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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against unreasonable search and seizure

Tuesday, October 31, 2017 @ 8:46 AM  


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Appeal by the accused, Bennett, from a conviction for weapon offences. Police executed a telewarrant at the accused's apartment looking for drugs. The information to obtain the warrant (ITO) included details from a confidential informant (CI) alleging the accused dealt crack cocaine from the apartment. No drugs were found, but police seized a loaded firearm and ammunition in a white fur coat in a closet. The accused applied for exclusion of the evidence based on breaches of his ss. 8 and 9 Charter rights. The trial judge ruled that the ITO was insufficient to support the warrant, resulting in a breach of the accused's s. 8 Charter rights. Following the Grant analysis pursuant to s. 24(2), the trial judge declined to exclude the evidence flowing from that breach. The trial judge additionally found that a search incident to the accused's arrest violated his ss. 8 and 9 Charter rights. Evidence obtained pursuant to the incidental search, keys to the apartment, a phone, and a CD case, were excluded pursuant to s. 24(2). The accused testified and denied knowledge of the firearm and ammunition. There was evidence of other individuals who had keys and used the apartment. There was evidence the accused used the fur coat as a prop for his music career. The accused was convicted by a judge sitting with a jury. He appealed on the basis the trial judge erred in failing to permit disclosure and cross-examination in connection with the challenge to the ITO, and erred in refusing to exclude the firearm pursuant to s. 24(2) of the Charter.

HELD: Appeal dismissed. With respect to the defence challenge to the ITO, the trial judge properly ordered disclosure of the CI handler’s notes, but erred in ordering production of the entire CI file. This error was to the benefit of the accused. The issue was ultimately moot given the Crown's concession to excise the relevant paragraph from the ITO in respect of the CI's reliability. The trial judge did not err in refusing leave to cross-examine the affiant. In any event, the conclusion that the accused's s. 8 Charter rights were violated rendered the cross-examination request moot. It was speculative to suggest cross-examination of the affiant was relevant to the s. 24(2) analysis, as the trial judge found that police acted in good faith, and that the concerns related to the ITO were trivial. The trial judge did not err in declining to exclude the firearm pursuant to s. 24(2) given the reliable nature of the evidence, and the finding of a complete absence of police impropriety.

R. v. Bennett, [2017] O.J. No. 5264, Ontario Court of Appeal, D.H. Doherty, G. Huscroft and B. Miller JJ.A., October 13, 2017. Digest No. TLD-October302017004