach, does not sever the connection between the breach and the impugned evidence.
[75] Indeed, even where evidence was lawfully obtained before a Charter breach, the necessary threshold connection can be found to exist temporally and contextually. This is because, as Pino explains, the approach to the threshold issue is generous and broad, at para. 51:
… beginning with Strachan [R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980], the Supreme Court has taken an increasingly generous and broad approach to the “obtained in a manner” requirement in s. 24(2) – an approach that looks to the overall purpose of the section, whether admission of the evidence would bring the administration of justice into disrepute.
[76] Having reviewed the leading authorities, Pino summarized the following considerations that should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2) (at para. 72):
• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire “chain of events” between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections
• But the connection cannot be either too tenuous or too remote
[77] The reason for the generous and broad approach to the threshold question is the purpose of s. 24(2). The purpose is to protect the administration of justice from being brought into disrepute, which would occur if the courts were seen to condone a serious Charter violation: Pino at paras. 69–70.
[78] Also pertinent to the present case are the observations of Cromwell J. in Côté at paras. 77–79: that whether or not the telewarrants obtained by the police in that case were valid had little or no impact on the trial judge’s decision to exclude the physical evidence. The trial judge relied on the fact that the totality of the search process was tainted by the unconstitutional searches that preceded the issuance of the warrants. Justice Cromwell said that finding was consistent with well‑established case law on how illegal warrantless searches can taint a subsequent search that is otherwise lawful, of which R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, provided a good example. He wrote:
[79] … In that case, the information obtained through the warrantless perimeter search was used to support the police’s application for search warrants. This Court held that once the illegally obtained information was excised from the affidavits presented to the issuing justice, the information that remained was sufficient to issue the warrants. While this Court held that the warrants were valid, it found that the illegal searches “were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question”. It was thus “unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence” (p. 255). Similarly, in the case at bar, given the trial judge’s findings of fact that the police misconduct was continual and systematic from the outset of the investigation, the question of exclusion must not be approached in a compartmentalized fashion.
[79] In Pawar, the police unlawfully entered the accused’s home without a warrant and without exigent circumstances, in breach of the accused’s Charter rights. Later that evening, the police obtained and executed a search warrant on the home, finding a large quantity of illicit drugs. The Crown conceded that there was a temporal connection between the unlawful entry into the home and the subsequent obtaining of the drugs by valid search warrant, and so the threshold was met to engage a s. 24(2) analysis. On appeal, this Court found the trial judge to have erred in the s. 24(2) ruling. This Court concluded that it would bring the administration of justice into disrepute to admit the evidence.
[80] The strength of the connection between a piece of evidence and a Charter breach is a question of fact: R. v. Mack, 2014 SCC 58 at para. 39.
