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EVIDENCE - Private communications - Inadmissible interceptions

Friday, February 01, 2019 @ 8:45 AM  

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Appeal by Riley from his convictions for attempted murder and firearms offences in relation to a drive-by shooting. Surveillance placed the appellant in the general area where the shooting of the two victims took place and placed him the driver’s seat of a vehicle matching the one seen fleeing the scene. The motion judge admitted into evidence intercepted communications, which the Crown conceded were obtained in breach of the appellant’s s. 8 Charter rights. The motion judge found the failure of the police to exercise reasonable diligence did not equate to a wilful or reckless disregard of the appellant’s Charter rights. A reasonable person would have their faith in the administration of justice shaken not by the admission of the evidence but by its exclusion. The trial judge placed significant weight on the intercepted communications, which included the appellant describing himself shooting the victims. The intercepted communications had been excluded during the appellant’s previous trial for a separate drive-by shooting.

HELD: Appeal dismissed. The motion judge did not treat the wiretap and subsequently-obtained evidence as an indivisible package suitable only for global admission or exclusion. Upon a fresh s. 24(2) Charter analysis, the wiretap evidence was properly admitted at trial. The seriousness of the breach was not major in degree. At the time, the police did not know their conduct was in breach of the appellant’s Charter rights. The intercepts did not capture any private communications that were at the core of what the constitutional protection was meant to protect. The impact on the appellant’s privacy interests, while significant, did not lie at the serious end of the scale. The intercepts did not impair the fairness of the trial. They were real, reliable evidence in connection with very serious criminal offences. The limited support for the exclusion of the evidence did not overcome society’s considerable interests in the adjudication on the merits.

R. v. Riley, [2018] O.J. No. 6476, Ontario Court of Appeal, H.S. LaForme, D. Watt and G.T. Trotter JJ.A., December 7, 2018. Digest No. TLD-January282019009