R v Truong, 2020 ABQB 779

Court of Queen’s Bench of Alberta Citation: R v Truong, 2020 ABQB 779 Date: 20201214 Docket: 180460073Q1 Registry: Calgary Between: Her Majesty the Queen - and - Jimmy Truong _______________________________________________________ Ruling on Voir Dire #3 (Application to Exclude Evidence for Abuse of Process) Honourable Mr. Justice N. Devlin _______________________________________________________ Overview [ 1 ] The police took a teacup the accused had used in a restaurant without asking the proprietor.

They did so to secure a sample of his cast off DNA, which was then matched to other items seized in relation to a series of murders. Surveillance teams took three other items of tableware under similar circumstances while following suspected co-conspirators. The accused characterizes this as a course of deliberate criminal conduct by the police and says that admission of the teacup would constitute an abuse of process. He asks this Court to exclude it from evidence under section 24(1) of the Charter . Facts [ 2 ] This motion proceeded by way of an agreed statement of facts.

On September 20, 2016 Cuc Lung and Quan Tran were shot and killed at their home in Calgary. Their murders were investigated jointly with other shootings believed to be linked through motive, means, and suspects, under a police project known as “Operation Heart”. The operational plan for this investigation identified certain targets for surveillance and listed the collection of their cast off DNA as one of its objectives. [ 3 ] The accused was one such target. On the afternoon of February 28, 2017, the police followed him to Pho 26 restaurant, where he met his mother for lunch.

Undercover police officers entered the restaurant, sat down, and ordered food. They watched while the accused ate and, after he left, took the teacup he had used and removed it from the restaurant.

[4] Before the officers decided to take the teacup, they discussed whether they should ask the restaurant for permission toremove it, but decided against doing so in order to protect the investigation (ie: not risk the suspect learning that he was of interest andbeing followed).

The officers formulated a plan whereby one of them distracted the staff while paying the bill and the othersurreptitiously seized the teacup. [5] It is common ground that the teacup was tested for DNA, a sample was located, and matched to another object seizedelsewhere in the investigation. [6] Other items of tableware were seized under similar circumstances on three other occasions. On December 17, 2016, asurveillance team took a glass and a spoon from the Green Basil restaurant in an attempt to obtain cast off DNA from Dennis Ly.

OnJanuary 6, 2018, a drinking glass was taken from Ruth’s Chris steakhouse to obtain cast off DNA from Taylor Conforti. In neither ofthose instances was the permission of the restaurant sought or obtained to take their property. [7] On February 20, 2018, a surveillance team removed a coffee mug from OEB Breakfast Company in an attempt to obtaincast off DNA from Justin Dang. On that occasion, an undercover officer identified himself to a server, said he needed the mug, and askedher not to touch it.

The OEB employee responded by offering the police a clear plastic bag in which to transport the mug. [8] There is no evidence on the state of the mind of the officers who made the seizures, the value of the items taken, the positionof the restauranteurs who items were taken, the exact significance of the DNA match derived from the teacup to the Crown’s case, andthe accused’s subjective expectations and beliefs regarding the teacup and his DNA on it. The Parties’ Positions [9] The accused’s position is that the four seizures of cast off DNA by the police were thefts and constituted a criminal course ofconduct.

He argues that the admission of evidence garnered as a result of these wrongful actions would constitute an abuse of processand infringe

section 7 of the Charter. He asks that the teacup, and anything of evidentiary value derived from it (ie: his DNA), beexcluded pursuant to section 24(1) of the Charter. [10] The accused does not seek a stay of proceedings.

His position is that the tableware thefts, while serious, would not justify thisresult. [11] Despite the absence of a s 8 claim, the accused nevertheless asserts that his application is informed by the fact that DNAcarries inherent privacy interests and that his DNA was not truly cast off, in the legal sense, but rather left behind with an understandingof how it would be disposed of by the restaurant in the ordinary course.

He submits that these factors provide context that weighs infavour of exclusion. [12] Exclusion is justified, the accused argues, because any criminal conduct by the police in the course of evidence-gatheringmakes reception of that evidence an abuse of process per se, irrespective of the nature and severity of the criminality and the nature andimportance of the evidence to the Crown’s case.

Arguing by analogy to the ‘automatic excision rule’ in the search warrant context, hecontends that, where the police have committed a crime in gathering evidence, the Court need look no further before turning to a remedy.That rule, as articulated in R v Plant, (SCC), [1993] 3 SCR 281 at para 26, holds that: “…peace officers cannot benefitfrom their own illegal acts by including in informations sworn to obtain warrants facts which were retrieved through searches withoutlawful authority.” See also R v Kokesch, (SCC), [1990] 3 SCR 3 and R v Grant, (SCC), [1993] 3 SCR223. [13] While the automatic excision rule exists in the context of determining the constitutional sufficiency of search warrants, theaccused argues it should apply equally in the s 7 Charter analysis.

He bolsters this argument with reference to the Supreme Court’sadmonitions that “[i]it is a deeply engrained value in our democratic system that the ends do not justify the means: R v Mack, (SCC), [1988] 2 SCR 903, [1988] SCJ No 91 at para 71. [14] Specifically, he urges the Court to forego any case-specific analysis as to whether the alleged illegality, viewed against thenature and role of the evidence in the instant case, would make its admission intolerable.

Rather, he posits a blanket rule that thetendering of illegally gathered evidence, similar to the prosecution of state-manufactured crime arising from random virtue testing,constitutes an abuse of process in all instances, making any further balancing unnecessary.

The accused recognizes that this is not yet thelaw but argues that his position represents a principled development of the abuse doctrine. [15] The Crown responds that the admission of reliable real evidence, derived from the wrongful police taking of an item ofnominal value, seized to solve somewhere between two and seven homicides, does not constitute an abuse of process, would not bringthe administration of justice into disrepute, and should not result in the remedy sought.

While admitting that the police conduct was notlawful, the Crown argues that any wrongdoing was de minmis, and exclusion of the evidence would bring the administration of justiceinto disrepute. [16] The Crown further argues that the accused’s position is no different than that of any other individual who has deliberately leftbehind items which may contain a trace DNA sample; the teacup was abandoned as a matter of law and there is no latent privacy orother interest in it.

Scope of the wrongdoing under consideration [17] The accused says that the four instances on which the police took tableware without consent form a course of criminalconduct, which increases the gravity of their behaviour. As a preliminary point, the removal of the coffee cup from OEB took place withthe full knowledge of a staff member there, who actively assisted the police. I am not satisfied on this record that the seizure of the mug

can be characterized as an unlawful taking. [18] The accused can, however, invoke the other instances of related police illegality, not targeted at him specifically, in support ofhis application. This is consistent with the conclusion of the British Columbia Court of Appeal in R v Castro, 2001 BCCA 507 at para 6that: [i][, as in this case, the illegal police activity is directed at the class of persons ultimately charged, then the reason for stayingproceedings in order to discourage such activity is no less compelling than if the transactions were made directly with the accused.

Sincethese appellants were the very kind of high level drug dealer that Project Eye Spy was designed to catch I can see no obstacle in theappellants' asserting the illegality of the operation in their own interest. [19] Therefore, this Court’s analysis of the police conduct will consider the sum of the instances on which items were taken fromrestaurants by the investigators without consent. Analysis [20] The right against unreasonable seizures enshrined in s 8 of the Charter, and the abuse of process doctrine resident in theprinciples of fundamental justice in s 7, protect divergent interests.

The former shields the individual from unjustified interference withhis or her personal privacy, the latter protects the public interest in the administration of justice. Since the accused argues that the tworights intersect in this case, it is important to delineate his personal interests under s 8 of the Charter before turning to the abuse ofprocess analysis. (

i) The relevance of privacy interests in this case [21] The Supreme Court has held that an individual who leaves items of refuse behind for collection and disposal has abandonedhis privacy interests in the information contained in that material. Seizure of the information-bearing items in such circumstances doesnot engage or infringe a reasonable expectation of privacy: R v Patrick, 2009 SCC 17 at para 73. [22] Applying the test enunciated in Patrick, at para 27, I find that the accused in this case abandoned the teacup and his interest inany information about him that it may have contained.

Specifically, there is no evidence of any subjective expectation of privacy in theteacup’s informational content on his part, the physical search by the police did not implicated his property rights, the teacup had beenabandoned, that information was already in the hands of third parties in the absence of any obligation of confidentiality, and the policeinvestigative technique used to seize it was nonintrusive to the privacy interests at play.

While the DNA itself was not in public view,was of a biographical nature, and was seized in a manner whose reasonableness will be discussed below, I do not find that any of thisdistinguishes the result in Patrick. [23] Consequently, on the facts before me I find that the DNA sample was in fact discarded. There is no distinction between Mr.Truong walking away from the teacup on the restaurant table and the accused spitting out gum in a ruse taste-taste arranged byundercover police in R v Delaa, 2009 ABCA 179 at paras 17-19. The seizure of the DNA-containing objects does not engage

section 8. [24] I also adopt the analysis of Thibault JA on this issue in D'Amico c. R, 2019 QCCA 77, leave ref’d [2019] S.C.C.A. No. 18, atpara 321. In that case, the police had lured the accused to a meeting with undercover officers in a restaurant and, much like in this case,took the coffee mug from which he drank. In considering the trial judge’s conclusion that the accused’s DNA had not been obtained inviolation of any right to privacy, Thibault JA concluded that: [i]n my humble opinion, her approach and conclusion are free of error. She reviewed and applied the factors listed in Patrick, supra: (a)the police technique used was objectively reasonable; (

b) it was planned as part of a murder investigation in which the appellant was asuspect; (

c) the meeting was held in a public place; (

d) the appellant voluntarily drank coffee; (

e) he did not object when the undercoverofficer cleared the table; (

f) he continued working on his computer, without worrying about what would happen to his cup. The judgecorrectly concluded that the appellant abandoned the cup and that his privacy interest had not been violated. [25] Together with our Court of Appeal’s decision in Delaa, this passage definitively expresses the principles of law applicable tothis factual matrix. Therefore, I conclude that the police actions in this case did not implicate any latent privacy interests. The law doesnot support the accused’s attempt to bolster the severity of the alleged abuse of process through the importation of privacy interests.

Hisabuse of process claim stands or falls on its own. (ii) The abuse of process doctrine [26] The essence of the abuse of process doctrine is to prevent the administration of criminal justice from being brought intodisrepute by the Courts’ process becoming allied with state conduct that violates our fundamental norms of decency and moral conduct:R v Jewitt, (SCC), [1985] 2 SCR 128, 1985 CarswellBC 743 at paras 24-25. [27] The Courts’ inherent power to stay an abusive proceeding was definitively established by the speech of Lord Devlin inConnelly v Director of Public Prosecutions, [1964] A.C. 1254, [1964] 2 All E.R. 401 (H.L.34) and cemented into the fabric of Canadiancriminal law by the Supreme Court in Jewitt at para 25.

In the “clearest of cases”, where the risk of damage to the administration ofjustice is sufficiently acute, the court will stay a prosecution which would otherwise constitute an abuse of process: R v O'Connor, (SCC), [1995] 4 SCR 411, [1995] SCJ No 98 at para 68. [28] The courts have also recognized a “residual” category of abuse of process, where trial fairness is not jeopardized, but thenature and severity of the state’s misconduct is so serious that permitting the trial to proceed would violate “the community’s sense offair play and decency”, R v Campbell, (SCC), [1999] 1 SCR 565 at para 20, and thereby “risks undermining theintegrity of the judicial process”: O’Connor at para 73.

[29] The accused brings his application under the residual branch. There is no suggestion that admitting the teacup-derived DNAwould compromise the fairness of the trial. Rather, he argues that the genesis of this evidence is so tainted by police misconduct that itsreception by the Court would be intolerable. (iii) The severity of conduct required to show an abuse of process [30] The Supreme Court has made it clear that the concept of abuse of process applies to profound wrongs, not trivialities.

InMack, one most robust applications of the doctrine, Lamer J (as he then was) defined its bounds in these terms, at para 73: Conduct which is unacceptable is, in essence, that which violates our notions of "fair play" and "decency" and which shows blatantdisregard for the qualities of humanness which all of us share. [emphasis added] [31] This construction of the abuse doctrine defines the threshold at which the Court will leverage its inherent authority to interferewith the judicial process reaching a conclusion through a trial on the full merits.

Those bounds are co-extensive with infringements of theprinciples of fundamental justice enshrined in

section 7 of the Charter: O'Connor at paras 60-72, 197. [32] Properly understood, the abuse of process doctrine is not a gateway to remedies for general ‘wrongs’ of the police not caughtby the specific criminal rights enshrined in ss 8-14 of the Charter. Rather, it is safeguard against misconduct of such magnitude that itthreatens fundamental justice itself. This is confirmed in Jewitt, where the Supreme Court said this at para 25: I would adopt the conclusion of the Ontario Court of Appeal in R. v.

Young, supra, and affirm that "there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate thosefundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court'sprocess through oppressive or vexatious proceedings".

I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only in the "clearest of cases".[emphasis added] [33] Importantly, the fact that courts are now instructed to consider whether measures short of the “most drastic remedy” ofterminating the prosecution can cure an abuse does not obviate this high threshold for entry into the remedial remit of the abuse doctrine:R c Piccirilli, 2014 SCC 16 [“Babos”] at paras 30, 38. [34] An applicant seeking a remedy for an alleged abuse of process must demonstrate state misconduct capable of compromisingour foundational principles of justice.

This is the case irrespective of the remedy sought or the category of alleged abuse, as confirmed bythe Supreme Court in O’Cononor, at para 73. [35] In practical terms, this means that the abuse of process doctrine is not a solution to an accused’s person’s lack of standing tostanding to seek Charter remedies for dilatory state conduct that does not implicate his personal Charter rights, unless that misconductrises to a level where its tarnish on the administration of justice outweighs the otherwise dominant importance of the criminal processrunning its course. (iv) Does admitting illegally gathered evidence create an abuse per se? [36] The accused asks the Court to lay down a blanket rule that any police evidence-gathering practice that can be construed ascontrary to the Criminal Code automatically and invariably meets this very high threshold and that exclusion of evidence obtained bysuch means should automatically follow.

He restricts this proposed per se exclusion rule to conduct which constitutes a contravention ofthe Criminal Code, and stops short of including breaches of other statutes or regulations, and legal but morally condemnable conduct.Neither existing jurisprudence nor a principled approach to the Charter support this approach. a. The law does not support the per se abuse approach [37] The accused’s contention that any evidence gathered through illegal police conduct should be automatically excluded doesnot accord with the state of the law.

For instance, in Campbell, an authority central to the accused’s application, Binnie J made it clear, atpara 24, that even illegal police conduct will not automatically amount to an abuse of process. The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case. This case-by-case approach is dictated by the requirement to balance factors which are specific to each fact situation. The problem confrontingthe police was well described by the Alberta Court of Appeal in R. v.

Bond (1993), 1993 ABCA 50 , 135 A.R. 329 (leave toappeal refused, [1993] S.C.C.A. No. 144, [1993] 3 S.C.R. v), at p. 333: Illegal conduct by the police during an investigation, while wholly relevant to the issue of abuse of the court's processes, is not per sefatal to prosecutions which may follow: Mack; supra at 558. Frequently it will be, but situational police illegality happens. Police involvethemselves in high speed chases, travelling beyond posted speed limits. Police pose as prostitutes and communicate for that purpose inorder to gather evidence.

Police buy, possess, and transport illegal drugs on a daily basis during undercover operations. In a perfect worldthis would not be necessary but, patently illegal drug commerce is neither successfully investigated, nor resisted, byuniformed police peering through hotel room transoms and keyholes or waiting patiently at police headquarters to receive theconfessions of penitent drug-traffickers. [all emphasis added] [38] The decision of our Court of Appeal in Bond, as adopted by the Supreme Court in this passage from Campbell, is binding anddispositive on this point.

[39] Similarly, in R v Lising, 2010 BCCA 390, the British Columbia Court of Appeal applied Bond in refusing to find an abuse ofprocess, despite the fact that the police agent who was central to the case committed a litany of serious criminal acts while under somemeasure of police supervision. This conduct included trafficking many kilograms of hard drugs, trafficking and possessing illegalfirearms, and acts of physical violence and intimidation. A

summary inventory of the agent’s alleged crimes ran to nine typed pages ofthe Court of Appeal’s decision.

Yet, the Court upheld the trial judge’s conclusion that no abuse of process of process had beenestablished: Lising at para 78, see also paras 25 and 104. [40] More recently, the British Columbia Court of Appeal also upheld a trial judge’s refusal to find an abuse of process where thepolice had arguably induced and facilitated a number of offences against the administration of justice, agreeing with the trial judge that:“a reasonable well-informed member of the community would not be so shocked or offended by the conduct of the police in this case asto require granting the remedy sought”: R v Bahia, 2020 BCCA 156 at para 194.

Rather, the Court concluded that, at para 186: ...a finding of illegality would not be dispositive of the abuse of process claim. While relevant, a finding that the police have committedan illegal act in the course of an investigation does not of itself amount to an abuse of process: Campbell SCC at paras. 24, 42 and 76.There is good reason for this.

Given the terms of the CSO, the police would equally be open to an allegation that they acted illegally andin such a way as to amount to an abuse of process if they ordered one beer for Baranec over dinner, as doing so could also be viewed asaiding or abetting the breach of a court order. In either case, once a finding of illegality was made, the judge would still be bound todetermine whether the test for abuse of process was met. [emphasis added] [41] Further support for the position that not all police criminality results in an abuse of process can be found in R v Nuttall, 2016BCSC 1404 at para 815.

In that case, the Court stayed convictions for terrorism defences after having found significant state misconductamounting to entrapment but, relying on the Supreme Court’s decision in Campbell, nevertheless held that: Not every criminal act in the course of a police investigation necessarily results in a finding that there has been an abuse ofprocess. Illegal acts by the police are only a factor, albeit an important factor, to be considered in the determination of whether an abuseof process has taken place: Campbell at para. 42.

It is the circumstances surrounding the conduct of the police and the possiblejustifications for their conduct that inform the Court's decision. [42] The law is thus clear that attaching the label of criminality to police conduct does not answer whether the resultingprosecution, or the evidence tendered within it, amounts to an abuse of process. b. Making findings of collateral criminality is problematic [43] Adjudicating whether parties not before the Court have committed criminal offences is both procedurally and substantivelyproblematic.

In particular, making a definitive finding about whether the police, collectively or individually, committed criminal offencesrequires consideration of an entire collateral criminal trial issue, on which the court has a partial evidentiary record, and the individualsagainst whom findings would be made are not present to answer or defend themselves.

I agree that this “would risk taking theadmissibility inquiry down the proverbial rabbit hole”, as the Court of Appeal observed in Bahia at paras 183-185. [44] The Crown argued that the taking of the tableware in this case could well be captured by the principle of de minimis noncurat lex, making a conviction improbable. While that is an arguable position, it simply highlights the inutility of determining whetherwhat the police did was ‘criminal’ or not.

This accused’s trial for murder is not the forum in which to determine whether de minimis ispart of the criminal law in Canada (an unresolved debate), much less how it would hypothetically apply if the officers were on trialbefore the Court (which they are not). None of these distractions change the essential nature and quality of their actions. c. Substance not form should govern [45] What really matters in the context of an abuse of process application is the substance of what the police did, and the objectivemeasure of any misconduct’s severity and impact, not the label attached to it.

While criminalization is a helpful shorthand for society’smoral boundaries, criminal offences encompass a staggering breadth of conduct, ranging from matters almost trivial to the most serioustransgressions of humanity imaginable. As Doherty JA wrote in R v Jageshur, [2002] OJ No No 4108 (CA) at para 19: The ultimate question is not legality, but whether the police conduct was sufficiently egregious so as to shock the conscience of thecommunity and demand the court not lend its process to prosecution flowing from such misconduct.

This inquiry demands not only aqualitative assessment of the nature of the misconduct, but also a consideration of the societal interest served by allowing the prosecutionto proceed despite the police misconduct… [emphasis added] [46] I entirely agree with this statement of the law.

Section 7 is not a panacea for police or prosecutorial imperfections. For it to beengaged, the misconduct of the state in pursuing a prosecution must be manifest and of a magnitude approaching the overall interest ofsociety in the suppression of crime through trials conducted on their merits. Whether that threshold has been reached in any case is acontextual and fact-specific question of measure. d. Balancing is the touchstone of the Charter [47] Balancing and proportionality are central to very fabric of the Charter. From

section 1 to section 24(2), it specificallymandates contextually sensitive and substantively oriented outcomes. It is antithetical to the Charter’s approach to exclude evidence indisregard of the impact of depriving society of substantive justice on potentially serious criminal allegations.

Automatic exclusion ofevidence, in the American mode has, therefore, been categorically rejected in all contexts from the earliest days of the Charter: R vSimmons, (SCC), [1988] 2 SCR 495 at p 532; see also R v Strachan, [1986] BCJ No 55 (CA), affm’d (SCC), [1988] 2 SCR 980. [48] Indeed, in Kokesch, at pp. 25-26, the very case which gave rise to the automatic excision rule relied upon by the accused,Dickson CJC said the following regarding the balancing required before evidence will be excluded as a Charter remedy.

Finally, it is necessary to consider, in a review of the factors for consideration in determining whether evidence is admissible pursuant tos. 24(2), the impact upon the repute of the legal system from the admission or exclusion of the evidence. As indicated in Jacoy, supra, "[t]he administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breachof the Charter was trivial" (p. 54). Although not trivial, the breach of the appellant's Charter rights was far less severe than would be thecase in a search of his person.

Moreover, in Jacoy, supra, this court made some general comments on the effect on the legal system of theexclusion of real evidence of narcotics (at p. 55): The offence [sic] with which the appellant was charged constitute serious social evils. The narcotics are an essential piece of evidence tosubstantiate the charge . . . In my view, the decision to exclude the evidence in light of all the circumstances would do violence to therepute of the justice system. [49] This reasoning extends to Supreme Court jurisprudence on abuse of process.

In Babos, at paras 39-41, the Supreme Court leftno doubt that balancing the specific circumstances and severity of the misconduct with the costs to society of stopping or constrainingthe instant prosecution is an essential component of the remedial analysis: …when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justicesystem is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, orhaving a trial despite the impugned conduct.

This inquiry necessarily demands balancing. The court must consider such things as thenature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, thecircumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.[5] Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it.

When the conduct in questionshocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in afull trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.[emphasis added] (

v) Babos does not expand s 7 remedies beyond demonstrated cases of abuse rising to a level wherea stay in contemplable [50] It is important to note that the direction in Babos to consider remedies for abuse short of a stay (at para 32), was not intendedto, and does not, open up

section 7 as a source for lesser remedies for lesser wrongs. Courts must resist the temptation to create analternate, judge-made code of evidence and criminal procedure under the auspices of

section 7. The Charter both delineates theindividual rights, and provides the available remedies, in respect of the criminal process.

As the jurisprudence has made clear at everyturn, the Courts’ inherent power to prevent abuses of its process stands as a guardian at the fringes – summoned to contend with the“clearest of cases” and the extremities of state misconduct which, to re-iterate the phrase from the foundational decision in Mack, “showsblatant disregard for the qualities of humanness which all of us share.” [51] Importantly, where no remedy short of a stay is viable, Babos instructs Courts to nevertheless undertake a rigorous balancingof interests before granting a stay, which may result in no remedy being granted.

The net effect of Babos is that a stay for abuse will berarer, and more of a last resort, even where serious state misconduct is proven. It does not mean that wrongdoing falling below the levelof a potential abuse of process will now have an open-ended path to a remedy, such exclusion of evidence. (vi) The ‘automatic excision rule’ is not analogous [52] The accused relies heavily on the family of Supreme Court cases which established the automatic excision rule in the case ofillegally gathered evidence included in support of search warrants and other judicial pre-authorizations: Grant at para 50.

This rule doesnot operate in an analogous fashion. The automatic excision rule does not exclude evidence. Rather, it protects privacy interests byinvalidating authorizations that are based on misconduct.

The ultimate admissibility of any evidence gathered through a taintedauthorization process remains to be determined through the proportionality analysis prescribed by s 24(2).[1] Thus, the automaticexcision rule is itself backstopped by the proportionality-driven balancing the accused eschews. [53] The per se abuse and automatic exclusion rule being proposed in this case would stand alone in the pantheon of Charterdoctrines as the only situation in which the accused could obtain a windfall benefit, without showing any harm to his own rights, and inthe total absence of a contextual balancing of societal interests.

This places the proposed rule out of step with Charter principles. (vii) The per se rule would create absurdities [54] Finally, the per se rule would illogically skew the interaction between the operation of sections 7 and 8 of the Charter. If,instead of taking a teacup from a restaurant, the police had taken the accused’s own near-empty pop can from a picnic table in a parkwhile he played frisbee nearby, his application to exclude the DNA would be governed by s 8.

There, no matter the severity andflagrancy of the police conduct, a balancing of the factors in the section 24(2) analysis would take place, with the onus resting on theaccused, before exclusion of the evidence could be ordered: R v Duarte, (SCC), [1990] 1 SCR 30, at p 59. [55] It would be absurd if the fact that the stolen item did not belong to the accused personally, and implicated none of his ownrights, would place him in a tactically better position to have the resulting evidence excluded.

The need to avoid this sort of anomaly,which would itself bring disrepute upon the administration of justice, is a compelling indicator that balancing remains essential indetermining whether the misconduct has risen to the level of an abuse of process warranting exclusion under s 7 in the specificcircumstances of the case. [56] For all of these reasons, I find that the accused’s proposed rule that every arguably criminal act committed in the course ofevidence-gathering creates an abuse of process per se, leading to an automatic exclusion of the resultant evidence, does not accord withthe correct, contextual, balance-driven approach to remedies under the Charter. (viii) The relevant factors to assess if admission of illegally gathered evidence is an abuse of process

[ 57 ] Keeping a clear focus on the nature of the abuse of process doctrine, and the root values underlying it, provides the proper foundation for this analysis. The question of whether police action is so wrongful that any reliance on it taints the judicial process must, therefore, be answered by considering the factors that make it wrong, including their relative strength and severity.

Specifically, the Court should examine the nature and quality of the impugned conduct, with specific attention to whether it: • caused physical or psychological harm, and to what degree; • created a risk of physical or psychological harm, and to what degree; • interfered with or destroyed property; • degraded or diminished the dignity of any individual; and • undermined or contravened other Charter values. [ 58 ] This contextual approach better accords with the Charter ’s purposive chracter and the meaning of fundamental justice. None of this means that police criminality is of no moment.

To the contrary, it is a significant marker of concern. Indeed,

an act is usually criminal, or otherwise unlawful, precisely because it causes the sort of harms that the abuse doctrine is concerned with. But what matters in the abuse of process analysis is the substance of the wrong, not its form. The test for abuse of process applied [ 59 ] The police takings of tableware harmed no one physically or psychologically and created no risk of such harms. Rather, it interfered with the restaurants’ property, and was a wrongful of their goods.

There is no right to take items of minimal value from anyone without their permission, whether they be a restauranteur, a grocer, or a dollar store merchant. The fact that criminal process and liability are unlikely to come to bear on a minor theft does not make it right. These items were stolen in the plain meaning of that word. [ 60 ] The actual loss, however, was minimal, bordering on trivial. The police conduct was not demeaning, did not exploit anyone, nor did it disrespect Charter values, such as dignity, equality and freedom of expression and religion.

Indeed, it is far from clear that any of the impacted property owners would have objected to the police taking their items under these circumstances. It may well be that cooperation with law enforcement is not an entirely defunct social value and that many members of the public would willingly chose to assist police inquiries, even at the cost of a teacup or two. [ 61 ] On balance, I find that admission of the DNA gathered from the stolen teacup would not bring the administration of justice into disrepute in a manner that rises to an abuse of process.

While exclusion of this evidence would stand as a message to police that their investigative techniques should remain on-side of personal property rights, the Court must not lose sight of the fact that it is not the accused’s interests that stand to be vindicated, but rather the repute of justice in the eyes of the community: Babos at para 39 .

The resonant message of the Supreme Court’s jurisprudence on abuse of process is that the Courts must not, to borrow an aphorism, cut off their nose to spite their face, unless the severity of the state misconduct compels it. [ 62 ] The taking of the teacup, even as viewed in the broader sequence of events in this case, does not approach the level at which a prosecution for three counts of first-degree murder will be deprived of real evidence, much less stayed altogether. An abuse of process has not been established. Conclusion [ 63 ] Notwithstanding Mr.

Claus’ thoughtful and attractive presentation of this motion, the application to exclude the teacup, and the evidence derived from it, is dismissed. Heard on the 2th day of November, 2020. Decision dated at the City of Calgary, Alberta this 14 th day of December, 2020. N. Devlin J.C.Q.B.A. Appearances: Brian Holtby, QC for the Crown

Robert Claus Derek Jugnauth for the Accused [1] The automatic excision rule has itself been acutely criticized as operating in tension with the Charter ’s dominant paradigm of balancing: R v Jaser , 2014 ONSC 6052 per Code J. at para 28.