COURT OF APPEAL FOR ONTARIO
MacPherson, MacFarland and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Terrance Coderre
Appellant
Eva Tache-Green, for the appellant
Michael Fawcett, for the respondent
Heard: April 7, 2016
On appeal from the convictions entered on January 26, 2012 by Justice Robert B. Reid of the Superior Court, sitting without a jury.
INTRODUCTION
1The appellant appeals from convictions related to the unlawful cultivation of marijuana and the possession of firearms. He argues that the evidence seized by the police while executing a search warrant at his home should have been excluded under s. 24(2) of the Charter. For the reasons that follow, I disagree and would dismiss the appeal.
(1) The first search
2The police started an investigation into the appellant’s suspected drug dealing activities after receiving inculpatory information from reliable informants and anonymous tipsters. On March 2, 2009, they obtained a general search warrant pursuant to s. 487.01 of the Criminal Code, R.S.C. 1985, c. C-46.The warrant included a statutorily-mandated requirement to inform the appellant of the existence and execution of the warrant within 180 days after the warrant’s execution.
3The warrant was executed on March 18, 2009. The police did not find any drugs but they did find evidence consistent with a drug operation. The notice period expired on September 14, 2009. The police did not provide the required notice before the expiry of the notice period. They did not apply to extend the notice period either.
(2) The second search
4The investigation was put on pause after the first search, but resumed on October 1, 2009. The police applied for a second warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). The CDSA warrant was obtained using an Information to Obtain (“ITO”) which included information obtained during the first search. The second warrant was executed on October 8, 2009. The appellant was informed of the first warrant and search at this time. During the second search, the police seized drugs and weapons.
THE CHARTER APPLICATION
5The appellant brought an application to exclude all of the evidence seized by the police during the second search. The application was dismissed and, as a result, the appellant did not contest a finding of guilt.
6The trial judge correctly recognized that he needed to address two separate issues: first, whether the evidence at issue was acquired “in a manner that infringed” a Charter-protected right; and, second, whether the admission of the evidence would bring the administration of justice into disrepute.
7The appellant conceded that the first search warrant was properly obtained and properly executed. Thus, the trial judge focused on whether the failure to provide notice within the mandated notice period engaged the appellant’s Charter rights. He concluded that:
…failing to give notice does not engage a Charter right, coming as it does after the valid issuing and proper execution of the warrant. This is especially so when no evidence to be used against the applicant was located in the search.
8The trial judge also noted that the only evidence obtained during the first search used in the ITO was corroboration about the location of security cameras. That information, he said, was not necessary to obtain the second warrant and could easily be excised.
9The evidence seized during the second search, the trial judge concluded, was not obtained in a manner that engaged s. 24(2). The trial judge’s conclusion rested on the fact that there was no temporal nexus between that failure to provide notice and the evidence obtained from the second search. That is the second search was “too remote from the alleged breach”. Accordingly, he held that the evidence seized by the police was not obtained in a manner that violated the Charter.
10The trial judge went on to consider the evaluative component of the s. 24(2) analysis. He concluded that even if the evidence was obtained in a manner that infringed the Charter, he would not exclude it under s. 24(2). The trial judge laid out and then considered the three factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, as follows:
(i) Seriousness of the Charter-infringing conduct: There was no bad faith on the part of the police officers and they fully disclosed the failure to provide notice when obtaining the second warrant.
(ii) The impact of the breach on the accused: The impact on the appellant’s Charter-protected right was minimal because if the police had requested an extension they would have obtained it and they ended up telling the appellant about the search 23 days after the notice period expired.
(iii) Society’s interest in adjudication on the merits: Given the importance of the evidence seized to the Crown’s case, society’s interest in adjudicating the charges on their merits favoured inclusion.
ISSUES
11The appellant argues that the trial judge erred in three ways: (i) in failing to find that non-compliance with the notice requirement infringed s. 8; (ii) by concluding that the connection between breach of the notice requirement and obtaining the evidence at issue was too remote; and (iii) in concluding that the conduct of the police did not amount to bad faith.
ANALYSIS
(1) Did the trial judge err in concluding that the failure to provide notice did not infringe the appellant’s s.8 rights?
12The Crown concedes that the failure to provide notice infringed s. 8 of the Charter. I agree.
13In R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, the court held that “[a] requirement of after-the-fact notice casts a constitutionally important light back on the statutorily authorised intrusion” and that s. 8 protects an “ability to identify and challenge such invasions, and to seek a meaningful remedy.” The failure to abide by a statutorily-mandated requirement to provide notice fails to give effect to those protections and, therefore, infringes the Charter.
(2) Did the trial judge err in concluding that the evidence was not obtained in a manner that infringed the Charter?
14In order to engage s. 24(2), a defendant needs to show that the impugned evidence was obtained “in a manner that infringed” a Charter-protected right. That requirement will be satisfied where, on a review of the entire course of events, a court is satisfied that the breach and the obtaining of the evidence was part of the same transaction or course of conduct. Courts will take a generous approach when evaluating this threshold issue. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal, or a combination of the three. The connection must be more than tenuous: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45.
15With respect, the trial judge erred in concluding that the evidence seized during the second search was not obtained in a manner that infringed s. 8. In his analysis, the trial judge focused primarily on the temporal connection between the breach and the seizing of the evidence. On that basis, he concluded that the connection was too remote.
16While the connection between the failure to provide notice and the seizure of the evidence at issue is arguably weak, it is not tenuous. In my view, the two clearly occurred as a part of the same police investigation. In his reasons the trial judge notes that, after the first search, the police paused their investigation and that “[on] October 1, 2009, the investigation was continued under the direction of a different police officer” (emphasis added). And he further noted that:
Based on the evidence, it is reasonable to assume that since the investigation had not been concluded, but rather temporarily deferred, there was no desire on the part of the police to give notice to the police within the 180 day time frame, since to do so would jeopardize the ongoing investigation. [Emphasis added.]
17It was obvious to the trial judge that, although different police officers picked up the investigation later on, this was one continuous investigation and not two separate ones. This certainly suggests that what occurred in this case was part of the same transaction or course of conduct.
18Moreover, I would highlight the fact that the police chose not to inform the appellant of the first search because they concluded that doing so would undermine their investigation. That deliberate choice, in my opinion, connects the breach at issue to the second search warrant and the evidence obtained through its execution. Therefore, the evidence at issue was obtained in a manner that infringed a Charter-protected right.
(3) Did the trial judge err in not excluding the evidence under s. 24(2) of the Charter?
19In my view, in spite of the errors noted, the trial judge’s decision to not exclude the evidence should be upheld. I reach this conclusion for several reasons.
20First, the trial judge’s conclusion that the police did not engage in bad faith is reasonable and supported by the evidence. Here, at the first stage of the Grantanalysis, the court “must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter”: R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 46.
21Contrary to the appellant’s assertions, the police negligence in this case is not the kind of systemic negligence or failure described in Grantat paras. 73-74. The appellant’s arguments suggesting that the police officer asking for the second warrant misled the issuing justice are not convincing. In fact, as noted by the trial judge, the police disclosed their failure to provide notice in the ITO for the second warrant. I agree with the trial judge’s conclusion that the police’s conduct was at worst negligent and did not demonstrate a deliberate disregard for the appellant’s rights.
22Second, the appellant has not seriously attacked the trial judge’s findings on the other two Grant factors. While the second search targeted the appellant’s home, which attracts significant Charter protection, it seems clear that the police would have obtained an extension of the notice period if they had applied for it. In that case, the police would have complied with the Charter and the appellant would still have been subject to the second search. And, at the end of the day, the police did inform the appellant of the first search and he had an opportunity to challenge its legality. Therefore, the impact on the appellant’s Charter-protected interest was attenuated.
23Finally, there is no reason to question the trial judge’s conclusion that society’s interest in adjudicating the case on its merits favours including the evidence. As such, all three Grantfactors favour including the evidence.
DISPOSITION
24For these reasons, I would dismiss the appeal.
Released:
“JCM” “H.S. LaForme J.A.”
“APR 19 2016” “I agree J.C. MacPherson J.A.”
“I agree J. MacFarland J.A.”
