



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pino, 2016 ONCA 389

DATE: 20160524

DOCKET: C56288

Laskin, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eneida Pino

Appellant

Howard L. Krongold, for the appellant

John North, for respondent

Heard: October 29, 2015

On appeal from the conviction entered on June 27, 2012 by
    Justice
David Paciocco
of the Ontario Court of Justice.

Laskin J.A.:

A.

Overview

[1]

The appellant Eneida Pino, a 43-year-old house cleaner with no previous
    criminal record, was convicted of possessing 50 marijuana plants for the
    purpose of trafficking. The marijuana was seized from the trunk of her car
    following a search incident to her arrest on an Ottawa street.

[2]

Ms. Pino brought a motion before trial to exclude the marijuana on the
    ground the police had violated her constitutional rights under the
Canadian
    Charter of Rights and Freedoms
. The trial judge found three
Charter
violations:

·

The manner of the police search was unreasonable, contrary to s.
    8 of the
Charter
, because the police carried out Ms. Pinos arrest by
    a dangerous and unnecessary masked take-down at gunpoint.

·

The police misinformed Ms. Pino about her right to counsel, contrary
    to s. 10(b) of the
Charter
.

·

The police denied Ms. Pino her right to consult counsel without
    delay, contrary to s. 10(b) of the
Charter
,
by holding her incommunicado in a jail cell for nearly
    five and a half hours after her arrest.

[3]

The trial judge also found that the two police officers who testified
    about Ms. Pinos arrest lied to the court.

[4]

Nonetheless, the trial judge refused to exclude the marijuana seized
    from Ms. Pinos car under s. 24(2) of the
Charter
. He concluded this
    evidence was not obtained in a manner that infringed Ms. Pinos right to
    counsel because both s. 10(b) breaches of the
Charter
occurred after
    the police discovered the marijuana.

[5]

The trial judge then found that the breach of Ms. Pinos s. 8 right was
    of more than modest seriousness, but far from at the extreme end of
    seriousness; that the impact of the s. 8 breach on Ms. Pinos interests was
    of qualified significance; and that exclusion of the evidence would therefore
    gut the prosecution against her. After balancing these three considerations,
    the trial judge concluded that admitting the evidence would not bring the
    administration of justice into disrepute.

[6]

Ms. Pino appeals her conviction and raises three main issues:

(1)

Did the trial judge err in
    law by concluding that he could not exclude the evidence because of the two s.
    10(b) breaches?

(2)

Did the trial judge
    understate the seriousness of the s. 8 breach by speculating about why the
    police lied in their testimony?

(3)

If the answer to either or
    both question (1) and question (2) is yes, should the evidence be excluded
    under s. 24(2) of the
Charter
?

[7]

I would answer yes to all three questions. I would therefore allow Ms.
    Pinos appeal, set aside her conviction, and enter an acquittal.

B.

Events
    Leading to Ms. Pinos Arrest

(a)

21 St. Claire Avenue, Ottawa

[8]

In June 2010, the police received a tip about a suspected marijuana
    grow-op at a house at 24 St. Claire Avenue. In the course of their
    investigation, the police reviewed hydro records of electricity usage in the
    neighbourhood. In doing so, the police noticed that a house across the street
    from the target  at 21 St. Claire Avenue  also had a pattern of high
    electricity usage. Other signs suggested 21 St. Claire Avenue was being used as
    a grow-op: unusual heat patterns from the house; an unusual number of vents on
    the roof; and an odour of marijuana around the house.

[9]

On the strength of this information, the police obtained a search
    warrant for 21 St. Claire Avenue. They intended to execute the warrant along
    with a warrant to search the original target, 24 St. Claire Avenue, during the
    afternoon of June 25, 2010.

(b)

The arrest of Ms. Pino and the seizure of the marijuana

[10]

Before executing the warrants, the police set up surveillance in the
    area. Just after noon on June 25, 2010, Ms. Pino came out of 21 St. Claire
    Avenue carrying a box, which she put in the trunk of her car.

[11]

Ms. Pino drove away from the house at 12:48 p.m. The police followed
    her. She drove to Value Village where she met a man named Fernando Martinez.
    Ms. Pino moved out of the passenger seat of her car and Mr. Martinez took over
    the driving.

[12]

The lead police investigator, Det. Schoorl, then ordered Ms. Pinos
    arrest. The police stopped Ms. Pinos car just before 1:00 p.m. and arrested
    her and Mr. Martinez. Two officers, Cst. Dinardo and Det. Savory, made the
    arrest. I will discuss the details of the arrest and their evidence about it in
    the next section of these reasons.

[13]

After the arrest, the two police officers searched Ms. Pinos car. They
    seized the box from the trunk, opened the box, and found 50 marijuana clone
    plants.

(c)

Execution of the search warrant

[14]

At 3:34 p.m. on June 25, 2010, the police executed the search warrant at
    21 St. Claire Avenue. Inside the house they found a large marijuana grow
    operation.

C.

The
    Three
Charter
Breaches and the Polices Dishonesty

[15]

As I said in the overview, the trial judge found that the police
    breached Ms. Pinos
Charter
rights in three ways  a breach of s. 8
    and two breaches of s. 10(b)  and that Det. Savory and Cst. Dinardo lied in
    their testimony to the court. The Crown accepts these findings.

(1)

The s. 8 breach

[16]

Under s. 8 of the
Charter
,
everyone has the right to be secure against unreasonable search or seizure.

[17]

Ms. Pino, Mr. Martinez, and the two police officers testified about the
    arrest. The trial judge accepted the evidence of Ms. Pino and Mr. Martinez and
    rejected the evidence of Det. Savory and Cst. Dinardo as not credible. He
    concluded that the way the police carried out the arrest was unreasonable. Here,
    in brief, are the details of the evidence and the trial judges findings.

(a)

The evidence of Ms. Pino and Mr.
    Martinez

[18]

Ms. Pino and Mr. Martinez testified that they were pulled over by Cst.
    Dinardo, who was driving a marked police cruiser. Then, Det. Savory, in an
    unmarked car, drove across their path, cutting them off. Det. Savory got out of
    his car. He was dressed in black, his face was covered with a balaclava, and he
    was armed with a handgun. He wore a standard police issue vest with the word
    Police on it.

[19]

Det. Savory took out his gun and pointed it at Ms. Pino and Mr.
    Martinez. He was aggressive and shouting. Ms. Pino thought he was trying to
    scare her and she testified that she felt very scared. She complied with Det.
    Savorys demands, was arrested, handcuffed, and made to sit on the curb. Det.
    Savory and Cst. Dinardo then searched Ms. Pinos car, where they found the
    marijuana in the box in the trunk.

(b)

The evidence of the two police officers

[20]

Det. Savory denied that he drew his gun. He claimed he had not prepared
    a use of force report, and would have done so if he had used his gun. The
    trial judge rejected his denial.

[21]

Det. Savory also testified that he did not aggressively drive his
    unmarked car in front of Ms. Pinos car. He claimed that the arrest was like a
    regular traffic stop  it looked pretty routine to me. The trial judge
    rejected this evidence as not a credible account of what happened.

[22]

Cst. Dinardo had not drawn his gun, and when asked whether Det. Savory
    had, he claimed he could not recall. The trial judge found it unlikely Cst.
    Dinardo would forget whether Det. Savory drew his gun: his professed memory
    lapse is almost silent evidence in the affirmative.

(c)

The trial judges finding of a s. 8 breach

[23]

The trial judge found that the police had reasonable and probable
    grounds to arrest Ms. Pino and that the arrest itself, as well as the search
    incident to arrest, were lawful.

[24]

But the trial judge found that the masked take-down of Ms. Pino at
    gunpoint was unreasonable. As the trial judge noted, the police do not have a
    licence to pull a gun whenever they stop and arrest a suspected drug
    trafficker. When an accused challenges the manner of a search, the Crown must
    justify the polices conduct. Here, the police offered no specific
    justification for an armed take-down, as neither Det. Savory nor Cst. Dinardo
    admitted that a gun was used.

[25]

Moreover, Det. Schoorl, who oversaw the arrest, conceded that he did not
    expect a high-risk take-down. Nothing about the car or its occupants suggested
    a risk to the safety of the officers or the public. The trial judge concluded
    that the police did not have any justification for the way they arrested Ms.
    Pino or Mr. Martinez, and therefore the manner of her arrest and the subsequent
    search were unreasonable, contrary to s. 8 of the
Charter
.

(2)

The s. 10(b) breaches

[26]

Under s. 10(b) of the
Charter
, everyone has the right on
    arrest or detention to retain and instruct counsel without delay and to be
    informed of that right. The trial judge found two s. 10(b) breaches: the
    police failed to accurately inform Ms. Pino of her s. 10(b) rights; and the
    police failed to facilitate her access to counsel without delay.

(a)

The s. 10(b) information breach

[27]

After arresting Ms. Pino, Det. Savory advised her of her right to
    counsel. However, he admitted he was not carrying his duty book, which
    contained a pre-printed rights to counsel card. Instead he relied on his
    memory from his ten years on the police force. Yet, on cross-examination, he had
    difficulty describing what he told Ms. Pino.

[28]

The trial judge found that the information Det. Savory provided to Ms.
    Pino about her right to counsel was deficient in two ways. First, he failed to
    advise her of her right to consult counsel without delay; and second, he
    probably failed to advise her of her right to immediate, free legal advice.

(b)

The s. 10(b) implementation breach

[29]

Det. Schoorl decided to delay Ms. Pinos access to counsel because he
    did not want her to be able to make a phone call that could compromise the
    execution of the search warrant at 21 St. Claire Avenue. He had her placed in a
    jail cell, and he left her there by herself for nearly five and a half hours
    after her arrest.

[30]

The trial judge found that the delay in being able to consult counsel
    was appreciable. The following is the timeline:

·

1:02 p.m.: Ms. Pino is given her right to counsel, but given
    inadequate information

·

1:28 p.m.: She is placed in a cell by herself

·

3:34  3:40 p.m.: The police execute the search warrant at 21 St.
    Claire Avenue

·

6:24 p.m.: The police arrange for Ms. Pino to speak with a lawyer

[31]

Ordinarily the police must immediately facilitate a detained persons
    access to counsel. But the trial judge accepted that a solicitor-client
    consultation could compromise a pending search. To protect the integrity of
    their search at 21 St. Claire Avenue, the police could briefly delay Ms. Pinos
    access to counsel. Det. Schoorls initial decision was appropriate.

[32]

But the trial judge concluded that the delay was unjustified for two reasons.
    First, he was not satisfied a delay from 1:28 p.m. to 3:40 p.m. was minimal
    and necessary. He was given no explanation why the police did not expedite the
    search of 21 St. Claire Avenue after Ms. Pinos arrest, so they could minimize
    the impairment of her right to counsel.

[33]

Second, even if a delay to 3:40 p.m. could be justified, there was
    absolutely no basis for the delay from 3:40 p.m. until 6:24 p.m.. Det.
    Schoorl was quick to suspend Ms. Pinos right to counsel; he was far less
    focused on ensuring she could exercise that right. The trial judge found that
    the police disregarded Ms. Pinos right to counsel without delay long after any
    reasonable period of suspension had passed. Instead, the police left her in a
    jail cell. This breach was, in the trial judges words, a clear and serious
    breach.

D.

Analysis

[34]

Once evidence has been obtained in connection with a breach of one or
    more of the rights guaranteed by the
Charter
, the court must decide
    whether to admit or exclude the evidence at trial.

[35]

To obtain an order excluding the evidence, an accused must satisfy the
    two requirements of s. 24(2) of the
Charter
:

Where, in proceedings under subsection (1), a court
    concludes that evidence was obtained in a manner that infringed or denied any
    rights or freedoms guaranteed by this
Charter
,
the evidence shall be excluded if it is established that, having regard to all
    the circumstances, the admission of it in the proceedings would bring the
    administration of justice into disrepute.

[36]

As the words of s. 24(2) indicate, an accused must show on a balance of
    probabilities that:

·

The evidence sought to be excluded was obtained in a manner that
    infringed a
Charter
right;

·

The admission of the evidence would bring the administration of
    justice into disrepute.

[37]

Ms. Pino contends that the trial judge erred in his findings and
    conclusions on each of these two requirements.

First Issue
: Did the trial judge
    err in law by concluding that he could not exclude the evidence because of the
    two s. 10(b) breaches?

(a)
Introduction
    and positions of the parties

[38]

The trial judge found that both s. 10(b) breaches occurred after the
    seizure of the marijuana from Ms. Pinos car. He then concluded: as a matter
    of law, I cannot exclude under s. 24(2) the marijuana seized during the search of
    the car because of right to counsel breaches that occurred subsequently, no
    matter how serious they may have been.
Charter
breaches after the
    discovery of the evidence do not meet the obtained in a manner requirement of
    s. 24(2).

[39]

In reaching his conclusion, the trial judge relied on what he considered
    clear and binding authority prohibiting courts in Ontario from excluding
    evidence discovered before a
Charter
breach has occurred. The
    principal authority he relied on was the decision of this court in
R. v.
    LaChappelle
(2007), 226 C.C.C. (3d) 518, but he also referred to the
    Supreme Court of Canadas judgment in
R. v. Strachan
, [1988] 2 S.C.R.
    980.

[40]

Ms. Pino contends that the trial judge erred in law in his conclusion. She
    makes two submissions in support of her contention. Her main submission is that
    it is not essential for a
Charter
breach to have occurred before the
    discovery of evidence to meet the obtained in a manner requirement in s.
    24(2). All that is required is that the breach occurs in the course of the same
    transaction or has a common link. Here, Ms. Pino says that the three
Charter
breaches occurred in the course of her arrest  the common link. And she adds
    that neither
Strachan
nor
LaChappelle
forecloses taking
    account of the s. 10(b) breaches.

[41]

Ms. Pinos secondary submission, a submission she acknowledges was not
    made at trial, is that the first s. 10(b) breach occurred before the discovery
    of the marijuana. She was entitled to be advised of her right to counsel
    immediately upon her arrest, not, as she was, after the search of her car.

[42]

On Ms. Pinos main submission, the Crown argues that the trial judge was
    correct. The case law, policy, and the wording of s. 24(2) all point to the
    conclusion that sequence matters 
Charter
breaches after the
    discovery of the challenged evidence do not satisfy the obtained in a manner
    requirement. The Crown also makes a harmless error argument. Even if the
    trial judge was wrong about the s. 10(b) breaches, his error was of no
    consequence as he took account of these breaches when he discussed whether admitting
    the evidence would bring the administration of justice into disrepute.

[43]

Finally the Crown argues we should not entertain Ms. Pinos secondary
    submission because the record is incomplete: neither police officer was asked
    why he did not advise Ms. Pino of her right to counsel before the search of her
    car.


(b)
Did
    the trial judge err in finding that the first s. 10(b) breach occurred after
    the discovery of the marijuana
?

[44]

I will address briefly Ms. Pinos secondary submission. Her submission
    has merit. In
R. v. T.G.H.
, 2014 ONCA 460, 120 O.R. (3d) 581, at para.
    31, Doherty J.A. wrote that the polices obligation to advise detained persons
    of their right to counsel ordinarily is not affected by the polices intention
    to conduct a search incident to an arrest. They should be advised immediately.
    Here, the police officers only justification for the delay, albeit short, in
    advising Ms. Pino of her right to counsel could be their concern for their
    safety. If that was their concern, objectively it would seem to be
    unreasonable. Ms. Pino had no previous criminal record, the police had no
    evidence she was dangerous, and she was handcuffed before the officers opened
    the trunk of her car.

[45]

Still, I would not interfere with the trial judges finding that both
    the information and implementation breaches of s. 10(b) occurred after the
    discovery of the marijuana. Because the issue was not raised at trial, the two police
    officers were not given any opportunity to explain why they waited until after
    the search to advise Ms. Pino of her right to counsel. When an issue has not
    been raised at trial and the record on that issue is incomplete, this court
    generally will not entertain the issue on appeal: see, for example,
R. v.
    Ralph
, 2014 ONCA 3, 313 O.A.C. 384, at para. 21;
R. v. Richards
,
    2015 ONCA 348, 335 O.A.C. 26, at para. 49.

[46]

Also, even if the police should have advised Ms. Pino of her right to
    counsel before the search, their failure to do so would have had no impact on
    Ms. Pinos interests. The police were legally entitled to search Ms. Pinos car
    incident to arrest, and neither she nor a lawyer could interfere with their right
    to do so. The seriousness of the s. 10(b) breaches only became apparent after the
    search.

[47]

Thus, I prefer to accept the trial judges finding that both s. 10(b)
    breaches occurred after the discovery of the marijuana and focus on Ms. Pinos
    main submission and the main issue on this appeal: can
Charter
breaches that occur after the discovery of the evidence meet the obtained in a
    manner requirement in s. 24(2) of the
Charter
?

(c)
Did the trial judge err in law by holding that he could not

exclude the marijuana because of the two s. 10(b) breaches
?

[48]

This is a difficult issue. I have concluded that the trial judge erred
    in law by holding that
Charter
breaches after the discovery of the
    challenged evidence cannot meet the obtained in a manner requirement in s.
    24(2). He considered himself bound by appellate authority. I take a different
    view of that authority; I do not read it as precluding my conclusion. I think
    the Supreme Courts generous and increasingly broad approach to the obtained
    in a manner requirement allows the court, in an appropriate case, to exclude
    the evidence because of a
Charter
breach occurring after the evidence
    was discovered. I find support for my conclusion in the trial judges own
    extra-judicial writing as well as in other academic commentary.

[49]

In this case I accept Ms. Pinos submission that all three
Charter
breaches found by the trial judge satisfy the obtained in a manner
    requirement in s. 24(2). They are all temporally and contextually connected
    to the evidence sought to be excluded; and they all occurred in the course of
    the same transaction: Ms. Pinos arrest. Finally, as I will explain, I would
    not give effect to the Crowns harmless error argument.

(i)

The case law

[50]

On a superficial reading of s. 24(2) one might be tempted to conclude
    that the obtained in a manner requirement can only be met by a causal
    connection between the breach and the discovery of the evidence: but for the
    breach the evidence would not have been discovered. But the Supreme Court has
    long recognized that a causal connection is unnecessary.

[51]

Instead, beginning with
Strachan
, the Supreme Court has taken
    an increasingly generous and broad approach to the obtained in a manner
    requirement in s. 24(2)  an approach that looks to the overall purpose of the
    section, whether admission of the evidence would bring the administration of
    justice into disrepute.

[52]

So, in
Strachan
itself, Dickson C.J.C. held that obtained in a
    manner did not require a causal connection between the
Charter
breach
    and the evidence. A temporal connection would be enough, so long as it was not
    too remote and so long as the breach and the discovery of the evidence occur
    in the course of a single transaction. The Chief Justice emphasized that the
    court should look at the entire chain of events. And there should be no
    bright line rule; these situations should be dealt with on a case by case
    basis.

[53]

Two years after
Strachan
, in
R. v. Brydges
, [1990] 1
    S.C.R. 190, at p. 210, Lamer J. held that the connection between the
Charter
breach and the evidence should be looked at broadly: s. 24(2) is implicated
    as long as a
Charter
violation occurred in the course of obtaining the
    evidence.

[54]

Then, in 2004, in
R. v. Plaha
, 188 C.C.C. (3d) 289 (Ont. C.A.),
    at para. 45, Doherty J.A. added contextual to the list of connections that
    could satisfy the obtained in a manner requirement, and he succinctly
    summarized the Supreme Courts approach:

The jurisprudence establishes a generous approach to the
    threshold issue.  A causal relationship between the breach and the impugned
    evidence is not necessary.  The evidence will be obtained in a manner that
    infringed a
Charter
right if on
    a review of the entire course of events, the breach and the obtaining of the
    evidence can be said to be part of the same transaction or course of conduct.
    The connection between the breach and the obtaining of the evidence may be
    temporal, contextual, causal or a combination of the three. The connection must
    be more than tenuous. [Citations omitted.]

[55]

Four years later in
R. v. Wittwer
, 2008 SCC 33, [2008] 2 S.C.R.
    235, at para. 21, Fish J., for a unanimous court, adopted Doherty J.A.s
    formulation in
Plaha
, and stressed that the courts approach to the
    obtained in a manner requirement should be both purposive and generous:

In considering whether a statement is tainted by an earlier
Charter
breach, the courts have adopted a purposive and generous approach. It is
    unnecessary to establish a strict causal relationship between the breach and
    the subsequent statement. The statement will be tainted if the breach and the impugned
    statement can be said to be part of the same transaction or course of conduct:
Strachan
,
    at p. 1005. The required connection between the breach and the subsequent
    statement may be temporal, contextual, causal or a combination of the three:
R.
    v. Plaha
(2004), 189 O.A.C. 376, at para. 45. A connection that is merely
    remote or tenuous will not suffice:
R. v. Goldhart
, [1996] 2
    S.C.R. 463, at para. 40;
Plaha
, at para. 45.

[56]

A generous approach to the obtained in a manner requirement makes good
    sense because this requirement is just the gateway to the focus of s. 24(2) 
    whether the admission of the evidence would bring the administration of justice
    into disrepute. And, as the trial judge in the appeal before us acknowledged,
    the addition of contextual to causal and temporal as connections,
    loosened the obtained in a manner requirement.

[57]

Despite the generous approach to obtained in a manner, the Supreme
    Court has never expressly said that the requirement can be met by a
Charter
breach that occurred after the discovery of the evidence sought to be excluded.
    And several Supreme Court decisions since
Strachan
have presumed the
Charter
breach occurred before the discovery of the evidence: see
R. v.

Goldhart
,
    at para. 35;
R. v.

Wittwer
, at para. 21; and
R. v. Mack
,
    2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38.

[58]

But the courts recent decision in
R. v. Mian
, 2014 SCC 54, [2014]
    2 S.C.R. 689, suggests that it may be inclined to take account of
Charter
breaches occurring after the discovery of the evidence in an appropriate case.
Mian
was decided after the trial of the case before us, and therefore the trial
    judge did not have the benefit of it when he wrote his reasons.

[59]

In
R. v.
Mian
, 2011 ABQB 290, 516 A.R. 368, the police
    stopped and detained the accused, a suspected drug trafficker, while he was
    driving his car. Within minutes of the accuseds detention, the police searched
    the car and found about a half a kilogram of cocaine. However, they waited 22
    minutes from the time the accused was stopped to arrest him and tell him the
    reason for his arrest, and a further 2 to 5 minutes to advise him of his right
    to counsel. The trial judge found that the delay breached the accuseds rights
    under s. 10(a)
[1]
and 10(b) of the
Charter
, excluded the seized evidence under s. 24(2)
    and acquitted the accused.

[60]

In the Supreme Court, the main focus of the argument was whether the
    Alberta Court of Appeal was justified in raising a new issue on appeal and
    overturning the acquittal. Rothstein J. held that it was not justified. When he
    came to discuss s. 24(2), Rothstein J. did not address the obtained in a
    manner requirement, but he nonetheless upheld the trial judges decision to
    exclude the evidence, and he restored the accuseds acquittal.

[61]

In
Mian
, the trial judge found that the s. 10(a) and 10(b)
    breaches occurred immediately upon the accuseds detention, and therefore
    before the cocaine was found in his car. Yet the gravity of the breaches was
    the extent of the delay in advising the accused of his
Charter
rights,
    and almost all that delay took place after the seizure of the cocaine.
Mian
then offers, at least implicitly, some support for my conclusion.

[62]

What then of the two principal authorities relied on by the trial judge:
    the Supreme Courts decision in
Strachan
and this courts decision in
LaChappelle
?
    I do not think either precludes the conclusion I have reached.

[63]

In
Strachan
, at p. 1005, Dickson C.J.C. did say:

So long as a violation of one of these rights precedes the
    discovery of evidence, for the purposes of the first stage of s. 24(2) it makes
    little sense to draw distinctions based on the circumstances surrounding the
    violation or the type of evidence recovered. A better approach, in my view,
    would be to consider all evidence gathered following a violation of a
Charter
right, including the right to counsel, as within the scope of s. 24(2).

[64]

Strachan
was decided in the early days of the
Charter
.
    The courts principal concern was to reject the proposition that a causal link
    was needed to meet the obtained in a manner requirement. The Chief Justice
    did not expressly consider and reject the proposition that evidence obtained before
    a
Charter
breach could not be excluded under s. 24(2). And since
Strachan
,
    the Supreme Court has interpreted the obtained in a manner requirement even more
    broadly.

[65]

In
LaChappelle
,
my late colleague, Rosenberg J.A., relied on
Strachan
in holding that
    evidence seized by the police before an alleged
Charter
violation
    could not be excluded under s. 24(2). But
LaChappelle
was a very
    different case on its facts.

[66]

There, the accused had been injured in a car accident and was taken to
    the hospital. On the orders of a doctor, a nurse drew five vials of his blood.
    Although the accused had been suspected of drinking, the trial judge found that
    the vials of blood were taken solely for medical purposes. Soon after the blood
    samples were taken, the police concluded they had grounds to arrest and charge the
    accused with impaired driving. While he was still at the hospital an officer
    read him his rights under s. 10(b) of the
Charter
and made a breath
    demand. The accused then asked to speak to duty counsel and had a private 15
    minute consultation with counsel. Two days later, the police obtained a warrant
    to seize the vials and the accompanying blood/alcohol analysis.

[67]

At trial, the accused sought to exclude the results of the breath test
    and the analysis of his blood samples on the ground, among others, that his s.
    10(b) rights had been breached because he did not receive competent advice from
    duty counsel. The trial judge found that the advice the accused received was
    competent. On appeal, Rosenberg J.A. held that even if the advice was
    incompetent he would not exclude the evidence. At paras. 46-47, he wrote:

Even if the appellant is right that merely showing that he
    received incompetent advice resulted in a s. 10(b) violation, on the findings
    of fact by the trial judge, no evidence was obtained by that violation.
    Accordingly, there was no basis for invoking s. 24(2) of the
Charter
and possibly excluding the results of the blood test.

But here the trial judge found that the vials had already been
    sealed and were no longer within the appellants control when he finished
    talking to duty counsel. There was no factual or temporal connection between
    the alleged breach and the obtaining of the evidence; the evidence had already
    been obtained before the alleged breach of the appellants rights because of
    the incompetent legal advice.

[68]

In
LaChappelle
, the alleged
Charter
breach and the obtaining
    of the evidence were not part of the same transaction. The evidence was lawfully
    seized before the breach, by persons who were not even state actors. As
    Rosenberg J.A. held, there was no connection, at least no close connection,
    between the evidence and the breach. In my view,
LaChappelle
does not stand
    for the sweeping proposition that a
Charter
breach after the evidence
    has been discovered can never meet the obtained in a manner requirement in s.
    24(2). That it may do so in an appropriate case finds support in academic
    commentary.

(ii)

Academic Commentary

[69]

The trial judge in
The Law of Evidence
, 7th ed. (Toronto: Irwin
    Law, 2015), which he co-authored with Professor Lee Stuesser, argues
    persuasively that as a matter of principle and policy, evidence obtained before
    a
Charter
breach may still be excluded under s. 24(2). In doing so,
    the authors rely in part on the French version of the text of s. 24(2)
[2]
.
    At p. 397, the authors write:

The French text of subsection 24(2) appears to contemplate the
    power in courts to address breaches that are linked to the same event, but
    occur after the discovery of the evidence. There are also sound reasons of
    policy for leaving this door open. Assume that the police discover marijuana
    during a lawful and reasonable pat-down search and then publicly and needlessly
    go on to strip search the suspect. Is a court to be deprived of the power to
    exclude the evidence because of the sequence of events? To insist on the breach
    preceding the discovery of evidence as an absolute precondition to exclusion
    means that
ex hypothesi
evidence can be admitted even where its
    admission would bring the administration of justice into disrepute, just
    because of the order in which things happened to occur.

[70]

In his text,
Constitutional Remedies in Canada
, loose-leaf, 2d
    ed.  (Toronto: Canada Law Book) at para. 10.880, Professor Kent Roach takes a
    similar view. He emphasizes that the admission of evidence obtained before a
Charter
breach may still bring the administration of justice into disrepute:

Does it matter in the temporal connection test whether the
    evidence is found after or before a
Charter
violation? Parts of
Strachan
suggest that it is necessary for the
    evidence to be discovered after a
Charter

violation, but this may be a hangover of the causation based test. From a
    regulatory perspective, it should not matter whether the evidence was obtained
    before or after a serious
Charter
violation. In both cases, the administration of justice could be brought into
    disrepute if the courts appear to condone a serious
Charter
violation. If the court is concerned with
    responding to serious violations, there is no reason why evidence discovered
    before a violation should not be considered for exclusion. [Footnotes omitted.]

[71]

I turn now to apply the principles from the case law to the appeal
    before us.

(iii)

This case

[72]

Based on the case law, the following considerations should guide a
    courts approach to the obtained in a manner requirement in s. 24(2):

·

The approach should be generous, consistent with the purpose of
    s. 24(2)

·

The court should consider the entire chain of events between
    the accused and the police

·

The requirement may be met where the evidence and the
Charter
breach are part of the same transaction or course of conduct

·

The connection between the evidence and the breach may be causal,
    temporal, or contextual, or any combination of these three connections.

·

But the connection cannot be either too tenuous or too remote.

[73]

Here, the two s. 10(b) breaches along with the s. 8 breach meet the
    obtained in a manner requirement. The marijuana seized from the trunk of Ms.
    Pinos car and all three
Charter
breaches are part of the same
    transaction. That transaction or the common link between the evidence and the
    breaches is Ms. Pinos arrest.

[74]

The connection between the evidence and the breaches is both temporal
    and contextual, and is neither too tenuous nor too remote. The connection is
    temporal because the three breaches are relatively close in time and are part
    of a continuum straddling Ms. Pinos arrest. The connection is also
    contextual. I take contextual  a word often used by lawyers and judges 
    to mean pertaining to the surroundings or situation in which something happens.
    In this case, the something that happened is Ms. Pinos arrest. And the two s.
    10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. Indeed,
    the trial judge found that the s. 10(b) breaches form part of the context in
    which the s. 8 breach occurred.

[75]

The following hypothetical example helps to illustrate my point. Suppose
    the s. 10(b) breaches had crystallized before the search of Ms. Pinos car. The
    police advised Ms. Pino of her right to counsel without delay immediately upon
    her arrest, but gave her incomplete advice and decided to delay her access to
    counsel to prevent her from compromising the search of 21 St. Claire Avenue.

[76]

In this hypothetical example, the obtained in a manner requirement
    would unquestionably be met. Both s. 10(b) breaches occurred before the
    discovery of the marijuana. But as in
Mian
, the gravity of the s.
    10(b) breaches, especially the implementation breach, would occur after the
    search of the car.

[77]

So, should it make a difference whether the s. 10(b) breaches occurred
    before or after the discovery of the evidence? I do not think so. In either
    case, the administration of justice could be brought into disrepute if the
    court condoned serious
Charte
r violations.

[78]

On this issue, I therefore conclude that the evidence, the marijuana,
    was obtained in a manner that breached Ms. Pinos s. 8 and s. 10(b) rights.
    In concluding otherwise, the trial judge erred in law.

(iv)

The Crowns harmless error argument

[79]

The Crown argues that even if the trial judge erred in his analysis of
    the s. 10(b) breaches, his error was harmless because he took these breaches
    into account when he came to discuss the seriousness of the s. 8 breach. I do
    not accept the Crowns argument.

[80]

The trial judge did say: I also find that while I cannot exclude the
    evidence in question based on the right to counsel violations, they do form part
    of the context in which this breach occurred. And he held that there had been
    a pattern of violations, which further enhances the seriousness of the
    breach. But when he assessed the seriousness of the breach, he referred to
    breach in the singular, the s. 8 breach. He did not assess the seriousness of
    all three breaches.

[81]

The s. 10(b) breaches take on a very different colour when they are
    viewed not just as part of the context for the s. 8 breach, but as a basis for
    the exclusion of the evidence. That they would take on a different colour is
    evident from the way the trial judge framed the issue before him. He asked
    whether he could exclude the evidence because of these breaches and held that
    he could not because they did not meet the obtained in a manner requirement.
    Had the s. 10(b) breaches met this requirement, undoubtedly they would have
    elevated the seriousness of the polices breaches of Ms. Pinos
Charter
rights and had an impact on her
Charter
-protected interests. I will
    discuss the effects of the s. 10(b) breaches when I discuss the final issue on
    this appeal, whether the evidence should be excluded. I would not, however,
    give effect the Crowns harmless error argument.

Second Issue
: Did the trial judge
    understate the seriousness of the s. 8 breach by speculating about why the
    police lied in their testimony?

(a)
Introduction

[82]

The second branch of the s. 24(2) inquiry calls on a trial judge to
    assess whether the admission of the evidence sought to be excluded would bring
    the administration of justice into disrepute. In making that assessment the
    trial judge must take account of and balance the three factors stipulated by
    the Supreme Court in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353:

·

The seriousness of the
Charter
-infringing state conduct;

·

The impact of the breach or breaches on the
Charter
-protected
    interests of the accused; and

·

Societys interest in the adjudication of the case on its merits.

[83]

On the first
Grant
factor, the seriousness of the
Charter
breach, the trial judge found that:

·

There had been a pattern of violations but not a conscious
    disregard for the
Charter
;

·

The use of force in arresting Ms. Pino was the result of
    misjudgment;

·

The defective
Charter
advice she received was nothing
    more than a failure to recall the complete elements of proper advice;

·

The initial decision to delay Ms. Pinos exercise of her right to
    counsel was appropriate; the further delay was an oversight born of disinterest
    in her
Charter
rights;

·

The testimony of the police officers was misleading.

[84]

Overall, the trial judge found that the breach that triggered the s.
    24(2) analysis  the s. 8 breach  is of more than modest seriousness, yet,
    given that it is probably the product of an error in judgment, is far from at
    the extreme end of seriousness.

[85]

Before dealing with Ms. Pinos submission on the first
Grant
factor, I will briefly summarize the trial judges findings on the other two
Grant
factors.

[86]

On the second
Grant
factor, the impact of the s. 8 breach on
    Ms. Pinos
Charter
-protected interests, the trial judge held there was
    no impact on her privacy interests. At most, the breach had an impact on her
    security and integrity of the person. Nonetheless, in the trial judges view,
    three considerations diminished the impact of this breach: Det. Savory acted
    appropriately in running aggressively at Ms. Pinos car and barking commands;
    Det. Savory brandished his gun for a very short time, and the two officers were
    not otherwise abusive; and no causal connection existed between the manner of
    the search and the discovery of the marijuana. Overall the trial judge found
    that the impact of the breach on Ms. Pino arising from the manner in which the
    search took place was of only moderate or of qualified significance.

[87]

On the third
Gran
t
factor, the trial judge held that the
    marijuana was real evidence of demonstrable reliability, and its exclusion
    would have a significant impact on societys interest in the adjudication of
    the case on its merits.

[88]

After balancing the three
Grant
factors, the trial judge
    concluded that the admission of the marijuana would not bring the
    administration of justice into disrepute.

[89]

Even accepting the trial judges findings on the three
Grant
factors, in the light of my conclusion on the first issue  the obtained in a
    manner requirement  the first and second
Grant
factors will have to
    be reassessed. The two s. 8 breaches elevate the seriousness of the breach
    found by the trial judge, and have an impact on Ms. Pinos
Charter
-protected
    interests. I will reassess those factors when I discuss the final issue on this
    appeal.

[90]

But even apart from the reassessment required to take the two s. 10(b)
    breaches into account, Ms. Pino does not accept the trial judges finding on
    the seriousness of the s. 8 breach. She submits that the trial judge understated
    its seriousness by speculating about the polices dishonest testimony
    concerning her arrest.

(b)
Did the trial judge understate
    the seriousness of the police officers dishonest testimony
?

[91]

Ms. Pino submits that the trial judge unreasonably discounted the
    seriousness of the two police officers dishonest testimony about her arrest by
    speculating about their motives for lying. I agree with this submission.

[92]

The trial judge did not accept Cst. Dinardos proffered inability to
    remember whether his partner Det. Savory pulled his gun out and pointed it at
    Ms. Pino. In substance, the trial judge found Cst. Dinardo was not being candid
    with the court.

[93]

The trial judge expressly found Det. Savorys denial that he brandished
    his gun and his claim the arrest was like a routine traffic stop were not
    credible. In other words, the trial judge found that Det. Savory lied to the
    court.

[94]

But then the trial judge ascribed rather innocuous motives for Det.
    Savorys dishonest testimony. The trial judge suggested that Det. Savory drew
    his gun for reasons of officer safety. He speculated that the officer may
    have lied about doing so not because he knew all along his conduct was
    unlawful, but because he had not filed a use of force report.

[95]

I do not think the trial judge was justified in proffering these
    explanations for Det. Savorys testimony, explanations that had the effect of
    understating the seriousness of his dishonesty. No evidence was led at trial to
    show that the arrest of Ms. Pino posed any risk to either officers safety. And
    no evidence was led to explain why Det. Savory pulled his gun or why he lied
    about doing so. Indeed, neither officer could give any evidence about the gun
    because one denied and the other claimed not to remember whether Det. Savory
    had brandished his weapon during the arrest.

[96]

It seems to me that if the two police officers were going to justify
    their conduct, they were obliged to put forward evidence explaining why Det.
    Savory drew his gun and why he acted aggressively in carrying out the arrest of
    Ms. Pino. These explanations could only come from the officers. Although Ms.
    Pino had the ultimate burden under s. 24(2) to show the marijuana should be
    excluded, on this issue of the polices conduct, the Crown had the burden to put
    forward a plausible explanation:
R. v. Bartle
, [1994] 3 S.C.R. 173, at
    210. It did not and could not do so.

[97]

As Mr. Krongold, counsel for Ms. Pino, pointed out, by suggesting fairly
    innocent explanations for the police officers testimony, the trial judge
    allowed them to benefit from their own dishonesty. They were able to shield
    their true motives for the way they carried out the arrest of Ms. Pino by lying
    about their own misconduct. For the purpose of assessing the seriousness of the
Charter
breaches and the overall assessment of whether the marijuana
    should have been excluded from the evidence at trial, the officers dishonest
    testimony should not be understated by explanations unsupported in the
    evidence.

[98]

Although a trial judges findings of fact are entitled to deference from
    an appellate court, appellate intervention is justified in this case because
    the trial judges findings are speculative and do not take account of the onus
    on the Crown.

Third Issue
: Should the evidence
    be excluded under s. 24(2) of the
Charter
?

[99]

In the light of my conclusions on the first two issues, the first two
Grant
factors must be reassessed and the overall balancing of the factors
    reconsidered.

(a)
The seriousness of the
Charter
breaches

[100]

The trial judge
    found that the s. 8 breach, in context, was of more than modest seriousness,
    but far from at the extreme end of seriousness. That finding cannot stand for
    two reasons.

[101]

First, the s.
    10(b) breaches now directly affect the overall seriousness of the polices
    conduct. Instead of looking at the seriousness of the s. 8 breach alone, as the
    trial judge did, all three breaches must be assessed. Even accepting the trial
    judges finding that the first s. 10(b) was nothing more than a failure to
    recall, the second s. 10(b) breach was itself far more serious. The trial
    judge found that the polices failure to facilitate Ms. Pinos right to counsel
    without delay was a clear and serious breach of s. 10(b), reflecting the
    polices disinterest in her rights. That finding alone elevates the overall
    seriousness of the
Charter
breaches.

[102]

Second, the
    polices dishonest testimony about the arrest, though not an element of the
Charter
breach itself, is relevant to the first
Grant
factor. In my view, the
    trial judge understated its impact. The Supreme Courts decision in
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, is directly on point. In that
    case, at para. 26, the Supreme Court endorsed the observation of my colleague
    Cronk J.A. in her dissenting reasons in this court:

The integrity of the judicial system and the truth-seeking
    function of the courts lie at the heart of the admissibility inquiry envisaged
    under s. 24(2) of the
Charter
. Few actions more directly undermine
    both of these goals than misleading testimony in court from persons in
    authority.

[103]

For these
    reasons, to adopt the trial judges phrase, the three
Charter
breaches
    are close to the extreme end of seriousness. This first
Grant
factor
    favours exclusion of the evidence. Admission of the evidence in the light of
    the seriousness of the breaches, and especially the officers dishonest
    testimony, may send the message that the justice system condones this kind of
    conduct.

(b)
Impact on the
Charter
-protected interests of the accused

[104]

This factor
    focuses on the extent to which a
Charter
breach undermines the
    interests protected by the right infringed. The trial judge found that the s. 8
    breach only had a moderate impact on Ms. Pinos interests, largely and
    correctly because s. 8 protects a persons privacy interests and Ms. Pinos
    privacy interests were not affected by the manner of her arrest.

[105]

But the s. 10(b)
    breaches have a much greater impact on Ms. Pinos interests. These breaches
    were neither technical nor fleeting. Being forced to sit alone in a jail cell
    for over five hours after her arrest without access to counsel undermined the
    very interests s. 10(b) seeks to protect: correct information about the right
    to counsel and the immediate ability to consult with a lawyer. Ms. Pino was vulnerable
    and she needed counsel, not just for legal advice, but as a lifeline to the
    outside world. This second
Grant
factor also favours exclusion.

(c)
Societys interest in an
    adjudication on the merits

[106]

I accept the
    trial judges finding on the third
Grant
factor. The evidence in
    question, the marijuana, is both real and reliable. Its exclusion would likely
    end the Crowns case against Ms. Pino. This third
Grant
factor favours
    admission of the evidence.

(d)
Overall balancing

[107]

After balancing
    these three factors, I conclude that the admission of the marijuana would bring
    the administration of justice into disrepute. As the Supreme Court emphasized
    in
Grant
,
at paras. 71
    and 84, s. 24(2) requires the court to consider the longer-term repute of the
    justice system and societys confidence in our system. This is one of those
    cases in which the courts need to disassociate itself from the polices
    conduct is greater than societys interest in prosecuting Ms. Pino for
    possessing 50 marijuana plants.

E.

Conclusion

[108]

I would allow
    Ms. Pinos appeal and set aside her conviction. The Crown did not suggest that
    if the marijuana were excluded it had other evidence to lead against her. I
    would therefore enter an acquittal. I thank counsel for their assistance on a
    difficult case.

Released: May 24, 2016 (J.L.)

John Laskin J.A.

I agree. M. Tulloch J.A.

I agree. G. Pardu J.A.





[1]
Under s. 10(a) everyone has the right on arrest or detention to be informed
    promptly of the reasons therefor.



[2]

Lorsque, dans une instance visée au paragraphe (1), le
    tribunal a conclu que des éléments de preuve ont été obtenus dans des
    conditions qui portent atteinte aux droits ou libertés garantis par la présente
    charte, ces éléments de preuve sont écartés sil est établi, eu égard aux
    circonstances, que leur utilisation est susceptible de déconsidérer
    ladministration de la justice.


