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Criminal Law - Constitutional issues - Canadian Charter of Rights and Freedoms - Legal rights - Remedies for denial of rights - Specific remedies - Exclusion of evidence

Thursday, July 07, 2016 @ 8:00 PM  

Appeal by the accused, Pino, from a conviction for possession of marijuana for the purpose of trafficking. Police received a tip of a marijuana grow operation, conducted an investigation, and obtained a search warrant. They set up surveillance prior to the execution of the warrant. The accused, a cleaning woman, exited the target residence and placed a box in the trunk of her vehicle and drove away. Police took the accused down at gunpoint while wearing masks. They seized 50 marijuana plants from the trunk of her vehicle during the incidental search. The accused moved to exclude the marijuana. The trial judge found that the manner of the search was unreasonable, the police misinformed the accused of her right to counsel, and the police breached the accused’s right to counsel by holding her incommunicado for five and one-half hours post-arrest. In addition, the trial judge found that the police testimony at trial regarding the manner of the take-down of the accused was misleading. The trial judge refused to exclude the evidence, as the s. 10(b) breaches occurred after the discovery of the marijuana, and the s. 8 breach was of modest seriousness. The accused appealed from the resultant conviction.

HELD: Appeal allowed. The trial judge erred in law by concluding that the s. 10(b) breaches did not provide a basis for exclusion of the marijuana seized prior to the breaches. All of the Charter breaches found by the trial judge satisfied the “obtained in a manner” requirement of s. 24(2). They were all temporally and contextually connected to the evidence at issue, and all occurred in the course of the arrest of the accused. In addition, in considering the seriousness of the s. 8 breach, the trial judge understated the seriousness of the police officers’ dishonest testimony by ascribing innocuous motives for the dishonesty unsupported by the evidence. A reassessment and balancing of the Grant factors justified exclusion of the evidence. The s. 10(b) breaches elevated the seriousness of the s. 8 breach and had an impact on the accused’s Charter-protected interests. Admission of the evidence in light of the seriousness of the breaches and the officers’ dishonest testimony would bring the administration of justice into disrepute. The conviction was set aside and an acquittal was entered.