R. v. Adler, 2020 ONCA 246

S. 24(2) ANALYSIS - GRANT FACTORS - MULTIPLE CHARTER BREACHES

Background

At the CNE, a woman informed police she saw the appellant filming up the skirt of a young woman using a concealed camera. As police approached, the appellant appeared to swallow something. Upon arresting the appellant, the police seized the hidden camera, a video camera, an iPod and a laptop. The video camera did not have a memory card; the police believed the appellant swallowed the memory card. The accused was not informed of his right to counsel until 10 minutes later. He advised the police he knew the name of a lawyer he wanted to call but did not have their number. He was taken to the police station. 

The accused was not allowed to speak with his lawyer until 3 hours after his arrest. Prior to the accused speaking his lawyer the police conducted a level 3 strip search, placed him in a dry cell in hopes of retrieving the memory card and entered the appellant’s apartment without a warrant. The police obtained a telewarrant before physically searching or seizing any of the visible devices. In obtaining the telewarrant, the police did not advise the court they had already entered the appellant’s apartment using his keys.

The police searched the seized electronic devices. They discovered child pornography. They obtained a second warrant, based on information obtained from the execution of the telewarrant, to conduct further searches of the devices. In executing the second warrant, the police found evidence of sexual assault.

The trial judge found the police conduct breached the accused’s s. 10(b) and s. 8 Charter rights, but did not exclude any of the evidence under s. 24(2).

The 24(2) Ruling

In determining whether evidence obtained in a Charter-infringing manner should be excluded under s. 24(2), courts must consider (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits (R v Grant, 2009 SCC 32).

First Factor

The exclusion of evidence is warranted where the state conduct reveals clear violations of “well-established rules governing state conduct” (R v Paterson, 2017 SCC 15). Such well-established rules include the warrantless search of a residence and delay in implementing rights to counsel (para 25).

The police conduct in this case shows at best, a state of ignorance regarding the appellant’s rights, and at worst multiple flagrant violations of his rights. Defence counsel is entitled to ask officers questions regarding their understanding of Charter rights:


“The state of the police officer’s knowledge of the right breached is relevant to the seriousness of a violation. An officer, who violates a Charter right while knowing better, commits a flagrant breach. For those officers who do not know of the relevant right, the reason they do not know can properly influence where on the good faith/bad faith continuum the Charter breach might fall.” (Para 27)

The trial judge erred by failing to take the following into account in conducting his s. 24(2) analysis:

  • In obtaining telewarrant,

    • police failed to disclose they had entered the appellant’s apartment without a warrant earlier that evening;

    • The police disclosed in the ITO that the appellant had two previous encounters with TPS, suggesting a pattern of criminal activity. The police failed to disclose that these encounters involved police responding to the accused’s suicide attempt, and an incident where the accused was the victim of crime.

  • Police failed to advise the Crown that they wanted an adjournment to conduct an inappropriate bed pan vigil.

Second Factor

The TJ erred in assessing the impact of the police conduct on the appellant’s Charter rights. Two of the areas that attract the highest expectations of privacy include an individual’s home (R v Silveira, [1995] 2 SCR 297) and electronic devices (R v Morelli, 2010 SCC 8). In his reasons for judgement, the TJ noted the fact that no one was disturbed by the police’s illegal entry into the apartment.

THE FACT THAT POLICE DID NOT DISTURB ANYONE WHEN THEY ILLEGALLY ENTER A RESIDENCE DOES NOT LESSEN AN INVASION OF PRIVACY (PARA 36).

Furthermore, it was an error for the TJ to compare the search of the appellant’s electronic devices to a search of a sock drawer. This expressly contradicts the Supreme Court’s finding in R v Vu, 2013 SCC 60 which held that the privacy interests implicated by computer searches are qualitatively different from those implicated by the search of cabinets.

Clearly, both of these lines of inquiry suggested that the evidence ought to be excluded.

Where there are multiple Charter breaches, the TJ is required to consider their cumulative rather than individual effects (para 39).

Third Factor

The Court reminds us of Doherty JA’s observations in R v McGuffie, 2016 ONCA 365, (1) the more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion; and (2) where the first and second branches favour exclusion, the third inquiry will seldom, if ever, tip the balance towards admissibility.”

Appropriate Remedy

The TJ stayed the less serious charges and convicted the accused of the more serious offences. The police conduct in this case, however, was all part of the same investigation; the Charter breaches were part of a single continuum of conduct by the police. As a result, the improper conduct tainted all of the evidence, affecting all of the charges. A stay of lesser charges is therefore not an appropriate remedy. 

Nordheimer JA, writing for the court, allows the appeal, sets aside the convictions and orders acquittals to be entered.

Sara Little