



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Silva, 2017 ONCA 788

DATE: 20171013

DOCKET: C62172

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eduardo Silva

Appellant

Eduardo Silva, acting in person

Ian R. Smith, appearing as duty counsel

Lorna Bolton, for the respondent

Heard: October 5, 2017

On appeal from the convictions entered by Justice Alfred
    J. OMarra of the Superior Court of Justice on May 12, 2016.

REASONS FOR DECISION

[1]

On August 14, 2013, five individuals robbed an
    auto body shop. About two months later, the police executed a search warrant at
    a residential address connected to the appellant. A loaded semi-automatic
    handgun was seized.

[2]

The appellant appeals from his convictions for
    robbery with a firearm and possession of a restricted firearm. He raises two
    grounds of appeal: (1) the trial judge erred in finding the appellants
    statement voluntary; and (2) the trial judge erred in refusing to exclude
    evidence resulting from a s. 8
Charter
breach under s. 24(2) of the
Charter
.

[3]

The appellant argues that his statement ought to
    have been excluded as involuntary, maintaining that he and his girlfriend were
    threatened by the police. He alleged that police threatened to charge his
    girlfriend with possession of the gun and promised to release her if he made a
    statement. The appellant submits that this threat made his statement
    involuntary.

[4]

The voluntariness ruling turned on credibility
    findings. The trial judge specifically rejected the appellant and his
    girlfriends suggestion that police had threatened him. He concluded that the
    appellant made his statement of his own free will, and was in control of what
    he would and would not tell police.  These
    credibility findings are owed deference. There is no basis on this record upon
    which to interfere with the ruling.

[5]

Duty counsel addressed the second ground of
    appeal pertaining to the alleged error in the trial judges s. 24(2) analysis.

[6]

The trial judge found a s. 8
Charte
r breach
    arising from his conclusion that the Information to Obtain (ITO) the search
    warrant executed at a residential address where the appellant, his girlfriend,
    and her family lived, contained insufficient grounds connecting him to that
    address. The trial judge came to this conclusion notwithstanding the fact that:

(a)

there was evidence that the appellants girlfriend was Amada Camacho;

(b)

approximately 60 police occurrences connected Ms. Camacho and her family
    to the residential address searched;

(c)

the appellant had been seen attending at the address on one occasion
    shortly before the warrant was issued; and

(d)

a phone that was loosely associated with the robbery was registered to
    Mike Silva at the residential address searched.

[7]

Duty counsel argued that the trial judge erred
    in not excluding the evidence under s. 24(2) of the
Charter
. The admissibility of evidence is to be
    examined under the three prongs set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    paras. 71-86:

1.

the
    seriousness of the
Charter
-infringing state conduct;

2.

the
    impact of the breach on the individuals
Charter
-protected interests;
    and

3.

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

[8]

The appellant maintains that the trial judge
    erred in his admissibility determination by allowing the third
Grant
consideration
    to overwhelm the inquiry. The trial judge concluded that the police conduct was
    negligent and the impact of the breach on the appellants
Charter
rights was serious.
    Having regard to these findings, it is argued that the trial judge allowed the
    third prong for consideration under
Grant
 the societal interest in the adjudication of the case on its merits  to trump
    the other considerations.

[9]

Despite Mr. Smiths able submissions, we
    disagree.

[10]

Section 24(2) findings are owed considerable
    deference on appeal:
Grant
,
    at para. 86. Absent an error in principle, a palpable and overriding factual
    error, or an unreasonable determination, deference is owed:
R. v. McGuffie
, 2016
    ONCA 365, 131 O.R. (3d) 643, at para. 64. We find no such error.  We do not read the trial judges reasons as
    allowing the third prong of
Grant
to overwhelm the inquiry. He carefully balanced each of the relevant considerations
    under
Grant
.

[11]

We first note that if the ITO fell short in
    setting out sufficient reasonable grounds to believe that the residence to be
    searched was connected to the appellant, it was not by much. Having regard to
    the location searched, the trial judge specifically noted the serious impact of
    the breach on the appellants
Charter
protected interests. Moreover, while the trial judge characterized
    the police conduct as in the realm of negligence, noting that they should
    have done more to confirm the appellants
de facto
residence, he concluded that the
    failure to do so did not arise from an intention to mislead or deceive.

[12]

As for the third prong of
Grant
, the trial
    judge adverted to the reliability of the evidence tending to weigh in favour of
    admission. This is a correct statement of law: see
Grant
, at para. 115. Balancing all relevant
    factors, and having regard to all of the circumstances, the trial judge
    concluded that exclusion of the evidence was not required. It was open to him
    to come to this conclusion. We see no error in his approach.

[13]

The conviction appeal is dismissed.

K. van
    Rensburg J.A.

G. Pardu
    J.A.

Fairburn
    J.A.


