HIS MAJESTY THE KING APPELLANT AND: BRENT KEVIN GENGE RESPONDENT, 2023 NLCA 35

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. Genge , 2023 NLCA 35 Date : November 23, 2023 Docket Number : 202101H00 76 BETWEEN: HIS MAJESTY THE KING APPELLANT AND: BRENT KEVIN GENGE RESPONDENT Coram: W.H. Goodridge, F.J. Knickle and K.J. O’Brien JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 202004G0040 ( 2021 NLSC 143 ) Appeal Heard: April 10, 2023 Judgment Rendered: November 23, 2023 Reasons for Judgment by: W.H. Goodridge J.A. Concurred in by: F.J. Knickle and K.J. O’Brien JJ.A. Counsel for the Appellant: Shawn I.

Patten Counsel for the Respondent: Rosellen Sullivan, KC Authorities Cited: CASES CITED: R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215; R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353; R. v. Beaulieu , 2010 SCC 7 , [2010] 1 S.C.R. 248; Hunter v. Southam Inc ., 1984 CanLII 33 (SCC) , [1984] 2 S.C.R. 145 ; R. v. Gomboc , 2010 SCC 55 , [2010] 3 S.C.R. 211 ; R. v. Wise , 1992 CanLII 125 (SCC) , [1992] 1 S.C.R. 527 ; R. v. Edwards 1996 CanLII 255 (SCC) , [1996] 1 S.C.R. 128 ; R. v. Tessling , 2004 SCC 67 , [2004] 3 S.C.R. 432; R. v. Patrick , 2009 SCC 17 , [2009] 1 S.C.R. 579; R. v.

Nicolosi (J.) (1998), 1998 CanLII 2006 (ON CA) , 110 O.A.C. 189 ; R. v. Mellenthin , 1992 CanLII 50 (SCC) , [1992] 3 S.C.R. 615 ; R. v. Fedan , 2016 BCCA 26 , leave to appeal to SCC refused, 36970 (14 July 2016); R. v. Yogeswaran , 2021 ONSC 1242 ; R. v. Wong , 1990 CanLII 56 (SCC) , [1990] 3 S.C.R. 36; R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456 ; R. v. Reeves , 2018 SCC 56 , [2018] 3 S.C.R. 531; R. v. Major , 2022 SKCA 80 , leave to appeal to SCC refused, 40384 (2 March 2023); R. v. Beaver , 2022 SCC 54 .

STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms , sections 8 , 24(2) ; Highway Traffic Act , RSNL 1990, c. H-3 ,

section 203; Criminal Code ,

section 249 as it appeared on 1 October 2018; Criminal Code ,

section 489 . W.H. Goodridge J.A. : INTRODUCTION [ 1 ] This appeal addresses whether police had the necessary authority when they searched the interior of a vehicle after an accident, to locate, detach, and seize the vehicle’s Airbag Control Module (ACM). The ACM is a computer that controls deployment of the airbags and stores data, including data for speed, throttle, and braking during the last five seconds preceding a crash . [ 2 ] The trial judge decided that the police did not have that legal authority and as a consequence of that they violated Brent Genge’s right under

section 8 of the Canadian Charter of Rights and Freedoms to be sec ure against unreasonable search or seizure when they proceeded to search his vehicle and seize the ACM. As a remedy, the trial judge excluded from trial the unlawfully obtained evidence, namely, the ACM and its data. [ 3 ] The Crown appeals the finding of a Charter violation, subsequent inadmissibility of certain facts, and the remedy of exclusion of the evidence. [ 4 ] For the reasons that follow, I would dismiss the appeal. BACKGROUND [ 5 ] On October 2, 2018, Mr.

Genge was driving on route 433 near Roddickton-Bide Arm when he lost control of his vehicle, drove off the road, and crashed at the bottom of an embankment. One of his two passengers, Crystal Weir, died in the crash and the other, Rhonda Colbourne, was injured. [ 6 ] On October 3, 2018, Mr. Genge’s vehicle was removed and detained pursuant to

section 203 of the Highway Traffic Act , RSNL 1990, c. H-3 . On this appeal, no issue is taken with the lawfulness of the removal and detention of the vehicle pursuant to that provision. [ 7 ] On October 12, 2018, the police, still holding the vehicle, elected to search it without a warrant. They hired a mechanic to search for an ACM, and to remove it if found. One officer instructed and remained with the mechanic, but outside the vehicle, during the search and eventual removal of the ACM.

This same officer testified that he did not know whether the vehicle had an ACM but he was aware (having been advised by his supervisor) that a warrant would be required before removal. [ 8 ] Two of the investigating officers testified that, at the time of the search, there were in sufficient grounds to obtain a warrant. T hey did not have reasonable grounds to believe that the vehicle had been used in the commission of an offence or would afford evidence in respect of an offence and they had no reasonable grounds to believe that any offence had been committed.

In addition, there were no exigent circumstances, that is to say, there was no imminent risk of the loss, removal, destruction or disappearance of evidence. [ 9 ] On November 8, 2018, the investigating officers, who had been holding the ACM since its October 12, 2018 seizure, sent it to their internal expert, Cpl. Bourden for downloading and analysis of its data. The ACM was then held by Cpl. Bourden – without analysis – pending his obtaining a warrant. [ 10 ] On November 19, 2018, a search warrant was obtained to authorize the downloading of the data from the ACM.

The sworn Information to Obtain (“ITO”) disclosed that police had seized the ACM on October 12, 2018, and continued to hold it. The subsequent analysis of that data by the police expert revealed that the vehicle’s speed was 165 km/hr. five seconds before the crash. [ 11 ] On January 9, 2019, the ACM unit was sent by police to Contrast Engineering Limited for further analysis. Contrast was working for ClaimsPro (the adjuster retained by Mr.

Genge’s automobile insurer). [ 12 ] On May 23, 2019, police applied for and obtained a General Production Order directed to ClaimsPro for “all reports pertaining to the downloading,

interpretation and analysis of the Airbag Control Module”. The sworn ITO for the General Production Order indicated that police had seized the ACM on October 12, 2018, and sent it to Contrast on January 9, 2019. [ 13 ] On June 18, 2019, Mr. Genge was charged under the former

section 249 of the Criminal Code with dangerous operation of a vehicle causing death and dangerous operation of a vehicle causing injury. [ 14 ] On April 1, 2021, Mr. Genge applied to have the ACM and its data excluded from evidence in his criminal trial on the basis that it was unlawfully obtained by police. At the hearing of that application, Mr. Genge argued that the police violated his

section 8 Charter right to be sec ure against unreasonable search or seizure when they located, detached, and seized the ACM inside his vehicle without a warrant. Mr. Genge did not testify on the application. [ 15 ] On October 29, 2021, the trial judge decided “there was no lawful authority allowing the police to search the vehicle nor to seize the ACM as part of that search” (Decision, at para. 72). The trial judge found that the police action in entering Mr. Genge’s vehicle and taking the ACM without the authority of a warrant or his consent, presumptively violated his

section 8 Charter right. The trial judge concluded that the Crown had the burden to rebut the presumption of a Charter violation by demonstrating that the search and seizure was authorized by law. The trial judge found that the Crown failed to rebut the presumption, stating: [78] … By entering the vehicle or causing the mechanic to do so and seizing the ACM without the authority of a warrant, the police

presumptively violated the

section 8 Charter right of [Mr. Genge] to be secure against unreasonable search or seizure. Once a presumptive Charter breach is established, the burden falls to the Crown to establish firstly that the search and seizure was authorized by law. This the Crown has not done in this case. … [ 16 ] After excision from the two ITOs of references to the unlawfully obtained ACM and its connection to Mr.

Genge’s vehicle, the trial judge found that there was insufficient information to justify the granting of the Search Warrant and the General Production Order (paras. 80-83). [ 17 ] The section 24(2) remedy imposed by the trial judge for the Charter violations was exclusion of the ACM and its data. ISSUES [ 18 ] The issues arising from the grounds of appeal and the Crown’s factum are as follows: • Did the trial judge err in failing to apply the correct legal test in assessing the reasonableness of a claimed privacy interest under

section 8 of the Charter ; • Did the trial judge err in his analysis of the sub-facial challenge to the General Production Order; • Did the trial judge err in assessment of discoverability during the analysis under section 24(2) of the Charter ; • Did the trial judge err in excluding the ACM and its data as the section 24(2) remedy; and • Assuming the trial judge erred, did this have a material bearing on the acquittal?

STANDARD OF REVIEW [ 19 ] The issues identified by the Crown raise questions of law, for which the standard of review is correctness. [ 20 ] The standard of review of a trial judge's section 24(2) determination (that admission of the evidence would bring the administration of justice into disrepute) is stated at paragraph 44 of R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215, “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” (see also R. v.

Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, at para. 86 ; and R. v. Beaulieu , 2010 SCC 7 , [2010] 1 S.C.R. 248, at para. 5 ). ANALYSIS Did the trial judge err in failing to apply the correct legal test in assessing the reasonableness of a claimed privacy interest under

section 8 of the Charter ? [ 21 ] The

section 8 guarantee of security from unreasonable search or seizure protects a person’s reasonable expectation of privacy ( Hunter v. Southam Inc. , 1984 CanLII 33 (SCC) , [1984] 2 S.C.R. 145 , at 159 ; and R. v. Gomboc , 2010 SCC 55 , [2010] 3 S.C.R. 211 , at para. 17 ). [ 22 ] W hen considering an alleged violation of

section 8 , the first step is to assess whether there was a reasonable expectation of privacy ( R. v. Wise , 1992 CanLII 125 (SCC) , [1992] 1 S.C.R. 527 , at 533) . If a reasonable expectation of privacy is determined to exist then a search intruding upon that interest will engage

section 8 of the Charter . [ 23 ] The Crown argued that the trial judge failed to analyze whether Mr. Genge had a reasonable expectation of privacy in the ACM and the data, using an established legal test. T he Crown suggested that t he trial judge’s failure to conduct that analysis arose from his mistaken conclusion that the reasonable expectation of privacy in the vehicle presumptively created a reasonable expectation of privacy in the ACM and its data. [ 24 ] The legal test referenced by the Crown is an analytical framework originating in R. v.

Edwards , 1996 CanLII 255 (SCC) , [1996] 1 S.C.R. 128 , at paragraph 45 , and refined slightly in R. v. Tessling , 2004 SCC 67 , [2004] 3 S.C.R. 432, at paragraph 32 , and R. v. Patrick , 2009 SCC 17 , [2009] 1 S.C.R. 579, at paragraphs 26-28 . That framework assists in determining whether there is a reasonable expectation of privacy. It is not a hard and fast legal test.

In Patrick , at paragraph 26 , Binnie J. described the framework as “helpful” in assessing the reasonableness of a claimed privacy interest. [ 25 ] In this matter, the trial judge correctly identified the settled jurisprudence that a vehicle owner — or a driver with the owner's permission — enjoys a reasonable expectation of privacy, albeit a reduced one as compared to home, in his or her vehicle: [52] The Supreme Court of Canada has held in R. v. Belnavis , 1997 CanLII 320 (SCC) , [1997] 3 S.C.R. 341, [1997] S.C.J. No. 81 and R. v. Wise , 1992 CanLII 125 (SCC) , [1992] 1 S.C.R. 527, [1992] S.C.J.

No. 16 that a motor vehicle attracts a reasonable expectation of privacy albeit a reduced one as compared to the expectation of privacy one has for example in respect of their place of residence or office. … [ 26 ] The reduced expectation of privacy in a motor vehicle, as compared to the home, does not allow investigative searches as part of a criminal investigation where, as here, there are no reasonable grounds to believe that the vehicle had been used in the commission of an offence or would afford evidence in respect of an offence.

In the past this limited expectation of privacy has permitted police to enter a lawfully impounded vehicle for the purposes of cataloguing the visible and apparently valuable contents of the vehicle ( R. v. Nicolosi (J.) (1998), 1998 CanLII 2006 (ON CA) , 110 O.A.C. 189 , at para. 32 ); and it has allowed visual inspection at night with the aid of a flashlight (incidental to a safety stop program) where necessary for police protection ( R. v. Mellenthin , 1992 CanLII 50 (SCC) , [1992] 3 S.C.R. 615 , at 623) .

[ 27 ] As this reasonable expectation of privacy, albeit a reduced one, was settled law, it was unnecessary for the trial judge to conduct an analysis using the framework. [ 28 ] It is reasonable to accept that the expectation of privacy in the vehicle interior extended to the ACM, and any other integral component of the vehicle. This was the view of Smith J.A. writing for a unanimous court in R. v. Fedan , 2016 BCCA 26 , leave to appeal to SCC refused, 36970 (14 July 2016) at paragraph 76, “[I]n the absence of evidence to the contrary, in my view the jurisprudence supports a presumption that Mr.

Fedan had an expectation of privacy in his vehicle, albeit markedly reduced from a home or office, which extended to the [ACM] as it was an integral component of his vehicle, not unlike an engine”. [ 29 ] In R. v. Yogeswaran , 2021 ONSC 1242 , Stribopoulos J. also found that the expectation of privacy for a vehicle interior extended to the ACM: [93]… [D]ue to the ACM's location within Mr. Yogeswaran's vehicle, where he undoubtedly enjoyed a reasonable expectation of privacy, he necessarily also had a reasonable expectation of privacy in the ACM and the data stored within it.

That expectation does not depend on the nature and quality of the ACM's data, which, as an aside, I believe is far from "meaningless" ( Tessling , at paras. 36 and 58 ) given its potential to implicate him in a criminal driving offence ( A.M. , at para. 38) and given that this is the very reason police wanted it. Rather, the expectation flows much more directly from the location of the ACM, concealed, as it was, within Mr. Yogeswaran's vehicle - a place in which he enjoyed a well-established reasonable expectation of privacy. [ 30 ] The trial judge found that

section 203 of the Highway Traffic Act did not extinguish Mr. Genge’s reasonable expectation of privacy in the vehicle and did not authorize police to conduct an investigative search of the vehicle interior.

The Crown does not allege any error by the trial judge in these findings. [ 31 ] In the circumstances, it was unnecessary for the trial judge to apply any legal test or framework to assess the reasonable expectation of privacy in the ACM and its data, or in any other evidence discovered and seized during the search of the vehicle (this is not a case where the “plain view” doctrine is alleged to sanction the search). [ 32 ] Mr. Genge had a reasonable expectation of privacy in the vehicle. Police entering the vehicle for criminal investigative purposes had to meet the reasonableness requirements demanded by

section 8 of the Charter . That constitutional protection is not dependent on Mr. Genge establishing a separate privacy interest in the ACM, or in any other evidence discovered and seized during the vehicle search, including the data.

To allow police to bypass the territorial privacy interest in the vehicle to access potentially incriminating computer data on the ACM, by logical extension, would allow police to bypass the territorial privacy interest in one’s home for the same purpose. [ 33 ] It would defy logic, and precedent, to allow police engaged in a criminal investigation to enter and search a place where someone has a reasonable expectation of privacy, and forgive that intrusion based on the nature of the evidence discovered. Prior authorization, wherever feasible, is a necessary precondition for a valid search and seizure.

Ex post facto reasoning as retroactive validation for searches is not permitted ( R. v. Wong , 1990 CanLII 56 (SCC) , [1990] 3 S.C.R. 36, at 49-50, R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456 , at para. 92 ). [ 34 ] As the trial judge found, the police intruded upon Mr. Genge’s reasonable expectation of privacy by entering his vehicle and taking the ACM without the authority of a warrant or his consent. These actions presumptively violated Mr. Genge’s

section 8 Charter right to be secure against unreasonable search or seizure. To rebut that presumption, the Crown had to establish that the search and seizure was authorized by law, that the law was reasonable, and that the search was carried out reasonably ( R. v. Reeves , 2018 SCC 56 , [2018] 3 S.C.R. 531, at paras. 14 , 76).

The trial judge concluded correctly, at paragraph 78, that the Crown failed to establish the first precondition, that the search and seizure was authorized by law. [ 35 ] When police engage in a criminal investigation (as here) they cannot enter and conduct a warrantless search of an interior space where a person enjoys a reasonable expectation of privacy — whether that be at home, office, or vehicle — in the hope of discovering evidence. This was not a situation like Patrick where Binnie J. said that the “intrusion by the police was relatively peripheral” (para. 45).

In Patrick , police had seized garbage bags located in garbage cans, without lids, just inside a property line. Entering one’s vehicle and unbolting a component affixed to the interior under the dashboard is not peripheral. As the trial judge noted, the police did not have Mr. Genge’s consent; the police did not have a warrant; the police did not have reasonable grounds to believe that a crime had occurred; the police did not have exigent circumstances; and the police “were merely searching for evidence of a possible crime” (Decision, at paras. 53, 78). [ 36 ] The Crown relied on Fedan to support its position.

However, the facts of Fedan are similar only to the extent that police entered a vehicle after an accident and removed the ACM. The relevant difference is that the police obtained a warrant before entering and searching Mr. Fedan’s vehicle. In addition, Fedan was a vehicle seizure under

section 489 of the Criminal Code (reasonable grounds to believe it was used in the commission of an offence), which is not comparable to a seizure under

section 203 of the Highway Traffic Act . The trial judge for Mr. Genge found (and the Crown has not challenged on this appeal) that seizure under

section 203 did not extinguish his privacy interest in the vehicle. For this same reason, the decision of R. v. Major , 2022 SKCA 80 , leave to appeal to SCC refused, 40384 (2 March 2023), also relied upon by the Crown, is not helpful. It is implicit from paragraph 63 of Major that the court accepted that the

section 489 seizure had extinguished Mr. Major’s privacy interest in his vehicle by the time the ACM was removed, and that finding distinguishes the decision from Mr. Genge’s circumstances. [ 37 ] The trial judge applied the proper test when concluding that Mr. Genge had a privacy interest in the vehicle, extending to the ACM and data, protected by

section 8 of the Charter , which was violated by the police in this instance. Did the trial judge err in his analysis of the sub-facial challenge to the General Production Order? [ 38 ] The Crown argued that the trial judge erred by failing to articulate sufficient reasons why the ITO, after excision of the inadmissible facts, was insufficient to support the issuance of the General Production Order.

[ 39 ] The trial judge excised from the ITO the evidence regarding seizure of the ACM, information obtained from the Search Warrant (the data) and the information ClaimsPro obtained from Contrast’s analysis of the data on the ACM.

In his reasons, the trial judge identified these inadmissible facts and concluded that the facts remaining in the ITO would have been insufficient to justify issuance of the General Production Order: [82] The evidence regarding the seizure of the ACM must also be excised from the Information to Obtain a Production Order for the same reason I found it had to be excised from the Information to Obtain a Search Warrant, namely it was obtained as a result of an unlawful search of the vehicle of [Mr. Genge] which constituted a breach of his

section 8 Charter rights. In addition, the information obtained through the Search Warrant of November 19, 2018 would have to be excised because I have found it to be invalid. [83] In addition, ClaimsPro was in possession of the ACM and able to examine it and obtain data from it because the police sent it [to] Contrast Engineering after they had finished conducting their analysis of the ACM. There was no lawful basis upon which the police had any authority to send the ACM to Contrast Engineering, to ClaimsPro, or anyone else for that matter, in the absence of the consent of [Mr.

Genge] or some form of judicial authority, neither of which existed here. Thus, any information ClaimsPro obtained from the ACM they acquired because of the unlawful conduct of the police in sending the ACM to Contrast Engineering. Such information would also have to be excised from the Information to Obtain a Production Order. … [86] Given what must be excised from the Information to Obtain a Production Order, there would have been insufficient evidence in justifying the issue of the General Production Order.

Therefore, the General Production Order is invalid. [ 40 ] Once these inadmissible facts are excised, there is no information about where the ACM came from and its association with Mr. Genge or his vehicle. Accordingly, the facts remaining in the ITO did not contain sufficient information to ground the issuance of the General Production Order. [ 41 ] The reasons provided by the trial judge for invalidating the General Production Order were adequate, and there was no error in failing to articulate more detailed reasons.

Did the trial judge err in his assessment of discoverability during the section 24(2) Charter analysis? [ 42 ] The Crown submits that the trial judge, when addressing discoverability as part of the analysis under section 24(2), erred by assessing whether ClaimsPro, not the police, would have obtained the ACM and its data by lawful means. [ 43 ] Discoverability refers to whether unconstitutionally obtained evidence could have been obtained by lawful means had the police chosen to adopt them.

Discoverability is sometimes a factor in conducting the analysis under section 24(2) to decide whether exclusion of evidence is the appropriate remedy for the Charter violation. In Côté , the Court indicated that discoverability may play a useful role in the section 24(2) analysis, but it is not determinative: [70] While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative.

A finding of discoverability should not be seen as necessarily leading to admission of evidence. … [ 44 ] The trial judge reviewed the principles of discoverability as discussed in Grant and Côté , and noted two related points: • where it cannot be determined with any confidence whether evidence would have been discovered in absence of the Charter breach, discoverability will have no impact on the section 24(2) inquiry ( Côté , at para. 70 ); and • it is improper to engage in speculation as to whether the evidence could have been discovered by lawful means that did not amount to a Charter breach ( Côté , at para. 70 ). [ 45 ] The only argument that the Crown made at trial on the discoverability issue was that ClaimsPro would have obtained the ACM as part of its investigation for the insurance company and that the police would then have been able to lawfully obtain the ACM from ClaimsPro: [Police] were going to be able to get that information, discover that information, from ClaimsPro because they would have known about it, even if they did not themselves, ever get the ACM; the [police] would have gotten that information from ClaimsPro; it was discoverable. (Transcript, Vol.

XI, 18 June 2021, at 79) [ 46 ] The trial judge rejected the Crown’s argument on discoverability, and correctly concluded that there was no evidence presented to support a finding that ClaimsPro could have obtained the ACM independent of the police: [104] … The reality is [ClaimsPro] did not obtain [the ACM] independent of the police and it cannot be said, without engaging in speculation, that they would have obtained the ACM and the data from same independent of the police conduct.

No evidence was presented which would support such a finding. [ 47 ] The agreed statement of facts, indicating that Contrast was retained by ClaimsPro to analyze the ACM data, is not evidence that ClaimsPro would have obtained the ACM independent of the police. The trial judge appropriately declined to speculate as to whether ClaimsPro would have obtained the ACM and then passed it on to the police. [ 48 ] The officers who testified agreed there were no grounds to obtain a warrant to authorize a search of the vehicle and seizure of the ACM.

The police had no lawful means to access the ACM and that is why the Crown’s only argument was discoverability through the insurer. The trial judge responded to that argument and there was no error in his assessment of discoverability during the section

24(2) Charter analysis. Did the trial judge err in excluding the ACM and its data as the section 24(2) Charter remedy? [ 49 ] There was a strong temporal, contextual, and causal connection between this Charter violation (vehicle search) and the evidence obtained (ACM and data). However, that strong connection does not, on its own, result in an automatic exclusion of the evidence. As stated by Jamal J., writing for the majority at paragraph 117 of R. v.

Beaver , 2022 SCC 54 , section 24(2) is not an automatic exclusionary rule: [117] Section 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute ….

Balancing the relevant considerations under s. 24(2) is a qualitative determination that is not capable of mathematical precision … (Citations omitted.) [ 50 ] The trial judge was expected to, and did, complete a thorough balancing of the relevant considerations under section 24(2) before he decided that the administration of justice would be brought into disrepute by admitting the evidence.

Those relevant considerations are the three lines of inquiry discussed in Grant at paragraph 71 : (1) the seriousness of the Charter -infringing state conduct; (2) the impact of the breach on the accused's Charter -protected interests; and (3) society's interest in the adjudication of the case on its merits. [ 51 ] On the first line of inquiry the trial judge found that the Charter violations were not inadvertent, or minor, or arising from an understandable mistake. On the contrary, they were extremely serious, and reflected a troubling pattern of disregard for the Charter rights: [110] … [Cst.

Butt] then attended the inspection which was in essence a search and proceeded to specifically search for and seize the ACM. He did this while knowing he needed a search warrant to search the vehicle and also knowing he did not have grounds to get one because he had no reasonable grounds to believe at this point that an offence had been committed. These actions, in my view, render the resulting

section 8 breaches extremely serious. To compound the seriousness of the breaches, Cst. Butt failed to complete a Report to a Justice for almost three months and when he did the Report indicated that the ACM was seized pursuant to section 489(2) of the Code when he knew that was not the case. The effect of this was that he avoided judicial oversight. [111] When I look at the nature of these breaches and their cumulative effect, they display a troubling pattern of disregard by the police for the Charter rights of [Mr. Genge].

These are not breaches that can in any manner be described as minor or having occurred because of inadvertence. In my assessment, the proper characterization is at best described as a reckless disregard of Charter rights. [ 52 ] On the second line of inquiry the trial judge found that the breaches meaningfully impacted Mr. Genge’s Charter protected privacy interests: [113] … the search was more invasive than most motor vehicle searches. … [Cst. Butt] removed one of the components of the vehicle, namely the ACM which recorded details of [Mr. Genge’s] driving.

This was information the policed hoped to use to build a case against [Mr. Genge]. As a result, it is my conclusion that the search and seizure meaningfully impacted [Mr. Genge’s] Charter protected privacy interests. [ 53 ] On the third line of inquiry, society's interest in the adjudication of the case on its merits, the trial judge discussed the reliability of the evidence, the importance of the evidence to the prosecution's case, and the seriousness of the offence.

He found that the evidence was reliable; he found that the evidence was important to the Crown’s case; he agreed that this was a very serious offence. However, the judge treated this last factor, seriousness, as neutral in his balancing exercise. That neutral weight was reasonable in these circumstances, considering the serious and flagrant nature of the Charter breaches by the police.

In Grant , at paragraph 84 , McLachlin C.J. and Charon J., writing for the majority, agreed that the seriousness factor can cut both ways, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”. [ 54 ] The trial judge weighed the various considerations and factors under

section 2 4(2), and determined that, on balance, the long- term repute of the administration of justice would be better served by exclusion of the evidence. It was the task of the trial judge to weigh the various considerations and factors, and there is no overarching rule that governs how the balance is to be struck. As stated in Grant , at paragraph 86 , “Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination”.

In this case the trial judge did consider and weigh the proper factors and his ultimate determination to exclude the ACM and its data is entitled to deference. [ 55 ] I would not disturb the section 24(2) remedy. Assuming the trial judge erred, did this have a material bearing on the acquittal? [ 56 ] In light of the above findings that there were no errors, it is unnecessary to address this final issue. DISPOSITION [ 57 ] I would dismiss the appeal. ______________________________ W.H. Goodridge J.A.

I concur: _____________________________ F.J. Knickle J.A. I concur: _____________________________ K.J. O’Brien JA.