Court of Appeal for Ontario

Citation: R. v. Blake, 2010 ONCA 1 Date: 2010-01-06 Docket: C49184

Between: Her Majesty the Queen (Respondent) and Orvil Blake (Appellant)

Before: Doherty, Simmons and Lang JJ.A.

Counsel: Robert C. Sheppard, for the appellant Xenia Proestos, for the respondent

Heard: November 4, 2009

On appeal from the judgment of Justice Roland J. Haines of the Superior Court of Justice dated May 14, 2008.

Doherty J.A.:

[1] On this appeal, the appellant challenges a ruling admitting certain evidence obtained in violation of s. 8 of the Charter. The trial judge, applying R. v. Collins, [1987] 1 S.C.R. 265, the then applicable law on s. 24(2) of the Charter, admitted the evidence. This court is asked to review that decision using the reformulated approach to s. 24(2) set down in R. v. Grant (2009), [2009 SCC 32](https://www.minicounsel.ca/scc/2009/32), 245 C.C.C. (3d) 1 (S.C.C.). The appellant submits that while the trial judge’s ruling may have been correct as the law stood at the time of the trial, s. 24(2), as recalibrated in Grant, dictates that the evidence should be excluded.

[2] This appeal was pending when Grant was released by the Supreme Court of Canada. The appellant is entitled to rely on the law as set down in Grant. However, I am satisfied that in the circumstances of this case the application of Grant yields the same result as did the application of Collins. The evidence was properly admitted by the trial judge. I would dismiss the appeal.

I

[3] The appellant was convicted by a judge sitting without a jury on one count of possession of crack cocaine for the purpose of trafficking and one count of breaching his probation. The appellant appeals from his convictions. The appeal is directed at his trafficking conviction. If the conviction on the trafficking charge is quashed, the conviction on the charge of breach of probation also falls.

[4] The Crown’s case largely consisted of a number of items seized during the execution of a search warrant at the appellant’s residence on December 16, 2005:

• a large amount of cash;

• two pieces of crack cocaine, each weighing about 27 grams. Each piece was in a small, plastic bag and both bags were in a larger Ziploc bag. The bag was hidden in the mattress of the bed in one of the two bedrooms;

• a note describing an apparent drug transaction; and

• other paraphernalia (e.g. an X-Acto knife blade and plastic baggies) known to be commonly used by drug traffickers.

[5] At the outset of the trial, the defence challenged the admissibility of these items, claiming that the search breached the appellant’s right to privacy under s. 8 of the Charter and that the evidence should be excluded under s. 24(2). The trial judge held that the search did breach s.8, but that the items seized during the search should not be excluded from evidence under s. 24(2). The trial proceeded.

[6] The Crown called the officers involved in the search of the appellant’s residence and the discovery of the crack cocaine and related paraphernalia. The defence called Mr. Hezron Watson, a lifelong friend of the appellant. Mr. Watson had been a target of this investigation, but was not charged. He testified that the drugs found in the appellant’s apartment belonged to him and that the appellant had no knowledge that the drugs were there. Mr. Watson explained in his testimony that he had hosted a party at the appellant’s apartment on the evening of December 14, 2005, two days before the search. During the party, Mr. Watson purchased the crack cocaine from some of the other partygoers. He hid it inside the mattress in one of the bedrooms because he was travelling to Jamaica the next day and thought it would be safer there than in his apartment.

[7] The trial judge rejected Mr. Watson’s evidence and gave detailed reasons for doing so. He went on to hold that the crack cocaine found in the appellant’s residence belonged to the appellant and that it, with the other evidence, established his guilt on the trafficking charge.

II

The Rejection of Watson’s Evidence

[8] The trial judge’s ruling admitting the seized crack cocaine is the focal point of this appeal. Before turning to that ground of appeal, I will address the other ground of appeal advanced by the appellant.

[9] Counsel for the appellant submits that the trial judge wrongly determined that Mr. Watson’s evidence describing the packaging of the crack cocaine placed inside the mattress was inconsistent with the evidence given by the police officers who discovered the crack cocaine during the search. Counsel contends that Mr. Watson’s evidence about the packaging was unclear, and that, as he was never specifically confronted on cross-examination with the police evidence about the packaging, it was inaccurate and unfair to hold that his evidence was inconsistent with the police testimony. Counsel submits that the so called rule in Browne v. Dunn (1893), [6 R. 67 (H.L.)](https://www.canlii.org/en/ca/forep/doc/1893/1893canlii65/1893canlii65.html), prohibits any finding against the credibility of Mr. Watson absent direct confrontation on cross-examination with the substance of the police officers’ evidence describing the packaging.

[10] Before Mr. Watson testified for the defence, Staff Sergeant Longworth and the other officers involved in the search testified as part of the Crown’s case. Sergeant Longworth indicated that two pieces of crack cocaine were found secreted inside the mattress. Each piece was in its own baggy and the two small bags were in a larger Ziploc bag. He was not challenged on this part of his testimony.

[11] When Mr. Watson testified, he described each piece of crack cocaine as being in a separate bag, but made no reference to a larger Ziploc bag containing the two smaller bags. He was specifically cross-examined about the packaging of the drugs on more than one occasion, but the officer’s testimony was not put to Mr. Watson by Crown counsel.

[12] It was open to the trial judge to find that Mr. Watson’s description of the packaging of the crack cocaine was inconsistent with the description given by Sergeant Longworth. I do not agree that Mr. Watson’s evidence on this matter was unclear. He was asked more than once about the packaging and made no reference to the larger bag containing the two smaller bags. Nor was there any unfairness to the witness flowing from Crown counsel’s failure to put the evidence of the police officers directly to Mr. Watson on cross-examination. The appellant’s trial counsel could have put the police officer’s evidence concerning the packaging to Mr. Watson on re-examination if he thought that would clarify his evidence. Counsel did not do so, presumably because he decided that re-examination would not assist.

[13] The record supported the trial judge’s finding that Mr. Watson’s evidence was inconsistent with that of Sergeant Longworth on a material matter. As the trier of fact, the trial judge was entitled to use that inconsistency in determining Mr. Watson’s ultimate credibility.

III

The Admissibility of the Crack Cocaine

[14] The Crown and defence agreed at trial that, on the voir dire, the evidence to determine the admissibility of the seized items would consist of Sergeant Longworth’s testimony at the preliminary inquiry and a redacted version of the information he had sworn in December 2005 to obtain the search warrant. The redacted version of the information had removed anything that could possibly identify various confidential sources who had supplied information relied on by Longworth as providing reasonable and probable grounds in support of the issuance of a search warrant. It was clear from the contents of the redacted information that some of the confidential information came from anonymous Crime Stoppers’ tips, some came from known confidential informants of unproven reliability and some came from confidential informants who were known to Longworth and had proved reliable in the past. The redacted version of the information was provided to counsel and the court prior to the preliminary inquiry. The same redacted version was entered as an exhibit at trial and formed part of the record on appeal. The original unredacted information is presumably being held under seal in the appropriate court office.

[15] The police and the Crown were under a legal obligation to protect the identity of confidential informants: [R. v. Leipert, [1997] 1 S.C.R. 281](https://www.minicounsel.ca/scc/1997/367), at para. 15. Defence counsel did not suggest at trial that he could bring his case within the innocence at stake exception to the confidential informant privilege, thereby entitling him to access to the informant’s identity. This is the only recognized exception to that privilege: R. v. Leipert, at paras. 20-22. Nor did trial counsel challenge the legitimacy of the confidential-informant claim advanced by the Crown. Counsel did not contend that any of the editing was unnecessary or otherwise improper. He did not ask the trial judge to examine the unredacted information, review the editing process and perhaps order further disclosure or provide judicial summaries of the redacted contents: see [R. v. Garofoli, [1990] 2 S.C.R. 1421](https://www.minicounsel.ca/scc/1990/52), at pp. 1460-61.

[16] Crown counsel at trial also did not ask the trial judge to consider the unredacted version of the information before determining the merits of the appellant’s s. 8 claim. Crown counsel was content to have the validity of the warrant and, hence, the reasonableness of the search determined on the contents of the redacted information. As observed in Leipert, at para. 38:

The issue before the trial judge was whether there were reasonable grounds for the issuance of the warrant. If the Crown wished to limit its defence of the reasonableness of the warrant and subsequent search to particular grounds, it was entitled to do so. At the end of the day the task of the judge was to make a ruling on reasonableness on the basis of the information relied on by the Crown. [Emphasis added.]

[17] In summary, the Crown was content to have the reasonableness of the search determined exclusively on the basis of the redacted information. The defence did not challenge the validity of the confidential informant claims, seek access to the identity of those informants nor challenge the editing done by the Crown to protect the identity of those informants. In my view, these positions taken on the voir dire have significance in the s. 24(2) analysis.

[18] The trial judge tested the constitutionality of the search by reference exclusively to the redacted information. He concluded that the redacted information did not provide a basis on which a justice, acting reasonably and judicially, could be satisfied that the statutory prerequisites to the issuance of a search warrant had been met. Consequently, the Crown could not rely on the search warrant as justification for the constitutionality of the search. Without the warrant, the search was unreasonable and violated the appellant’s rights under s. 8 of the Charter. The Crown does not challenge that ruling in this court.

[19] The trial judge proceeded to consider the admissibility of the seized items under s. 24(2) using the template set out in Collins. The trial judge characterized the evidence as real non-conscriptive evidence that had no effect on the fairness of the trial. He described the s. 8 breach as “very serious”, but held that the police had acted in “good faith” in their attempt to acquire legal authorization to conduct the search. Finally, the trial judge observed that the evidence was crucial to the Crown’s case and that the charges were serious. He determined that the evidence was admissible.

[20] The appellant does not contend that the trial judge erred in law in his application of the Collins criteria. Counsel submits that the application of Grant should yield a different result.

[21] In Grant, the Supreme Court of Canada took a judicial wire brush to the 20 years of jurisprudential gloss that had built up around s. 24(2) and scrubbed down to the bare words of the section. Chief Justice McLachlin and Justice Charron, writing for the majority, observed at para. 67 that “[t]he words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice”. They continued at para. 68:

The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[22] The majority identified three lines of inquiry that are relevant to the identification and balancing of the interests at play when s. 24(2) is invoked. According to the majority, the trial court must examine the seriousness of the Charter-infringing state conduct, the impact of the Charter violation on the Charter-protected interest of the accused and society’s interest in the adjudication of the case on its merits.

[23] The inquiry into the nature of the state conduct that resulted in a Charter breach seeks to place that conduct along a continuum of misconduct. As explained in Grant, at paras. 72-74, the graver the state’s misconduct the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct. That disassociation is achieved by excluding the evidentiary fruits of the state misconduct.

[24] The trial judge found that the police acted in “good faith” in their attempt to acquire legal authorization for the search. I accept that finding. The police were clearly aware of the need to obtain a warrant and proceeded accordingly. They cannot be said to have acted negligently or in ignorance of any of the applicable Charter requirements. A finding of “good faith” obviously reduces the need for the court to disassociate itself from the state conduct that resulted in the Charter infringement, and supports the admissibility of the challenged evidence.

[25] Not only do I agree with the trial judge’s finding of good faith on the part of the investigators, I can see no possible criticism of the police conduct on this trial record. Throughout the process that culminated in the seizure of the evidence, they acted exactly as they were obligated to under the law. They were required to obtain a warrant before entering the residence. They did so. They were required to make full disclosure to the justice of the peace. There is no suggestion that they did not do so. The police, and later the Crown, were legally obligated to protect the identity of the confidential informants by removing all material from the information that could identify the informants before making that material available to the defence. They did that. Given the manner in which the s. 8 claim was litigated, the police acted not only in good faith, but as required by the law. The police conduct in this case does not fit anywhere on the misconduct continuum described in Grant, at para. 74.

[26] The police conduct in this case is somewhat analogous to the conduct considered in cases where the police have gathered evidence according to the law as it was understood at the time the evidence was gathered only to have the law changed or declared unconstitutional at some subsequent point, but before the evidence is tendered at trial: see e.g. [R. v. Duarte, [1990] 1 S.C.R. 30](https://www.minicounsel.ca/scc/1990/150), at pp. 59-60; [R. v. Wijesinha, [1995] 3 S.C.R. 422](https://www.minicounsel.ca/scc/1995/67), at paras. 55-56. In those cases, the police acted not only in good faith, but in accordance with the law as it stood at the time. Under the Collins approach, real evidence obtained in this manner was inevitably admitted.

[27] The nature of the state conduct resulting in the constitutional infringement in this case seems to fall outside the paradigm described in Grant. If it is within that paradigm, it is clearly at the far end of the spectrum favouring admissibility. The appellant has not availed himself of the various options open to him that would potentially have allowed further assessment of the police conduct. In these circumstances it would be inappropriate to presume that the police did anything other than conduct themselves in accordance with the applicable legal rules.

[28] The second line of inquiry directed in Grant – the impact of the breach on the Charter-protected interest of the accused – points strongly toward exclusion of the evidence. As the trial judge observed, this was a “very serious breach” of the appellant’s constitutional rights. The appellant had a high expectation of privacy in his own residence. That privacy was compromised by an intrusive and extensive police search. The powerfully-negative impact on the core of the appellant’s legitimate privacy interests creates the risk that the admission of the fruits of the search could bring the administration of justice into disrepute: R. v. Grant, at paras. 76-78.

[29] The seriousness of the impact of the breach on the appellant is not mitigated by the fact that the police may have had reasonable and probable grounds when they obtained the warrant, but were unable to demonstrate those grounds at trial because of the confidential-informant privilege. The Crown chose to proceed on the redacted information. The assessments of whether there was a breach and of the impact of that breach on the appellant must be measured against the substance of that redacted information. Assessed from that perspective, this was an extensive, unjustified search of the appellant’s home.

[30] The third arm of the inquiry mandated by Grant looks to society’s interest in an adjudication of a criminal trial on its merits. As indicated in Grant at para. 82:

The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system”.... [Citation omitted.]

[31] Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. The evidence in issue here, particularly the crack cocaine, was entirely reliable and essential to the Crown’s case. The charge is also a serious one, although as the majority point out in Grant, at para. 84, the seriousness of the charge will “cut both ways” when assessing society’s interest in an adjudication on the merits.

[32] Having conducted the inquiries mandated by Grant, examined the application of those inquiries to non-bodily physical evidence in Grant (paras. 112-115) and its companion case, R. v. Harrison (2009), [2009 SCC 34](https://www.minicounsel.ca/scc/2009/34), 245 C.C.C. (3d) 86 (S.C.C.), I would hold that the nature of the state conduct and society’s interest in an adjudication on the merits militate strongly in favour of admitting the evidence. The impact on the appellant’s s. 8 rights points strongly toward exclusion. How does one balance these directly conflicting assessments? Without diminishing the important negative impact on the appellant’s legitimate privacy interests occasioned by the unreasonable search, I find compelling the argument that the exclusion of reliable crucial evidence in circumstances where the propriety of the police conduct stands unchallenged would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice.

[33] Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant.

[34] I would dismiss the appeal.

RELEASED: “DD” “JAN 06 2010”

“Doherty J.A.”

“I agree J. Simmons J.A.”

“I agree S.E. Lang J.A.”