R v Moyles, 2019 SKCA 72

Court of Appeal for Saskatchewan Docket: CACR2942 Citation: R v Moyles , 2019 SKCA 72 Date: 2019-07-30 Between: Bryan Francis Moyles Appellant And Her Majesty the Queen Respondent Before: Jackson, Ryan-Froslie and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Ryan-Froslie On Appeal From: Provincial Court, Estevan Appeal Heard: December 5, 2018 Counsel: Mindy Caterina for the Appellant Wade McBride, Q.C., for the Respondent Barrington-Foote J.A. I. Introduction [ 1 ] The appellant, Bryan Moyles, was convicted of importing a

Schedule VI precursor, gamma-butyrolactone [GBL], into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. He was also convicted of two Customs Act , RSC 1985, c 1 (2d Supp), offences, being possession of unlawfully imported goods contrary to s. 155 and smuggling contrary to s. 159. He received a six-month conditional sentence order. [ 2 ] Mr. Moyles appeals his conviction and sentence. He submits that the two warrants which authorized the police to enter his home should have been quashed, resulting in a warrantless search contrary to s. 8 of the Charter .

He says the evidence obtained as a result of the execution of those warrants should have been excluded. Mr. Moyles also says a warned statement should have been excluded as a result of a breach of his s. 10(

b) Charter right to counsel. In the alternative, he takes the position his sentence should be reduced to a discharge. [ 3 ] For the reasons that follow, I would allow Mr. Moyles’s conviction appeals and enter an acquittal. II. Background [ 4 ] The investigation which resulted in these charges began with the interception of two boxes at the Vancouver International Airport on August 6, 2014. The boxes, which were shipped from China and addressed to “Bryan” at 383 Petterson Drive, a residence in Estevan, Saskatchewan [house], were labelled as containing peppermint oil.

A suspicious Canada Border Services Agency [CBSA] officer opened them and found six plastic bottles containing GBL. [ 5 ] GBL is not a controlled substance under the CDSA and it is not an offence to possess or traffic in GBL. GBL has legitimate industrial uses. However, it can also be used to produce 4-hydroxybutanoic acid – a date rape drug – which is controlled under the CDSA . For that reason, GBL is listed as a precursor in

Schedule VI to the CDSA . Section 6(1) of the CDSA provides that it is an offence to import or export a

Schedule VI substance. [ 6 ] The CBSA turned the boxes over to the RCMP, which shipped them to Regina. The integrated RCMP/Estevan Police unit that would conduct the investigation decided to use an investigatory technique known as a “controlled delivery”. Covert alarms were to be installed in each box [box alarm] and the six bottles of GBL in the boxes would be replaced with six bottles of water, one of which contained a small vial of GBL. An undercover operator posing as a Purolator courier would deliver the boxes to the house.

When a box was opened, the alarm would be triggered and the police would enter the residence. [ 7 ] Before proceeding with the controlled delivery, the police briefly investigated and surveilled the house. The telephone number on the boxes led them to identify Mr. Moyles as a suspect and to conclude he may be an occupant of the house. [ 8 ] On August 13, 2014, Constable Lon Schwartz, the team leader of the integrated unit, swore two Informations to Obtain warrants [ITO].

Both ITOs said the affiant had reasonable grounds to believe Bryan Moyles had committed or would commit one or more of three offences relating to GBL: importing, pursuant to s. 6(1) of the CDSA ; possession for the purpose of trafficking, pursuant to s. 5(2) of the CDSA ; and conspiracy to commit those CDSA offences.

As noted above, possession of GBL for the purpose of trafficking is not an offence. [ 9 ] One ITO requested a general warrant pursuant to s. 487.01 of the Criminal Code [general warrant ITO] authorizing the police to conduct the controlled delivery, and to enter and search the house only after a box alarm was triggered. The other ITO requested a s. 11 CDSA warrant [CDSA ITO] authorizing entry, search and seizure.

[ 10 ] Both warrants were issued August 13, 2014, for a seven-day period commencing at 11:00 a.m. on August 13. The general warrant authorized the police to install and monitor the box alarms. It said the police could not enter the residence until there were reasonable grounds to believe Bryan Moyles and/or unknown persons are or have been in actual possession of the boxes. However, it did not refer to the controlled delivery. The CDSA warrant authorized the police to enter the house at the times specified in the ITO.

It did not refer to the delivery of the boxes at all. [ 11 ] The controlled delivery took place on August 14, 2014. An RCMP undercover officer went to the door of the house. A person who identified himself as Bryan Moyles answered the door, showed identification, and signed for the delivery. After a minute or two, the police received notification from one of the box alarms that a package had been opened. They knocked, and receiving no answer, broke open the front door. [ 12 ] Mr. Moyles, who was coming down the stairs, was arrested.

He was taken to a police car five to seven minutes later, after the police had finished clearing the house. He was advised of the reasons for his arrest and his right to counsel and cautioned at 1:25 p.m. He said he wanted to speak to counsel. At 1:29 p.m., he was transported to the police station by Constable Chabot, who had been told not to facilitate the exercise of the right to counsel until the search was finished. Mr. Moyles arrived at the detachment at 1:37 p.m. and was lodged in a cell at 1:43 p.m. The police finished searching the house and located several items, including the boxes.

At 2:20 p.m., Constable Schwartz and two other officers left the house to get something to eat. The last of the officers left and locked the house at 2:46 p.m. From 3:20 p.m. to 3:29 p.m., the police had a debriefing. Constable Chabot finally provided Mr. Moyles a call to duty counsel at 3:35 p.m. [ 13 ] Mr. Moyles gave a warned statement after speaking to counsel. He said he and four others lived at the house. He initially denied knowledge of the boxes, but then admitted they belonged to him and that he had received a similar shipment before. III. The Voir Dire Decision [ 14 ] At trial, Mr.

Moyles submitted that both warrants were invalid, and that his s. 8, s. 9 and s. 10(

b) Charter rights had been violated. He applied under s. 24(2) of the Charter to exclude both the evidence seized from his residence and his warned statement. [ 15 ] The May 16, 2016, decision on the voir dire dealt with six issues identified by Mr. Moyles, five of which related to alleged errors affecting the validity of the warrants. On this appeal, Mr. Moyles did not challenge the trial judge’s conclusions relating to those five issues, which were as follows: (

a) Both warrants were flawed because both ITOs said the affiant had reasonable grounds to believe Mr. Moyles committed the non-existent offence of trafficking in GBL. Those errors did not invalidate either warrant, as they also referred to importing. (

b) The ITOs provided sufficient grounds for the issuing justice to believe the offence of unlawful importation of GBL had been committed. (

c) The general warrant was not invalid as a result of having authorized the search after the entry resulting from the controlled delivery. (

d) The CDSA warrant did not improperly authorize an anticipatory search, as there were reasonable grounds to believe the offence of unlawful importation had occurred at the time of the search. (

e) The location description of the house in the ITOs was sufficient despite failing to disclose that the house did not display a number. [ 16 ] In the result, the trial judge found both warrants were valid. He nonetheless conducted a s. 24(2) analysis relating to the alleged s. 8 breach, finding that if he was wrong in concluding the warrants were valid, he would nonetheless have admitted the evidence found in the house. He dealt with the three lines of enquiry specified in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ].

As to the seriousness of the state conduct, he found that Constable Schwartz acted in good faith, and was attempting to find the correct legal solution when he sought both a general warrant and a CDSA warrant. He noted that Constable Schwartz might have sought a legal opinion, but faced a difficult decision and tried his best. In the result, he found that the first branch of the Grant test favoured admission of the evidence. [ 17 ] As to the second branch of the Grant test, the trial judge noted the search involved a home, which is typically a person’s place of greatest privacy.

He pointed to the breach of the front door, the arrest, the protective sweep, the seizure of packages, and a thorough and intrusive search over a period of 1 hour and 15 minutes at a time when Mr. Moyles was being held at the police station and could not consult counsel. He inferred these circumstances would cause Mr. Moyles considerable stress. In the result, he found the impact on Mr. Moyles’s Charter -protected interests favoured exclusion. [ 18 ] Finally, the trial judge found that society’s interest in the adjudication of the charge on its merits favoured admission.

He noted the evidence seized was highly reliable physical evidence that he anticipated was crucial to the Crown’s case. [ 19 ] The trial judge also undertook a detailed analysis of the alleged breach of s. 10(

b) of the Charter . He reviewed the evidence of Constable Schwartz, who testified the search team decided Mr. Moyles would not be provided the opportunity to contact counsel until after the search was completed and the team was debriefed. Officers were instructed accordingly, and were also told not to question Mr. Moyles until he had the chance to contact counsel. Constable Schwartz gave evidence relating to potential dangers to officers arising from the search. He said elements of the drug trade were attracted to Estevan and that it was difficult to know who was involved.

He said this called for investigators to be cautious. He confirmed they had no specific information linking Mr. Moyles or the house to other incidents of drug trafficking, weapons or violence. [ 20 ] Constable Schwartz also testified as to potential risks to the integrity of the investigation. He said that if it was disclosed a

property was being searched, colleagues of an accused could tamper with evidence located elsewhere. He said he was told of a lawyerwho tipped off associates. [21] The trial judge noted that s. 10(

b) of the Charter provides detained and arrested persons with a critically important right toconsult counsel without delay, but that the courts have sometimes recognized delays are permissible if they are supported by “cogentreasons”. In this context, he referred to R v Strachan, (SCC), [1988] 2 SCR 980 [Strachan]; R v Bartle, (SCC), [1994] 3 SCR 173; and R v Suberu, 2009 SCC 33, [2009] 2 SCR 460 [Suberu], all of which addressed the issue of delay for safetypurposes or in dangerous or urgent circumstances.

However, he found that the concerns identified by Constable Schwartz regarding theintegrity of the investigation were “too speculative”. The trial judge noted the police could have ensured Mr. Moyles spoke only withlegal counsel and that he did not believe counsel would do anything to obstruct the investigation. He found that safety concerns weresufficiently reduced by approximately 1:50 p.m. to require that Mr.

Moyles be given an opportunity to call counsel. [22] For this reason, the trial judge found there was an unreasonable delay of 1 hour and 45 minutes in providing the opportunity toconsult counsel, and turned to the Grant analysis to determine whether the warned statement should be excluded as a result of that breachof Mr. Moyles’s s. 10(

b) Charter right. As to the seriousness of the state misconduct, he found that Constable Schwartz was sincerelymotivated by officer safety concerns, and that his direction to officers to not ask questions of Mr. Moyles until he had his call supportedthe conclusion he acted in good faith. In the result, he found the exclusion of evidence should not be based on the first factor. [23] As to the second Grant factor, being the impact on Mr.

Moyles’s Charter-protected interests, the trial judge noted that Mr.Moyles waited for a significant period of time, and that the dynamic entry and search of his residence was a very stressful episode. Hethen commented as follows (May 16, 2016 transcript at T18): … On the other hand, there is nothing to suggest that Mr.

Moyles was not treated respectfully after being taken into custody and ConstableSchwartz made certain he knew he would be able to consult with counsel before being interviewed … given no evidence was elicited inthe interim, and he spoke with counsel before providing his statement, this factor does not favour exclusion of the evidence. [24] As to the third Grant factor, the trial judge noted admissions are less reliable than physical evidence but that exclusion of thestatement would deal “a significant blow to the likelihood of conviction”.

He concluded (May 16, 2016 transcript at T18): … In this case, where the lead investigator acted in good faith and the applicant did consult counsel prior to the police interview, I am ofthe view society’s interest in adjudication on the merits is strong. This factor favours admission of the evidence. [25] After considering the three factors together, the trial judge decided to admit the warned statement. IV. Issues [26] At the hearing of this appeal, Mr. Moyles’s counsel took a different course than that charted in her factum.

At the request of theCourt, she filed a supplementary factum after the appeal was heard which confirmed the grounds asserted at the hearing. Those groundsare as follows: (

a) The general warrant was invalid because it did not authorize the controlled delivery. (

b) The CDSA warrant was invalid because it was a “corresponding warrant” to the general warrant. (

c) The search of the house was a warrantless and illegal search that breached Mr. Moyles’s s. 8 Charter rights. (

d) The trial judge erred in his s. 24(2) analysis relating to the breach of Mr. Moyles’s s. 10(

b) Charter right, as follows: (

i) in finding Constable Schwartz was not concerned about a lawyer “tip off” of criminal associates; (ii) in assessing the seriousness of the state conduct, by finding good faith, and failing to consider the extent of the delay and thesystemic nature of the breach; and (iii) in assessing the impact of the breach on Mr. Moyles. [27] Based on these grounds, Mr. Moyles submitted that this Court should conduct the s. 24(2) analysis anew, and should excludeall of the evidence, including the boxes seized by the police, the items seized at the house, and the warned statement.

In the result, herequests that his convictions be quashed and verdicts of acquittal entered. In the alternative, he seeks an order directing a new trial. [28] Mr. Moyles’s argument that his s. 8 Charter rights were infringed because both warrants were invalid as a result of the failureof the general warrant to authorize the controlled delivery was raised for the first time on appeal. He submits he should be granted leave toraise this issue, as there is no prejudice to the Crown and a sufficient record for the Court to make the necessary findings of fact.

He notesthis argument relates solely to what is disclosed on the face of the documents. As the Court noted in R v Sadikov, 2014 ONCA 72, 305CCC (3d) 421: [37] A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of theinformation disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19. Therecord examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v.

Wilson, 2011 BCCA 252, 272 C.C.C.(3d) 269, at para. 39. (Emphasis in original) [29] The argument that all of the evidence should be excluded is also raised for the first time on appeal.

[30] The Crown objects to these new issues being raised. It notes the absence of evidence as to whether the police merely failed tonotice the absence of a clause authorizing the controlled delivery, or whether they noticed the missing clause, and proceeded knowingthey lacked the authority to do so. A police officer’s state of mind is relevant in the first step of the Grant analysis relating to a s. 8 breach:R v Shinkewski, 2012 SKCA 63 at para 32, 289 CCC (3d) 145. The Crown says it could be prejudiced by the absence of that evidence. [31] I note, however, that Mr.

Moyles does not suggest the police noticed the missing clause and proceeded regardless. He submitsthe errors demonstrate sloppiness amounting to negligence. The fact he takes that position responds to the particular potential prejudiceidentified by the Crown. Further, the fact Mr.

Moyles argued at trial that his s. 8 Charter rights had been breached because the warrantswere invalid – although on a different basis – meant the ITOs and warrants were well-trodden ground on the voir dire. [32] The decision as to whether to entertain a new argument on appeal is discretionary, and calls for the court to balance the interestsof justice as they affect all parties: Kaiman v Graham, 2009 ONCA 77 at para 18, 245 OAC 130; R v Reid, 2016 ONCA 524 at para 44,338 CCC (3d) 47, leave to appeal to SCC dismissed, ; Quan v Cusson, 2009 SCC 62 at paras 38–44, [2009] 3 SCR 712.The record relating to the s. 8 breach is complete.

The record relating to the s. 24(2) issue is adequate, and there is no material prejudice tothe Crown. It is in the interests of justice to allow Mr. Moyles to raise these new issues. In the result, I would allow him to do so. [33] Finally, Mr. Moyles also took the position in his factum that the trial judge erred in his “in the alternative” s. 24(2) analysisrelating to the breach of hiss s. 8 Charter rights.

He submitted the trial judge erred in finding that Constable Schwartz acted in good faithand in concluding society’s interest in adjudication on the merits favoured inclusion of the evidence produced by that search. However,that s. 24(2) analysis related solely to the subsequent search of the residence, not the controlled delivery. For the reasons explained below,I have found the subsequent search was properly authorized by the CDSA warrant. It is accordingly unnecessary to decide whether thetrial judge erred in his s. 24(2) analysis. V. Analysis A.

Was the general warrant invalid because the controlled delivery was notauthorized? [34] The general warrant ITO made it very clear its central purpose was to obtain authorization to carry out the controlled delivery,and that the authority to search the house depended on that delivery being carried out. The controlled delivery is described step by step,twice. The general warrant ITO states that using this investigative technique “would, if not authorized, constitute an unreasonable searchor seizure in respect of a person or a person’s property”. The

section titled “Authorization Requested” is as follows: IT IS REQUESTED THAT a warrant be granted authorizing peace officers to utilize the proposed investigative techniques under thefollowing terms and conditions, which will afford evidence concerning the aforesaid offences:

a) That “the package” be detained, the illicit contents of the package be seized and switched out for a similar substance. “Thepackage” would then be equipped with an intrusion alarm or similar device. “The package” will be delivered by a peace officer posing as acourier. Once the package is opened and the alarm activated, peace officer will gain access to “the location” to seek further evidence to“the offences”. [35] The general warrant itself, on the other hand, does not contain this or similar language. It authorized the police to install andmaintain box alarms.

It says entry into and a search of the “the location” where “the package” is delivered to is not authorized until therewere reasonable grounds to believe Mr. Moyles and/or unknown persons are or have been in possession of the package. It refers to thepossibility the alarm may be activated. However, it does not refer to the delivery of the package by a peace officer at all. [36] The Crown did not argue that the general warrant implicitly authorized the controlled delivery. That was an appropriateconcession. I would not have been prepared to read it that generously.

The general warrant did not authorize the controlled delivery, andwas for that reason invalid. B. Was the CDSA warrant invalid because it was a “corresponding warrant”to the general warrant? [37] The CDSA ITO and warrant contain some of the same information as the general warrant ITO and general warrant but were byno means the same. Unlike the general warrant ITO, the CDSA ITO did not seek authority for the controlled delivery. Unlike the generalwarrant, the CDSA warrant did not say the police could not search the house until an alarm was triggered or there was evidence of actualpossession of the package.

It said there were reasonable grounds to believe evidence was at the house and authorized entry, and the searchfor and seizure of that evidence. [38] However, the CDSA ITO fully disclosed the link between the general warrant and the CDSA warrant. It too described theproposed controlled delivery, step by step, but for the step that involved the removal and replacement of most of the GBL. In particular, itsaid the investigation would include the following steps: … “The package” will be delivered to Bryan Moyles or the occupant of “the location” by a peace officer posing as a delivery person.

Theintrusion alarm within “the package” will alert peace officers when “the package” has been opened by the recipient. Peace officers willenter “the location” to arrest occupants within for “the offences” named in this information. [39] Like the general warrant ITO, the CDSA ITO requested that the CDSA warrant be effective from 11:00 a.m. on August 13,2014, to 11:59 p.m. on August 20, 2014. Constable Schwartz deposed that he believed that seven-day period would “afford investigators areasonable time frame to allow for the delivery of the package described in the corresponding General Warrant” (emphasis added).

[40] Mr. Moyles submits these statements in the CDSA ITO demonstrate the CDSA warrant was inextricably linked to thewarrantless and illegal controlled delivery, and for that reason, is invalid. He argues that the offending material relating to the controlleddelivery – unlike other errors in the warrants and ITOs, such as the references to non-existent offences – cannot be conceptually cut out todetermine whether the warrant remains valid. As he puts it, the non-authorization of the controlled delivery went to the heart of the basisfor the search. [41] With respect, I have a different view.

Given that the controlled delivery was not authorized, the correct approach is to excise thereferences to that delivery and to the general warrant from the CDSA ITO. The issue is whether the information that remains after surgerywould have been sufficient to support the CDSA warrant: see, for example, R v Ebanks, 2009 ONCA 851 at para 28, 249 CCC (3d) 29; Rv Sismey (1990), (BC CA), 55 CCC (3d) 281 (WL) (BCCA) at para 7; James A. Fontana & David Keeshan, The Law ofSearch and Seizure in Canada, 10th ed (Toronto: LexisNexis, 2017) at 73–77.

In deciding that issue, the reviewing judge applies the testin R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1471–1472. Does the edited CDSA ITO still disclose reasonable groundsto believe the offence of importing GBL had been or was being committed and that evidence of that offence would be obtained bysearching the house? The fact that material to be excised from a warrant might be characterized as going to the heart of the matter does notmean the usual editing process cannot be applied. [42] The trial judge dealt with the substance of this issue, in two contexts. First, Mr.

Moyles argued at trial the general warrant wasinvalid because the general warrant ITO did not provide sufficient grounds for the issuing justice to believe the offence of unlawfulimportation of GBL had been committed. Accordingly, the trial judge considered whether the information available to the issuing justicemet that standard.

He cited Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114, [2005] 2 SCR 100,as to the meaning of “reasonable grounds to believe”, which he described as follows: Reasonable grounds to believe will exist where one’s honest subjective belief in a state of affairs is objectively supported by compellingand credible evidence.

That said, the standard of reasonable grounds to believe is greater than mere suspicion but less than proof on abalance of probabilities. [43] Having held that evidence that could support a finding of reasonable grounds “should be considered cumulatively and incontext, in a practical and common sense manner”, he noted the following information in the general warrant ITO, all of which is also inthe CDSA ITO: (

a) The boxes contained bottles of GBL. (

b) The boxes came from a business in China. (

c) The boxes were sent to Bryan at the house. (

d) Bryan Moyles’s first name is spelled the same way as that of the addressee. (

e) The telephone number on the packing slip had an Alberta area code and belonged to Bryan Moyles. (

f) A white truck with an Alberta license plate was parked in the driveway at the house. (

g) The white truck displayed the logo Team Industrial Services. (

h) Bryan Moyles’s Facebook page disclosed he worked at a business called Team Industrial Services and has friends in Estevan. [44] Based on this evidence, the trial judge concluded there were reasonable grounds to believe the importation offence hadoccurred and that Bryan Moyles was a party to that offence. [45] Second, Mr. Moyles also argued at trial that the CDSA warrant was invalid because it authorized an anticipatory search. Hesaid there were no grounds to believe the items to be seized were at the house until the controlled delivery occurred.

The Crown arguedthat when the CDSA warrant was authorized, there were reasonable grounds to believe the offence of unlawful importation had occurredand that there would be items connected to that transaction at the house. [46] The trial judge noted the CDSA ITO was very similar to the general warrant ITO, that he had already decided there weresufficient grounds to find the offence of unlawful importation had occurred and that Bryan Moyles was the “intended and knowingrecipient of the contraband” (May 16, 2016 transcript at T11).

On that basis, he concluded there were reasonable grounds to believe therewould be evidence relating to that transaction at the house. He found that the CDSA warrant was valid, but only to the extent it authorizeda search for notes, address books, contents of telecommunications devices, and records of telephone numbers. [47] A deferential standard of review applies on a review by this Court of the decision of a trial judge as to the sufficiency of an ITOto obtain a search warrant.

In R v Bissky, 2018 SKCA 102 at paras 9–15, 369 CCC (3d) 315, leave to appeal to SCC dismissed, , the Court clarified that standard, concluding with the following statement: [15] While the Supreme Court has not spoken definitively on the issue, the weight of the authority, including the reference and resultin Campbell, supports a deferential standard of review, as expressed by the Ontario Court of Appeal in Grant.

Absent an error of law or amisapprehension of the evidence or the failure to consider relevant evidence, deference is owed to the findings of the trial judge made inassessing the record and with respect to the disposition of the s. 8 Charter application. [48] Here, the trial judge’s analysis does not reflect an error of law, a misapprehension of the evidence, or a failure to considerrelevant evidence. There is no basis to interfere with his decision that this evidence disclosed reasonable grounds to believe theimportation offence had occurred and that evidence relating to that offence would be obtained. C.

Was the search of the house a warrantless and illegal search that breached

Mr. Moyles’s s. 8 Charter rights? [49] For the reasons noted above, the controlled delivery was a warrantless search. However, the Crown submits a warrant was notrequired for the controlled delivery in any event, as it was within the scope of the common law “implied licence to knock”. [50] The scope of the implied licence, which is conferred on the police and every other member of the public, was delineated in R vRogers, 2016 SKCA 105 at paras 26–38, 341 CCC (3d) 502 [Rogers].

Justice Jackson there confirmed that “the police do not exceed theimplied licence to knock simply because they are intent on investigating a potential criminal offence … [and] a police officer who islooking for information or evidence about a suspected offence … is not conducting a ‘search’ for s. 8 purposes for that reason alone” (atpara 27). She also confirmed – citing R v Evans, (SCC), [1996] 1 SCR 8 – that if a police officer knocks on the door of aresidence for the purpose of securing evidence against the occupant, they are conducting a search within the meaning of s. 8 of theCharter (Rogers at para 29).

That principle was affirmed by Moldaver J. in his dissenting opinion (but not on this point) in R v Le, 2019SCC 34 at para 212 [Le]. [51] The Crown asserts that the undercover officer who delivered the boxes had no active role in the investigation of Mr. Moyles,and was recruited solely for the purpose of making the delivery. He dealt with Mr. Moyles as a delivery driver would be expected to do. Itargues that even though the delivery resulted in the discovery that a Bryan Moyles who resembled a photograph of the person policebelieved to be Mr.

Moyles lived at the residence, there is no evidence that discovery was the purpose of the undercover officer. [52] With respect, the Crown’s position invites the Court to ignore the substance of what occurred. The police officer was not acourier delivering the boxes that arrived at the Vancouver International Airport. He delivered a package the police created, which includeda monitoring device. That package was an investigatory tool, and the purpose of delivering that investigatory tool was to enable the policeto secure evidence against Mr. Moyles or another occupant of the house.

That was their purpose and their purpose is the issue. [53] Indeed, given that the police were delivering the very boxes that contained the imported GBL to the address listed on thepacking slips, one of the direct purposes of the transaction at the doorstep was to gather evidence as to the identity of the person whoordered the GBL. The undercover officer asked for identification and a signature. As instructed, he promptly handed that evidence to hisliaison officer after he delivered the boxes.

All of that was a step in investigating an occupant of the house. [54] The Crown bears the burden of demonstrating a warrantless search is authorized by a reasonable law and carried out in areasonable manner: R v Mann, 2004 SCC 52 at para 36, [2004] 3 SCR 59. In this case, that reasonable law was the implied licence toknock, which did not apply. That being so, the controlled delivery was an unreasonable search which breached Mr. Moyles’s s. 8 Charterright to be secure against unreasonable search or seizure. [55] The same cannot be said of the search of the house, which was authorized by the CDSA warrant.

The only evidence found atthe house that fell within the limited scope of the CDSA warrant specified by the trial judge was a note of an unidentified Chinese addressfound in Mr. Moyles’s room. However, the Crown submits the police were – because they were executing a warrant issued pursuant to s.11(1) of the CDSA – entitled to seize anything else they believed on reasonable grounds would afford evidence in respect of an offenceunder the CDSA, including the boxes. This argument is based on s. 11(6) of the CDSA, which is as follows:

(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant, (

a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has beencontravened; (

b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to inparagraph (a); (

c) any thing that the peace officer believes on reasonable grounds is offence-related property; or (

d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act. [56] Mr. Moyles did not respond to this argument. I am aware of no authority that would support the conclusion that theseprovisions would not authorize the seizure of the boxes and GBL at the house. There was no suggestion s. 11(6) is inconsistent with s. 8 ofthe Charter. The seizure of the other evidence found in the house was accordingly lawful. D. Did the trial judge err in his s. 24(2) analysis relating to the breach of Mr.Moyles’s s. 10(

b) Charter right? [57] As Caldwell J.A. recently noted in R v Kossick, 2018 SKCA 55, 365 CCC (3d) 186: [20] The standard of review applied to a judge’s s. 24(2) analysis is narrow and deferential. Absent an error in principle or where it isclear the trial judge made an unreasonable finding, an appellate court will generally not intervene in a judge’s decision to excludeevidence: R v Grant, 2009 SCC 32, [2009] 2 SCR 353; R v Buhay, 2003 SCC 30, [2003] 1 SCR 631; R v McMahon, 2018 SKCA 26; R vKoma, 2015 SKCA 92, 465 Sask R 188; R v Turpin, 2012 SKCA 50, 393 Sask R 184. [58] Here, the errors alleged by Mr.

Moyles include a finding of fact in the trial judge’s s. 24(2) analysis. He says the trial judgeerred by disregarding testimony from Constable Schwartz that he delayed Mr. Moyles’s call to a lawyer because he distrusted lawyers.The standard of review for factual determinations within a s. 24(2) analysis attracts the usual standard of review for findings of fact. InGrant, McLachlin C.J. and Charron J. noted that “the trial judge’s underlying factual findings must be respected, absent palpable andoverriding error” (at para 129).

That standard has been consistently applied: see, for example, R v Webber, 2019 BCCA 208 at para 27; R vCampbell, 2018 NSCA 42 at para 17, 362 CCC (3d) 104; R v McGuffie, 2016 ONCA 365 at para 64, 336 CCC (3d) 486 [McGuffie]; R vZolmer, 2019 ABCA 93 at para 27, 373 CCC (3d) 162; R v Knoblauch, 2018 SKCA 15 at paras 49 and 51, [2018] 3 WWR 443.

[59] Justice Cromwell described the applicable standard differently in R v Côté, 2011 SCC 46 at para 52, [2011] 3 SCR 215 [Côté]: … A trial judge’s findings of fact on a voir dire concerning the admissibility of evidence must be respected unless they are tainted byclear and determinative error. … [60] This “clear and determinative error” expression of the standard has occasionally been adopted.

As Cromwell J.A. noted inMcPhee v Canadian Union of Public Employees, 2008 NSCA 104, 270 NSR (2d) 265, it is intended to express the same standard: [18] Appellate intervention on questions of fact is permitted only if the trial judge is shown to have made a “palpable and overridingerror”: see, e.g. Housen, supra at para. 10. Sometimes the standard has been expressed in different words, such as “clear and determinativeerror”, “clearly wrong” and “hav[ing] affected the result.” (emphasis added): see, e.g. H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 55; Delgamuukw v.

British Columbia, supra at paras. 78 and 88. However expressed, courts ofappeal must accept a trial judge’s findings of fact unless the judge is shown to have made factual errors that are clear and which affectedthe result. (Emphasis in original) See also W. Eric Whebby Limited v Doug Boehner Trucking & Excavating Limited, 2014 NSCA 54 at para 45, 346 NSR (2d) 75. [61] This standard has been applied not only to findings of fact, but to the characterization of police conduct.

In R v Cole, 2012 SCC53 at para 90, [2012] 3 SCR 34, for example, the majority found that the trial judge’s finding that a police officer’s conduct was egregiouswas tainted by a clear and determinative error of fact. In R v Bains, 2014 BCCA 43, 306 CCC (3d) 222, Nielson J.A. commented asfollows: [66] The trial judge made clear and repeated findings consistent with his conclusion that the police acted in good faith. These werebased on his assessment of the facts and Cst. Murphy’s credibility.

In Côté, at para. 51, the Supreme Court reminds us that an appellatecourt may not re-characterize the evidence or substitute its own view of police conduct for that of the trial judge in the absence of anyclear and determinative error. … [62] In R v MacMillan, 2013 ONCA 109, 296 CCC (3d) 277, Rosenberg J.A., having adopted the “tainted by clear anddeterminative error” standard, emphasized the importance of an appellate court assessing the impact of an error of fact or an error of law: [44] In this case, I have identified two legal errors by the trial judge in his findings of breach of the respondent’s rights. … In my view,these errors do not entitle this court to disregard the findings of the trial judge that are not tainted by the errors and simply embark on itsown assessment of the seriousness of the breach and the impact of the Charter-infringing conduct.

It remains to determine the extent towhich these errors did taint the trial judge’s s. 24(2) findings, and more generally whether the trial judge properly applied s. 24(2). [63] In the result, Rosenberg J.A. identified errors of both fact and law which undermined the trial judge’s determination, as well asan error in the final stage weighing process called for by Grant. For that reason, he concluded that it was open to him to balance thevarious Grant factors without according the usual deference.

This approach to errors of both fact and law also accords with Côté, whereCromwell J. made it clear that the impact of the errors is the issue: [87] In the result, the Court of Appeal erred in attaching great weight to the fact that the evidence was discoverable because it couldhave been obtained lawfully. In my view, the trial judge’s assessment was not tainted by any error of law that is relevant to his ultimateconclusion or by any unreasonable finding of fact. There was therefore no basis to interfere on appeal with the trial judge’s weighing ofthe various factors. 1.

Did the trial judge err in finding that Constable Schwartz was not concerned about a lawyer “tipoff” of criminal associates? [64] In the voir dire decision, the trial judge found that Constable Schwartz’s concerns relating to the potential impact of Mr.Moyles exercising his right to a phone call were too speculative. In doing so, he specifically addressed Constable Schwartz’s statedconcern as to the potential effect of a call to legal counsel on investigative integrity, commenting as follows (May 16, 2016 transcript atT16): … I do not think legal counsel would do anything to obstruct the investigation.

As for the possibility a lawyer may unwittingly tipoff anassociate who will then destroy evidence, I note that is possible, but it was not a reason provided by Constable Schwartz, who has thepolice experience and had thought at length about the way the search should be conducted. … [65] Although the supplementary factum was not entirely clear as to whether Mr. Moyles continued to press the point, Mr. Moylessubmitted the trial judge erred in finding Constable Schwartz was not concerned about a lawyer tipping someone off.

Constable Schwartzreferred to the fact that he attended a meeting where the possibility that a call to a lawyer might result in the lawyer calling someone elseto have evidence removed was discussed. When asked if he did not trust lawyers at all, he responded as follows: … I didn’t say that I don’t trust lawyers at all, because I do: but, in this instance, when we don’t know who the lawyer is, it’s a variablethat we -- that we don’t know.

And by not making the call is one variable that we can, I guess, somewhat control so that it doesn’tcompromise the integrity of our investigation. [66] This evidence confirms Constable Schwartz took account of this issue. In my view, the trial judge’s reasons do not sayConstable Schwartz did not do so. It was open to the trial judge to find, based on the evidence, that Constable Schwartz was concernedthat a lawyer might intentionally tip someone off, rather than doing so unwittingly. He did not err by doing so.

[67] That does not mean Constable Schwartz’s suspicion justified the delay in implementing Mr. Moyles’s s. 10(

b) rights. Mr.Moyles submits it would be unreasonable for Constable Schwartz to take account of the risk a lawyer might tip off an associate of theaccused when deciding to withhold the call. Given the lack of better evidence of specific risks, I agree. The fact he took account of thisfactor must accordingly be taken into account in deciding whether the trial judge erred in finding Constable Schwartz acted in good faith. 2.

Did the trial judge err in assessing the seriousness of the state conduct, by finding good faith, andfailing to consider the extent of the delay and the systemic nature of the breach? [68] The trial judge found that Constable Schwartz deliberately delayed Mr. Moyles’s call to counsel in a situation where it wasunjustified, but nonetheless acted in good faith. His reasons for doing so are brief. He notes that Constable Schwartz was “sincerelymotivated by officer safety concerns” (May 16, 2016 transcript at T17). He also notes Constable Schwartz directed officers not to questionMr.

Moyles until he had his call to a lawyer. [69] Mr. Moyles submits that it was an error to find that Constable Schwartz acted in good faith, as the breach was deliberate andwas based on unreasonable fears about investigative integrity and danger to officers.

These submissions appeal to principles reflected inthe following statement by McLachlin C.J. and Charron J. in Grant: [75] … “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated withgood faith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, (SCC),[1990] 3 S.C.R. 3, at pp. 32-33, per Sopihka J.; R. v.

Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. … It should also be kept inmind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did notturn up relevant evidence leading to a criminal charge.

In recognition of the need for courts to distance themselves from this behaviour,therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [70] As Feldman J.A. said in R v Szilagyi, 2018 ONCA 695, 365 CCC (3d) 461, referring to the principles reflected in this passagefrom Grant: [57] The Supreme Court reaffirmed and clarified these principles in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202. Brown J. statedthat for errors to be considered to have been made in good faith, they must be reasonable.

Further, the Charter-infringing conduct inquestion need not be deliberate, nor result from systemic or institutional abuse to result in exclusion of evidence that was obtained as aresult of a clear violation of well-established rules: My colleague Moldaver J. recalls the trial judge’s finding that the police were acting in good faith (para. 66; trial reasons, at para. 79).While “‘[g]ood faith’ on the part of the police will...reduce the need for the court to disassociate itself from the police conduct”(Grant 2009, at para. 75), good faith errors must be reasonable (R. v.

Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59). This Courthas cautioned that negligence in meeting Charter standards cannot be equated to good faith (Grant 2009, at para. 75). Even where theCharter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clearviolations of well-established rules governing state conduct (R. v.

Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24-25).[Paterson, at para 44.] (Emphasis in original) [71] In Le, Brown J. and Martin J., writing for the majority, succinctly reaffirmed these principles: [147] … Rather, for state misconduct to be excused as a “good faith” (and, therefore, minor) infringement of Charter rights, the statemust show that the police “conducted themselves in [a] manner … consistent with what they subjectively, reasonably, and non-negligentlybelieve[d] to be the law” (R. v.

Washington, 2007 BCCA 540, 248 B.C.A.C. 65, at para. 78). [72] In light of these principles, it is my respectful opinion that the trial judge’s finding of good faith was the result of an error inprinciple. This lengthy delay constituted a clear violation of the well-established requirement to promptly implement the right to counsel.Constable Schwartz did not act reasonably and non-negligently. As such, he did not act in good faith. The fact that Constable Schwartz didso based on “sincere” safety and investigatory concerns does not change that fact.

The police actions were unreasonable and negligentbecause those concerns, as the trial judge found, were speculative and, as such, did not justify their actions. [73] Mr. Moyles submits, and I agree, that the trial judge committed a further error in relation to the seriousness of the breach byfailing to take account of the fact there was a lengthy delay without a valid reason. The trial judge referred in passing to the fact the delaywas “for a significant length of time” (May 16, 2016 transcript at T17) in considering the second Grant factor, being the impact of thebreach on the Charter-protected interests of Mr.

Moyles. He did not do so when considering the first Grant factor. It bears emphasizingthat the lengthy 1 hour and 45 minute delay in this case included a period of 49 minutes after the last of the police left the house andlocked the doors, when some of the officers were getting something to eat and the police then debriefed while Mr. Moyles continued tolanguish without his call. [74] I also agree that the trial judge erred by failing to consider the systemic nature of the breach.

As Veldhuis J.A. said in herdissent in R v G.T.D., 2017 ABCA 274, 355 CCC (3d) 431, which was affirmed at 2018 SCC 7, [2018] 1 SCR 220: [85] Courts must take institutional or systemic Charter breaches seriously, and keep in mind that “for every Charter breach that comesbefore the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminalcharge”: Grant at para 75. Whether a s 10(

b) breach was the result of a “general policy,” as opposed to a “one-off decision,” is “highlyrelevant to an assessment of the seriousness of the breach”: Heng at para 11. When a Charter breach is systemic, it is not only the policeconduct in an individual case from which a court hopes to dissociate itself. The court also aims to dissociate itself from the many otheroccasions when the police used the same unconstitutional practice. [75] There was evidence of an established practice of delaying phone calls while premises are searched for drugs. In particular,

Constable Schwartz, a team leader, testified that it had been “installed” in him through years of policing “to not have calls made out toanyone while there’s officers on scene, or while there may be, you know, officer safety concerns or preservation of evidence concerns”.He also described the decision to withhold telephone access as a “shared practice with myself and my coworkers”. As noted above, hereferred to attending a meeting where concerns about lawyers were discussed and confirmed that he was concerned about that issue.

Therewas sufficient evidence of a systemic problem that should have been taken into account by the trial judge. 3. Did the trial judge err in assessing the impact of the breach on Mr. Moyles? [76] In addressing the second Grant factor, being the impact of the breach on the Charter-protected interests of the accused, the trialjudge noted Mr. Moyles waited for a “significant period of time” to exercise his right to make a call. He concluded that the s. 10(b)breach, in the context of the events that occurred at the house, was a “very stressful episode” for Mr. Moyles.

Those factors would haveweighed in favour of exclusion under this factor. He then referred to three factors as supporting the opposite conclusion. He noted that Mr.Moyles was treated respectfully; that Constable Schwartz made certain Mr. Moyles knew he could consult with counsel before beinginterviewed; and that no evidence was elicited from Mr. Moyles before he spoke to counsel. On that basis, the trial judge held the secondfactor did not favour exclusion. [77] Mr.

Moyles submits the trial judge erred in finding minimal impact, as delayed implementation of the right in and of itselfseriously undermines the protections offered by the Charter. For the following reasons, I agree. [78]

Section 10(

b) of the Charter provides as follows: 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right[.] [79] In Suberu, McLachlin C.J. and Charron J. explained the meaning “without delay”: [40] As with “detention”, any

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

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

b) seeks to address are present as soon as a detention is effected. In order to protect against therisk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them inregaining their liberty, it is only logical that the phrase “without delay” must be interpreted as “immediately”. If the s. 10(

b) right tocounsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them inregaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [80] The relationship between immediate advice and assistance and the interest in regaining liberty is self-evident. Further, therelationship between the denial of immediate advice and the risk of involuntary self-incrimination is evident regardless of whetherquestioning is delayed.

An accused person held in police cells is well aware of the power of the state and his or her vulnerability. In thosecircumstances, delay in exercising the right to counsel is a form of pressure that could increase the likelihood of self-incrimination whenan accused is finally subjected to questioning. As Laskin J.A. said in R v Pino, 2016 ONCA 389 at para 105, 337 CCC (3d) 402 [Pino] –where the accused sat in her jail cell for over five hours without access to counsel – the accused “was vulnerable and she needed counsel,not just for legal advice, but as a lifeline to the outside world”. [81] The s. 10(

b) right is not the right to counsel. It is the right to counsel without delay. Time matters. That is so regardless ofwhether the accused is treated “respectfully” and whether any evidence is elicited before the right to counsel is implemented. In my view,this breach had a serious impact on the interests protected by s. 10(b). E. Should this Court conduct the s. 24(2) analysis anew, and if so, whatevidence should be excluded? [82] It is my opinion these errors tainted the trial judge’s s. 24(2) analysis relating to the s. 10(

b) breach in a manner thatundermined his ultimate determination. It is accordingly for this Court to conduct the analysis anew and to balance the various factorswithout deferring to the trial judge. Further, the controlled delivery breached s. 8 of the Charter. The trial judge did not conduct a s. 24(2)analysis in relation to that breach, which must also be taken into account in determining what evidence should be excluded. I musttherefore also conduct that s. 24(2) analysis. 1.

Seriousness of the Charter-infringing conduct [83] As Brown J. commented in R v Paterson, 2017 SCC 15 at para 43, [2017] 1 SCR 202 [Paterson], the court’s task in relation tothis aspect of the Grant analysis is to situate the state’s Charter-infringing conduct “on a scale of culpability”. The more severe the policeconduct, the greater the need to exclude the evidence.

As noted above, while intentional disregard of Charter rights weighs heavily againstthe state, “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has beenfound to be warranted for clear violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R.494, at paras. 24-25)” (Paterson at para 44).

[ 84 ] Here, the delay in implementing Mr. Moyles’s s. 10(

b) Charter right was lengthy. The additional 49-minute delay while the police chose to eat and debrief after the house was locked was particularly egregious. Constable Schwartz confirmed that delays in implementing s. 10(

b) rights as a result of concerns over the potential impact of calls to lawyers on investigatory integrity were not limited to this occasion or solely to Constable Schwartz. This was a clear violation of well-established rules of state conduct, and a serious violation of Mr. Moyles’s rights despite the fact he was not questioned until after his rights were finally implemented. [ 85 ] As to the breach of Mr. Moyles’s s. 8 Charter rights, the general warrant ITO demonstrates that Constable Schwartz was well aware the police needed a warrant to conduct the controlled delivery.

As such, the failure to include a provision authorizing the controlled delivery in the general warrant was negligent. As a result of that omission, the controlled delivery – that is, the delivery of the boxes containing the alarms – was a warrantless and illegal search of Mr. Moyles’s residence. [ 86 ] Protection of an accused’s privacy interest is a principal purpose of s. 8 of the Charter ( R v Law , 2002 SCC 10 at para 15 , [2002] 1 SCR 227), and an accused’s residence sits at the top of the hierarchy of places where the accused’s privacy is protected.

Further, the failure to authorize the controlled delivery was not the only problem with the ITOs. Both ITOs also referred to non-existent offences. That, too, supports the conclusion that the failure to authorize the controlled delivery was the result of a lack of reasonable care. [ 87 ] In the result, the Charter -infringing conduct of the state was sufficiently serious in relation to each of the s. 8 and s. 10(

b) breaches to strongly favour the exclusion of evidence obtained in a manner that infringed Mr. Moyles’s Charter rights. The issue as to what evidence was obtained in that manner is discussed below. 2. Impact on Mr. Moyles’s Charter -protected interests [ 88 ] The focus of the second Grant factor is on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. The court evaluates the extent to which the breach undermined the interests protected by the right.

As the Court said in Grant , “[t]he more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” (at para 76). [ 89 ] For the reasons noted in my analysis above of the trial judge’s approach to this issue, it is my view the delay in implementing Mr. Moyles’s s. 10(

b) right seriously impacted the interests protected by the right. To reiterate, immediate access to counsel is central to the interests protected by the right to counsel. Here, the delay was lengthy. It was found by the trial judge to be very stressful for Mr. Moyles, a fact that speaks to the impact on his loss of a lifeline and to the risk that he might involuntarily make admissions against interest. The impact of this breach was not fleeting or technical ( Grant at para 76 ). [ 90 ] The impact of the s. 8 breach was also at the serious end of the scale. The controlled delivery was to Mr.

Moyles’s house, where he enjoyed the highest expectation of privacy. Circumstances which denote a high expectation of privacy favour the exclusion of evidence ( Paterson at para 49 ), and “[a]n illegal search of a house will therefore be seen as more serious at this stage of the analysis” ( Grant at para 113 ). The controlled delivery resulted in Mr. Moyles identifying himself and signing the delivery slip. It also resulted in the placement of box alarms which served as a monitoring device in the house.

Further, the signal sent by the box alarm led directly to the forced entry. [ 91 ] In the result, this factor strongly favours excluding evidence obtained in a manner that infringed Mr. Moyles’s Charter rights. 3. Society’s interest in adjudication on the merits [ 92 ] The inquiry under the third Grant factor was summarized by Cromwell J. in C ôt é (at para 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. [ 93 ] While this inquiry is concerned with society’s interest in an adjudication on the merits, the focus remains on the impact of the state misconduct on the administration of justice ( Grant at para 85, Le at para 158). [ 94 ] In this case, the evidence at issue – Mr.

Moyles’s self-identification at the door and his signature on the delivery slip, the triggering of the box alarm, the boxes located in the house, and Mr. Moyles’s warned statement – is reliable and critical to the Crown’s case. On balance, this factor supports the admission of some or all of the evidence. 4. What evidence was obtained in a manner that infringed Mr. Moyles’s Charter rights? [ 95 ] Mr. Moyles asks that this Court cast a wide net when defining the evidence obtained in a manner that infringed his Charter rights.

He submits that all of the evidence connected to the search of the house should be excluded, including the package intercepted at the Vancouver airport and turned over to the police before any Charter breach, the items seized from the house, and the warned statement. He relies heavily on Pino , where the Court concluded evidence seized before a s. 10(

b) Charter breach could be excluded if there is a sufficient temporal and contextual connection. The Crown agrees that a temporal and contextual connection can be sufficient, but submits that the initial and lawful seizure of the packages days before the Charter breaches does not demonstrate such a connection. [ 96 ] It is clear that a causal connection is not required to meet the “obtained in a manner” requirement under s. 24(2) ( Pino at paras

49–56; Strachan at 1000–1005; R v Mian, 2014 SCC 54 at para 83, [2014] 2 SCR 689). In R v Wittwer, 2008 SCC 33, [2008] 2 SCR 235,Fish J. spoke to this issue in the context of a statement made by an accused when confronted with an earlier statement obtained in violationof his s. 10(

b) right: [21] In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generousapproach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will betainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005.The required 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, at para. 45.

A connection that is merely “remote” or “tenuous”will not suffice: R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.

In the result, the Court excluded the second statement, as the police deliberately used the earlier statement obtained in violation of theCharter. [97] In Pino, Laskin J.A. identified essentially the same factors as those which should guide a court’s approach to the “obtained in amanner” requirement (at para 72): • The approach should be generous, consistent with the purpose of s. 24(2)[.] • The court should consider the entire “chain of events” between the accused and the police[.] • The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct[.] • The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these threeconnections. • But the connection cannot be either too tenuous or too remote. [98] In this case, it is clear the warned statement had a sufficient temporal and contextual connection to be evidence “obtained in amanner”.

The same is true of the evidence obtained in the course of the controlled delivery. That evidence included the fact Mr. Moylesidentified himself and signed the delivery slip, took delivery of the boxes, and that a box alarm was triggered shortly thereafter. There is aninsufficient connection to the evidence relating to the interception of boxes at the Vancouver airport.

The more difficult question iswhether the remaining evidence gathered at the residence, and particularly the boxes, is evidence obtained in a manner that breached theCharter, despite the fact that search was not warrantless or illegal. [99] It is my view that evidence of the items seized in the house is evidence obtained in a manner which infringed the Charter. Thedecision in R v Boutros, 2018 ONCA 375, 361 CCC (3d) 240 [Boutros], is instructive. In that case, there were s. 8 and s. 10(

b) Charterbreaches. The evidence at issue was text messages which were finally seized pursuant to a production order. The trial judge found that heneed not conduct a s. 24(2) analysis, as there was no Charter breach relating to the production order. [100] The appellant contended that there was a sufficient temporal, contextual, or causal connection to call for exclusion under s. 24(2).Justice Doherty agreed that a s. 24(2) analysis was necessary, as “evidence obtained pursuant to a lawful production order, or searchwarrant, may still be obtained ‘in a manner’ that infringed a Charter right” (Boutros at para 19).

He relied on R v Grant, (SCC), [1993] 3 SCR 223, in support of that proposition, commenting as follows: [20] R. v. Grant, (SCC), [1993] 3 S.C.R. 223 is directly on point. In Grant, the police conducted twoperimeter searches of the accused’s property. They subsequently obtained and executed a search warrant for the property. The courtdetermined that the perimeter searches were unconstitutional, but the search made under the authority of the warrant was valid as therewere adequate grounds to justify the issuing of the warrant, apart from the information acquired during the unconstitutional perimetersearches.

The court then turned to whether the unconstitutional perimeter searches were sufficient to trigger s. 24(2) of the Charter, eventhough the evidence had been seized pursuant to a valid search warrant.

The court said, at p. 254: However, this does not eliminate the possibility that the entire search process was tainted by the warrantless perimeter searches whichviolated s. 8, so the possibility of excluding that evidence under s. 24(2) of the Charter must be considered. [21] In holding that the unconstitutional prior perimeter searches did result in the evidence being obtained in a manner which infringedthe Charter, despite the valid warrant, the court said, at p. 255: In the case at bar, there is a sufficient temporal connection between the warrantless perimeter searches and the evidence ultimately offeredat trial by the Crown to require a determination as to whether the evidence should be excluded.

The warrantless searches, while perhapsnot causally linked to the evidence tendered, were nevertheless an integral component in a series of investigative tactics which led to theunearthing of the evidence in question. It is unrealistic to view the perimeter searches as severable from the total investigatory processwhich culminated in discovery of the impugned evidence. [22] In keeping with Grant, and other authorities, e.g. R. v. Plant, (SCC), [1993] 3 S.C.R. 281, at p. 296; R. v.

Côté,2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 78-79, the trial judge should have determined whether any of the Charter breaches thatoccurred before the police obtained the text messages under the authority of the lawful production order were integral to the investigativeprocess that ultimately led to the acquisition of the text messages by the police. (Emphasis in original) [101] Cast in those terms, I conclude that the s. 8 Charter breach was integral to the investigative process that led to the seizure of theboxes and other items in the house. That, too, is evidence obtained in a manner that infringed Mr.

Moyles’s s. 8 Charter rights. 5. The final balancing

[ 102 ] The last step in the Grant analysis is the final balancing. In R v Harrison , 2009 SCC 34 , [2009] 2 SCR 494 [ Harrison ], McLachlin C.J. summarized this step as follows: [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The 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.

Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [ 103 ] In McGuffie , the Court noted that “[t]he strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant ” (at para 62 ). Mr.

Moyles noted that McGuffie says that if both of the first two Grant factors push strongly toward exclusion of the evidence, the third – which tends to pull in favour of inclusion – will seldom tip the balance in favour of admissibility ( McGuffie at paras 62–63 ). In Le , Brown J. and Martin J. adopted a slightly different version of this principle, commenting as follows: [142] … The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence.

Where the first and second inquiries, taken together , make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility ( Paterson , at para. 56 ).

Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. (Emphasis added) [ 104 ] These comments in McGuffie and Le as to the relative importance of the third line of inquiry do not change the test described in Harrison , which is based on the reasoning in Grant . The rule identified in McGuffie and Le is not absolute. Rather, it reflects the likely outcome of the final stage balancing in certain circumstances.

In every case, the overarching question remains the impact of inclusion or exclusion on the repute of justice, and the answer to that question turns on all of the circumstances. [ 105 ] In this case, the first and second inquiries, taken together, make out a strong case for exclusion. The warrantless controlled delivery to Mr. Moyles’s residence – which was a central element of the investigative process – was serious state misconduct with a serious impact on Mr. Moyles’s Charter -protected interests. So too was the s. 10(

b) breach, which, in the period after the house was secured, might fairly be described as demonstrating either a fundamental misunderstanding of or a cavalier disregard for Mr. Moyles’s rights. To echo the comments of Doherty J.A. in McGuffie , “[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence” (at para 83). VI.

Conclusion [ 106 ] Absent the evidence that I have determined should be excluded under s. 24(2), there is insufficient evidence to support a conviction. I would allow the appeal, set aside Mr. Moyles’s conviction and enter an acquittal. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Jackson J.A.” for Ryan-Froslie J.A.