R. v. Jones, 2017 ONCJ 622

ONTARIO COURT OF JUSTICE CITATION: R. v. Jones , 2017 ONCJ 622 DATE: 2017 09 06 Guelph Information Number 16-2880 & 16-2881 BETWEEN: HER MAJESTY THE QUEEN — AND — John Jones Before Justice M.D. McArthur Heard on August 16, 2017 at Guelph Decision released on September 6, 2017 M. Dolby and C. Bond........................ counsels for the Provincial and Federal Crowns P. Valli .................................................................... counsel for the defendant John Jones McArthur, M.D. J.: [ 1 ] John Jones is charged with the offences all arising on August 16, 2016 in the City of Guelph being 3 counts of possession of stolen property contrary to s. 354(1) (

a) Criminal Code , 2 counts of failing to comply with recognizance contrary to s. 145(3) Criminal Code, 2 counts of breach of probation contrary to s. 733.1(1) Criminal Code, 1 count of using a stolen credit card contrary to s. 342(1) (

c) Criminal Code and simple possession of morphine contrary to s. 4(1) of the Controlled Drug and Substances Act. [ 2 ] The case proceeded on the basis of a blended voir dire application and trial proceeding. Counsel for the defendant brought an application alleging

Section 8, 9, 10(

a) and 10(

b) Charter breaches. [ 3 ] The Provincial Crown Attorney, joined in by the Federal Crown Attorney conceded a

Section 8 Charter breach occurred in this case. The Charter Issues [ 4 ] Counsel for the defendant alleges violations of s. 8, s. 9, s. 10(

a) and s. 10(

b) and that the search and seizure of items in the possession of the defendant, particularly a credit card and other cash cards, the applicant’s identity, paper receipts, cash and contents of a backpack including a controlled substance contained therein be excluded under s. 24(2) of the Charter. Counsels for the Crown takes the position that despite the breach or breaches, this evidence should not be excluded in this proceeding. [ 5 ] In this case, for reasons that will be outlined, there will be found additional s. 9, 10(

a) and 10(

b) Charter breaches and all the evidence will be excluded under s. 24(2) in the circumstances of this case. The Facts [ 6 ] On December 26, 2016, Cst. Srigley of the Guelph Police Force was in uniform and on routine patrol in a marked police cruiser. At approximately 4:45 a.m., he observed the defendant and another male adult individual walking from behind commercial business buildings on the east side of Edinburgh Road near London Road in Guelph. Both of these individuals continued to walk northbound on the sidewalk along the east side of Edinburgh Road.

This officer also observed a truck parked in the parking lot which was unusual in the circumstances. Cst. Srigley radioed to Cst. O’Connell, another officer who was nearby, about his observations of the 2 males and to keep an eye on these males while he went to check the truck and adjacent commercial businesses. Ultimately, his investigation did not disclose anything of concern for property offences that had been suspected.

[7] Cst. Srigley after checking these properties then drove to where Cst. O’Connell was with the two other males. He recognized theone male but not the defendant. This appears to have occurred over a period of 5 to 10 minutes but he was not entirely sure. [8] Cst. O’Connell confirmed he was contacted by radio at approximately 4:49 a.m. by Cst. Srigley. He was nearby and drove hiscruiser to where the males were and stopped and observed them on the sidewalk. He likewise recognized the one male but not thedefendant. Cst.

O’Connell asked the males what they were doing behind the buildings and they responded they were not behind thebuilding. The defendant identified himself as “Robert Biernes” and the officer asked him if he had a criminal record which he said hedid. The officer did a CPIC check that came back as the person’s name not having a criminal record. In the circumstances, the officer didnot believe the defendant but did not challenge him. [9] Upon Cst. O’Connell’s direction, the defendant came over or around the snowbank to the officer. Cst.

O’Connell noticed a humpin the defendant’s jacket and the defendant had explained that he had a backpack. Cst. McConnell then asked the defendant if he hadanything in his possession that would hurt him, like needles, etc. and the defendant responded that he did not think so. [11] Cst. Srigley then came up to where Cst. O’Connell and the two males were. This would have been about 5:00 am according toCst Srigley’s time estimates. Cst. O’Connell then conducted a pat-down search over the clothes of the defendant who told the officer thathe had 2 cell phones, one of which belonged to the other male.

The defendant produced the cell phones from his pocket and, when he didthis, the officer observed a credit card sticking out of the defendant’s rear pocket which the officer removed. The credit card was in thename of Donald Ciuciura. Cst. O’Connell asked who Donald Ciuciura was and the defendant said it was the father of his girlfriend but hecould not provide the officer with her address. [12] Cst. O’Connell contacted dispatch who advised at 5:12 a.m. that Donald Ciuciura had reported a wallet as stolen a couple daysbefore. [13] At 5:16 a.m., Cst.

O’Connell arrested the defendant for possession of stolen property, then cautioned him and provided his rightsto counsel. While on route to the Guelph police station, the defendant provided his true identity and date of birth. When they arrived atthe police station, a search of the defendant’s backpack revealed a number of items including 2 syringes, one of which contained asubstance on which the drug charge is based.

The defendant also had on his person a TD Debit card, pre-paid MasterCards, a receiptfrom Petro-Canada from 109 Silvercreek Parkway North, Guelph in the amount of $92.95 paid for on the Mastercard of Donald Ciuciuraand $78.50 in Canadian cash currency. The Law and Analysis re s. 8, 9, 10(

a) and 10(

b) of the Charter [14] The pertinent provisions of Canadian Charter of Rights & Freedoms for the purposes of this case at this point are as follows: s. 8 Everyone has the right to be secure against unreasonable search and seizure. s. 9 Everyone has the right not to be arbitrarily detained or imprisoned. s.10 Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor; and

b) to retain and instruct counsel without delay and to be informed of that right. [15] The onus is upon the defence to prove on the balance of probabilities that the defendant’s Charter rights were infringed and thatthe admission of the evidence would bring the administration of justice into disrepute. [16] In this case, counsel for the defence contends that the defendant was detained shortly after 4:49 a.m. when Cst. O’Connellstopped the males and questioned the defendant, or, alternately, when Cst. O’Connell conducted the pat-down search of the defendant. Inview of the additional s. 8 Charter breach, the defence contends that there was also s. 9, 10(

a) and (

b) Charter breaches and, as a result,evidence of the items seized during the pat-down search and of the backpack and other statements made should be excluded under s.24(2) of the Charter. [17] The Crown submits that there was a s. 8 Charter breach and that the evidence ought not to be excluded under Section 24(2) of theCharter in any event and relies upon the Supreme Court of Canada decision of R. v. Aucoin 2012 SCC 66 , [2012] S.C.J. 66 andR. v. Grant 2009 SCC 32 , [2009] 2 S.C.R. 353 in this regard. Detention and

Section 9 Charter [18] Constitutional implications arise upon detention. The ultimate question in this regard is whether the police conduct would causea reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. A policeofficer’s subjective intentions are not relevant in deciding if there was a detention. A person may be briefly detained where police havereasonable grounds to suspect a clear nexus between the individual being detained and a recently committed or still unfolding criminaloffence.

An applicant is not required to testify on an application in this regard. These principles have been well-established particularly inR. v. Mann 2004 SCC 52 , [2004] 3 S.C.R. 59, R. v. Therens (SCC), [1985] 1 S.C.R. 613, R. v. Grant, supra, R.v. Suberu 2009 SCC 33 , [2009] 2 S.C.R. 460. [19] In R. v. Grant, supra, the Court provided the following

summary at paragraph 44: In cases where there is no physical restraint or legal obligation, it may not be clear whether [page385] a person has been detained. Todetermine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state

of the liberty of choice, the court may consider, inter alia, the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police wereproviding general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out theindividual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred;the presence of others; and the duration of the encounter. (c)The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; levelof sophistication. [20] It might be helpful to consider this case in relation to other factual contexts and legal decisions being the companion cases of R.v. Grant, supra and R. v. Suberu, supra, both from 2009. [21] In R. v.

Grant, the defendant was a young black man walking on a sidewalk at midday whose manner and clothing attractedattention of plainclothes police officers who requested a uniform officer to have a chat with Mr. Grant. The uniformed officerapproached the defendant head-on and asked what was going on and requested his name and address. Mr. Grant produced a health cardand adjusted his jacket. The officer directed him to keep his hands in front of him. The other officers approached, identified themselvesand stood behind the uniformed officer. Mr.

Grant was asked pointed questions including if he was carrying anything that he should nothave. Mr. Grant admitted to possessing marijuana and a firearm and was then arrested. The Court found detention arose when theuniformed officer directed him to keep his hands in front of himself. [22] In R. v. Suberu, a police officer attended an LCBO store in relation to a complaint of 2 persons attempting to use a stolen creditcard.

On entering the store, the officer saw the store clerk talking with another man and, when the defendant walked past the officertoward the exit, he commented “he did this, not me, so I guess I can go”. The officer followed the defendant outside saying “Wait aminute.

I need to talk to you before you go anywhere.” While the defendant was seated in the driver’s seat of a van, the officer had abrief exchange in relation to the relationship with the individual in the store, who owned the van, and during which the officer receivedinformation over the radio linking the van and the defendant to the use of stolen credit card at other locations that same day. The officerasked for the defendant’s identification and vehicle ownership and saw bags in the van from the other locations and then arrested thedefendant.

The Court noted that police may engage in questioning of bystanders without giving rise to a detention and that in that casethe questions were merely exploratory and had not zeroed in on the individual as someone whose movements must be controlled. TheCourt found that the defendant was not detained before his arrest. [23] It is also observed by this court that there are a number of earlier cases where non-consensual searches of a suspect’s clothing orbody amount to a detention. See, for example: R. v. DeBot (SCC), [1989] 2 S.C.R. 1140 at 1146, R. v. Greffe [1990] 1S.C.R. 495 at 521, R. v.

Simmons (SCC), [1988] 2 S.C.R. 495. [24] Applying the factors as enumerated in R. v. Grant as outlined above, the combined effect of the suspicion, the direction to Cst.O’Connell and further checking on the commercial properties by Cst. Srigley, these actions singled out the defendant and the other malein connection of possible suspected property offences in that area. The movements of the defendant were sought to be controlled by Cst.Srigley in the circumstances and properly could be continued briefly until he determined there was no longer any basis for his suspicionof property offences in that area.

There was nevertheless no detention up until that point time. However, with the continued engagementof the defendant after it was determined that they were not connected with suspected property offences in that area and when Cst.O’Connell proceeds with a pat-down search of the defendant, this court finds that the defendant was then detained. Although it was theofficer’s subjective opinion that the defendant was not detained until arrested for the offence of possession of the credit card, the casesreferred to make it clear that the officer’s subjective belief is not relevant.

A reasonable person in the situation of the defendant in thesecircumstances at that point would conclude that his right to choose how to respond had been removed. [25] Accordingly, there was the arbitrary detention of the defendant in the circumstances and a violation of s. 9 Charter rights of thedefendant. There had been no search or seizure of any physical items involving the defendant prior to detention. The search and seizureof all items followed the arbitrary detention.

Section 10(

a) and 10(

b) Charter Rights [26] As was stated by the Supreme Court of Canada in R. v. Suberu 2009 SCC 33 , [2009] 2 SCR 460 at paragraph 39 to 40: 39 The content of the police duties under s. 10(

b) is not at issue in this appeal. Instead, the question is whether the right to retain andinstruct counsel "without delay" means that these duties must be executed immediately at the outset of a detention, or whether theseduties manifest at some later point subsequent to the start of a detention. 40 As with "detention", any

interpretation of the phrase "without delay" must be consistent with a purposive understanding ofthe Charter provision in which it occurs. As this Court noted in R. v. Therens, (SCC), [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, the purpose of s. 10(

b) is to ensure that individuals know of theirright to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion whichleaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant toassist detainees regain their liberty, and guard against the risk of involuntary self-incrimination. 41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incriminationand the interference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected. In order to protect against therisk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in

regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(

b) right tocounsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them inregaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. 42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-definedand unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. Whatconstitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room formisunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a rightthat imposes specific obligations on the police.

In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, thepolice have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention. [27] In this case, upon detention this court has determined, both

Section 10 (

a) and (

b) Charter duties came alive and manifestedthemselves immediately upon detention. In this case, neither of these

Section 10 (

a) and (

b) duties were met as to the immediacyrequirement of these provisions. [28] In R. v. Evans (SCC), [1991] 1 S.C.R. 869, Sopinka, J. in agreeing with the majority also made this observationin relation to s. 10(

a) of the Charter as follows: 2

Section 10(

a) and (

b) set out very fundamental rights of a person arrested or detained. The instructions to the authorities which theycontain are relatively simple. In each case, the detainee is to be "informed". In the case of s. 10(a), the right is to be informed of thereasons for the arrest or detention. The right to be informed of the true grounds for the arrest or detention is firmly rooted in the commonlaw which required that the detainee be informed in sufficient detail that he or she "knows in substance the reason why it is claimed thatthis restraint should be imposed" (Christie v.

Leachinsky, [1947] A.C. 573, at pp. 587-88). When an arrest is made pursuant to a warrant,this is set out in writing in the warrant. An arrest without warrant is only lawful if the type of information which would have beencontained in the warrant is conveyed orally. The purpose of communicating this information to the accused in either case is, inter alia, toenable the person under arrest or detention to immediately undertake his or her defence, including a decision as to what response, if any,to make to the accusation.

It seems axiomatic, therefore, that this information should be conveyed prior to questioning and obtaining aresponse from the person under arrest or detention. These basic and important values are included in s. 10(

a) of the Charter. [29] Accordingly, in the circumstances of this case, the defence has established on the balance of probabilities that, in addition to thearbitrary detention, there were violations of the rights of the defendant under both s. 10(

a) and (

b) of the Charter in addition to the s. 8Charter violation earlier conceded by the Crown. Section 24(2) Analysis [30] This leaves the determination whether the evidence as outlined previously should be excluded under s. 24(2) of the Charter. Theapproach was reformulated in R. v.

Grant 2009 SCC 32 , [2009] 2 S.C.R. 353 and articulated as follows at paragraph 71: 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations setout in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [31] Justice Doherty in the case of R. v. McGuffie 2016 ONCA 365 , [2016] O.J 2504 explained the test in R. v.

Grant asfollows: 62 The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of theclaim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in anadjudication on the merits, pulls in the opposite direction toward the inclusion of evidence.

That pull is particularly strong where theevidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34. The Seriousness of the Charter Infringing State Conduct [32] The first stage of the analysis as explained in R. v.

Grant at paragraphs 72 to 74 is as follows: 72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence wouldbring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for theadministration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits ofthat unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the

courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence inand ensure state adherence to the rule of law. 73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of thisinquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence.The main concern is to preserve public confidence in the rule of law and its processes.

In order to determine the effect of admission ofthe evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation,viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteedby the Charter. 74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtainedthrough inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other endof the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negativeeffect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [33] Cst Srigley’s legitimate suspicion as the primary investigating officer of property offences in the immediate area and anyconnection involving the defendant, ended just before and, in any event, when he met up with Cst. O’Connell who was with thedefendant and the other male. However, the continued involvement by Cst.

O’Connell became an investigation, detention and ultimatesearch without reference or connection to a legitimate basis and became an arbitrary detention. [34] Overall, when it came to the

Section 10(

a) and (

b) Charter obligations upon detention, both

Section 10 obligations were notaddressed in the circumstances at the necessary time. Such errors are not merely technical but, rather, are fundamental and, in view of theother

Section 8 and 9 Charter violations, created a compounding effect involving multiple enumerated Charter Rights. It has beenaffirmed that courts should dissociate themselves from police activity where the police knew (or should have known) that their conductwas not Charter-compliant. In this case, there can be little doubt that one or both of the officers should have known the overallcircumstances and actions did not comply with an informed Charter perspective.

This weighs in favour of excluding the evidence. [35] There are situations where good faith reduces the need for the court to dissociate itself from state conduct. A recent example ofthis is the case of R. v. Aucoin 2012 SCC 66 , [2012] S.C.J. 66 where unusual circumstances prompted a police officer to have adefendant placed into his cruiser while completing paperwork for provincial offences and conducted a pat-down search before placinghim into his cruiser. Drugs were discovered. The officer was found to have acted in good faith in this respect and the drugs wereadmitted into evidence.

This is not the case here and despite good faith cannot excuse a case where multiple fundamental violations ofenumerated Charter rights have occurred particularly where other cases have defined, elaborated and expressly comment on similarfactual contexts since at least 2009. While done in good faith by the officers, the errors that occurred here continued between experiencedofficers and lead to a significant oversight of core Charter rights despite the officers’ subjective opinions of acting reasonably.

Impact on the Charter-Protected Interests of the Accused [36] The second stage of the analysis is likewise explained in Grant as follows: 76 This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. Itcalls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact ofa Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused's protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. 77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right andexamine the degree to which the violation impacted on those interests.

For example, the interests engaged in the case of a statement tothe authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities(Hebert) - all stemming from the principle against self-incrimination: R. v. White, (SCC), [1999] 2 S.C.R. 417, at para.44.

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administrationof justice into disrepute. [37] In the circumstances of this case, the issue is the admissibility of the evidence as mentioned from an unlawful search and seizureand which such evidence likely would not have been realized but for the violations. This court is mindful of the instruction in R. v.

Grant,supra, as follows: 109 The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, therebynegatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on theaccused's protected interests….The greater the intrusion on these interests, the more important it is that a court exclude the evidence inorder to substantiate the Charter rights of the accused. [38] In this case, the engagement and breach impacted the Charter-protected interests of the defendant in relation to all of

Section 8, 9,10 (

a) and (

b) rights.

Section 10(

a) and (

b) in particular are specifically enumerated Charter rights that must be immediately provided andmaintained throughout any detention. Such a failure is found to be more than technical and the impacted significantly upon the accused’sCharter protected interests. [39] There is no waiver of these rights by the defendant that could reasonably arise in this case and, as noted in many other cases, thestandard to prove waiver by the defendant is significant. There also is no burden on the defendant to outline or speculate on what legaladvice might have been provided to him.

However, it is sufficient to note on the facts of this case, there certainly were issues that couldbe canvassed by experienced counsel in relation to in such a case. In any event, this feature favours exclusion of the evidence referred toin this case.

Society’s Interest in the Adjudication of the Case on its Merits [40] Also, Justice Doherty’s comments in R. v. McGuffie are instructive where he states as follows: 63 In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison , at paras. 35-42 ; Spencer , at paras. 75-80; R. v. Jones , 2011 ONCA 632 , 107 O.R. (3d) 241, at paras. 75-103 ; Aucoin , at paras. 45-55 .

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: see e.g. R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215, at paras. 81-89 ; R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253, at paras. 98-112 . Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g.

Grant , at para. 140 . [41] The evidence obtained is certainly real, tangible and reliable and would be essential in relation to most, if not all, of the charges. However, such evidence became available after an arbitrary detention, after a s. 8 Charter violation and without the benefit of

Section 10(

a) and (

b) Charter rights. [42] Balancing the effect of admitting this evidence obtained on society’s confidence in the justice system, having proper consideration to the serious Charter-infringing state conduct and understanding the serious impact on the breach on well-recognized Charter-protected interests of the defendant, the evidence would not in any event tip the balance for admissibility in these circumstances. [43] In addition, the perception and considerations to guide the court to the “obtained in a manner” as outlined by Laskin, J. in R. v.

Pino 2016 ONCA 389 are instructive and as follows: 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 three connections; -- but the connection cannot be either too tenuous or too remote.

CONCLUSION [44] Here, on a generous approach and considering the entire chain of events between the defendant, the evidence was obtained as part and during an ongoing breach of the Charter-protected rights of the defendant. Critically, such evidence would not have been available but for the breaches of the Charter rights of the defendant in this case.

Accordingly, it is this court’s conclusion the evidence as referred to was obtained in a manner that infringed the defendant’s rights and should not be admitted into evidence for the reasons outlined above [45] The evidence as noted shall accordingly be excluded in this trial proceeding. Absent this evidence, the defendant shall be found not guilty on all counts and all of the charges are dismissed. Accordingly, it is not necessary to address the issue particularly of the difference of the substance analyzed in the Certificate of Analysis with the substance particularized on the Information in this proceeding.

Released: September 6, 2017 Signed: Justice M.D. McArthur