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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Legal rights - Procedural rights - Protection against self-incrimination, right to silence - Protection against unreasonable search and seizure

Monday, November 06, 2017 @ 12:28 PM  

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Appeal by the accused, Silva, from convictions for armed robbery and possession of a restricted firearm. Five individuals robbed an auto body shop at gunpoint. Two months later, police executed a search warrant at the home of the accused's girlfriend and seized a loaded semi-automatic handgun. The trial judge subsequently found that the Information to Obtain (ITO) contained insufficient grounds to connect the accused to the residence. During the search, the accused stated that the gun belonged to him rather than his girlfriend. He subsequently took the position that he made the statement in response to a police threat to charge his girlfriend with possession of the gun. The accused was convicted of offences related to the robbery. He appealed on the basis the trial judge erred in refusing to exclude the evidence seized in the search pursuant to s. 24(2) of the Charter, and in admitting his statement made to police as voluntary.

HELD: Appeal dismissed. There was no evidentiary basis to interfere with the trial judge's ruling that the accused's statement was voluntary. The ruling turned on credibility findings, specifically rejecting the testimony of the accused and his girlfriend. Those findings were entitled to deference. Similarly, the trial judge's s. 24(2) Charter conclusions were owed considerable deference. The trial judge's reasons did not indicate that the inquiry into societal interest in adjudication on the merits improperly overwhelmed a finding that the police acted negligently and breached the accused's rights in a serious fashion. The evidence supported the trial judge's conclusion that exclusion of the evidence was not required.

R. v. Silva, [2017] O.J. No. 5266, Ontario Court of Appeal, K.M. van Rensburg, G.I. Pardu and J.M. Fairburn JJ.A., October 13, 2017. Digest No. TLD-November62017001