Court of Appeal for Ontario
Date: 2017-10-13 Docket: C62172
Judges: van Rensburg, Pardu and Fairburn JJ.A.
Between
Her Majesty the Queen Respondent
and
Eduardo Silva Appellant
Counsel
Eduardo Silva, acting in person
Ian R. Smith, appearing as duty counsel
Lorna Bolton, for the respondent
Hearing and Appeal
Heard: October 5, 2017
On appeal from the convictions entered by Justice Alfred J. O'Marra of the Superior Court of Justice on May 12, 2016.
Reasons for Decision
[1] On August 14, 2013, five individuals robbed an auto body shop. About two months later, the police executed a search warrant at a residential address connected to the appellant. A loaded semi-automatic handgun was seized.
[2] The appellant appeals from his convictions for robbery with a firearm and possession of a restricted firearm. He raises two grounds of appeal: (1) the trial judge erred in finding the appellant's statement voluntary; and (2) the trial judge erred in refusing to exclude evidence resulting from a s. 8 Charter breach under s. 24(2) of the Charter.
[3] The appellant argues that his statement ought to have been excluded as involuntary, maintaining that he and his girlfriend were threatened by the police. He alleged that police threatened to charge his girlfriend with possession of the gun and promised to release her if he made a statement. The appellant submits that this threat made his statement involuntary.
[4] The voluntariness ruling turned on credibility findings. The trial judge specifically rejected the appellant and his girlfriend's suggestion that police had threatened him. He concluded that the appellant made his statement of his own free will, and was in control of what he would and would not tell police. These credibility findings are owed deference. There is no basis on this record upon which to interfere with the ruling.
[5] Duty counsel addressed the second ground of appeal pertaining to the alleged error in the trial judge's s. 24(2) analysis.
[6] The trial judge found a s. 8 Charter breach arising from his conclusion that the Information to Obtain ("ITO") the search warrant executed at a residential address where the appellant, his girlfriend, and her family lived, contained insufficient grounds connecting him to that address. The trial judge came to this conclusion notwithstanding the fact that:
(a) there was evidence that the appellant's girlfriend was Amada Camacho;
(b) approximately 60 police occurrences connected Ms. Camacho and her family to the residential address searched;
(c) the appellant had been seen attending at the address on one occasion shortly before the warrant was issued; and
(d) a phone that was loosely associated with the robbery was registered to "Mike Silva" at the residential address searched.
[7] Duty counsel argued that the trial judge erred in not excluding the evidence under s. 24(2) of the Charter. The admissibility of evidence is to be examined under the three prongs set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71-86:
the seriousness of the Charter-infringing state conduct;
the impact of the breach on the individual's Charter-protected interests; and
the societal interest in the adjudication of the case on its merits.
[8] The appellant maintains that the trial judge erred in his admissibility determination by allowing the third Grant consideration to overwhelm the inquiry. The trial judge concluded that the police conduct was negligent and the impact of the breach on the appellant's Charter rights was serious. Having regard to these findings, it is argued that the trial judge allowed the third prong for consideration under Grant – the societal interest in the adjudication of the case on its merits – to trump the other considerations.
[9] Despite Mr. Smith's able submissions, we disagree.
[10] Section 24(2) findings are owed "considerable deference" on appeal: Grant, at para. 86. Absent an error in principle, a palpable and overriding factual error, or an unreasonable determination, deference is owed: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. We find no such error. We do not read the trial judge's reasons as allowing the third prong of Grant to overwhelm the inquiry. He carefully balanced each of the relevant considerations under Grant.
[11] We first note that if the ITO fell short in setting out sufficient reasonable grounds to believe that the residence to be searched was connected to the appellant, it was not by much. Having regard to the location searched, the trial judge specifically noted the serious impact of the breach on the appellant's Charter protected interests. Moreover, while the trial judge characterized the police conduct as in the "realm of negligence", noting that they should have done more to confirm the appellant's de facto residence, he concluded that the failure to do so did not arise from an intention to mislead or deceive.
[12] As for the third prong of Grant, the trial judge adverted to the reliability of the evidence tending to weigh in favour of admission. This is a correct statement of law: see Grant, at para. 115. Balancing all relevant factors, and having regard to all of the circumstances, the trial judge concluded that exclusion of the evidence was not required. It was open to him to come to this conclusion. We see no error in his approach.
[13] The conviction appeal is dismissed.
K. van Rensburg J.A.
G. Pardu J.A.
Fairburn J.A.