COURT OF APPEAL FOR ONTARIO
Gillese, Pepall and Ducharme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Campbell
Appellant
Candice Suter, for the appellant
David Lepofsky, for the respondent
Heard: May 23, 2012
On appeal from the convictions entered on December 1, 2009 by Justice Frank N. Marrocco of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1Following a trial without a jury, the appellant was found guilty of twelve firearm-related charges. He was convicted of ten charges after two counts were stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, including possession of a loaded restricted firearm, careless storage of a restricted weapon, possession of a prohibited weapon and possession of a loaded prohibited weapon. He appeals against conviction.
The Background in Brief
2Police received an anonymous Crime Stoppers tip that the appellant was dealing in drugs, had firearms at his apartment, and was a smart, dangerous criminal. After corroborating information relating to the appellant’s background but not his drug dealing or weapons possession, they obtained a search warrant that authorized a search of the appellant’s apartment.
3On September 10, 2006, at approximately 1:00 a.m., the police entered the appellant’s home with weapons drawn and without warning, and tossed inside two distraction devices. They found and seized firearms, ammunition, illegal drugs, a gravity knife, and cash. They also seized cameras.
4The appellant was charged with 21 firearms and drug-related offences.
5At trial, the Crown conceded that the police did not have reasonable and probable grounds to believe that evidence of drugs and firearms would be found in the appellant’s home. The sole issue was whether the fruits of the illegal search would be excluded pursuant to s. 24(2) of the Charter.
6The trial judge excluded the evidence of the non-firearm related offences but admitted the evidence related to the firearm offences.
7After the ruling, the trial proceeded by way of an admission of facts.
The Ruling
8The trial judge applied the test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 in determining whether the admission of the impugned evidence would bring the administration of justice into disrepute. The factors to be considered and balanced on a s. 24(2) analysis, as revised in Grant, are: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the applicant’s Charter rights; and (3) society’s interest in adjudication of the case on its merits.
9In respect of the first branch of the Grantanalysis, the trial judge found a number of acts of “serious” police misconduct. He further found that these acts were the result of carelessness, rather than recklessness or a wilful disregard of the appellant’s Charter rights. He concluded that the police officers had not acted in bad faith.
10Under the second branch, the trial judge found that the unannounced search of the appellant’s home in the middle of the night was intrusive and had a significant impact on the appellant’s Charter-protected rights.
11Under the third branch, the trial judge found that the evidence was reliable, non-conscriptive and essential to the Crown’s case, considerations that favoured admission of the evidence. He stated that both sets of charges (i.e., those relating to drugs and those relating to firearms) were serious and stated that the seriousness of the charges similarly favoured admission. Nonetheless, he excluded the evidence of the non-firearm related offences but admitted the evidence related to the firearm offences. The only distinguishing feature between the two groups of offences was what the trial judge termed the “character” of the offences.
The Issue on Appeal
12Did the application judge err in admitting the evidence related to the firearm offences under s. 24(2) of the Charter?
Analysis
13It is common ground that the application judge correctly instructed himself on the test to be applied under s. 24(2), namely, the test set out in Grant. The appellant contends that although the test was properly articulated, the trial judge erred in his application of the law to the facts of this case.
14The appellant makes two submissions in this regard. The first relates to the trial judge’s finding that the police officers acted in good faith. He submits that the trial judge erred in his analysis of the seriousness of the state misconduct by approaching the police misconduct in a piecemeal fashion, equating carelessness with good faith, and failing to make a finding about how far short the warrant fell from the constitutionally required standard. The appellant’s second submission relates to the trial judge’s handling of the third branch of Grant. He contends that the trial judge erred by overemphasizing the seriousness of the firearms offences.
15We do not accept either submission.
16Deference is owed to a trial judge’s s. 24(2) analysis. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination: see Grant, at para. 86.
17The trial judge carefully considered the relevant factors surrounding the warrant, including how it was obtained, the failure to make full disclosure to the issuing judge, the reference to Jamaican accents and the non-citizenship status of the occupants of the dwelling, and the manner in which the search was carried out. While the trial judge considered each individual instance of police misconduct, the record does not support the allegation that he approached his analysis in a piecemeal fashion. Rather, he conducted his analysis based on the totality of the evidence. It was open to the application judge to find that despite the seriousness of the state misconduct, the officers did not act in bad faith. He was alive to all of the factors that properly weighed in this analysis. The seriousness of Charter-infringing state conduct can be seen to fall on a spectrum from blameless conduct, through negligent conduct to conduct demonstrating a blatant disregard for Charter rights: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 23. From his reasons, it is clear that the trial judge did not consider the breaches to fall at the serious end of the spectrum. On the facts found by him, to the extent the police actions fall short of good faith, they do not fall far short.
18As for the submission based on the third branch of Grant, we do not accept that the trial judge overemphasized the seriousness of the firearm-related offences. At para. 69 of the reasons, the trial judge expressly acknowledged the seriousness of both the firearms and the drug offences. When speaking of the “certain character” of firearm offences in the following paragraph, the trial judge was not overemphasizing the seriousness of such offences. Rather, he was referring to the heightened public interest in their prosecution. In support of this view, he pointed to R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 110, where Binnie J. noted the increasing incident of gun crime in Canada, and R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77, where this court stressed the need for society to be protected from criminals armed with deadly handguns. Consequently, he found that society had an even greater interest in adjudication of the firearms offences than of the drug offences. Recognizing again the deference to be shown to trial judges, we see no error in this determination.
Disposition
19Accordingly, the appeal is dismissed.
“E.E. Gillese J.A.”
“S.E. Pepall J.A.”
“E. Ducharme J.A.”
