R v Hoelscher, 2016 ABQB 403

Court of Queen ’ s Bench of Alberta Citation: R v Hoelscher, 2016 ABQB 403 Date: 20160718 Docket: 130486905Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Jordan Michael Hoelscher Applicant Restriction on Publication This judgment may not be published, broadcast, or transmitted in any manner before the jury, at this time not yet selected, retir es to consider its verdict. NOTE: This judgment is available from the court file, and it may be published after the jury retires to consider its verdict. See Order of July 18, 2016, 2016.

Editorial Notice: The restriction on publication ended September 16, 2016. _______________________________________________________ Reasons for Judgment on the Voir Dire Ruling re Section 24(2) Charter Application of the Honourable Mr. Justice E.J. Simpson _______________________________________________________

Table of Contents I. Introduction . 3 II. Issues . 3 III. Decision . 3 IV. Law .. 3 A.) The Charter . 3 B.) Two Conditions . 3 1.) Manner Obtained . 4 2.) Would Bring the Administration of Justice into Disrepute . 5 V. Facts . 7 VI.

Analysis . 7 A.) Text Messages . 7 1.) Obtained in a Manner that Infringed the Charter . 7 2.) Would Bring the Administration of Justice into Disrepute – Grant Analysis . 8 B.) The Seizure and Search of the Navigator 10 1.) Obtained in a Manner that Infringed . 10 2.) Would Bring the Administration of Justice into Disrepute - Grant Analysis . 10 C.) The Searches of the Applicant 11 1.) Obtained in a Manner that Infringed the Charter . 12 2.) Would Bring the Administration of Justice into Disrepute – Grant Analysis . 12 D.) Other Evidence Obtained in the Investigation . 13 E.) The Applicant’s Statement 13 1.) Obtained in a Manner that Infringed . 13 2.) Would Bring the Administration of Justice into Disrepute – Grant Analysis . 14 VII.

Summary . 15 I. Introduction [ 1 ] In previous decisions in this voir dire , the Applicant has obtained a number of rulings finding breaches of his Charter rights. He now brings an application pursuant to Section 24(2) of the Charter to exclude all of the evidence obtained in the course of the investigation. II. Issues [ 2 ] Upon the applications of the principles pertaining to Section 24(2) of the Charter , should this Court exclude all or any of the evidence obtained in this investigation? III. Decision

[3] The text messages and related information will not be excluded. [4] Any information obtained by the police after Constable Rose arrived on the scene at the time of the seizure of the Navigatorwill be excluded, as well as any information obtained from the searches of the Applicant. [5] The other evidence obtained in the investigation, including the statement of the Applicant, will not be excluded. IV. Law A.) The Charter [6] Section 24(2) provides for the exclusion of evidence that would bring the administration of justice into disrepute. It reads asfollows: 24

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. B.) Two Conditions [7] Although the accused has persuaded the Court to find a number of breaches of his Charter rights, he must meet two furtherconditions to obtain a remedy excluding evidence. [8] The wording of Section 24(2) requires that two conditions must be met before evidence will be excluded: (

i) the evidencemust be “obtained in a manner that infringed or denied any rights or freedoms guaranteed” by the Charter and (ii) the admission of theevidence in the proceedings must “bring the administration of justice into disrepute”: R v Strachan, (SCC), [1988] 2SCR 980 at para 36. [9] The Court should exclude the evidence if, on a balance on probabilities, the Applicant meets his onus on these twoconditions. 1.) Manner Obtained [10] The proper inquiry to the first condition requires “[determining] whether a Charter violation occurred in the course ofobtaining the evidence” (Strachan at para 46). [11] There is no causation requirement as part of the “obtained in a manner” requirement as this was rejected by the Supreme Courtin Strachan at paragraph 39. [12] The Supreme Court detailed the required connection between the breach and the evidence in R v Wittwer, 2008 SCC 33 atparagraph 21: 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 ifthe breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. Therequired connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of thethree”: R v. Plaha (2004), (ON CA), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous”will not suffice: R. v.

Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45. [13] More recently the Court of Appeal for Ontario in R v Pino, 2016 ONCA 389, Laskin JA writing for the Court, provided thefollowing

summary at paragraph 72: [72] Based on the case law, the following considerations should guide a court’s 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 threeconnections. • But the connection cannot be either too tenuous or too remote. [14] Although I find the

summary in R v Pino helpful, I am not prepared to follow the conclusion at paragraph 77: [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 thinkso. In either case, the administration of justice could be brought into disrepute if the court condoned serious Charter violations.

[ 15 ] The Supreme Court has not considered the question of whether evidence obtained before a Charter breach is subject to Section 24(2). Until it approves this approach I consider myself bound by Strachan wherein the Court made clear in a number of statements that the breach must precede the gathering of the evidence:

a) As 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 (paragraph 45);

b) A better approach, in my view, would be to consider all evidence gathered following a violationn of a Charter right (paragraph 45);

c) Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter (paragraph 46).

d) There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote (paragraph 46). [ 16 ] The Supreme Court in Wittwer , in paragraph 21 previously quoted, also spoke of “the breach and the subsequent statement.” [ 17 ] Finally on this point I do not agree that “ Mian then offers, at least implicitly, some support for my conclusion” ( Pino at paragraph 61 ). [ 18 ] In R v Mian , 2014 SCC 54 , the breach, the failure to provide

Section 10(

a) or 10(

b) Charter rights, occurred before a search which produced evidence, cocaine.

The extended time after the search only continued the Charter violation which occurred before the discovery of the cocaine. [ 19 ] The Supreme Court made no reference that in principle this altered the law in Strachan , which requires occurrence of the breach before the obtaining of the evidence. 2.) Would Bring the Administration of Justice into Disrepute [ 20 ] Upon establishing the police obtained the evidence “in a manner that infringed or denied any rights or freedoms” provided in the Charter , the Applicant must then show on a balance of probabilities admitting the evidence in the trial “would bring the administration of justice into disrepute”. [ 21 ] In deciding these questions the Court carries out an analysis pursuant to R v Grant , 2009 SCC 32 , as to:

a) the seriousness of the Charter -infringing state conduct;

b) the impact on the Charter -protected interests of the accused;

c) society’s interest in having the case adjudicated on its merits. (

a) Seriousness of the Charter -Infringing State Conduct [ 22 ] As part of this inquiry the Court must disassociate itself from the fruits of serious Charter -infringing conduct rather than appear to send a message condoning it.

Admitting evidence obtained by a serious violation would more likely give cause for a negative impact upon the perception by the public of the requirement that everyone, including the police, must adhere to the rule of law. [ 23 ] Seriousness requires an assessment by the Court of whether the conduct lies more towards minor, inadvertent conduct or whether it appears deliberate, willful or reckless. [ 24 ] Factors for the Court to consider include extenuating circumstances, good faith, degree of departure from Charter standards, patterns of abuse, and discoverability. (

b) Impact on the Charter -Protected Interests [ 25 ] The greater the impact, the higher the risk of public perception that the protected right provides little or no protection for a citizen.

This creates a risk that the public will take a cynical view of the Charter protection thereby bringing the administration of justice into disrepute: Grant at para 76 . [ 26 ] If investigation might have uncovered the evidence in any event, then this discoverability could lessen the impact of the breach: Grant at paras 119-122, 125 . [ 27 ] Therefore, the Court must consider the protected interest, the degree of impact arising from the violation and consider the possible negative impact on society’s view regarding the value of the protection created by the Charter .

Discoverability also factors into this consideration. (

c) Society’s Interest in Adjudication of the Merits [ 28 ] This inquiry addresses the effect admitting or excluding the evidence would have on the truth-seeking function of a criminal trial. Ordinarily members of society expect adjudication of criminal matters on the merits: Grant at paras 79-81 . [ 29 ] The Court in this analysis considers two factors: reliability and importance of the evidence.

[ 30 ] If the violation undermines the reliability of the evidence, for example, a statement from an individual compelled to speak, then admitting the evidence would not serve the goal of finding the truth. However, to exclude more reliable evidence would likely undermine the public confidence in the administration of justice: Grant at para 81 . [ 31 ] The Court also considers the importance of the evidence to the Crown’s case. The Court must do this while considering the reliability of the evidence.

Admitting unreliable evidence, although important in forming the entirety of the Crown’s case, would not enhance the public’s confidence in the administration of justice. Conversely, excluding reliable, important evidence which would gut the Crown’s case would more likely negatively impact the reputation of the administration of justice: Grant at para 83 . (

d) Balancing of Factors [ 32 ] Upon analyzing the factors of seriousness, importance and society’s interest, the Court must balance them to decide whether to include or exclude the evidence. The process is qualitative, not mathematical. The Court carries out a case-by-case analysis of these factors to determine whether, upon considering all of them, admitting the evidence would bring the administration of justice into disrepute: Grant at paras 85-86 . [ 33 ] No one factor is more important than, or outweighs, the others.

For example, notwithstanding that a breach is technical or minor but results in the discovery of highly reliable evidence (both factors which would point towards inclusion of the evidence), a breach could have such a high impact on an accused’s Charter -protected interests that a court ought to exclude the evidence. However, the law does not automatically exclude all evidence that is obtained by a breach which highly impacts an accused’s Charter -protected interests.

The same could be said for each of the factors. [ 34 ] Ultimately, it falls to courts to balance the factors within the context of a particular case. V. Facts [ 35 ] The investigation into Jordan Hoelscher began in 2012. Later in October and November of 2012 the Royal Canadian Mounted Police (RCMP) in Red Deer, Alberta obtained production orders to collect the content and number information regarding cell phones they connected to him.

On December 19, 2012 the police obtained a warrant to search and did search three residences, arrested and searched Jordan Hoelscher, and seized and made a cursory inventory search of his vehicle, a Lincoln Navigator (the Navigator). [ 36 ] A voir dire commenced in September, 2015 to deal with an application by Jordan Hoelscher which alleged breaches of his

Section 7, 8, 9, 10 and 11 Charter rights. He sought a remedy excluding all the evidence obtained in the investigation. [ 37 ] This Court released judgments January 22, 2016 ( 2016 ABQB 44 ) and May 12, 2016 ( 2016 ABQB 263 ) detailing the breaches of the Applicant’s Charter rights. [ 38 ] Those two decisions contain facts relating to the breaches and will be referenced as necessary in this decision. [ 39 ] In 2016 ABQB 44 , I found that although the police had reasonable and probable grounds to believe that the text messages information would provide evidence of drug trafficking, a

Part VI authorization rather than a production order was required to obtain the text messages. In the result this Court set aside the production order and found that the police conducted the search for and the seizure of the content of the text messages without a warrant. [ 40 ] Subsequently, this Court released 2016 ABQB 263 . The

summary of the breaches found in that decision are as follows:

a) based on 2016 ABQB 44 the November 9, 2012 production order must be set aside as the search and seizure of the text message information was without a warrant even though the ITO contained sufficient grounds;

b) the arrest and subsequent searches of Mr. Hoelscher were without grounds and therefore contrary to his

Section 9 and

Section 8 Charter rights;

c) the seizure and inventory search of the Navigator infringed Jordan Hoelscher’s

Section 8 rights. VI. Analysis A.) Text Messages 1.) Obtained in a Manner that Infringed the Charter [ 41 ] The Crown, without conceding the same regarding the arrest and searches of Jordan Hoelscher or the seizure and search of his motor vehicle, acknowledged that the police obtained the historical text messages and related information in a manner which infringed Jordan Hoelscher’s

Section 8 Charter rights. The Crown acknowledged this violation because the police required a

Part VI warrant, not a production order. 2.) Would B ring the Administration of Justice into Disrepute – Grant Analysis [ 42 ] Despite this violation, the Crown submits admitting the text messages and related information would not bring the administration of justice into disrepute.

[ 43 ] I agree. (

a) Seriousness of the Charter -Infringing State Conduct [ 44 ] The conduct of the RCMP rated very low on the seriousness scale. At the time the police obtained the production orders, they acted in good faith. [ 45 ] No Court had yet issued a decision on whether the police could acquire historical text messages by way of a production order by October and November of 2012. Indeed, even in this province, decisions still remain divided on the question. [ 46 ] The definition of “data” in relation to

Section 487.012 of the Code referenced “information ... prepared in a form suitable for use in a computer system”. Debra Czerski, a Telus Communications Company (Telus) security analyst, testified Telus stored the text messages on a computer for billing purposes. Moreover, the word “intercept” in

Part VI could be interpreted to speak of a capture of data contemporaneous with transmission rather than acquiring stored data. [ 47 ] The Crown has raised for the first time the argument that the Court heard no evidence that the police acquired the text messages “by means of a device” as referenced in

Part VI. Rather, the police acquired the data from Telus. This implies Telus, not the RCMP, acquired the communication “by means of ... [a] device.” The police during the voir dire did not raise this point. Police attempts to put such a barrier between themselves and the

Part VI requirement by pointing to the use of a device by Telus would smack of bad faith – not good faith. However, this is not how I perceive the police actions in this case. Therefore I give no effect to the Crown’s recent submission. [ 48 ] Otherwise, the police acted in good faith. They prepared an ITO, appeared before a judge to request, and did obtain, a judicial authorization on reasonable grounds. [ 49 ] Overall, for the reasons set out, the police acted reasonably. They attempted to comply with the Charter ; but notwithstanding their good faith, they breached Jordan Hoelscher’s

Section 8 Charter rights. [ 50 ] Accordingly, this is not the sort of police conduct for which this Court ought to dissociate itself. [ 51 ] The low level of seriousness of the breach favors inclusion. (

b) Impact on the Charter -Protected Interests [ 52 ] The breach resulted in a substantial impact on the Charter -protected interests of Jordan Hoelscher. [ 53 ] The Crown acknowledges “the breach resulted in a serious intrusion on the Applicant’s privacy.” [ 54 ] Indeed, the breach caused a complete loss of privacy regarding the text messages for the six to seven months covered by the production orders. However, the order had no effect whatsoever regarding any voice communication on the subject telephones.

This Court heard no evidence as to the proportion of text messages on the telephones to voice communications in terms of times or otherwise. Whatever the amount of voice communication it remained unaffected. [ 55 ] Nevertheless this substantial invasion of the expected telephone privacy of Jordan Hoelscher favors exclusion of the evidence. (

c) Society’s Interest in Adjudication of the Merits [ 56 ] The Applicant acknowledges this inquiry favors admission to meet society’s interest in a trial on the merits. The text messages reliably reflect the actual communications sent and stored. Nothing in the police conduct affected the reliability of the texts. [ 57 ] Furthermore, without the text messages, the Crown has no case. This underscores the importance of the evidence. [ 58 ] This factor favors inclusion. (

d) Balancing of Factors [ 59 ] This warrantless search was a Charter breach of minor seriousness resulting in a substantial invasion of the privacy of the Applicant, which in turn produced reliable, important evidence. On balancing the factors in Grant , I find in favor of admitting the evidence. [ 60 ] To exclude the evidence would appear to end the trial process.

A reasonably informed member of society considering the factors discussed to this point would not consider the Charter -protected right with respect to search and seizure to sound good but provide no real protection. [ 61 ] This factual situation does not describe one in which the police considered whether they should obtain a production order rather than a

Part VI warrant and took the less onerous route. This situation resembles Grant . [ 62 ] In Grant , the Supreme Court of Canada faced a situation where police conduct was not egregious, the impact of the Charter breach on the accused’s interests was significant, and the value of the evidence was considerable. The police in Grant detained the accused prior to his admission that he was carrying a firearm. To determine whether admitting the firearm into evidence brought the administration of justice into disrepute, the Supreme Court balanced the three identified factors.

The significant impact of the breach weighed “strongly in favour of excluding the gun,” but the police had acted in good faith and society’s interest in the adjudication of the case weighed “strongly in favour” of admission (paragraph 140). Ultimately, the Court decided that the good faith of the police officers

in the situation tipped the balance in favor of admission (paragraph 140). [ 63 ] A similar issue existed in R v Spencer , 2014 SCC 43 at paragraphs 76-81 . The police obtained subscriber information matching an IP address to the accused. As this constituted a search, the police had inadvertently violated the Charter by failing to seek prior authorization. The Court determined that the offending state conduct would not bring the administration of justice into disrepute, but also concluded there was a serious infringement on the accused’s Charter -protected interests.

Nonetheless, because society had a strong interest in the adjudication of the case and the impugned evidence was reliable, the Court ultimately upheld the decision of lower courts to admit the evidence. [ 64 ] Again, in R v Vu , 2013 SCC 60 , the Supreme Court admitted evidence despite a “significant invasion of privacy” (paragraph 74). There, the police had unlawfully searched a computer because they “believed on reasonable grounds that the search of the computer was authorized by [a] warrant” (paragraph 74). This warrant, however, did not actually give the authority for a computer search.

Notwithstanding this violation, the police stayed within their understanding of the purposes of the warrant and did not conduct a more comprehensive forensic examination of the computer. This demonstrated the police’s good faith, which suggested that the Charter - infringing state conduct was minimal. Society’s interest in an adjudication on the merits also favored the admission of the evidence. At the same time, however, the illegal search of a personal computer was considered a significant invasion of privacy.

On balancing all the factors together, the Supreme Court of Canada determined that the evidence should be admitted (paragraph 74). [ 65 ] After balancing the factors in the case at bar, all the text message contact and related information arising from the October- November production orders will be admitted as evidence in this trial notwithstanding the considerable impact of the breach on the rights of the Applicant. B.) The Seizure and Search of the Navigator [ 66 ] Regarding the Navigator used by the Applicant, the police seized and searched it without any justification.

Any evidence acquired from the search of the Navigator including any observations after Constable Rose arrived on the scene of the traffic stop must be excluded. 1.) Obtained in a Manner that Infringed [ 67 ] The conduct of the RCMP pertaining to the seizure and search of the Navigator infringed the Charter rights of the Applicant. [ 68 ] The police stopped the Navigator believing they would find Jordan Hoelscher operating it. The officers who arrested the male and female occupying it did not realize the male they had detained was someone other than the Applicant.

Once Constable Rose arrived shortly after the detention, he realized the error. At that time the police had no authority to even seize the vehicle let alone search it. They had no warrant to seize and search it and could not search it incidental to the arrest of the operator. [ 69 ] Moreover, Constable Rose knew the police had no warrant and therefore no authority to drive the Navigator to an exhibit warehouse where Constable Rose carried out a cursory inventory search. [ 70 ] This conduct infringed the Applicant’s

Section 8 Charter rights and any evidence obtained resulted from that infringement. 2.) Would Bring the Administration of Justice into Disrepute - Grant Analysis [ 71 ] This analysis requires that any evidence obtained by the police after the stop of the Navigator must be excluded. (

a) Seriousness of the Charter -Infringing State Conduct [ 72 ] Although the error regarding the presence of Mr. Hoelscher in the Navigator explains the stop of the vehicle, it does nothing to explain the serious conduct of the police thereafter in seizing and searching it.

The police seemed bent on dealing with the Navigator even though Constable Rose knew from the briefing earlier in the day that the police intended to conduct a search incidental to the arrest of Jordan Hoelscher, whom they expected to find as its operator. [ 73 ] Once that opportunity became obviously lost to them, they had no choice but to allow the two occupants to drive away in the Navigator. [ 74 ] The unlawful and inexplicable conduct of the police comprises a serious breach of the Applicant’s

Section 8 Charter rights and therefore favors exclusion. (

b) Impact on the Charter -Protected Interests [ 75 ] The seizure and search of the Navigator had a significant impact on the Applicant’s Charter -protected interests as it completely deprived him of his lawful use of the vehicle for a significant period of time. He lost any protection which

Section 8 of the Charter might afford him. [ 76 ] This favors exclusion of the evidence. (

c) Society’s Interest in Adjudication of the Merits [ 77 ] In addition to any general observations Constable Rose may have made of the vehicle, he specifically noted it was clean, smelled of cologne, had some change in the console and some dietary supplements in the back seat.

[ 78 ] The observations of the items are reliable but the Crown has offered no reason why they might form relevant, let alone important, evidence in the trial. [ 79 ] Reliable but irrelevant evidence without importance to the trial should not be admitted, and this favors exclusion. (

d) Balancing of Factors [ 80 ] All of the factors favor exclusion of the evidence. Accordingly, any evidence from the motor vehicle made after Constable Rose arrived on the scene (including any observations) will be excluded. (

e) Is the Search and Seizure of the Navigator Part of a Pattern of Abuse? [ 81 ] Notwithstanding my findings that the police did not have any legal authority to seize or search the Navigator, I am not satisfied that this police conduct reveals any kind of general pattern of police abuse or disregard for the Applicant’s Charter rights. In the context of the entire police investigation, I consider this incident as a “one-off”. C.) The Searches of the Applicant [ 82 ] The police obtained evidence from the searches of Jordan Hoelscher after his unlawful arrest contrary to

Section 8 of the Charter . This evidence should not be admitted in the trial. 1.) Obtained in a Manner that Infringed the Charter [ 83 ] The Crown acknowledges the evidence obtained from the searches of the Applicant after his unlawful arrest were obtained in a manner which infringed the Charter . 2.) Would Bring the Administration of Justice into Disrepute – Grant Analysis [ 84 ] The application of the principles in the Grant analysis leads me to conclude the evidence of the searches should not be admitted. (

a) Seriousness of the Charter -Infringing State Conduct [ 85 ] Nothing in the police conduct persuades me they committed a serious violation when they arrested the Applicant. [ 86 ] The RCMP had reasonable grounds to arrest based on the evidence at the time of the arrest. However, evidence necessary to arrest Jordan Hoelscher came from the text message seizures. Once the Court excised that information, the Crown acknowledges reasonable grounds no longer existed. The police thereafter acted in good faith to arrest the Applicant.

Furthermore, the arrest and searches were carried out in a manner which speaks of nothing out of the ordinary. Indeed the Applicant does not point to anything in the police conduct to aggravate the circumstances of what was otherwise an unlawful arrest. [ 87 ] Overall, the police acted in good faith and this breach rates low in seriousness. This favors admitting the evidence. (

b) Impact on the Charter -Protected Interests [ 88 ] The impact of the arrest and searches rates high as to impact on the Applicant. The arrest of a citizen removes one of his most fundamental rights – the liberty to move about in the country pursuing one’s personal interest. Arresting and holding a citizen overnight, as was done to the Applicant, could hardly rate higher when analyzing the impact on Jordan Hoelscher. [ 89 ] Similar reasoning applies to the pat-down and detachment searches. Both of these violated Jordan Hoelscher’s expectation of privacy in relation to his person.

A citizen could expect to report as criminal such behaviour of another citizen absent a lawful reason for the touching. [ 90 ] Therefore, the unlawful arrest and searches seriously impacted Jordan Hoelscher’s

Section 9 and 8 Charter rights and this favors exclusion. (

c) Society’s Interest in Adjudication of the Merits [ 91 ] The police obtained little evidence from the searches. It appears the only evidence of any consequence included photographs of Mr. Hoelscher and perhaps fingerprints. [ 92 ] This constitutes reliable evidence, but the Crown has struggled to point to any importance of the evidence beyond some possible assistance in relation to identity. [ 93 ] If, at this stage of the proceedings, the police require this evidence to assist regarding proof of identity of the Applicant, this whole process since last September may have wasted everyone’s time. [ 94 ] Such reliable evidence of dubious importance favors exclusion. (

d) Balancing of Factors

[95] Notwithstanding the low level of seriousness of the breach, the large impact on the Applicant’s right to obtain evidence oflittle importance persuades me on a balance the evidence resulting from the searches of the Applicant after his arrest ought to beexcluded. D.) Other Evidence Obtained in the Investigation [96] The Applicant submits other evidence in the investigation was obtained as part of the same investigation and therefore iscontextually and temporally related to the breaches.

He includes in this category statements made by the Applicant, results from thesearches of three residences, surveillance observations, witness observations, the results of substance analyses, videos, and photographs. [97] Other than a statement from Mr. Hoelscher which the Crown acknowledges occurred in relation to the searches, none of theother evidence meets the test of “obtained in a manner which infringed the Applicant’s Charter rights”. The Applicant’s argument thatthese were obtained as part of the same investigation and therefore are contextually and temporally related to the breaches fails.

If thiswere the law, then one breach in any investigation could leave open all of the evidence to possibly exclusion for one breach just becausethe balance of the evidence arose from the same investigation. [98] Nothing in the case law supports such a proposition. The cases relied upon (Grant, R v Wiley (SCC), [1993] 3SCR 263, and R v Plant (SCC), [1993] 3 SCR 281) have as a contextual connection to the evidence, a specific search,not merely a general investigative file. [99] Accordingly, this “other evidence” does not require a Grant analysis and should not be excluded.

E.) The Applicant’s Statement [100] On December 20, 2012 Jordan Hoelscher provided a warned statement to Constable Matthies from 12:28 to 1:53 in theafternoon. A partial transcript became Exhibit VD2-14 in the voir dire. [101] The defence takes no issue with the police conduct with respect to advising Mr. Hoelscher of his

Section 10(

a) and (

b) Charterrights. The defence raises only the issue that this is other evidence obtained in this investigation related to the infringement of JordanHoelscher’s

Section 9 and

Section 8 rights. The Applicant argues because of this contextual and temporal connection the statement oughtto be excluded. [102] Having considered the matter on a Grant analysis, I will not exclude the statement. 1.) Obtained in a Manner that Infringed [103] The Crown acknowledges that the statement was obtained in a manner that infringed the Charter notwithstanding it was takenin compliance with

Section 10 of the Charter. The Crown also acknowledges the statement was taken in connection with the Applicant’sunlawful arrest and searches incident to that arrest and therefore concedes that it was obtained in a manner that infringed the Charter. 2.) Would Bring the Administration of Justice into Disrepute – Grant Analysis (

a) Seriousness of the Charter-Infringing State Conduct [104] The Applicant does not dispute that the police complied with his

Section 10(

a) and (

b) Charter rights after his arrest and beforethe taking of the statement. The facts bear out that the police were unaware at the time that they had conducted an unlawful arrest andsearches, and they followed the rules with respect to

Section 10(

a) and (

b) of the Charter. [105] At the time of the taking of the statement the police were acting in good faith and the breach of the Applicant’s rights can betraced back to Constable Matthies’ reliance on the text messages obtained by way of the production orders. [106] Accordingly, the overall conduct of the police satisfies me that the state conduct in relation to this Charter breach shouldproperly be characterized as minimal. (

b) Impact on the Charter-Protected Interests [107] The Crown acknowledges the impact of Constable Matthies’ conduct on the Applicant’s Charter interest was significant. Thisacknowledgment is made in relation to the Crown’s previous acknowledgment that the impact on the Applicant’s

Section 9 and Section8 rights with respect to the arrest and searches was also significant. [108] However, I note that the police complied with the Charter requirements to advise Jordan Hoelscher of the reason for his arrestand his right to contact counsel. The facts indicate that the police made reasonable efforts to comply with both the informational andimplementational components of Jordan Hoelscher’s right.

In my view this, with the lack of compulsion in any way by the police and thefact that Jordan Hoelscher was under no obligation as he was with respect to the arrest and the searches to comply, lessens the impact onthe Charter-protected interests notwithstanding it remains a significant intrusion connected to a serious infringement of his rights. (

c) Society’s Interest in Adjudication of the Merits [109] The Crown acknowledges that the statement is not real evidence but argues it is reliable. I accept it as reliable in terms that thestatement contains the words as uttered by the Applicant.

[ 110 ] With respect to importance, I can only consider the portion of the statement that has been provided in the partial transcript. The statement contains matters regarding his employment and his small business which both relate to his income, the motor vehicle he operated, his connection to the residence at 32 Adamson, his financial situation and his connection to his sister.

All of these matters may arise as matters of importance in relation to whether or not the Applicant was going about his life as an ordinary citizen or was acting in an extraordinary manner, involving himself in the drug trade. [ 111 ] The Crown argues there are references in the statement that may be interpreted as an admission to his involvement in the drug trafficking.

The Crown did not enter the entire statement and from the statement that I have, I do not see this statement as important for that reason. [ 112 ] However, for the reasons which I have set out, I am satisfied the statement is important with respect to a trial on the merits. On this basis, society has an interest in the admission of the evidence. (

d) Balancing of Factors [ 113 ] In

summary: (1) the Charter -infringing state conduct is not serious; (2) the impact of the breach is significant as connected with the arrest and searches but tempered by the police compliance with

Section 10(

a) and (

b) and the opportunity for Mr. Hoelscher to refuse to provide a statement; and (3) the evidence is potentially important. On balancing these factors, I therefore find the statement should not be excluded as evidence in this proceeding. VII.

Summary [ 114 ] Accordingly, the trial of this matter will proceed with the evidence admitted or excluded as set out above. Counsel are requested to arrange to appear before me for an administrative hearing in order to discuss the steps which may be taken to add to the efficient conduct of this trial. Heard on the 13 th through the 28 th days of October, 2015. Dated at the City of Edmonton, Alberta, this 18 th day of July, 2016. E.J. Simpson J.C.Q.B.A. Appearances: S.M. Renouf, Q.C. Simon Renouf Professional Corporation for the Appellant Dennis C. Hrabcak Public Prosecution Service of Canada

for the Respondent