



WARNING

The President of the panel hearing this appeal directs that the
    following should be attached to the file:

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as
    feasible, inform the victim of their right to make an application for the
    order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the course
    of the administration of justice when it is not the purpose of the disclosure
    to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adler, 2020 ONCA 246

DATE: 20200408

DOCKET: C66241

Hoy A.C.J.O., Paciocco and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Adler

Appellant

Gerald Chan and Stephen Aylward, for
    the appellant

Michael Perlin, for the respondent

Heard: March 10, 2020

On appeal from the convictions entered
    on July 20, 2018 by Justice Malcolm McLeod of the Ontario Court of Justice.

Nordheimer J.A.:

A.

Overview

[1]

Daniel Adler appeals his convictions for
    possession of child pornography, making child pornography, and sexual assault.
    He submits that the police breached his rights under the
Canadian Charter
    of Rights and Freedoms
in a number of different aspects and that the trial
    judge erred in not excluding the evidence the police obtained as a result of
    those breaches, under s. 24(2) of the
Charter
. For the reasons that
    follow, I would allow the appeal, set aside the convictions, and enter
    acquittals in their place.

B.

Background

[2]

The background facts are not really in dispute.

[3]

On August 25, 2016, police officers on patrol at
    the Canadian National Exhibition (CNE) were informed by a woman that she had
    seen a man (later identified as the appellant) filming up the skirt of a young
    woman using a camera concealed in the head of a stuffed owl. As police
    approached the appellant, they saw him fumble with the stuffed owls head, place
    something in his mouth, and then swallow.

[4]

Upon arresting the appellant, the police seized
    a number of items incident to the arrest, including the stuffed owl and three
    digital devices: a video camera, an iPod Touch, and a laptop. The police
    noticed the video camera did not have a memory card. They formed the belief that
    what they had earlier seen was the appellant removing the memory card and
    swallowing it.

[5]

The police arrested the appellant at 6:40 pm. He
    was not advised of his right to counsel until ten minutes later. He told the
    arresting officer he had the name of a lawyer he wanted to call but did not
    have the phone number. The officer responded that he would be given an
    opportunity to speak duty counsel. The appellant was taken to 14 Division,
    where he was told by the booking officer that he would not be allowed to speak
    with a lawyer until after the police had searched his apartment, because of a
    concern that evidence at his apartment might be destroyed. At 9:59 pm, more
    than three hours after his arrest, the appellant was finally allowed to speak
    with his lawyer.

[6]

Before the appellant was allowed to speak to his
    lawyer, police conducted a level 3 strip search to determine if he had secreted
    another memory card on his person. The appellant was later taken to a dry cell
    and placed on a bedpan vigil in an effort to recover the swallowed memory card.

[7]

That same evening, while the appellant was
    detained, and before he was given the opportunity to call counsel, the police
    entered his apartment without a warrant. They used the appellants keys, which
    the police had found on the appellant, to enter his apartment. Upon entry,
    police observed various devices in plain view, determined that no one was
    present, and then left to await authorization to continue the search. They
    obtained a tele-warrant authorizing a night-time entry to search the apartment
    and seize the devices. In obtaining the tele-warrant, the police did not advise
    the justice of the peace that they had already entered the apartment. Later
    that night, the police re-entered the apartment on the tele-warrants authority.
    The police found parts of stuffed animals and several devices, including a
    Western Digital external hard drive.

[8]

The next morning, on August 26, 2016, the police
    brought the appellant before a justice of the peace for a bail hearing. Crown counsel
    requested a three-day adjournment of the bail hearing on the grounds that further
    investigation was necessary. Crown counsel did not inform the justice of the
    peace that the purpose of the adjournment was to facilitate the bedpan vigil,
    because the police had not informed Crown counsel of this purpose.

[9]

Based on the adjournment request, the justice of
    the peace put the bail hearing over for three days to August 29. The appellant
    was transported to Toronto South Detention Centre, where he was detained in a
    dry cell for the bedpan vigil. He eventually passed the memory card, which was
    recovered from his cell on August 28. The memory card was irreparably damaged.
    No data could be recovered from it.

[10]

The police examined the electronic devices
    seized from the appellants residence for further evidence of voyeurism. In the
    course of these searches, the police discovered evidence of child pornography.
    The police then obtained a second warrant to conduct further searches of the
    appellants devices for child pornography. This second warrant, however, was
    obtained on the basis of information obtained from the execution of the
    tele-warrant.

[11]

In the course of carrying out the searches
    authorized by this second warrant, the police found a video of the appellant
    engaged in sexual contact with an unknown woman who appeared to be unconscious.
    The identity of the woman in the video remains unknown. This forms the basis
    for the sexual assault conviction.

[12]

The trial judge first ruled on the s. 10(b) and s.
    8
Charter
breaches. He found some, but not all, of the
Charter
breaches that I will outline later. A few weeks after that ruling, the trial
    judge issued his ruling on whether the evidence should be excluded under s.
    24(2) of the
Charter
. The trial judge indicated that he would have
    excluded the evidence that he believed was most closely tied to the events at
    the CNE, namely the voyeurism and obstruction charges. However, given that some
    of this evidence was also relevant to the other charges, the trial judge chose not
    to exclude any of the evidence under s. 24(2). Rather, he chose to impose a
    stay on the voyeurism and obstruction charges, and let the charges related to
    child pornography and sexual assault proceed.

[13]

The appellant proceeded to trial on the child
    pornography and sexual assault charges. Based entirely on the evidence found on
    the appellants devices, the trial judge convicted him of three counts of
    possession of child pornography, one count of making child pornography, and one
    count of sexual assault.

[14]

Of the various devices seized from the appellant
    at the CNE and his apartment, only four were found to contain evidence that was
    the basis for the convictions at trial: a Western Digital external hard drive
    (seized from the appellants apartment), an iPod Touch, a laptop, and a digital
    video camera (all seized from the appellant at the time of his arrest). The
    majority of the evidence, though, came from the Western Digital external hard
    drive.

[15]

On December 20, 2018, the trial judge sentenced the
    appellant globally to 40 months imprisonment, broken down as follows: 18 months
    on the sexual assault conviction; 12 months on the making child pornography
    conviction; and 12 months on the possession of child pornography convictions.
    The trial judge granted the appellant two months credit for time served (the
    four days of unlawful detention) as enhanced credit to reflect the onerous
    conditions and unconstitutional bedpan vigil at the Toronto South Detention
    Centre.

C.

Analysis

[16]

The appellant raises three issues on this
    appeal:

1.

Did the trial judge err in finding reasonable
    and probable grounds for the search of the appellants home, and the seizure of
    the devices therein, in his review of the tele-warrant?

2.

Did the trial judge commit errors of law in his
    s. 24(2) ruling?

3.

Should the evidence from the digital devices be
    excluded under s. 24(2)?

(1)

The tele-warrant

[17]

The trial judge found a number of s. 8 breaches
    in relation to the search of the appellants apartment: the warrantless initial
    entry, the invalid tele-warrant, and the search of the appellants electronic
    devices based on a tele-warrant that did not expressly authorize such a search.
    While the trial judge quashed the tele-warrant on other grounds, he rejected the
    appellants argument that there were no reasonable and probable grounds to
    support the tele-warrant. The trial judge identified four possible grounds to
    justify the search of the appellants residence: (i) the appellant was likely
    to return home to view the voyeuristic videos; (ii) the appellant may have used
    his devices to transmit data to devices in his home; (iii) the appellant likely
    prepared for the offence at home; and (iv) it was likely that the appellant had
    committed other voyeurism offences in the past.

[18]

The third and fourth possible grounds do not
    appear in the Information to Obtain (ITO) for the tele-warrant. The affiant
    did not offer any subjective belief that would sustain the tele-warrant being
    issued for either of those reasons. Further, in terms of the fourth ground,
    there was nothing but speculation or stereotypical thinking offered in support
    of that ground. As Fish J. cautioned in
R. v. Morelli
, 2010 SCC 8,
    [2010] 1 S.C.R. 253, at para. 79: [t]o permit reliance on broad
    generalizations about loosely defined classes of people is to invite dependence
    on stereotypes and prejudices in lieu of evidence.

[19]

The third ground might have provided a basis for
    the tele-warrant but that would only have justified a search for other stuffed
    animals or stuffed animal parts. It would not have justified a search for other
    recording devices since there was no suggestion that other devices were used, or
    were part of, the CNE offences.

[20]

In terms of the first possible ground, it is
    difficult to see how the appellant could have returned home to view the videos
    when he was under arrest and being detained. However, even if he could have
    managed that in some way, it is also difficult to see how that conduct would
    justify a search of the appellants apartment unless it is assumed that he
    would have transferred any video to another device, such that there would then
    be an electronic record of it. The appellant could not have done that himself
    after his detention, and there was no evidence that the devices found on his
    person were configured to transfer material automatically or that he did so
    mechanically.

[21]

In terms of the second possible ground, as I
    have just said, there was no evidence that the devices that were found on the
    appellant were capable of transmitting data to the appellants home. Certainly,
    there was nothing contained in the ITO to suggest that that was possible. However,
    even if they could have done so, the evidence would still be there if the
    police proceeded to obtain a search warrant in the normal course. The appellant
    was not in a position while detained to remotely wipe his devices of data,
    assuming he had the capability to do so. Again, there is no suggestion in the
    ITO of such a possibility. There was also no reason to believe that the
    appellant was connected to other persons, in relation to the suspected
    offences, who would have acted to destroy evidence.

[22]

In the end result, there was no information in
    the ITO that would have established the necessary urgency to justify a
    tele-warrant. Equally there was no information in the ITO that would have
    justified a night-time entry. In addition, as I will detail later, there was
    the failure to disclose the warrantless entry and there was a misleading
    inclusion regarding the appellants prior contact with the police. The
    tele-warrant should not have been issued.

(2)

The s. 24(2) ruling

[23]

In
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353, the Supreme Court of Canada articulated three factors to be considered
    in determining whether evidence obtained in a
Charter
-infringing
    manner should be excluded under s. 24(2): (1) the seriousness of the
Charter
-infringing
    state conduct; (2) the impact of the breach on the
Charter
-protected
    interests of the accused; and (3) societys interest in the adjudication of the
    case on its merits.

[24]

In terms of the first factor, the appellant says
    that the trial judge failed to accord the proper degree of seriousness to the
Charter
breaches in this case. He particularly challenges the trial judges finding
    that the police acted in good faith throughout their investigation.

[25]

On that latter point, the Supreme Court made
    clear in
R. v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, at para.
    44, that [e]ven where the
Charter
infringement is not deliberate or
    the product of systemic or institutional abuse, exclusion has been found to be
    warranted for clear violations of well-established rules governing state
    conduct (citation omitted). In this case, many of the breaches of the
    appellants
Charter
rights fall into the category of clear violations
    of well-established rules. The warrantless search of the appellants apartment
    is a prime example. So too is the delay in providing the appellant with access
    to counsel.

[26]

In my view, the trial judge was much too quick
    to excuse the police conduct in this case. Put at its highest, the police
    conduct was negligent and undertaken in a state of oblivion regarding the
    appellants rights. At worst, the police acted in multiple flagrant violations
    of his rights.

[27]

On this point, it should be noted that the trial
    judge actively prevented counsel for the appellant from eliciting evidence that
    might have shown that the police acted in bad faith. When the
voir dire
on the search warrant began, the trial judge initially indicated that he did
    not want to hear any
viva voce
evidence. Both counsel objected to the
    trial judges position. The trial judge relented and evidence was called.
    However, the trial judge precluded counsel for the appellant from asking the
    police officers questions regarding their understanding of the appellants
    rights on the basis that these were matters for argument. The trial judge erred
    in this ruling. The state of the police officers knowledge of the right breached
    is relevant to the seriousness of a violation. An officer, who violates a
Charter
right while knowing better, commits a flagrant breach. For those officers
    who do not know of the relevant right, the reason they do not know can properly
    influence where on the good faith/bad faith continuum the
Charter
breach
    might fall. Ignorance may result, for example, from disinterest or an absence
    of care on the part of the individual officer, or systemic training
    deficiencies within the police service. The result was that counsel for the
    appellant was prevented from developing the very evidence that went to the
    issue of the good faith of the police.

[28]

In any event, there was sufficient evidence
    before the trial judge that should have caused him concern regarding the motivations
    of the police in this case. Most notable is the failure by the police to advise
    Crown counsel of their real reason for wanting an adjournment of the
    appellants bail hearing, that is, the bed pan vigil.

[29]

Another example is how the police obtained the
    tele-warrant. In obtaining the tele-warrant, the police affiant did not
    disclose that the appellant had remained in custody, which made it impossible
    for him to return home to view the voyeuristic video that the police believed he
    had just created. In addition, the affiant described the layout of the
    appellants apartment but did not disclose that the source for this information
    was the warrantless entry undertaken by the police earlier that evening. The
    trial judge failed to take these matters into account in his s. 24(2) analysis.

[30]

Further, the police affiant included in the ITO
    the fact that [t]here are two previous incidents on file with Toronto Police
    Services involving this male. The affiant did not reveal that these two
    incidents involved the police responding to a threatened suicide by the
    appellant and the second incident involved a Daniel Adler who was the victim
    of a crime.

[31]

The trial judge referred to this reference in
    the ITO but characterized it as inconsequential. With respect, it was not. The
    reference had the clear potential for suggesting to the reader of the ITO that
    the appellant had a history with the police that would support the theory that
    he had a propensity to commit similar offences, even in the context of the
    disclosure that he did not have a criminal record. There was no legitimate reason
    for including this reference in the ITO devoid of the information that would
    put it into a proper context.

[32]

The trial judge also erred in his consideration
    of the impact of the police conduct on the appellants
Charter
rights.
    In terms of the s. 8 breaches flowing from the warrantless search of the
    appellants apartment, and the unauthorized search of his electronic devices,
    the trial judge said that they were not found to be serious, either
    individually or cumulatively.

[33]

It is well-established that two of the areas
    where an individuals right to privacy is paramount is in their home and in
    their electronic devices (a third being a persons bodily integrity). The right
    to privacy in a persons home was clearly set out in
R. v. Silveira
,
    [1995] 2 S.C.R. 297, at para. 140. The right to privacy in a persons
    electronic devices was clearly set out in
Morelli,
at para. 2. These decisions
    predate the actions of the police in this case by 21 years and six years
    respectively.

[34]

In terms of these privacy interests, on the issue
    of the warrantless search of the appellants apartment, the trial judge said,
    in part:

It should also be noted that there was no
    indication that third party privacy interests were at stake and that police had
    no reason to believe that there was anyone in the residence who might be
    disturbed by the entry. On each occasion the police used a key and there were
    no significant problems with the way the security search and the subsequent
    seizure of the electronic devices were executed.

[35]

On the issue of the search of the appellants
    devices, the trial judge said, in part:

The fact that by running some standard
    software programs the police can recover vast amounts of largely irrelevant
    data, some of which would be considered highly personal, does not make the
    search any more extraordinary than the fact that by kicking in the door of the
    subjects home the police are enabled to recover vast amounts of largely
    irrelevant data, some of which would be considered highly personal. The privacy
    interests applied to the intimate secrets hidden in the subjects sock drawer
    is the same as the privacy interest in the intimate secrets hidden in his
    computer.

[36]

Neither of these observations accord the proper level
    of protection to the appellants privacy interests. The fact that the police
    did not disturb anyone when they illegally entered the appellants apartment
    does not lessen the invasion of privacy. Rather, at best, it represents the
    absence of a further aggravating factor.

[37]

Similarly, the trial judge erred in comparing
    the search of a persons personal electronic devices to a search of their sock
    drawer. As the Supreme Court of Canada noted in
R. v. Vu
, 2013 SCC 60,
    [2013] 3 S.C.R. 657, at para. 24: The privacy interests implicated by computer
    searches are markedly different from those at stake in searches of receptacles
    such as cupboards and filing cabinets. The trial judge did not apply this
    holding and consequently improperly minimized the privacy breach in this case. Further,
    the trial judge failed, in his analysis, to give appropriate weight to the fact
    that there was no information that would have supported the immediate night-time
    search of the appellants apartment.

[38]

The trial judge concluded that the first two
    lines of the
Grant
analysis do not support exclusion of the relevant
    video evidence. This was an error. Both the seriousness of the breaches, and
    their impact on the appellants privacy interests, strongly suggested that the
    evidence ought to be excluded.

[39]

Finally, while the trial judge acknowledged the
    need to consider the cumulative effect of the various
Charter
breaches,
    he did not do so. Rather, he artificially separated the breaches into two
    groups and then assigned most of them to the less serious offences. He then
    stayed those offences but allowed the more serious offences to proceed. The
    trial judges failure to properly consider the cumulative effect of the various
Charter
breaches is, itself, an error in principle:
R. v. Poirier,
2016 ONCA 582, 131 O.R. (3d) 433, at para. 91.

[40]

Whether viewed individually or collectively, the
    trial judges errors are such that his s. 24(2) analysis is not entitled to
    deference. Consequently, it falls to this court to perform its own s. 24(2)
    analysis.

(3)

The s. 24(2) analysis redone

[41]

In redoing the s. 24(2) analysis, it will be
    evident from my comments above that I view both the first and second factors as
    favouring exclusion. The breaches of the appellants privacy interest in his
    home, the privacy interest in his devices, and the privacy interest in his
    body, were all serious ones. In addition, this was not a case of a single
    breach of an accuseds rights. Rather, in this case, there were multiple
    breaches. They include:

1.

The failure to give the appellant his rights to
    counsel in a timely way;

2.

The level 3 strip search for which there were no
    reasonable and probable grounds;

3.

The bedpan vigil for which there was no judicial
    authorization;

4.

The unlawful detention when the appellants bail
    hearing was adjourned based on misleading information provided to the presiding
    justice;

5.

The warrantless entry into the appellants
    apartment;

6.

The unlawful search arising from the invalid
    tele-warrant that was obtained without full disclosure, for which there was no
    urgency, and which did not require night-time entry;

7.

The unlawful searches of the appellants devices
    that were undertaken without proper judicial authorization.

[42]

That litany of breaches is remarkable for a
    single arrest on a single event. In my view, it reflects a sweeping ignorance by
    the police of the appellants constitutional rights. It also demonstrates a course
    of conduct by the police that taints the ultimate discovery of the evidence
    underlying the most serious charges, that is, the evidence that was obtained
    from the searches of the devices, particularly the external hard drive.

[43]

All of this improper conduct began with the
    denial of the appellants right to counsel. That denial was based on the same
    flawed thinking that then led to the warrantless entry into the appellants
    apartment. That flawed thinking reflects unfounded speculation by the police that
    the appellant might have connections to other individuals who would attempt to
    destroy evidence, if they learned of his arrest.

[44]

Turning to the individual
Grant
factors, and contrary to the trial judges conclusion, the first factor
    strongly weighs in favour of excluding the evidence. The
Charter
breaches set out above are breaches of well-settled
Charter
principles. They do not involve grey areas in the law nor do they involve new
    and novel situations. Rather, they demonstrate a reckless disregard by the
    police of fundamental constitutional rights of which any police officer ought
    to be well aware. I would add that the conclusion that the police were reckless
    regarding the appellants rights is the most favourable view one could take of
    the actions of the police. Viewed unfavourably, the police could be seen as
    intentionally disregarding the appellants rights, due to a particularly
    negative reaction to the appellants actions and the type of person he is.

[45]

Again, contrary to the trial judges conclusion,
    the second
Grant
factor also weighs strongly in favour of exclusion. As
    I set out earlier, the appellants body, his home, and his personal electronic
    devices, are three areas that attract the highest expectations of privacy. In
    this case, all three were invaded, all in the context where the appellant was
    also denied his right to counsel. This court has emphasised that [t]he right to
    counsel is a lifeline for detained persons:
R. v. Rover
, 2018 ONCA
    745, 143 O.R. (3d) 135, at para. 45. The breaches were very serious ones.

[46]

In terms of the third
Grant
factor, I
    begin with two of Doherty J.A.s observations in
R. v. McGuffie
, 2016
    ONCA 365, 131 O.R. (3d) 643. First, he said, at para. 62: The more serious the
    state-infringing conduct and the greater the impact on the
Charter
-protected
    interests, the stronger the pull for exclusion. I have already made it clear
    that I view the breaches in this case to be at the high end of both the seriousness
    spectrum and the impact spectrum. Second, Doherty J.A. said, at para. 63: If
    the first and second inquiries make a strong case for exclusion, the third
    inquiry will seldom, if ever, tip the balance in favour of admissibility
    (citations omitted).

[47]

The third factor recognizes societys interest
    in having an adjudication on the merits of any criminal offence but especially serious
    criminal offences. At least two of the offences here are serious. Nevertheless,
    society also has a strong interest in ensuring that the integrity of the administration
    of justice is maintained. That integrity is undermined by police conduct that
    violates citizens constitutional rights. If any persons rights are violated,
    no ones rights are safe. Nor can the ends be allowed to justify the means.

[48]

In this respect, the Supreme Court of Canada
    made it clear in
Grant
that courts have to disassociate themselves
    from conduct that would bring the administration of justice into disrepute. In
    my view, this is just such conduct.

[49]

Before concluding, I should address the remedy
    that the trial judge imposed  that is, a stay of the less serious charges 
    and whether that remedy adequately addresses the
Charter
violations in
    this case. I say that it does not. In my view, the trial judge drew an
    artificial distinction between the offences as they relate to the evidence that
    the police discovered and the manner in which they discovered it.

[50]

The police conduct in this case was all part of
    the same investigation. Indeed, many of the violations were occasioned by the
    same officer. This was not a case where different officers gathered evidence
    through different means. In that situation, one might be able to distinguish the
    impact of
Charter
breaches from some pieces of evidence over others.
    But that is not this case. Here the
Charter
breaches were all part of
    a continuum of conduct by the police.

[51]

The police conduct, in this case, was on a
    single straight line from the start of the investigation to the ultimate
    collection of the evidence that underlay all of the charges. The first breach
    led to the second breach and then to the third breach and so on. The breaches
    led to the apartment, then to the devices, and then to finding what was on
    those devices. That line of continuous conduct led the police directly to the
    evidence upon which the more serious charges  child pornography and sexual
    assault  were based. The fact that several of the voyeurism charges that the
    trial judge stayed related not to the investigation at the CNE but to evidence
    found during the apartment and device searches shows the artifice in attempting
    to sever breaches and remedies. One cannot separate one breach from the other
    nor can one erect a wall between the breaches. The improper conduct of the
    police tainted all of the evidence. A stay of the lesser offences, while
    allowing the more serious offences to proceed, does not disassociate the court
    from that improper conduct. Indeed, permitting the more serious offences to
    proceed might be viewed as rewarding that conduct.

[52]

In the end result, the situation here mirrors
    the situation in
McGuffie
. I adopt Doherty J.A.s conclusion in that
    case with equal application here. He said, at para. 83:

In summary, the police conduct demonstrates a
    blatant disregard for the appellant's constitutional rights. That conduct all
    but negated several of the appellant's
Charter
-protected interests.
    The court can only adequately disassociate the justice system from the police
    misconduct and reinforce the community's commitment to individual rights protected
    by the
Charter
by excluding the evidence. In doing so, the court
    acquits a person who is clearly guilty of serious criminal offences. In my
    view, the long-term interests of the due administration of justice require the
    exclusion of the evidence. This unpalatable result is a direct product of the
    manner in which the police chose to conduct themselves.

D.

Conclusion

[53]

I would allow the appeal and set aside the
    convictions. In light of my conclusion that the evidence ought to be excluded
    under s. 24(2), the appropriate relief is to order that acquittals be entered.

[54]

Finally, in light of the COVID-19 emergency, the
    court relieved the appellant from the term of his bail that required him to
    surrender into custody prior to this decision being released.

Released: (A.H) April 8, 2020

I.V.B. Nordheimer J.A.

I agree. Alexandra Hoy
    A.C.J.O.

I agree. David M.
    Paciocco J.A.


