



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Riley, 2018 ONCA 998

DATE: 20181207

DOCKET: C57907

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyshan Riley

Appellant

Mathew R. Gourlay, for the appellant

Karen Papadopoulos and Hannah Freeman, for the
    respondent

Heard: September 26, 2018

On appeal from the conviction entered on June 8, 2011 and
    sentence imposed on June 16, 2011 by Justice J. McMahon of the Superior Court
    of Justice, sitting without a jury.

By the Court:

INTRODUCTION

[1]

The appellant was one of the leaders of a Scarborough gang called
    the Galloway Boyz, which was engaged in a violent turf war with the Malvern
    Crew gang in the early 2000s. The appellant was charged with committing two
    drive-by shootings in the Malvern area in 2004. During the first, in March,
    Brenton Charlton and Leonard Bell were each shot multiple times. Six weeks
    later, in April, Christopher Hyatt and Kofi Patrong were each shot multiple times.
    All except Mr. Charlton survived. None of the four victims were gang members. At
    the time of the second shooting, involving Mr. Hyatt and Mr. Patrong, the appellant
    was subject to a warrantless wiretap implemented by Toronto police pursuant to
    s. 184.4 of the
Criminal Code
.

[2]

In 2009, the appellant was tried in connection with the shootings
    of Mr. Charlton and Mr. Bell before Justice Dambrot. He was convicted on all
    counts including first degree murder. During that trial, Dambrot J. found the
    s. 184.4 intercepted communications to have been a very serious breach of the
    appellants s. 8
Charter
rights:
R. v. Riley
(2008), 234 C.C.C.
    (3d) 181 (Ont. S.C.). In a separate ruling, the evidence was excluded from the
    trial under s. 24(2) because the admission of this evidence in these
    proceedings would bring the administration of justice into disrepute

: R. v. Riley
(2009)
, 184 C.R.R. (2d) 209 (Ont. S.C.),
    at para. 164 (Ruling #1). Justice Dambrot did not conduct his analysis as
    mandated by the Supreme Court of Canada in
R. v. Grant,
2009 SCC 32, [2009]
    2 S.C.R. 353, because it had not yet been released.

[3]

In April 2011, during pre-trial motions for what was scheduled to
    be a separate jury trial for the shootings of Mr. Hyatt and Mr. Patrong, the
    motion judge admitted the very same s. 184.4 intercepted communications into
    evidence at trial. On this occasion, the Crown conceded that the intercepts
    were obtained in breach of the appellants s. 8
Charter
rights. The
    motion judge, after conducting the s. 24(2) analysis as directed in
Grant
, found
    that the failure of the police to exercise reasonable diligence  does not
    equate to wilful or reckless disregard of
Charter
rights. He admitted
    the intercepts into evidence under s. 24(2) of the
Charter
because a
    reasonable person informed of all of these circumstances would have their faith
    in the administration of justice shaken not by the admission of this evidence
    but by its exclusion:
R. v. Riley
,
2011
    ONSC 3612, at paras. 76 and 92 (Ruling #2)
.

[4]

On June 8, 2011, the appellant re-elected to be tried by a judge
    of the Superior Court, sitting without a jury. After pleading not guilty to the
    charges of attempted murder and firearms offences, the defence consented to an
    Agreed Statement of Facts (ASF) being put before the trial court,
    constituting the entirety of the evidence for the Crown. Without conceding his
    guilt, the appellant acknowledged that the ASF accurately stated the evidence
    the Crown would have led at trial. The trial judge gave brief reasons for
    finding the appellant guilty on all counts. He noted that surveillance had
    placed the appellant in the general area where the shooting took place and
    placed him in the drivers seat of a car matching the one seen fleeing the
    scene. The trial judge placed significant weight on the appellants intercepted
    communications, which included the appellant describing himself shooting Mr.
    Hyatt and Mr. Patrong.

[5]

On August 11, 2017, this court dismissed the appellants
    appeal from his convictions arising from the shootings of Mr. Charlton and Mr.
    Bell:
R. v. Riley
, 2017 ONCA 650,
    137 O.R. (3d) 1 (First Appeal).

[6]

The appellant now appeals his
    convictions arising from the attempted murder of Mr. Hyatt and Mr. Patrong. For
    the reasons that follow, we would dismiss the appeal.

THE ISSUE ON APPEAL

[7]

The background facts are
    fully set out by the motion judge and are not challenged by the appellant.  We
    will refer to the necessary background facts in the course of addressing the
    issue arising on appeal.

[8]

The Crown conceded that the use of the s. 184.4 warrantless
    intercepts was a breach of the appellants s. 8
Charter
rights. The
    only issue before the motion judge, therefore, was whether the intercepted
    communications and evidence subsequently gathered should be excluded under s.
    24(2).

[9]

That issue, decided in Ruling #2, is now the subject of this
    appeal.

1.

Grant
Analysis in Ruling #2

(a) The Arguments on Appeal

[10]

The appellant acknowledges that deference is owed to the motion
    judges factual findings in Ruling #2; however, he submits that because
    relevant factors have been overlooked or disregarded, a fresh s. 24(2)
Charter
analysis pursuant to
Grant
is necessary and appropriate:
R. v.
    Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82.

[11]

The appellant acknowledges that in the court below, because his
    s. 8
Charter
rights were breached, he sought a s. 24(2) remedy that
    excluded all wiretap and derivative evidence from his trial, including the
    details of the arrest, the appellants fingerprints inside the Audi, gunshot
    residue on one of his hands, and Marlon Wilsons evidence implicating the
    appellant in the shootings of Mr. Hyatt and Mr. Patrong. More specifically, the
    appellant argued that Marlon Wilsons evidence was obtained in a manner that
    violated his
Charter
rights, and should be excluded under s. 24(2).

[12]

On appeal, however, he now argues that the s. 24(2) analysis must
    be considered once again by this court for two reasons. First, he points out
    that the motion judge stated, at para. 84:

[T]he exclusion of the intercepted communications carries with
    it the exclusion of the other evidence including the anticipated evidence of
    Marlon Wilson. The exclusion of that evidence would end this prosecution  a
    fact acknowledged by the defence.

The appellant argues that, in spite of his position
    that the motion judge do precisely that, the analysis was legally flawed as it
    viewed the
Charter
-infringing evidence as an indivisible package
    suitable only for global admission or exclusion. This was wrong in principle,
    he says, because different pieces of evidence raised concerns of widely varying
    intensity under the three
Grant
factors.

[13]

Second, the appellant argues that because Marlon Wilsons
    evidence was actually not obtained in a manner, it should never have formed
    part of the s. 24(2) analysis. He emphasizes and relies on the opposite
    conclusion reached by Dambrot J. in Ruling #1, which was then confirmed on
    appeal to this court: First Appeal, at para. 316. As a result, the appellant
    says it was an error to consider this evidence in the mix when assessing the
    exclusion of all the evidence under s. 24(2).

[14]

The Crown responds by saying there is no need to conduct a fresh
    s. 24(2) analysis because the trial judge considered the proper factors and his
    findings are reasonable, therefore, his determination is owed considerable
    deference on appellate review:
R. v. Côté
, 2011 SCC 46, [2011] 3
    S.C.R. 215, at para. 44. In the Crowns view, it was open to the motion judge
    to conclude that exclusion of all of the evidence, including the intercepts,
    would bring disrepute to the administration of justice.

[15]

We conclude there should be a fresh s. 24(2)
Charter
analysis in connection with Ruling #2 for the reasons set out below.

(b) The motion judge did not improperly package
    the impugned evidence

[16]

In the specific circumstances of this case, there is no merit to
    the appellants first argument. That is, we do not accept that the motion judge
    treated the s. 184.4 wiretap and subsequently-obtained evidence as an
    indivisible package suitable only for global admission or exclusion. Nor was he
    under the misapprehension that some rule of law required all of the evidence to
    be either excluded or admitted.

[17]

The motion judges decision to admit all the evidence, and his
    reasons explaining his decision, occurred because of the positions taken by
    counsel and the trial judges own factual findings. The appellant never argued
    that the nature of certain evidence demanded different consideration under s.
    24(2). Rather, he asserted that because there was clear evidence of a causal
    connection between the breach and all of the evidence, including that of Marlon
    Wilson, the motion judge should treat it all the same. No arguments were
    advanced to consider individual items of evidence separately. The motion judge
    accepted the appellants argument that there was a strong relationship between
    the breach and all the impugned evidence. It was on this basis that he included
    all the evidence in his s. 24(2) analysis.

[18]

At that end of his s. 24(2) analysis, the motion judge treated
    the evidence collectively because of his earlier conclusion that all the
    evidence was directly connected to the s. 8 breach. There was no error
    committed in this approach.

(c) Wilsons Evidence was not obtained in a manner
    that infringed the appellants
Charter
rights

[19]

As already noted, based on the evidence before him and in the
    context of the shooting of Mr. Hyatt and Mr. Patrong, the motion judge in Ruling
    #2 accepted the defence argument that there was a strong nexus between the
    breach and all of the impugned evidence, including Marlon Wilsons evidence.

[20]

We agree with the appellant, that given this courts decision in the
    First Appeal, this conclusion constitutes an error.

[21]

It is well established that evidence will have been obtained in
    a manner that infringes a
Charter
right if, on a review of the
    entire course of events, the [impugned
Charter
] breach and the
    obtaining of the evidence can be said to be part of the same transaction or
    course of conduct:
R. v. Plaha
(2004)
,
    188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45. Justice Doherty further described
    it as:

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:
R. v. Goldhart

(1996),
107 C.C.C. (3d) 481
(S.C.C.) at 492-97
.

[22]

In Ruling #1, Dambrot J. thoroughly examined the issue of whether
    or not Marlon Wilsons proposed evidence was obtained in a manner that
    infringed the appellants
Charter
rights. He concluded that it was not.
    This court upheld the ruling in the First Appeal and, at para. 315, squarely
    addressed the issue:

The appellants real objective in this appeal is to exclude
    Marlon Wilsons evidence implicating them in the Charlton and Bell shooting. He
    decided to give that evidence some six months after the arrest. Perhaps even
    more importantly, in the intervening period, he was threatened by Riley. The
    trial judge reviewed these factors and determined that the connection between
    the arrest and Wilsons evidence was tenuous. None of the appellants proposed
    fresh evidence is directed at undermining the trial judges conclusion on
that
point. The bare
    fact that Nordheimer J. [in Ruling #2] reached a different conclusion regarding
    the obtained in a manner analysis is insufficient. (Emphasis in original.)

[23]

The Crowns arguments as to why the findings in the two different
    rulings arising out of the same facts may be different yet sustainable may have
    merit in some circumstances. In this case, however, we conclude they do not. We
    see no principled reason to depart from our conclusion in the First Appeal, at
    para. 316:

In any event, the trial judge properly applied
R. v.
    Goldhart
, [1996] 2 S.C.R. 463 in concluding that Wilsons subsequent
    testimony was too remote in time and circumstance from the initial breach, and
    indeed the arrest, to have been obtained in a manner that breached the
    appellants s. 8 rights. As he was required to do, the trial judge examined the
    entire relationship between the
Charter
breach and the impugned
    evidence, including the strength of the causal and temporal connection. He also
    properly considered whether the events were part of a single transaction and
    concluded they were not.

[24]

In both Ruling #1 and Ruling #2 the temporal connection and the
    causal connection between the s. 184.4 wiretaps and Marlon Wilsons evidence
    are virtually identical. No persuasive reason has been advanced that would
    convince this court that inconsistent findings are appropriate in these
    circumstances. Accordingly, Marlon Wilsons evidence was not obtained in a manner
    as found in Ruling #2 and this amounts to an error giving rise to the need for
    a fresh s. 24(2) analysis of the s. 184.4 wiretaps.

[25]

In any case, as we explain, the result of our analysis is the
    same and the wiretap evidence was properly admitted at trial.

2.  The Fresh s. 24(2)
Charter
Analysis

[26]

It is worth repeating that the appellant does not challenge any
    of the factual findings of the motion judge. Instead, he acknowledges that any
    fresh analysis by this court under s. 24(2) must be conducted on the basis of
    the factual findings made by the motion judge. This court will therefore
    conduct the s. 24(2) analysis with deference to those factual findings. The
    approach we take will be that prescribed by the Supreme Court in
Grant
,
    which requires three lines of inquiry. The following is our assessment of those
    three inquiries in this case.

(a) The Seriousness of the
Charter
-Infringing State Conduct

[27]

The motion judge correctly described this first line of inquiry
    through reference to para. 72 of
Grant
, namely, that its purpose is to
    decide:

whether the admission of the evidence would bring the
    administration of justice into disrepute by sending a message to the public
    that the courts, as institutions responsible for the administration of justice,
    effectively condone state deviation from the rule of law by failing to
    dissociate themselves from the fruits of that unlawful conduct.

[28]

He then noted, by reference to para. 74 of
Grant
, that
    police behaviour in obtaining evidence through a
Charter
breach, will
    engage varying degrees of seriousness:

At one end of the spectrum, admission of evidence obtained
    through inadvertent or minor violations of the
Charter
may minimally
    undermine public confidence in the rule of law. At the other end of the
    spectrum, admitting evidence obtained through a wilful or reckless disregard of
Charter
rights will inevitably have a negative effect on the public
    confidence in the rule of law, and risk bringing the administration or justice
    into disrepute.

[29]

The motion judge, in determining the seriousness of the state
    conduct, relied on a method of analysis outlined by the Supreme Court in a
    companion decision to
Grant
, namely,
R. v. Harrison
, 2009 SCC
    34, [2009] 2 S.C.R. 494. That is, deciding whether the
Charter
-infringing
    police conduct is sufficiently concerning that the court must dissociate itself
    from it. This will be the case where the departure from
Charter
standards was major in degree, or where the police knew (or should have known)
    that their conduct was not
Charter
-compliant:
Harrison
, at
    para. 22.

[30]

The motion judge followed this with a thorough examination of the
    lengthy evidence called on the application. He found that the police strategy
    of keeping the appellant on the street for the sake of the investigation of the
    shooting of Mr. Charlton and Mr. Bell was risky and should have radically
    changed course after yet another suspected shooting involving the appellant:
    Ruling #2, at para. 52. He also found that Staff Inspector Ramer, who made the
    decision to implement s. 184.4, likely viewed the wiretap as a means to keep
    tabs on the appellants movements rather than a means of effecting his arrest.
    The motion judge noted, at para. 67, that:

Section 184.4 was never going to be the solution to the
    situation that confronted the police regarding Mr. Riley and the concerns that
    they had respecting the option of arresting Mr. Riley. The requirements for the
    use of that section made it ill-suited for that purpose.

[31]

Nevertheless, the motion judge found that Staff Inspector Ramers
    decision to invoke s. 184.4 was part of a legitimate effort to balance the
    investigative goals and public safety concerns at stake in this situation. As
    he described it at para. 68:

the decision to allow Mr. Riley to remain "at
    large" was made long before the decision was reached to invoke s. 184.4.
    While one can debate the wisdom of that decision, it did not direct the misuse
    of s. 184.4. In other words, it was not part of the police strategy to misuse
    s. 184.4 in order to advance their investigation.

The appellants suggestion that s. 184.4 was resorted
    to for an improper purpose was completely rejected.

[32]

On a full examination, we agree with the motion judge that the
    seriousness of the breach, in all the circumstances, was not major in degree. At
    the relevant time, the police did not fully understand all of the requirements
    of s. 184.4: Ruling #2, at para. 74. With respect to some of those
    requirements, lower courts were at variance, and no appellate guidance had yet
    been given. At the time, the police did not know that their conduct was in
    breach of the appellants
Charter
rights, and there was no pattern or
    history of abuse of s. 184.4 intercepts. Other warrants arising from the investigation
    had been issued, and the police were in fact pursuing a Part VI authorization, which
    was granted in June.

[33]

It is with this background that the police made the urgent
    decisions they did on the use of the s. 184.4 intercepts. The seriousness of
    the breach in these circumstances can reasonably be said to be somewhere in the
    middle of the seriousness continuum.

[34]

It is worth noting, as the Crown does, that the impugned conduct
    is unlikely to be replicated because both the constitutional shortcomings of s.
    184.4 and jurisprudential uncertainty have now been resolved: see
R. v. Tse
,
    2012 SCC 16, [2012] 1 SCR 531. As well, the institutional concerns about its
    application have since been addressed through specific protocols within the
    Toronto Police Service and an oversight mechanism and notice to targeted
    individuals enacted by ss. 195(2.1) and 196.1 of the
Criminal Code
.
    Thus, the
Charter
infringing conduct in this case will not have a
    long-term negative impact on the administration of justice.

[35]

As the motion judge concluded, while the breach did not arise
    from entirely innocent errors it also did not demonstrate a wilful or
    reckless disregard of
Charter
rights. We agree that this factor
    weighs in favour of admission.

(b) The Impact on
Charter
-Protected
    Interests of the Appellant

[36]

In
Grant
, the Supreme Court described the impact of a
Charter
breach as being within a range from fleeting and technical to profoundly
    intrusive. The question is: how seriously did the breach impact on the
Charter
-protected
    rights of the accused? It requires an evaluation of the extent to which the
    breach actually undermined the interests protected:
Grant
, at para.
    76. The way the range is measured is:

The more serious the impact
    on the accused's protected interests, the greater the risk that admission of
    the evidence may signal to the public that
Charter
rights, however high-sounding, are of little actual
    avail to the citizen, breeding public cynicism and bringing the administration
    of justice into disrepute.

[37]

Further on, at para. 78 in
Grant
,
the court provides us with further
    guidance on measuring the impact of a
Charter
breach:

[A]n unreasonable search contrary to s. 8 of the
Charter
may impact on the protected interests of privacy, and more broadly, human
    dignity. An unreasonable search that intrudes on an area in which the
    individual reasonably enjoys a high expectation of privacy, or that demeans his
    or her dignity, is more serious than one that does not.

[38]

Here, the intercepts did not take place in the appellants home
    or bedroom, they did not capture anything of a personal nature such as intimate
    or personal exchanges, and they did not demean his dignity in any way. Indeed,
    the intercepts did not capture any private communications that are at the core
    of what the constitutional protection was meant to protect. Rather, the
    intercepts captured the appellant in a vehicle, before and after the shooting
    of Mr. Hyatt and Mr. Patrong, arranging illicit transactions and admitting to
    the shooting itself. The appellant cannot claim that he enjoyed a high
    expectation of privacy in these intercepts or that they would demean his
    dignity.

[39]

In context, the impact on the appellants privacy interests,
    while significant, did not lie at the serious end of the scale. This line of
    enquiry tips in favour of admission.

(c) Society's Interest in an Adjudication on its Merits

[40]

The starting point for this inquiry is best described by Doherty
    J.A. in
R. v. McGuffie,
2016 ONCA 365, 131 O.R. (3d) 643, at para. 62:

The first two inquiries work in tandem in the sense that both
    pull toward exclusion of the evidence. The more serious the state-infringing
    conduct and the greater the impact on the
Charter
-protected interests,
    the stronger the pull for exclusion. The strength of the claim for exclusion
    under s. 24(2) equals the sum of the first two inquiries identified in
Grant
.
    The third inquiry, societys interests in an adjudication on the merits, pulls
    in the opposite direction toward the inclusion of evidence. That pull is
    particularly strong where the evidence is reliable and critical to the Crowns
    case: see
R. v. Harrison
, [2009] 2 S.C.R. 494, at paras. 33-34.

[41]

The s. 184.4 intercepts do not impair the fairness of the trial.
    They are real, reliable evidence in connection with very serious criminal
    offences. Again, we agree with the motion judge who, at para. 85 of his
    reasons, added:

The seriousness of the charges are heightened by the
    aggravating factor that these shootings were undertaken to enhance the
    reputation of a street gang or, in the more formal words of the
Criminal

Code
, a "criminal organization".

[42]

The potential that Marlon Wilsons evidence might be admitted at
    trial does not, as the appellant submits, weigh against admission of the
    wiretap evidence. Marlon Wilsons evidence on its own was of limited value. The
    intercepts, on the other hand, stood as determinative of the appellants guilt.
    The reliability of the incriminating intercepts weighs heavily in favour of
    admission. It is evidence that is critical to the Crowns case, and exclusion from
    the trial would be seriously damaging.

(d) Weighing the Three Inquiries

[43]

In our view, on a fresh s. 24(2) analysis the evidence derived
    from the appellant through the s. 184.4 interceptions should be admitted. This
    is a case where the first two inquiries provide limited support for the
    exclusion of evidence, but not to the extent required to overcome societys
    considerable interests under the third inquiry. As Doherty J.A. noted in
McGuffie
,
    in cases where the first two inquiries provide weaker support for exclusion,
    the third inquiry will almost certainly confirm the admissibility of the
    evidence: para. 63. That is the case here; the s. 184.4 intercepted
    communications should not be excluded.

[44]

As the motion judge referenced at para. 90 of his decision, the
    ultimate question that arises from
Grant
is, whether a reasonable
    person, informed of all relevant circumstances and the values underlying the
Charter
,
    would conclude that the admission of the evidence would bring the
    administration of justice into disrepute: see
Grant
, at para. 68. We
    agree with the motion judges conclusion at para. 92, that a reasonable person
    informed of all of these circumstances would have their faith in the
    administration of justice shaken not by the admission of this evidence but by
    its exclusion.

CONCLUSION

[45]

For the reasons given, the appeal is dismissed.

Released: HSL  DEC 07, 2018

H.S. LaForme J.A.

David Watt J.A.

Gary T. Trotter J.A.


