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CONSTITUTIONAL ISSUES - Right to retain and instruct counsel without delay - Exclusion of evidence

Monday, September 16, 2019 @ 9:29 AM  

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Appeal by the accused from conviction for importing GBL into Canada, possession of unlawfully imported goods and smuggling. The appellant argued that two warrants which authorized the police to enter his home should have been quashed, resulting in a warrantless search contrary to s. 8 of the Charter. He argued the evidence obtained as a result of the execution of those warrants should have been excluded. He also argued that a warned statement should have been excluded because of a breach of his s. 10(b) Charter right. A customs officer opened a suspicious package addressed to the appellant containing GBL which could be used to produce a date rape drug. Police decided to make a controlled delivery of the package. Police obtained a general warrant authorizing them to install and monitor the box alarms and to enter and search the house only after a box alarm was triggered and a drug warrant under the Controlled Drugs and Substances Act authorizing police to enter the house at the times specified. Once the box alarms went off, police entered the house and arrested the appellant. He wanted to speak to counsel but was told he could not contact counsel until a search of the house was completed. There was a delay of one hour and 45 minutes which included a period of 49 minutes after the last of the police left the house and locked the doors, when some of the officers were getting something to eat and the police then debriefed before the appellant was given the opportunity to contact counsel. The appellant gave a warned statement after speaking to counsel he and four others lived at the house. He initially denied knowledge of the boxes, but then admitted they belonged to him and that he had received a similar shipment before. The trial judge found both warrants were valid. The trial judge found that police deliberately delayed the appellant’s call to counsel in a situation where it was unjustified, but nonetheless acted in good faith and did not exclude the statement.

HELD: Appeal allowed. The appellant was acquitted. The general warrant did not authorize the controlled delivery and was for that reason invalid. The controlled delivery was thus a warrantless search. The edited ITO for the drug warrant still disclosed reasonable grounds to believe the offence of importing GBL had been or was being committed and that evidence of that offence would be obtained by searching the house. The controlled delivery was an unreasonable search which breached the appellant’s s. 8 Charter right. The search of the house authorized by the drug warrant was lawful. The trial judge’s finding of good faith by police in delaying the appellant’s access to counsel was an error in principle. Police did not act reasonably and non-negligently or in good faith. The trial judge committed a further error by failing to take account of the fact there was a lengthy delay without a valid reason. These errors tainted the trial judge’s s. 24(2) analysis relating to the s. 10(b) breach in a manner that undermined his ultimate determination. The s. 10(b) breach was a clear violation of well-established rules of state conduct and a serious violation of the appellant’s rights. The failure to include a provision authorizing the controlled delivery in the general warrant was negligent. The Charter-infringing conduct of the state was sufficiently serious in relation to the s. 8 and s. 10(b) breaches to strongly favour the exclusion of evidence. The warned statement had a sufficient temporal and contextual connection to be evidence “obtained in a manner” as was the evidence obtained during the controlled delivery.

R. v. Moyles, [2019] S.J. No. 270, Saskatchewan Court of Appeal, G.R. Jackson, J.A. Ryan-Froslie and B. Barrington-Foote JJ.A., July 30, 2019. Digest No. TLD-September162019003