R v Randhawa, 2023 ABCJ 285

In the Alberta Court of Justice Citation: R v Randhawa, 2023 ABCJ 285 Date: 20231220 Docket: 220421937P1 Registry: Calgary Between: His Majesty the King - and - Kamaljit Singh Randhawa Ruling on Voir Dire by the Honourable Justice B. R. Fraser Introduction [ 1 ] The accused is charged with possession of a firearm while prohibited and being the occupant of a motor vehicle with a replica Glock handgun inside that vehicle. [ 2 ] The accused alleges a Charter violation under sec. 10(

b) and as a result the evidence of the handgun seized on a search incident to arrest should be excluded pursuant to sec. 24(2) of the Charter . [ 3 ] A voir dire was entered into to determine the issue and whether the handgun should be excluded from evidence in the trial. This is my ruling on the voir dire . Facts in Evidence [ 4 ] Police conducted a traffic stop of a vehicle occupied by the accused for a tinted windows violation. Upon checking his identification the officer observed he had outstanding warrants for his arrest. As a result he was arrested, chartered and cautioned.

Upon search incident to arrest, the replica handgun was found in the car. He was re-arrested and again chartered and cautioned. From the time he was chartered to the time he was able to exercise that right, approximately three hours had elapsed. [ 5 ] Some of that time is reasonably explained. For instance the officer had to wait for backup to look after the vehicle and have it towed. He had to take the accused to arrest processing because of the warrants. That is at the other end of the city and the traffic was heavy. It took about an hour to take him there. The rest of the delay is unaccounted for.

The bodycam video shows the arresting officer and the backup officers joking and talking while searching the trunk of the vehicle. Clearly there was no attempt to allow him to exercise his right to counsel immediately or as soon as practicable. That is the Charter violation. The Crown concedes that Charter violation. Issues [ 6 ] The issue is whether the evidence of the gun should be excluded pursuant to sec. 24(2) of the Charter as a result of the violation. The gun was discovered well before there was a Charter violation and had nothing to do with the discovery. There are two

parts to the test to exclude evidence under sec. 24(2). First, only if the evidence was “obtained in a manner” that violated the Charterwithin the meaning of sec. 24(2) can the evidence be excluded under that section. If it passes the first test, then the court would go on toapply the Grant factors to determine admissibility. The First Test [7] The first authorities to set out this test was R v Therens, (SCC), [1985] 1 SCR 613 and R v Strachan, (SCC), [1988] 2 SCR 980, both from the Supreme Court of Canada.

They spoke of what link or nexus is required between aninfringement of the Charter and the evidence obtained. Chief Justice Dickson in Strachan said at pp 1005-6, para 55 as follows: “In my view, all of the pitfalls of causation may be avoided by adopting an approach that focuses on the entire chain of events duringwhich the Charter violation occurred and the evidence was obtained. Accordingly, the first inquiry under s. 24(2) would be to determinewhether a Charter violation occurred in the course of obtaining the evidence.

A temporal link between the infringement of the Charterand the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery ofthe evidence occur in the course of a single transaction. The presence of a temporal connection is not, however, determinative. Situationswill arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtainedin a manner" that infringed the Charter. In my view, these situations should be dealt with on a case-by-case basis.

There can be no hardand fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.” [8] It is to be noted Chief Justice Dickson used the terms “whether a Charter violation occurred in the course of “obtaining theevidence” and “where evidence, though obtained following the breach of a Charter right” and “evidence obtained following theinfringement of a Charter right.” Clearly the Chief Justice assumed evidence “obtained in a manner” referred to evidence obtained aftera Charter violation or else it could not be obtained in a manner that violated the Charter which is the wording of sec. 24(2). [9] In R v Goldhart, (SCC), [1996] 2 SCR 463 the Supreme Court majority stated at page 478: “Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entire relationshipbetween the Charter breach and the impugned evidence, causation was not entirely discarded.

Accordingly, while a temporal link willoften suffice, it is not always determinative. It will not be determinative if the connection between the securing of the evidence and thebreach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only to the temporalconnection but to the causal connection as well. It follows that the mere presence of a temporal link is not necessarily sufficient.

Inobedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for thecourt to consider the strength of the causal relationship. If both the temporal connection and the causal connection are tenuous, the courtmay very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the otherhand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causalconnection that is weak or even absent will be of no importance.

Once the principles of law are defined, the strength of the connectionbetween the evidence obtained and the Charter breach is a question of fact.

Accordingly, the applicability of s. 24(2) will be decided ona case-by-case basis as suggested by Dickson C.J. in Strachan.” [10] In both cases the Charter breach preceded the evidence sought to be excluded. [11] In R v Wittwer, 2008 SCC 33, again the court spoke of evidence (a statement) tainted by an earlier Charter breach. “In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach.It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement.

The statement will be tainted ifthe breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. Therequired connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of thethree": R. v. Plaha (2004), (ON CA), 189 O.A.C. 376 (Ont. C.A.), at para. 45. A connection that is merely “remote”or “tenuous” will not suffice: R. v.

Goldhart, (SCC), [1996] 2 S.C.R. 463 (S.C.C.), at para. 40; Plaha, at para. 45.” [12] In R v Mack, 2014 SCC 58, again the Supreme Court assumed the breach precedes the obtaining of the evidence to complywith the wording in sec. 24(2). At para 38 the Court stated: “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, at para 21).” [13] In R v Harper, (SCC), [1994] 3 SCR 343, the Supreme Court was dealing with a Charter violation of sec.10(b). There were two statements made by the accused. The first statement was made before the violation and the second statement wasmade after the violation. The first statement did not pass the first test in a sec. 24(2) exclusion application having been made before theviolation. The second statement did but was found admissible after a Grant analysis.

The Chief Justice speaking for the majority stated inregard to the first statement: “The appellant’s first statement had nothing to do with the alleged

section 10(

b) violation because the police had not yet arrested him andhad no opportunity to inform him of his rights, so as to trigger

section 10(b).” [14] As to the second statement he said: “...... I am satisfied that his incriminating statement would have been made even if it's

section 10(

b) rights had not been violated.

Accordingly, I am of the view that admission of the appellant’s second inculpatory statement would not significantly affect the fairness of his trial...” [ 15 ] The defence relies mainly on four authorities: R v Tim , 2022 SCC 12 R v Pino , 2016 ONCA 389 R v Badu , 2022 ABCA 267 R v Le , 2019 SCC 34 [ 16 ] In Tim , the arrest was based on a mistake of law, infringing sec. 9 of the Charter . The evidence obtained as a result of the unlawful arrest was obtained in a manner that violated the Charter .

The court stated the entire chain of events should be examined and evidence will be tainted if the breach and the discovery of evidence are part of the same transaction or course of conduct. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger sec. 24(2). There must be some temporal and contextual connections between the Charter breaches and the discovery of the evidence.

The Court found in that case the discovery of the evidence was very close in time to the Charter breaches and it flowed directly out of the same encounter with the police and was part of the same transaction or course of conduct as the first and second searches. [ 17 ] In Pino , the Ontario Court of Appeal found there were three Charter breaches in making a traffic stop and finding marijuana in the trunk of the accused’s car. The first was the manner of the stop which was more of a take down using guns and balaclavas. This breached the accused’s sec. 8 rights and occurred prior to the search.

The second breach was not fully informing the accused of her sec. 10(

b) rights at the time of the search. The third was delay in not allowing contact with counsel until the police obtained a warrant and executed it on a residence. [ 18 ] The Court found the approach to “obtained in a manner” in sec. 24(2) should be generous and consistent with the purpose of sec. 24(2).

They found the evidence and the three breaches were part of the same transaction and the connection was both temporal and contextual and was neither too tenuous nor too remote. [ 19 ] Of course all that was necessary was the take down breach that occurred before the finding of the evidence to find it was “obtained in a manner.” The second breach was close in time to be part of the same transaction. [ 20 ] In R v Coombs , 2017 ABPC 51 , the accused refused to provide a roadside breath sample. The court found he was subsequently arbitrarily detained.

However, the evidence of the refusal was not “obtained in a manner” that related to the Charter breach and therefore did not invoke sec. 24(2). The evidence was not a product of or derived from the exploitation of a Charter violation. [ 21 ] This same conclusion was arrived in a similar case, R v Gorgen , 2014 ABPC 6 . [ 22 ] The Pino case was not raised at the trial level in Coombs . It was raised on

summary conviction appeal in Queen’s Bench. Justice Nation dealt with Pino pointing out that the first breach was an unnecessary and dangerous take down in a traffic stop which happened before the evidence was seized and that the police lied about the way the arrest happened on the stand. The appeal court found the breach was not temporally or contextually connected to the evidence as was found in Pino . [ 23 ] In Badu , the police exceeded an unauthorized search of the residence and of the accused’s cell phone. The breaches resulted in the finding of the evidence.

The Court of Appeal went directly to the second test of sec. 24(2), the Grant factors, and found the evidence inadmissible. The Court made no reference to Pino . [ 24 ] In Le , 5 young, racialized men were gathered in the backyard of a townhouse. The police entered the backyard without a warrant or consent or probable cause. As a result they found a firearm and drugs in the possession of the accused, one of the young men. His Charter rights under sec.’s 8 and 9 were violated which resulted in the finding of the evidence, clearly being obtained in a manner that violated the Charter .

The evidence was excluded by applying the second test on the Grant factors. [ 25 ] I have reviewed all of the authorities provided to me by both counsel and I can find none where the finding of evidence preceded a Charter breach and there was a finding that the evidence was obtained in a manner that related to a Charter breach. The authorities, particularly from the Supreme Court, have ruled that the connection between the Charter breach and the evidence to be excluded must be temporal, causal or contextual or a combination of the three. The connection, if there is one, cannot be remote or tenuous.

Otherwise, it does not meet the threshold of evidence obtained in a manner that infringed the Charter . In applying this threshold the court is to take a purposive and generous approach. [ 26 ] In this case there is no connection between the finding of the gun and the delay in allowing him to exercise his right to counsel. The breach had no effect on the finding of the gun. There is no temporal, causal or contextual connection, even a remote or tenuous one. The gun was found legitimately absent any Charter violation.

The violation may have had an effect on the time of his release from custody but not on the finding of the gun. Therefore the evidence of the gun was not obtained in a manner that infringed the Charter and sec. 24(2) is not engaged on the first test.

The Second Test [ 27 ] Having found the first test of engaging sec. 24(2) does not apply, it is unnecessary to go to the second test and apply the Grant factors.

However, in case a higher court should find fault with my analysis, I will briefly go on to do so. [ 28 ] The three Grant factors are as follows: 1) the seriousness of the Charter infringing state conduct; 2) the impact on the accused’s Charter protected interests; and 3) society's interest in the adjudication of the case on the merits. [ 29 ] It is only on a balancing of these factors will the court then determine whether inclusion or exclusion of the evidence will bring the administration of justice into disrepute. 1) The Seriousness of the Charter Infringing State Conduct [ 30 ] The delay by the police in taking the accused to arrest processing was both misconduct and unprofessional showing a lack of concern for the right of the accused to contact counsel.

It had no effect on the finding of the gun but may have affected his ability to gain his release. The officer admitted making unprofessional comments to his fellow officers during the search of the trunk of the car that were caught on his bodycam video. These were private comments not made in the presence of the accused. The defence counsel emphasized this evidence on the bodycam in his submissions. It is all conduct the court does not want to be associated with or to be seen to give its approval. On the other hand it is not the most serious breach and a good deal of the delay is explainable.

I do not find the delay was intentional but more a lack of paying attention to his duties. [ 31 ] The remarks were unprofessional as the officer admitted but had no effect on the accused’s rights. 2) The Impact on the Accused’s Charter Protected Interests [ 32 ] As already pointed out, the breach had no effect on the finding of the gun. It should be remembered the reason for the original arrest was outstanding warrants. Absent the warrants the accused would have been issued a ticket, there would have been no arrest and no search.

Had he been given access to counsel before he was, it would have had no effect on his arrest or the search or the finding of the gun. The only effect it might have had was on a more timely release. Overall there was minimal impact on the accused’s rights as a result of the delay. 3) Society’s Interest in the Adjudication of the Case on the Merits [ 33 ] This factor is almost always in favor of inclusion. The evidence the accused applies to be excluded is the handgun being carried in a vehicle. A gun in a vehicle can have only one purpose which is to commit violence.

Authorized handgun owners are not allowed to carry guns in their vehicles. They must be properly locked up in their homes or at shooting ranges. The proliferation of illegal guns on the street and used for drive-by shootings on the streets of cities is well-known. Society has a strong interest in judicially dealing with such guns in vehicles and keeping them off the streets in proper cases and therefore having such incidents dealt with on their merits. The gun is real evidence which makes it relevant and reliable.

Balancing the three factors [ 34 ] The only factor that would have any support for exclusion of the gun may be the state conduct factor. I do not find that factor alone would support exclusion to the point it would bring the administration of justice into disrepute. Balancing all factors together, I find excluding the gun is more likely to bring the administration of justice into disrepute. Without the evidence, the Crown has no case to put before the court and the case could not be heard on its merits. Conclusion [ 35 ] I find that on the first test, sec. 24(2) is not activated.

Even if it was, based on the second test, the evidence should not be excluded as it’s inclusion would not bring the administration of justice into disrepute. It’s exclusion would. [ 36 ] All evidence heard in the voir dire will now be applied to the trial proper as agreed. Dated at the City of Calgary, Alberta this 20 th day of December, 2023.

B. R. Fraser A Justice of the Alberta Court of Justice Appearances: K. De Boer for the Crown D. Nguyen for the Accused