R. v. Newman, 2014 NLCA 48

Date: 20141205 Docket: 12/88 Citation: R. v. Newman , 2014 NLCA 48 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : RAYMOND NEWMAN RESPONDENT Coram: Green C.J.N.L., Welsh and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201001G5822 (2011 NLTD(G) 92; 2012 NLTD(G) 30, 61, 95 and 151) Appeal Heard: October 22, 2014 Judgment Rendered: December 5, 2014 Reasons for Judgment by Welsh J.A. Concurred in by Green C.J.N.L. and Harrington J.A. Counsel for the Appellant: Iain Hollett

Counsel for the Respondent: Michael King and Jeremy de Jong Welsh J.A.: [ 1 ] Raymond Newman was acquitted of a charge of murder when the Crown conceded that, as a result of preliminary rulings excluding certain evidence, there was insufficient evidence on which the Crown could proceed with the charge. The inadmissible evidence included a statement Mr. Newman gave to the police and evidence taken from his vehicle and his residence. The Crown concedes violations of Mr.

Newman’s rights under the Canadian Charter of Rights and Freedoms and appeals only the validity of the warrant to search the house and the trial judge’s decisions under section 24(2) of the Charter excluding evidence taken from the vehicle and the residence. BACKGROUND [ 2 ] The trial judge gave written reasons relating to issues arising in voir dires held in preparation for the trial. At issue were alleged Charter violations related to Mr.

Newman’s statement to the police (2011 NLTD(G) 92, and 2012 NLTD(G) 61), and to evidence seized from his vehicle (2012 NLTD(G) 30) and his residence (2012 NLTD(G) 95, and 2012 NLTD(G) 151). (An additional voir dire regarding hearsay statements is not in issue in this appeal.) [ 3 ] At 7:45 p.m. on January 21, 2007, the body of Mr. Newman’s estranged wife was found in her residence where she had been murdered sometime before 1:00 p.m. that day. Late that night, the police located Mr. Newman and his infant daughter at his parents’ residence. It was not unusual for Mr.

Newman to exercise access to his infant daughter at his parents’ rather than his own residence. [ 4 ] Mr. Newman was taken to the police station shortly before midnight and questioned until about 3:00 a.m. The trial judge concluded that, during the whole of this time, Mr. Newman had been detained and that his statement had been obtained in violation of his Charter rights. The judge emphasized (2012 NLTD(G) 30 (the “vehicle decision”)): [ 5 ] I also found as a fact that while Mr. Newman was in their custody the [police] officers committed serious, flagrant and deliberate breaches of Mr.

Newman’s Charter protected rights, specifically sections 7 , 9 , 10(

a) and 10(b) . [5] The trial judge excluded Mr. Newman’s statement on the basis of the Charter violations and the Crown’s failure to prove that the statement was given voluntarily (2011 NLTD(G) 92, at paragraph 127, and 2012 NLTD(G) 61, at paragraph 46). [ 6 ] Mr. Newman had not been allowed to drive his car to the police station.

When the police returned him to his parents’ residence about 3:00 a.m., the police demanded that he give them the keys to his car and told him not to go near either the vehicle or his residence, both of which had been under continuous police surveillance. [ 7 ] The Crown concedes that the warrant to search the vehicle was invalid because it was obtained in a manner that violated Mr. Newman’s Charter rights. Nonetheless, the Crown submits that the trial judge erred in excluding the evidence obtained from the search. [ 8 ] Regarding the search of Mr.

Newman’s residence, the Crown submits that, in reviewing the warrant, the trial judge erred by excluding facts set out in the information to obtain the warrant, rather than including additional information that should have been before the issuing justice of the peace. If the warrant was invalid, the Crown submits that the trial judge erred in excluding the evidence obtained from the search of Mr. Newman’s residence. ISSUES [ 9 ] At issue is whether the trial judge erred in his analysis and resulting conclusion to exclude evidence obtained from Mr. Newman’s car and his residence.

The appeal raises issues as to the characterization of evidence as derivative and its relevance to the analysis, the appropriateness of separating issues as to the searches from Mr. Newman’s invalidly obtained statement, and the judge’s role in assessing the reliability of the evidence. [ 10 ] Regarding the warrant to search the house, at issue is whether information omitted by the police in obtaining the warrant should be considered by the reviewing judge for purposes of determining the validity of the warrant.

ANALYSIS Standard of Review [ 11 ] The standard of review applicable to a trial judge’s determination under section 24(2) of the Charter is succinctly stated in R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215: [44] … Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review ( Grant [2009 SCC 32 , [2009] 2 S.C.R. 353], at para. 86, and Beaulieu [2010 SCC 7 , [2010] 1 S.C.R. 248], at para. 5). The Section 24(2) Test [ 12 ] Section 24(2) of the Charter provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. [13] Principles regarding application of this provision, set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, are summarized inR. v. Côté.

The analysis begins with three avenues of inquiry: [47] The first line of inquiry involves an evaluation of the seriousness of the state conduct. The more serious the state conductconstituting the Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked tothe conduct. The second line of inquiry deals with the seriousness of the impact of the Charter violation on the Charter-protectedinterests of the accused. The impact may range from that resulting from a minor technical breach to that following a profoundlyintrusive violation.

The more serious the impact on the accused’s constitutional rights, the more the admission of the evidence is likelyto bring the administration of justice into disrepute. The third line of inquiry is concerned with society’s interest in an adjudication onthe merits. It asks whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of theevidence. The reliability of the evidence and its importance to the prosecution’s case are key factors.

Admitting unreliable evidencewill not serve the accused’s fair trial interests nor the public’s desire to uncover the truth. On the other hand, excluding reliable evidencemay undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective. The importanceof the evidence to the Crown’s case is corollary to the inquiry into reliability.

Admitting evidence of questionable reliability is morelikely to bring the administration of justice into disrepute where it forms the whole of the prosecution’s case, but excluding highlyreliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to “gut” theprosecution’s case. [48] After considering these factors, a court must then balance the assessments under each of these avenues of inquiry in making its s.24(2) determination. There is no “overarching rule” that governs how a court must strike this balance (Grant, at para. 86).

Rather,“[t]he evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances,admission of the evidence would bring the administration of justice into disrepute” (Harrison [2009 SCC 34, [2009] 2 S.C.R. 494], atpara. 36).

No one consideration should be permitted to consistently trump other considerations. … In all cases, courts must assess thelong-term repute of the administration of justice. (Emphasis added.) [14] Under the third line of inquiry, seriousness of the offence, Cromwell J., for the Court, explained: [53] … Under this branch, relevant, reliable evidence that is crucial to the prosecution’s case will often point towards admission,though these considerations will have to be balanced against other relevant factors.

The seriousness of the offence, however, has thepotential to “cut both ways” and will not always weigh in favour of admission (Grant, at para. 84). While society has a greater interest inseeing a serious offence prosecuted, it has an equivalent interest in ensuring that the judicial system is above reproach, particularly whenthe stakes are high for the accused person.

Exclusion of Evidence from the Car [15] Evidence obtained from the car “consisted of the visual observation of a reddish-brown stain consistent with the appearance ofblood and forensic testing used to determine whether it was blood and, if so, whether DNA could be extracted from it to determinewhose blood it was” (vehicle decision, at paragraph 12). The stain, about four centimetres in length and two centimetres in width, wasfound on the passenger side of the center console in the front seat. It was clear that Ms. Predham-Newman had previously driven in thecar.

This was the family car prior to the couple’s separation and, about three weeks before the murder, Mr. Newman had picked up Ms.Predham-Newman from the airport and driven her to her apartment. [16] The Crown submits that the trial judge erred in characterizing the evidence from the car as derivative evidence, as described inGrant: [116] The class of evidence that presents the greatest difficulty is evidence that combines aspects of both statements and physicalevidence – physical evidence discovered as a result of an unlawfully obtained statement.

The cases refer to this evidence as derivativeevidence. … [17] McLachlin C.J.C. and Charron J., for the majority, went on to discuss derivative evidence as that concept developed in thejurisprudence. In light of the revised analytical approach adopted by the Court in Grant, characterization of evidence as derivative is oflimited value in the section 24(2) analysis. McLachlin C.J.C. and Charron J. discussed earlier jurisprudence respecting derivativeevidence: [119] The s. 24(2) jurisprudence on derivative physical evidence has thus far been dominated by two related concepts – conscriptionand discoverability.

Physical evidence that would not have been discovered but for an inadmissible statement has been consideredconscriptive and hence is inadmissible: R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, and Burlingham [(SCC), [1995] 2 S.C.R. 206]. The doctrine of “discoverability” has been developed in order to distinguish those cases in which theaccused’s conscription was necessary to the collection of the evidence, from those cases where the evidence would have been obtained inany event.

In the former cases, exclusion was the rule, while in the latter, admission was more likely. [120] The conscription-discoverability doctrine has been justifiably criticized as overly speculative and capable of producing anomalousresults: D. Stuart, “Questioning the Discoverability Doctrine in Section 24(2) Rulings” (1996), 48 C.R. (4th) 351; Hogg, at section41.8(d).

In practice, it has proved difficult to apply because of its hypothetical nature and because of the fine-grained distinctionsbetween the tests for determining whether evidence is “derivative” and whether it is “discoverable”: see Feeney, at paras. 68-71. [18] This led McLachlin C.J.C. and Charron J. to consider how the concepts of derivative evidence, discoverability and conscriptionshould be employed in a section 24(2) analysis. In the result, the earlier approach was set aside in favour of an analytical framework in

which discoverability is incorporated as just one factor to be considered: [122] Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter -infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. The converse, of course, is also true.

On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry. [123] To determine whether the admission of derivative evidence would bring the administration of justice into disrepute under s. 24(2), courts must pursue the usual three lines of inquiry outlined in these reasons, taking into account the self-incriminatory origin of the evidence in an improperly obtained statement as well as its status as real evidence. See also: R. v.

Côté , at paragraph 65 . [ 19 ] In balancing the factors that have been considered in the three lines of inquiry, McLachlin C.J.C. and Charron J., explained: [127] The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision.

As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2).

On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable . [128] The s. 24(2) judge must remain sensitive to the concern that a more flexible rule may encourage police to improperly obtain statements that they know will be inadmissible, in order to find derivative evidence which they believe may be admissible.

The judge should refuse to admit evidence where there is reason to believe the police deliberately abused their power to obtain a statement which might lead them to [derivative] evidence .

Where derivative evidence is obtained by way of a deliberate or flagrant Charter breach, its admission would bring the administration of justice into further disrepute and the evidence should be excluded. (Emphasis added.) [ 20 ] In this case, applying the analysis set out in Grant , and relying on cases such as Côté and Harrison , the judge concluded, in the vehicle decision: [35] These cases make it clear that it is the proper application of the three factors from Grant that is determinative, not the characterization of the evidence as being derivative or simply non-bodily physical evidence [such as a gun]. [ 21 ] In considering the Crown’s appeal regarding the evidence obtained from the car, I begin with a review of the trial judge’s conclusions applying the Grant analysis.

With respect to the first line of inquiry, seriousness of the state conduct constituting the Charter breach, the trial judge concluded that this factor weighs heavily in favour of excluding the evidence. He explained: [37] I found in my decision to exclude the statement that the police had committed numerous serious and flagrant violations of the accused’s Charter rights from almost the first moment they encountered him. These included breaches of his s. 7 right to remain silent, his s. 9 right against unlawful detention and his s. 10(

a) and 10(

b) rights to counsel. These violations led a few hours later to the further violation of Mr. Newman’s s. 8 rights against an unlawful search of his car. I also found the statement he gave to the police to be involuntary. [38] I find that the unlawful search of Mr. Newman’s car was part and parcel of one systematic, deliberate and planned disregard by the police of Mr. Newman’s rights designed to obtain incriminating evidence from him. This constellation of Charter breaches could scarcely be more serious.

On this basis, I reject the Crown’s submission that the illegal search of the vehicle should be treated separately from the other Charter breaches. This was all one transaction and should be treated as such ( R. v. Grant , [1993] 2 S.C.R. 223 ). So, even if the evidence is considered non-bodily physical evidence, it does not diminish the seriousness of the numerous breaches of Mr. Newman’s Charter rights, including those protected by s. 8 . (Emphasis added.) [ 22 ] The trial judge was satisfied that the breaches of Mr.

Newman’s rights were more serious than in the Harrison case, referred to in Côté (paragraph 13 , above), in which the Court excluded evidence of thirty-five kilograms of cocaine found in Harrison’s vehicle. He explained: [43] … the breaches of Mr. Harrison’s Charter rights were found to have stemmed from a reckless disregard of [Harrison’s] rights, not a systematic or deliberate violation of them. I have found that that is not the case here. I have found as a fact that the police deliberately set out to thwart Mr.

Newman’s Charter rights in order to obtain incriminating evidence from him and that the search of his car was a continuation of those actions. The Charter breaches in this case were therefore far more egregious than in Harrison . [44] I also found as a fact that the testimony of the police on the voir dire respecting the statement (which was adopted by consent as evidence in this application) was at times “disingenuous” (paras. 38 and 80), “self-serving” (para. 89), “not credible” (para. 88) and “less than forthcoming” (para. 88).

This is an aggravating factor which it is proper to take into account in this first Grant factor ( Harrison – paras. 26-27 ). [ 23 ] Regarding the second Grant line of inquiry, impact of the breaches of Mr. Newman’s Charter rights, the trial judge concluded that this component was “at most neutral in respect of the admissibility of the evidence from the car” (vehicle decision, at paragraph 81). The Crown submitted at trial that the evidence was discoverable without reliance on Mr. Newman’s statement. The trial judge rejected

this submission as speculation, without any foundation provided by the Crown. In addition, the judge reiterated, applying the Grantanalysis, discoverability of evidence is but one factor that may be relevant.

In this case, he found that, in all the circumstances, and basedon similarities with the situation in Côté, “discoverability plays a reduced role” (vehicle decision, at paragraph 79). [24] As to the third Grant line of inquiry, society’s interest in having the matter determined on its merits, the trial judge reviewedrelevant factors: reliability of the evidence, importance of the evidence to the Crown’s case, and seriousness of the offence.

Regardingreliability of the stain, setting out his rationale in detail, the judge concluded: [89] More importantly, however, the stain was not proved to be blood, let alone human blood, to say nothing of whether it was that ofMs. Predham-Newman. I am satisfied that this finding is consistent with the testimony of the forensic experts. [25] The Crown also sought to rely on the contents of a vacuum cleaner which Mr. Newman was seen using to vacuum the vehicleon the day of the murder.

However, the trial judge concluded that “the exhibits from the vacuum yielded inconsistent results for thepresence of blood and insufficient material available for DNA testing” (vehicle decision, at paragraph 97). [26] In the result, an assessment of the reliability of the evidence weighed in favour of its exclusion. As to the importance of theevidence to the Crown’s case, the trial judge concluded: [102] In my view, therefore, while the evidence from the car may be important to the Crown’s case, it is an exaggeration to say that itsexclusion would “gut” it.

In any event, the importance of the evidence in question here (the evidence from the car) is but one of thefactors to be considered in the overall evaluation required under s. 24(2). … [27] Finally, the trial judge noted that the seriousness of the charge, murder, is but one factor to be considered, and that, as discussedin Côté, seriousness of the charge involves consideration, not only of society’s interest in having the offence prosecuted, but also of thepotential consequences to the individual.

This balance must be assessed in light of all the relevant factors. [28] In the circumstances of this case, the trial judge concluded that the evidence from the car must be excluded: [123] While the public has a reasonable expectation that allegations of serious crimes such as murder will be resolved through trials onthe merits, the administration of justice would more likely be brought into disrepute by the regular admission of evidence ofdemonstrably questionable reliability obtained in serious violation of an accused’s Charter rights than by its exclusion.

The long termadministration of justice would be seriously compromised in such cases if the Court did not dissociate itself from such egregious Charterviolations by the police who are duty bound to protect them, even when the criminal charge is a serious one. (Emphasis added.) [29] On appeal, the Crown submits that the trial judge erred by characterizing the evidence from the car as derivative. The judgedrew that characterization from the fact that the search warrant was issued relying on information obtained from Mr. Newman’sinadmissible statement to the police.

He did not, however, rest his decision on that characterization. Rather, he applied the law as set outin Grant. That is, discoverability was considered as one factor in the analysis. [30] The Crown submits in its factum that the police would have attempted to secure a search warrant for the car “once he had beenidentified as a suspect, irrespective of whether [Mr. Newman] gave a statement” (emphasis added). However, when the police took Mr.Newman down to the police station, they were proceeding on the assumption, without foundation, that Mr.

Newman was a suspect and,as found by the trial judge, they proceeded to “deliberately set out to thwart Mr. Newman’s Charter rights in order to obtainincriminating evidence from him” (vehicle decision, at paragraph 43). In obtaining the search warrant, the police relied on informationgleaned from Mr. Newman’s statement that he had been at Ms. Predham-Newman’s apartment early on the morning of the murder. Tosay that the police would have obtained a search warrant in the absence of information gleaned from his statement is nothing more thanspeculation (vehicle decision, at paragraphs 76 and 77).

As noted in Grant, “in cases where it cannot be determined with any confidencewhether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry”(paragraph 18, above). [31] In assessing what actually happened in this case, the discussion in R. v. Mack, 2014 SCC 58, is of assistance. Moldaver J., forthe Court, explained: [38] Whether evidence was “obtained in a manner” that infringed an accused’s rights under the Charter depends on the nature of theconnection between the Charter violation and the evidence that was ultimately obtained.

The courts have adopted a purposive approachto this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of thethree.

A “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice (Wittwer [2008 SCC 33,[2008] 2 S.C.R. 235], at para. 21). [39] The strength of the connection between a piece of evidence and a Charter breach is a question of fact (see R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463 (S.C.C.), at para. 40). A trial judge’s decision under s. 24(2) of the Charter is entitled toconsiderable deference on appeal.

Such a decision will only be interfered with where the trial judge has failed to consider the properfactors or has made an unreasonable finding [reference to Côté, at paragraph 44, and Grant, at paragraph 86]. [32] In this case, the trial judge determined that the search was part of one continuous transaction, the whole of which wassignificantly tainted by the actions of the police. There is no basis on which to interfere with this characterization by the judge. [33] The Crown also submits that the trial judge erred in his assessment of the reliability of the evidence from the car.

The judgeheard expert forensic evidence proffered by the Crown, but was satisfied that this evidence was insufficient to establish even that thestain was blood. The Crown submits that this was not a determination that could be made by the trial judge during a voir dire, but that

such a determination must be reserved for the jury. This proposition is not persuasive. [ 34 ] The Grant analysis requires a consideration of the reliability of the evidence. Accordingly, it was necessary for the judge to make a determination sufficient to enable him to assess this factor for purposes of undertaking the analysis.

If the trial judge had determined that, in the circumstances, the evidence of the stain in the car should not be excluded, any conclusion as to the reliability of the evidence reached in the voir dire would have had no effect on the ability of the trier of fact to assess the evidence, in the context of all the evidence, for purposes of the trial. This approach is consistent with the discussion in R. v. Hart , 2014 SCC 52 .

In determining the admissibility of evidence, beginning with an assessment of its probative value, Moldaver J., for the majority, explained: [95] How are trial judges to assess the value of evidence [for purposes of determining its admissibility]? This requires more than asking whether the evidence is logically relevant; it necessitates some weighing of the evidence. After all, probative means “tending to prove an issue” and “questionable evidence will have less of that tendency” ( R. v. McIntyre [1993 CarswellOnt 2789 (Ont. C.A.) ] … .

It would be “artificial and “self-defeating” for trial judges to ignore defects in the evidence during the assessment of its value (D.M. Paciocco and L. Stuesser, The Law of Evidence (6th ed. 2011, at p. 38)). Generally, what this weighing exercise requires will vary depending on the specific inferences sought to be drawn from a piece of evidence. [96] As one example, trial judges are routinely called upon to determine the admissibility of expert evidence. Part of the admissibility inquiry involves taking stock of the probative value of the proposed evidence.

This requires weighing the evidence and assessing its reliability … . … [98] Undoubtedly, weighing evidence in this way thrusts trial judges into a domain that is typically reserved for the jury. The jury, as the trier of fact, is ultimately responsible for weighing evidence and drawing conclusions from it. The overlap of roles cannot be avoided, but this is not problematic as long as the respective functions of the trial judge, as gatekeeper, and the jury, as finder of fact, are fundamentally respected.

In conducting this weighing exercise, the trial judge is only deciding the threshold question of “whether the evidence is worthy of being heard by the jury” and not “the ultimate question of whether the evidence should be accepted and acted upon” ( Abbey [2009 ONCA 624 , 246 C.C.C. (3d) 301], at para. 89; see also Paciocco and Stuesser, at p. 38). [ 35 ] In this case, the trial judge recognized that it was not his role “to usurp the authority of the trier of fact at trial”, but that he had a “duty to exclude circumstantial evidence of suspect reliability and probative value which might have a highly prejudicial effect if admitted” (vehicle decision, at paragraph 97). [ 36 ] Referring to this statement, the Crown submits that the trial judge erred by incorporating the concept of probative value and prejudicial effect into his consideration of reliability of the evidence under section 24(2) of the Charter .

In Hart , Moldaver J. commented on probative value and prejudicial effect: [109] … As Justice Binnie observed in Handy [2002 SCC 56 , [2002] 2 S.C.R. 908], probative value and prejudicial effect are two variables which “do not operate on the same plane” (para. 148). Probative value is concerned with “proof of an issue”, while prejudicial effect is concerned with “the fairness of the trial” (ibid.). … [ 37 ] The Grant analysis requires a consideration of the reliability of the evidence without reference to its probative value or its possible prejudicial effect.

Probative value and prejudicial effect are not referenced in, and are not part of, the section 24(2) analysis which is focused on whether the admission of the evidence would bring the administration of justice into disrepute. In the Grant analysis, reliability of the evidence plays a particular role, as set out in Côté . For convenience, I repeat the relevant portions of the passage set out at paragraph 13, above: [47] … The third line of inquiry is concerned with society’s interest in an adjudication on the merits.

It asks whether the truth- seeking function of the criminal process would be better served by the admission or exclusion of the evidence. The reliability of the evidence and its importance to the prosecution’s case are key factors. Admitting unreliable evidence will not serve the accused’s fair trial interests nor the public’s desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth- seeking function of the justice system and render the trial unfair from the public’s perspective.

The importance of the evidence to the Crown’s case is corollary to the inquiry into reliability.

Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the whole of the prosecution’s case, but excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to “gut” the prosecution’s case. [ 38 ] Testing evidence for admissibility using the probative value and prejudicial effect analysis is engaged where evidence has not been excluded as a result of a section 24(2) analysis. However, the two tests should not be commingled.

The focus of the probative value and prejudicial effect analysis is on the conduct of the trial. This is different from the purpose of the section 24(2) analysis which is to determine whether evidence obtained in violation of the accused’s constitutional rights should, for that reason, be excluded. While probative value and reliability are related in the sense that probative value is a function of reliability, the concepts are not interchangeable.

Further, as noted above, prejudicial effect, which relates to the fairness of the trial, is on a different conceptual plane from probative value and reliability of the evidence, and is not engaged in the section 24(2) analysis. [ 39 ] That said, the error in the approach taken by the trial judge, incorporating the probative value and prejudicial effect test, is not fatal. The judge made the necessary determination as to the reliability of the evidence to conduct the Grant analysis.

As noted at paragraph 24, above, the trial judge concluded that “the stain was not proved to be blood, let alone human blood, to say nothing of whether it was that of Ms. Predham-Newman”. Clearly, this evidence was of questionable reliability which the trial judge considered in assessing the third line of inquiry and in balancing the assessments under section 24(2) of the Charter .

Similar comments apply to the evidence from the vacuum cleaner (paragraph 25, above). [ 40 ] Finally, the Crown submits that, as discussed in Grant , where non-bodily physical evidence is involved, the question of reliability tends to favour admission. McLachlin C.J.C. and Charron J. wrote:

[115] The third inquiry, whether the admission of the evidence would serve society’s interest in having a case adjudicated on its merits,like the others, engages the facts of the particular case. Reliability issues with physical evidence will not generally be related to theCharter breach. Therefore, this consideration tends to weigh in favour of admission. [41] The application of this comment depends on the circumstances of the particular case. Generally, physical evidence will satisfythe reliability component of the analysis because it is plain to see – for example, a gun or a container filled with cocaine.

However,where, as here, the evidence is of questionable reliability as discussed above, it cannot be assumed that it will tend to weigh in favour ofadmission. This case is an example where the trial judge correctly considered the questionable reliability of the evidence as set out inGrant. [42] A review of the trial judge’s decision leads to the conclusion that he carefully considered the three lines of inquiry set out inGrant, after which he balanced those assessments.

While he was clearly concerned about the effect of the conduct of the police on theadministration of justice, he took into account factors such as the questionable reliability of the evidence and the seriousness of theoffence. As noted in Côté, the judge, having considered the proper Grant factors, should be accorded “considerable deference” onappellate review. [43] In the result, the Crown has not provided any basis on which to conclude that the trial judge erred in his analysis anddetermination that the evidence from the car should be excluded under section 24(2) of the Charter.

Validity of the Warrant to Search the Residence [44] The Crown submits that the trial judge erred in determining that the warrant to search Mr. Newman’s residence was invalid. This submission is based on the proposition that, in reviewing the information to obtain the warrant, the judge should not have excludedcertain evidence and, further, that he should have included certain other information that the police had omitted. [45] I begin with the evidence of a Ms. Tilley which the Crown submits was improperly excluded. The relevant facts are that, at3:00 a.m., when Mr.

Newman was still being detained, based on information obtained during his detention, the police questioned andobtained a statement from Ms. Tilley who said that Mr. Newman had left her residence to pick up his daughter at about 8:30 a.m. the dayof the murder. However, in reviewing the warrant, the judge excluded this information because he was satisfied that it would be “purespeculation” to determine that the police would have become aware of Ms. Tilley absent the information provided by Mr. Newman in hisstatement indicating that he had spent the previous night with Ms.

Tilley (2012 NLTD(G) 95 (the “search warrant decision”), atparagraph 42). [46] The trial judge referred to the caution in Grant that the courts must take care not to adopt an approach that would encourage thepolice to obtain statements which they know will be inadmissible in order to discover evidence (paragraph 19, above).

In deleting Ms.Tilley’s evidence from the information to obtain the warrant to search the house, the trial judge explained, in the search warrantdecision: [50] In my respectful view, when the entire relationship between the impugned information and the Charter-infringing conduct isexamined it would be fundamentally unjust to permit the police to benefit in their investigation into the murder of Ms. Predham-Newmanfrom evidence (i.e., the statement of Ms. Tilley) which has such an overwhelming temporal and causal connection to the numerousegregious, flagrant and deliberate violations of Mr.

Newman’s Charter and common law rights in illegally obtaining a statement fromhim without which they would not have known of Ms. Tilley’s existence. I find this was all one, single transaction. It would defycommon sense and good policy to allow information obtained from Cheryl Tilley to be used in obtaining the warrant when Mr.Newman’s statement, the sole source of the police’s knowledge of Ms. Tilley, was excluded from the ITO. [47] Nonetheless, relying on the decision in R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, the Crown submits thatMs.

Tilley’s evidence should not have been deleted from the information to obtain the warrant because Mr. Newman has not challengedthe admissibility of Ms. Tilley’s evidence at trial. This submission is not persuasive for two reasons. First, the trial judge concluded thatthe means by which Ms. Tilley was identified as a possible witness for purposes of obtaining the search warrants was part of a singletransaction. In the circumstances, Ms. Tilley’s evidence could not be separated from Mr. Newman’s inadmissible statement to which itwas undoubtedly linked. Second, the fact that Ms.

Tilley may have been identified as a possible witness later in the investigation cannotbe relied upon in assessing the information to obtain a search warrant. Only the information available to the authorizing justice of thepeace could be considered in assessing the validity of the warrant. [48] The Crown has provided no basis on which this Court would interfere with the trial judge’s decision to exclude Ms. Tilley’sevidence from the information to obtain the warrant.

The trial judge provided comprehensive reasons that are consistent with therelevant legal principles. [49] The Crown also submits that the trial judge erred by refusing to amplify the evidence in the information to obtain the warrant. The legal principles relevant to amplifying evidence for purposes of reviewing the validity of a search warrant are discussed in R. v.Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

Fish J., for the majority, explained: [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether therewas sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place. [41] The reviewing court does not undertake its review solely on the basis of the ITO [information to obtain the warrant] as it waspresented to the justice of the peace.

Rather, “the reviewing court must exclude erroneous information” included in the original ITO(Araujo, at para. 58). Furthermore, the reviewing court may have reference to “amplification” evidence – that is, additional evidence

presented at the voir dire to correct minor errors in the ITO – so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice . [42] It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo . Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as “a means of circumventing a prior authorization requirement” ( Araujo , at para. 59 ). [43] Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct “some minor, technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors (para. 59).

In all cases, the focus is on “the information available to the police at the time of the application” rather than information that the police acquired after the original application was made (para. 59). … [58] … When seeking an ex parte authorization such as a search warrant, a police officer – indeed, any informant – must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not .

Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed . (Underlining added.) [ 50 ] In this case, the trial judge deleted evidence of a neighbour, Mr. Ma, from the information to obtain the search warrant. The evidence of another neighbour, Mr. Martin, had been omitted by the police.

The Crown submits that, instead of deleting Mr. Ma’s information, the trial judge should have added that of Mr. Martin. The trial judge rejected that submission, setting out the nature of the evidence: [86] In paragraph 9 of the ITO, Constable Warren adverts to a statement obtained at about 9:15 p.m. from Mr. Marcus Ma, a next door neighbour of Ms. Predham-Newman, shortly after the deceased’s body was discovered. He indicated that around 7:45 to 8:00 a.m. that day he had heard a female scream and running footsteps coming from the back of the house in which the deceased’s body was found.

In cross-examination, Constable Warren acknowledged that he was aware that the police had also obtained a statement from a Mr. Evan Martin, an upstairs tenant living in the same house as Ms. Predham-Newman who was awake around 8:00 a.m. but who did not hear a scream or footsteps from the downstairs apartment. Yet Constable Warren elected not to include this in the ITO. The Crown says that it was not necessary to do so as it was not a material fact. I disagree. [87] An ITO for a search warrant is an ex parte application to a judicial officer. It requires full, fair and frank disclosure of all material facts.

The failure to include this information was in my view a strategic decision to omit a relevant piece of information which could have cast doubt on the reliability of the statement from Mr. Ma. The authorizing judge may have been influenced by this information to conclude that Mr. Ma was mistaken in what he heard, or had the timing wrong or that the scream came from somewhere else than the deceased’s apartment. We will never know, as it was not disclosed. [ 51 ] After quoting paragraph 58 from Morelli , the trial judge concluded that the appropriate remedy was to exclude Mr.

Ma’s information, given the deliberate omission of Mr. Martin’s. This conclusion is consistent with the principles set out in Morelli . That is, the trial judge found that the addition of Mr. Martin’s evidence would not operate to correct a good faith error by the police. Rather, because he found that the omission was a deliberate attempt by the police to mislead the authorizing justice of the peace and a failure to disclose in a full and frank manner all material facts, amplification of the information was not an available option.

There is no basis on which to interfere with this determination by the judge. [ 52 ] The conclusion follows that the trial judge did not err in excluding the evidence of Ms. Tilley and Mr. Ma and in refusing to include the evidence of Mr. Martin in the information to obtain the warrant. In the result, the judge did not err in determining that the search warrant for Mr. Newman’s residence was invalid. The Crown concedes that the search of his residence was carried out in an unreasonable manner.

Exclusion of Evidence from the Residence [ 53 ] The Crown made submissions regarding evidence obtained as a result of the search of Mr. Newman’s residence similar to the submissions made regarding the search of the car. The Crown submits that the trial judge erred in describing the evidence as derivative. [ 54 ] In the “house decision” (2012 NLTD(G) 151), the trial judge used the term “derivative evidence” as described in Grant , that is, “physical evidence discovered as a result of an unlawfully obtained statement” (paragraph 16, above). The judge then conducted the analysis as set out in Grant .

This was the appropriate approach. The comments and conclusions with respect to the section 24(2) analysis regarding the evidence from the car apply equally here. The one element that requires separate consideration is the reliability of the evidence under the third line of inquiry. [ 55 ] The general principles regarding reliability of evidence, set out above, apply. The first piece of evidence from the house is a stain on a wall in the hallway which [38] … while it proved positive for blood in the presumptive Hemastix test, it could not be confirmed as blood in the confirmatory testing.

The stain tested positive for the DNA of both [Mr. Newman and Ms. Predham-Newman]. [ 56 ] The trial judge noted that “this was the matrimonial home of the deceased and [Mr. Newman] when they were living together

so it would not be unusual to find the DNA of both in the house” (house decision, at paragraph 40). The judge also considered that thepresumptive Hemastix test has limitations challenging its use as evidence. He concluded that the stain in the hallway “is of questionablereliability and hence of little probative value” (house decision, at paragraph 42). The Crown provided no basis on which to conclude thetrial judge erred in finding that the evidence was of questionable reliability. [57] The final piece of evidence is a receipt for the purchase of a particular size and style of sneakers. The trial judge explained: [46] … The Forensic Identification

Section of the RNC also discovered seven footwear impressions made by an identical sneaker inthe blood at the scene of the murder. The sneakers were never located in Mr. Newman’s possession nor is there any direct evidence thathe had, in fact, purchased a pair of such sneakers himself. [Mr. Newman] submitted that this renders the reliability of this evidencetenuous at best. [47] Unlike the stain on the hallway wall and the contents of the vacuum, I find the receipt is reliable evidence, although its probativevalue may be weak.

But, even highly probative evidence (indeed, virtually conclusive evidence) of guilt may still be excluded fromevidence in the face of egregious Charter breaches by the police in the investigative process; R. v. Harrison, 2009 SCC 34 and R. v.Côté, 2011 SCC 46. [58] The trial judge concluded that the reliability of the evidence of the receipt “slightly favours admission” (house decision, atparagraph 55).

He then turned to balancing the factors assessed under the Grant analysis, referring in particular to the decisions inHarrison and Côté which had been discussed in his earlier decision regarding evidence seized from the car. The trial judge reiterated: [66] As stated in para. 57 of R. v. Grant, (SCC), [1993] 3 S.C.R. 223, the s. 24(2) analysis must not be approached ina compartmentalized fashion. I have already determined that the warrants to search Mr. Newman’s residence are invalid and violated hiss. 8 Charter rights.

I have also found that this was an integral part of a pattern of egregious Charter violations commencing almost fromthe first moment the police made contact with Mr. Newman. [59] The trial judge found that the violations of Mr. Newman’s Charter rights were not technical or accidental, but were deliberatewith the intended purpose of obtaining evidence from Mr. Newman.

Further, the judge referred to the conduct of the police in Court: [69] … I have already stated that this unacceptable behavior by the police was further compounded by what I found to be self-serving, disingenuous and incredible testimony by the principal police investigators in the voir dire on admission of Mr.

Newman’sstatement. … [71] The receipt is reliable evidence and this favours admission but, just as in Harrison and Côté, even reliable evidence may beexcluded in the face of serious Charter violations. [60] In the result, the trial judge determined, balancing the Grant factors, that the evidence from the house, that is, the hallway stain,the contents of the vacuum cleaner and the receipt, must be excluded: [75] Having considered all the circumstances in light of the three Grant factors and having weighed them in the balance, I find thatthe administration of justice would be brought into greater disrepute in the eye of a reasonable person fully informed of the facts and theCharter implications by the admission of the evidence from the house search than it would be by the exclusion of the evidence. [61] There is no basis on which to interfere with the decision of the trial judge.

The decision is comprehensive, applying the relevantanalysis and principles. The conclusion follows that the trial judge did not err in excluding the evidence seized from Mr. Newman’sresidence.

SUMMARY AND DISPOSITION [62] In

summary, the trial judge did not err in his application of the Grant analysis to exclude the evidence obtained from Mr.Newman’s car and his residence. Nor did he err in determining that the warrants to search both the car and the residence were invalid. [63] Accordingly, I would dismiss the appeal. ___________________________________ B. G. Welsh J.A. I Concur: __________________________________ J. D. Green C.J.N.L. I Concur: _________________________________ M. F. Harrington J.A.