2012 QCCA 20, 2012 QCCA 20

Unofficial English Translation R. c. Archambault 2012 QCCA 20 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004640-10 6 (500-01-010654-082) DATE: JANUARY 6, 2012 ____________________________________________________________________________ CORAM: THE HONOURABLE FRANCE THIBAULT, J.C.A. LORNE GIROUX, J.C.A. RICHARD WAGNER, J.C.A. ____________________________________________________________________________ HER MAJESTY THE QUEEN APPELLANT – Prosecution v.

MATHIEU ARCHAMBAULT -and- JONATHAN SCALLON RESPONDENTS - Accused _____________________________________________________________________________ JUDGMENT ____________________________________________________________________________ [ 1 ] The appellant appeals from a judgment rendered on February 15, 2010, of the Court of Quebec (the Hon. Patrick Healy) who, stating a violation by the police of paragraph 10(

b) of the Canadian Charter of Rights and Freedoms , excluded all of the evidence seized during a search, resulting in the acquittal of the respondents. [ 2 ] For the reasons of Justice Wagner, with Justices Thibault and Giroux concurring, THE COURT [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the decision of the first judge who ordered the exclusion of all of the evidence seized; [ 5 ] REVERSES the acquittal; [ 6 ] ORDERS that a new trial be held. FRANCE THIBAULT, J.A. LORNE GIROUX, J.A. RICHARD WAGNER, J.A. Antoine Piché Pierre Goulet Criminal and Penal Prosecutors For the Appellant Alexandra Longueville RABY DUBÉ LE BORGNE

Michel Aubin (also for Mr. Scallon) For the Respondents Date of hearing: November 24, 2011 REASONS OF JUDGE WAGNER [ 7 ] The appellant appeals from a judgment rendered by the Court of Quebec (the Hon. Patrick Healy) who, noting a violation by the police of paragraph 10(

b) Canadian Charter of Rights and Freedoms (hereinafter the “ Charter ”), excluded all of the evidence seized during a search, resulting in the acquittal of the respondents. FACTS [ 8 ] As part of an investigation into the Armement Munitions Explosifs (AME) Squadron of the Sûreté du Québec, the respondent Mathieu Archambault had been under surveillance from April to August 2008.

He is suspected of participating in activities related to firearms trafficking in the Montréal region. [ 9 ] The investigation established that he is in regular contact with a man named Massiso Corbain, an individual known from police information and linked to a street gang involved in various violent incidents in Montréal. [ 10 ] On August 8, 2008, police surveillance showed that the respondent Archambault left 2895 Laurier East in his vehicle, went to 1041 59th Avenue at Pointe-aux-Trembles, entered the residence and came out with a package that he put in the trunk of his car.

He then went to a warehouse located at 13550 Henri-Bourassa Blvd., entered and came out with a blue plastic container that he also put in his trunk. He then headed toward the business Méga-Courrier located at 11752 54th Avenue, took the packages out of his trunk and entered the building. [ 11 ] The investigators saw the comings and goings of respondent Archambault between his vehicle and the building. At the time, he wore gloves stained with a blue substance.

According to police information, the "bluing" operation of a firearm is the final stage in its manufacture. [ 12 ] One of the investigators passed close to the business and saw respondent Scallon inside punching holes in a piece of metal while the hands of respondent Archambault were stained with a blue substance. [ 13 ] On the basis of these observations, the police felt that they had reasonable grounds to believe that the respondents have committed or are on the verge of committing offences related to the manufacture of firearms. They decided to obtain a search warrant.

Police officer Claude Mitton wrote the affidavit required for obtaining it. [ 14 ] Around 6:10 p.m., the respondents left Méga-Courrier in Scallon's vehicle. Fearing that the firearms would be put into circulation, the police decided to intercept them in the vicinity of the business. They arrested them, read them their right to remain silent and right to counsel, but advised them that they could not exercise this right before the search warrant was obtained. [ 15 ] The evidence showed that from 6:10 p.m. to 11:45 p.m., the respondents were seated and handcuffed in the police vehicle.

The police made no attempt to elicit evidence or incriminating statements. [ 16 ] The search warrant was delivered at 11:45 p.m.

Respondent Scallon contacted his lawyer for the first time at 12:55 a.m. and respondent Archambault did the same at 1:28 a.m. [ 17 ] The search of Archambault's vehicle resulted in the seizure of the following: 6 boxes of projectiles containing a total of 115 .223 calibre bullets of the Wolf brand; 6 packs containing a total of 300 .22 calibre bullets; Approximately 208 grams of cannabis. [ 18 ] The search of Méga-Courrier resulted in the seizure of the following additional evidence: 3 Colt brand rifle barrels, AR-15 model, .223 calibre Remington; 3 metal bodies used in the manufacture of the Colt AR-15 rifle, .223 calibre Remington, no serial number; 3 grips used in the manufacture of the Colt AR-15 rifle, .223 calibre Remington, no serial number; 3 plastic hand grips used in the manufacture of the Colt AR-15 rifle, .223 calibre Remington, no serial number; 3 internal mechanism kits used in the manufacture of the Colt AR-15 rifle, .223 calibre Remington, no serial number;

6 plastic magazines used in the manufacture of the Colt AR-15 rifle, .223 calibre Remington, no serial number; 1 hand gun in parts, HS brand, model 21, .22 calibre, altered serial number; A large quantity of tools that may be used in the manufacture of firearms; 506 grams of cannabis. [ 19 ] As a result of these searches, the police obtained new warrants to search Scallon's vehicle and Archambault's residence located at 555 27th Avenue, Apt. 3. Other searches were conducted at 13550 Henri-Bourassa Blvd.

East, at 1041 59th Avenue, Montréal, and 2895 Laurier East, the latter being the residence of Stéphanie Beauchemin, Scallon's friend. [ 20 ] These additional searches resulted in the seizure of much more evidence, including: In Scallon's vehicle: 1 Sony cellphone on the front passenger seat; 1 blue and white glove on the front passenger seat; 1 gold-coloured Telus telephone, on the driver's side sun visor; 1 Blackberry telephone from Telus; 2.83 grams of cannabis, in a cigarette pack found in the driver's side door.

At 555 27th Avenue, Apt. 3, Montréal: 14 business cards, several of which are for companies associated with firearms; Various documents and a set of 7 keys; 1 USB key, item 1, and a computer tower (still being analyzed). 13550 Henri-Bourassa Blvd. East Inside a Jacob plastic bag, a "small Frame Body" design for a AR-15 type of rifle; Several pieces of metal that may be used in the construction of firearms.

At 1041 59th Avenue, Montréal: More than 3000 pieces of ammunition of various calibres; More than 2070 empty shell cases of various calibres; 9 boxes of gun powder; 1 box of pellets of the Frontiers brand; 3 bags of black powder; 14 bullet primers; 150 bullets for ammunition; More than 60 parts and bodies of firearms from various models, including AR-10 and AR-15; More than a dozen magazines including several of large capacity; 2 12 calibre rifles, one with a sawed off barrel; 4 starting pistols, two of which have an altered barrel.

At 2895 Laurier East: 266 bullets of various calibres; A .22 calibre rifle, of the Norinco brand, model EM-321. [ 21 ] On August 13, 2008, the respondents appeared to answer to the following charges: With respect to Mathieu ARCHAMBAULT (001), Jonathan SCALLON (002) 1. On or around August 8, 2008, in Montréal, the District of Montréal, conspired together to commit an indictable offence, i.e. manufacture of firearms (Ar-15 type rifle, .223 calibre), thereby committing the criminal act under paragraph 465(1) (

c) of the Criminal Code ; 2. On or around August 8, 2008, in Montréal, the District of Montréal, manufactured firearms, including 3 AR-15 rifles, knowing that they were not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament, thereby committing the criminal act under subsection 99(2) of the Criminal Code ; 3.

On or around August 8, 2008, in Montréal, the District of Montréal, had in their possession firearms including 3 AR-15 rifles, knowing that they were not the holders of a licence authorizing such possession and registration certificates for these firearms, thereby committing the criminal act under subsections 92(1) , (3) of the Criminal Code ; 4. On or around August 8, 2008, in Montréal, the District of Montréal, had in their possession prohibited devices including large capacity magazines, knowing that they were not the holders of a licence authorizing such possession, thereby committing the criminal act under

subsections 92(2) , (3) of the Criminal Code . With respect to Matthieu ARCHAMBAULT alone 5. On or around August 6, 2008, in Montréal, the District of Montréal, had in his possession 2 unloaded prohibited firearms with easily accessible ammunition that could be used with them, without being the holder of an authorization or a registration certificate for 1 12 cal. sawed off gun and the registration certificate for these firearms, thereby committing the criminal act under paragraph 95(2) (

a) of the Criminal Code ; 6. On or around August 8, 2008, in Montréal, the District of Montréal, had in his possession 2 firearms including 2 12 cal. sawed off guns knowing that he was not the holder of a licence authorizing such possession, thereby committing the criminal act under subsection 92(1) , (3) of the Criminal Code . With respect to Mathieu ARCHAMBAULT (001) 7.

On or around August 8, 2008, in Montréal, the District of Montréal, had in his possession prohibited devices including large capacity magazines, prohibited ammunition and a barrel of a handgun that does not exceed 105 mm, knowing that he was not the holder of a licence authorizing such possession, thereby committing the criminal act under subsection 92(2) , (3) of the Criminal Code . SQ-034080314001 With respect to Mathieu ARCHAMBAULT (001) 8. On or around August 8, 2008, in Montréal, the District of Montréal, stored firearms in contravention of a regulation made under paragraph 117(

h) of the Firearms Act , thereby committing the criminal act under subsections 86(2) , (3) (

a) of the Criminal Code . With respect to Mathieu ARCHAMBAULT (001), Jonathan SCALLON (002) 9. On or around August 8, 2008, in Montréal, the District of Montréal, stored firearms in contravention of a regulation made under paragraph 117(

h) of the Firearms Act , thereby committing the criminal act under subsections 86(2) , (3) (

a) of the Criminal Code . SQ-034080314001 With respect to Jonathan SCALLON (002) 10. On or around August 8, 2008, in Montréal, the District of Montréal, stored firearms in contravention of a regulation made under paragraph 117(

h) of the Firearms Act , thereby committing a criminal act under subsections 86(2) , (3) (

a) of the Criminal Code . SQ-034080314001 With respect to Jonathan SCALLON (002) 11. On or around August 8, 2008, in Montréal, the District of Montréal, had in his possession a firearm including a .22 cal. revolver, knowing that its serial number had been altered, defaced or removed, thereby committing the criminal act under paragraphs 108(1) ( b ), (2) (

a) of the Criminal Code . [ 22 ] On September 22, 2009, at the start of proceedings, the respondents brought a motion to obtain remedy under subsection 24(1) of the Charter and another motion under subsection 24(2) of the Charter to exclude all evidence seized in violation of their constitutional rights in sections 8 and 9 and in subsection 10(b) . [ 23 ] On February 15, 2010, the judge found that there had been no violation of sections 8 and 9 of the Charter , but noted that the suspension of the right to retain counsel under subsection 10(

b) was unjustified and that the only appropriate remedy, in accordance with subsection 24(2) of the Charter , is to exclude from evidence everything seized after the right to retain counsel was suspended. Given that there was no other evidence, the prosecution acknowledged the judge's decision that acquitted the respondents. The trial judge did not decide on the first motion filed under subsection 24(1) of the Charter . GROUNDS OF APPEAL [ 24 ] In her memorandum, the appellant argued that the trial judge erred in law in finding that the suspension of the right to retain counsel resulted in a violation of subsection 10(

b) of the Charter . [ 25 ] In the alternative and taking into account that there was a violation of subsection 10(

b) of the Charter , the appellant asked this Court to find that there was an insufficient causal connection between this violation and the discovery of the seized evidence, that this violation had no impact on the rights of the accused and that the rejection of the proof of such evidence would put the administration of justice into disrepute. [ 26 ] I propose to deal with these three grounds in the same manner. First ground of appeal [ 27 ] Did the suspension of the right to counsel result in a violation of subsection 10(

b) of the Charter ?

[ 28 ] On this ground, the trial judge stated: [15] It would appear self-evident that there is here a violation of the right to counsel in

section 10(

b) of the Charter . Even the police in their testimony candidly admit that they deliberately suspended this right pending the return of a telewarrant. I must now consider whether anything in these circumstances would justify such a deliberate suspension and thus foreclose the conclusion that there was a breach of

section 10 (b). [ 29 ] The judge continued his analysis and found that [24] The authorities do not support the existence of a discretionary power in the police to suspend the right to counsel of a person whom they have arrested for tactical considerations related to the advancement of an investigation by other means. Unless there are exigent circumstances of urgent and pressing necessity, the police are obliged to comply with

section 10 (

b) according to its terms as interpreted by the jurisprudence. Quite apart from the authorities, however, I cannot readily imagine a point of principle that would justify the existence of an ancillary power to suspend the right to counsel for tactical reasons. That right exists to ensure the availability of prompt assistance to those whom the state has put in jeopardy.

A power to suspend the right to counsel would imply the ability of the state to put someone in jeopardy by arrest or detention and, at the same time, the power to deny the right to legal assistance of those in conspicuous need. [ 30 ] However, the appelant argues that the suspension of the right to counsel was amply justified given that the police believed that there was an urgency in preserving evidence and that the right to counsel might put the ongoing police investigation in jeopardy. [ 31 ] It would be appropriate to point out that the search warrants were eventually carried out in seven different locations, including the residence of respondent Archambault, of his father-in-law in Pointe-aux-Trembles, of his spouse, in the vehicles of respondents Archambault and Scallon and in the warehouse on Henri-Bourassa Street.

However, on August 8, 2008, only the search warrants carried out in the vehicle of respondent Archambault and in the warehouse located on Henri-Bourassa were contemplated before their arrest and the suspension of their right to counsel. [ 32 ] The appellant acknowledged that the police officers had violated the right of the respondents to retain the services of counsel by refusing to authorize the telephone call before the search warrant was received. However, she argues that there were special circumstances that do not result in a finding of violation of subsection 10(

b) of the Charter . [ 33 ] The respondents argued that there was no reason that could justify the suspension of the right to retain counsel.

At the time of the respondents' arrest, no other warrant was contemplated and the father of one of the respondents was aware of the arrest of his son as of 6:30 p.m. the same day since he appeared unannounced in front of the police vehicle in which his son was being held. [ 34 ] In this case, does the respondents' detention, without allowing them the right to retain counsel, raise special circumstances? [ 35 ] This Court has already noted that the right to counsel is substantive, not absolute. [ 36 ] It is now accepted that the suspension of the right to counsel would be justified in special circumstances: if the security of the police or the public is threatened, if there is an imminent risk that evidence would be destroyed or lost or that another ongoing police operation could be jeopardized. [ 37 ] The evidence indicated that the police decided to suspend the right to retain counsel because it feared that such contact would put the ongoing police investigation at risk.

They believed that the preservation of certain evidence would be threatened if the respondents were able to contact their lawyer. These last reasons, while having the benefit of being candid, have no basis. [ 38 ] In support of their claims, the investigators explained that, although Méga-Courrier and the vehicles were under their control at the time of the arrest, other searches were needed in locations that were then beyond their control. [ 39 ] The grounds raised by the police were explained during the cross-examination of investigator Hugo Blackburn, who stated: [TRANSLATION] ...

Your Honour, it is out of fear that evidence will be destroyed. We are waiting to search locations and then if that location turns out to be positive, there are other locations to search. Does the fact that a person is arrested, contacts counsel, that counsel is of good faith, then the person asks, Could you contact my father, he is waiting for me for dinner or he is waiting for me, and tell him that I was arrested by the police; mean that the evidence will be destroyed?

I have no idea, but as long as we have not secured Méga Courrier, that the judicial authorizations have not been done, it is difficult for us to allow open contact with a lawyer out of fear that evidence would be destroyed , simply put. ... Could you contact my girlfriend, my father or my mother, tell them that I was arrested by the police. This is something that a lawyer could do as a service to someone without having a devious mind or at all. [ 40 ] The trial judge rejected these explanations. He stated the following: [20] None of these justifications is applicable in this case.

Upon the arrest and search of the accused, they and the premises were under police control. There was no risk of imminent harm to police officers or anyone else. There was no risk of imminent loss of material items. And there was no risk of frustration or compromise concerning a police operation in progress. In short, to use the language of the cases, the situation was not out of control and it was not volatile. Here the police were unfortunately caught in a tactical disadvantage created solely by their own decision to arrest the accused.

That does not create or imply exceptional circumstances that could justify an exception to the duties imposed upon police officers by the Constitution.

[41] I am of the view that the trial judge's decisions on this ground of appeal are reasonable and in accordance with the state of thelaw, particularly as the additional searches were not contemplated at the time of the arrest and detention of respondents, that the situationwas under the control and the physical evidence that was being sought under the expected search warrants were not at risk ofdisappearing. [42] I cannot bring myself to agree that retaining the services of counsel can generate in the minds of investigators a sufficient fearthat may, alone, justify the suspension of this important constitutional right. [43] I am of the view that the appellant has not established the existence of special circumstances that could have, on August 8, 2005,justified the suspension of the constitutional right to retain counsel.

Second ground of appeal [44] That being said, is there a causal link between the seized evidence and the suspension of the right to counsel? [45] Because there was a violation of paragraph 10(

b) of the Charter, the judge was required to consider the causal link between thesaid violation and the discovery of the seized evidence before deciding to exclude it in accordance with subsection 24(2) of the Charter. [46] Was the evidence obtained in a manner that infringed a constitutional right? [47] The appellant contends that the respondents cannot derive authority from subsection 24(2) of the Charter to exclude proof ofseized elements from the record because they were discovered through the execution of search warrants that are not connected to theviolation of the right to counsel.

Therefore, there is no causal link and they cannot be excluded. [48] The respondents instead maintain that the trial judge was correct in finding an important temporal link between suspending theright to counsel, that is, the violation of paragraph 10(

b) of the Charter, and obtaining the physical evidence that is the subject of theexclusion.

Because the evidence was gathered around the same time as the suspension, it follows that the trial judge was correct inexcluding all seized elements from the record to the extent that his analysis at the second step of subsection 24(2) allowed him to findthat keeping that evidence in the record would bring the administration of justice into disrepute. [49] I note, like the parties, that, throughout the suspension of the constitutional right to counsel, the investigators did not extract fromthe respondents any statement of an incriminating nature or other evidence that could subsequently be used against them in court.

Theydid not even attempt to do so. The trial judge agreed with that. The incriminating evidence arises only from the exercise of the searchwarrant that was requested even before the respondents were arrested and the application of the warrant ended the suspension.

Thatevidence was completed by the execution of new search warrants obtained independently from the suspension of the right to counsel. [50] For the purposes of analyzing the first step of subsection 24(2) of the Charter, must the judge accept the causal link, the temporallink or a mixture of the two when it is time to determine whether the physical evidence was obtained in a manner that infringed or deniedCharter rights? [51] Here is how the problem was presented by the Supreme Court in R. v.

Strachan, in which Justice Dickson stated the following: 35 Counsel for the Crown submitted that the narcotics should not be excluded under s. 24(2). The respondent advanced twoarguments for this submission. First, the Crown contended that there was no direct relationship between the breach of the accused's rightto counsel and the discovery of the drugs. Absent a causal connection, the evidence could not be said to have been obtained in a mannerthat infringed the Charter, and therefore s. 24(2) could not be invoked to exclude the evidence in question.

Second, and in thealternative, the respondent submitted that on the test enunciated in R. v. Collins, (SCC), [1987] 1 S.C.R. 265, forexclusion under s. 24(2), the evidence ought not to be excluded. I will consider each of these arguments in turn. [52] Once the problem was established, Justice Dickson continued his thoughts as follows: 46 In my view, all of the pitfalls of causation may be avoided by adopting an approach that focuses on the entire chain of eventsduring which the Charter violation occurred and the evidence was obtained.

Accordingly, the first inquiry under s. 24(2) would be todetermine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of theCharter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and thediscovery of the evidence occur in the course of a single transaction. The presence of a temporal connection is not, however,determinative.

Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from theviolation to be "obtained in a manner" that infringed the Charter. In my view, these situations should be dealt with on a case by casebasis.

There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomestoo remote. 47 If a Charter violation has occurred in the course of obtaining the evidence, the analysis will proceed to the second, and in myview the more important, branch of s. 24(2), whether the admission of the evidence would bring the administration of justice intodisrepute. . . . [53] That decision was followed, a few years later, by R. v.

Goldhart, which seems, at first glance, to temper the approach suggestedby Justice Dickson in Strachan. [54] In Goldhart, the following are Justice Sopinka’s most relevant reasons: 40 Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entirerelationship between the Charter breach and the impugned evidence, causation was not entirely discarded. Accordingly, while a

temporal link will often suffice, it is not always determinative. It will not be determinative if the connection between the securing of theevidence and the breach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only tothe temporal connection but to the causal connection as well. It follows that the mere presence of a temporal link is not necessarilysufficient. In obedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it isappropriate for the court to consider the strength of the causal relationship.

If both the temporal connection and the causal connection aretenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under theCharter. On the other hand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance. Once the principles of law are defined, thestrength of the connection between the evidence obtained and the Charter breach is a question of fact.

Accordingly, the applicability ofs. 24(2) will be decided on a case-by-case basis as suggested by Dickson C.J. in Strachan. [55] The appellant argues that the qualification in Goldhart had to lead the trial judge to explore an actual causal relationship betweenthe derivative physical evidence obtained and the violation of the constitutional right set out in paragraph 10(

b) of the Charter.

Becauseobtaining that evidence is not a direct result of the suspension of the right to counsel, but is instead a result of the legal exercise ofsearches, it follows that the evidence obtained is not linked to the violation of any constitutional rights. [56] The respondents argue that the causation test is insufficient and can result in perverse effects of such nature as to encouragepolice forces to suspend constitutional rights in situations where search warrants are contemplated, thus eliminating the obligation tocomply with the Charter. [57] I take from the teachings of Goldhart and Strachan that there is no absolute rule.

The examination of the temporal link does notnecessarily involve eliminating the examination of the causal link. Even if it is true that a very strong temporal link is likely to militate infavour of the finding that evidence was obtained in a manner that infringed on constitutional rights, the relevance of examining thecausal link was not completed set aside. This case is glaring evidence of that. I will explain. [58] The record shows that the evidence excluded by the trial judge originated from the legally authorized search. This reality has nolink to the suspension of the right to counsel.

In light of the teachings of the Supreme Court and by applying them on a case-by-casebasis, the analysis of the causal link and that of the temporal link leads to only one finding: the physical evidence was not obtained in amanner that violates the Charter. [59] I am of the opinion that the facts in this case closely resemble those discussed in Tardif, in which our Court stated the following: [TRANSLATION] 29 Regarding the right to counsel, even by assuming, for the purposes of the appeal, that there was a violation of that right given thedelay between the arrest and the consultation of counsel, the truth of the matter is, because they did not made a statement, it is difficultfor the appellants to argue that it had an impact on what was to follow.

In reality, the seizure had nothing to do with whether or not theright to counsel was exercised and it would have taken place all the same, with the result that the right to counsel issue cannot, here,constitute an argument in favour of excluding the evidence of discovery of the drug. There is ultimately no link between the exercise ofthat right and the discovery of the evidence: R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463; R. v. Strachan (SCC), [1988] 2 S.C.R. 980. [60] I therefore find that the trial judge committed an error of law on the causal link issue and propose to allow the second ground ofappeal.

By reason of this finding, it would not be necessary to determine whether the use of the evidence was likely to bring theadministration of justice into disrepute, which encapsulates the essence of the analysis of the second step of subsection 24(2) of theCharter. However, by reason of the trial judge’s decision that the evidence was obtained in a manner that violates the Charter, but that itwas necessary to exclude it to not bring the administration of justice into disrepute, I will nevertheless continue with an examination ofthe third ground of appeal.

Third ground of appeal [61] Once the violation of paragraph 10(

b) of the Charter was established and assuming that there was a sufficient causal link betweenthat violation and the evidence obtained to find that evidence was obtained contrary to the Charter, did the judge err by finding that theadmissibility of the evidence was of such nature as to bring the administration of justice into disrepute? [62] In my opinion, that is the crucial step in the test imposed on the trial judge.

With the greatest respect for him, I am of the viewthat he committed a determinative error in the application of the test to the facts in dispute. [63] The test set out by the Supreme Court in Grant should have led the trial judge to make a finding in favour of the admissibility ofthe evidence despite the existence of a violation of paragraph 10(

b) of the Charter. The reason is this. [64] [64] In Grant, the Supreme Court suggested parameters that must guide judges in exercising of their discretion at the secondstep of the analysis of subsection 24(2) of the Charter. It therefore stated the following: 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.

(Emphasis added.) [ 65 ] Thus, the judge must weigh the following elements once the violation is found: 1) The seriousness of the Charter -infringing state conduct; 2) The impact of the breach on the Charter -protected interests of the accused; 3) Society’s interest in the adjudication of the case on its merits. [ 66 ] I emphasize that it is not a paramountcy exercise because all of the criteria are assessed as a whole to make it possible to determine whether, according to the circumstances, the use of the evidence is likely to bring the administration of justice into disrepute. [ 67 ] That being said, it is not up to a court of appeal to review the assessment of the evidence carried out by the trial judge and to substitute its own assessment for it.

It will intervene only in the presence of an apparent error in the application of the law to the facts in dispute or a palpable and overriding error in the findings of fact. We were reminded of this principle in R. v. Côté especially. The Supreme Court then specified that determinations by trial judges must stand when they have taken into account all considerations and have not made any unreasonable finding. It must be noted that, in the case, the police breached almost all of the rules of natural justice and several provisions of the Charter and that the evidence obtained arose directly from those breaches.

That is not the case here. [ 68 ] Trial judges recognize that they must apply the criteria put forward by the Supreme Court in Grant. However, they commit an error when they state the following: This Court cannot admit the items seized without, in the same breath, condoning the breach. [ 69 ] Thus, the judge was shocked by the deliberate violation of paragraph 10(

b) of the Charter and found that allowing the admission in evidence of the elements seized for police investigation strategy reasons would violate fundamental values as prescribed under the Charter. Although I share the trial judge’s opinion on the unfortunate nature of the breach, I am nevertheless of the view that he committed an error by not methodically analyzing all of the parameters suggested in Grant. [ 70 ] I propose to review the three criteria the trial judge was required to examine before deciding to exclude evidence.

THE SERIOUSNESS OF THE CHARTER -INFRINGING STATE CONDUCT [ 71 ] Of all of the elements that must be considered or weighed, I am of the opinion that the judge failed to consider the following elements: 1) The police officers acted in good faith - which he indeed acknowledged - and never tried to obtain admissions or incriminating information during the period that the right to counsel was suspended; 2) Beyond the fact that the violation was serious and deliberate and that it was necessary to dissociate himself from it, the trial judge did not address the impact of the breach on the interests of the respondents.

Such an analysis clearly favoured the admissibility of the evidence rather than its exclusion; 3) Even if there was a temporal link between the evidence obtained and the suspension of the right to counsel, there was no causal link because the discovery of the evidence was not dependent on the suspension of the right to counsel, but resulted from the search for which the warrant was requested even before the respondents were arrested. 4) The judge failed, in his decision, to elaborate on the nature of the evidence seized. It consisted of many high powered firearms and a considerable amount of ammunition.

The trial judge also was required to analyze the nature of that evidence in light of society’s interest in the adjudication of the case on its merits. [ 72 ] In light of the facts in evidence before the trial judge, I am of the opinion that he was required to find that the violation of constitutional rights was not marked by bad faith. He indeed acknowledged that the police officers read the Charter rights and that they did not try to obtain admissions or statements of an incriminating nature. In short, even if there was a violation of paragraph 10(

b) of the Charter , it was not the most outrageous. I am of the view that the level of significance of the Charter -infringing state conduct is at the low end of the spectrum of seriousness. THE IMPACT OF THE BREACH ON THE CHARTER -PROTECTED INTERESTS OF THE ACCUSED [ 73 ] Despite the suspension of the right to counsel, the evidence shows that no element was obtained during the suspension that may have caused subsequent harm to the respondents.

On that point, the evidence was obtained legally by the exercise of search warrants and is not comparable to obtaining information that arises directly from the suspension of the right to counsel. I am therefore of the opinion that that element also militates in favour of rejecting the exclusion of the evidence seized.

In fact, aside from the eventuality of having to go to trial, there is no impact of the breach on the interests of the accused in this case. [ 74 ] Thus, Justice Chamberland stated the following in James : [TRANSLATION] [22] Second, it must be said that the appellant did not suffer any harm from the fact that his right to counsel was suspended for a few hours. The written statement, the only really incriminating one, was taken by Officer Langlais and Officer Barron starting at 1:40 a.m. on May 13, 1995, well after the appellant spoke to the Toronto lawyer from legal aid’s on-call service and to Mr. Cavaliere.

Throughout the time when his right to counsel was suspended, the police refrained from trying to extract evidence from him. Regarding the statement the appellant made to Officer Grady around the middle of the afternoon, it was made in a completely spontaneous manner, without the police officer seeking to extract any information at all; on this point, the trial judge accepted Officer Grady’s version rather than that of the appellant.

[ 75 ] I am of the opinion that, with respect to the evidence obtained, the respondents did not suffer harm because their right to counsel was suspended for several hours. That criterion also militates against the exclusion of the evidence in the record. SOCIETY’S INTEREST IN THE ADJUDICATION OF THE CASE ON ITS MERITS [ 76 ] It has been established that society always has an interest in ensuring that criminal matters related to serious offences are resolved one way or another before the courts.

That being said, the offences the respondents were charged with here are very serious and the evidence obtained through the search warrants demonstrates the importance and the seriousness of the offences. [ 77 ] Once again, I am of the opinion that, in such circumstances, society has an interest in continuing the judicial process. [ 78 ] By failing to consider the impact of the breach of the respondents’ rights as well as the lack of exploitation of that violation by the police, the trial judge committed an error in principle that alone authorizes the intervention of the Court.

The Charter -infringing state conduct was not the most serious in the circumstances. The impact on the interests of the respondents was essentially minor. Even if all violations of constitutional rights must be denounced absent exceptional circumstances, it is possible to achieve the objective of denunciation without excluding from the record all evidence seized during searches. [ 79 ] Finally, the evidence was discovered following the legal searches.

It is reliable, of central importance for the prosecution and is part of an imposing panoply of firearms, the use and manufacturing of which is strictly prohibited by the Criminal Code . CONCLUSION [ 80 ] In this case, the trial judge found that the evidence was obtained contrary to the constitutional rights enshrined in paragraph 10(

b) of the Charter and that he had no other choice but to exclude the evidence obtained through the searches by reason of that violation. [ 81 ] With respect, that syllogism is deficient and incomplete. The evidence does not establish any causal link between the violation of the Charter and the evidence obtained. Furthermore, the equation by the judge between the violation of the Charter and the exclusion of the evidence does not respect the principle that arises from the test as set out by the Supreme Court in Grant.

If he had done a structured analysis of the said criteria, the trial judge would have come to the conclusion that all of the evidence could not be excluded from the record according to subsection 24(2) of the Charter, even in the presence of a clear and flagrant violation of paragraph 10( b ) . [ 82 ] For these reasons, I am of the opinion that the overall assessment of the considerations set out in Grant should have led the trial judge to find that the seized evidence was admissible, independently of the violation of the respondents’ immediate right to counsel and, therefore, that it was not of such nature as to bring the administration of justice into disrepute. [ 83 ] For these reasons, I propose to allow the appeal, to set aside the decision by the trial judge ordering the exclusion of all seized evidence, to set aside the judgment of acquittal and order a new trial.

RICHARD WAGNER, J.C.A.