Court of Appeal for Ontario

Date: December 7, 2018

Docket: C57907

Judges: LaForme, Watt and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Tyshan Riley Appellant

Counsel

For the Appellant: Mathew R. Gourlay

For the Respondent: Karen Papadopoulos and Hannah Freeman

Heard

September 26, 2018

Appeal

On appeal from the conviction entered on June 8, 2011 and sentence imposed on June 16, 2011 by Justice J. McMahon of the Superior Court of Justice, sitting without a jury.

By the Court

INTRODUCTION

[1] The appellant was one of the leaders of a Scarborough gang called the Galloway Boyz, which was engaged in a violent turf war with the Malvern Crew gang in the early 2000s. The appellant was charged with committing two drive-by shootings in the Malvern area in 2004. During the first, in March, Brenton Charlton and Leonard Bell were each shot multiple times. Six weeks later, in April, Christopher Hyatt and Kofi Patrong were each shot multiple times. All except Mr. Charlton survived. None of the four victims were gang members. At the time of the second shooting, involving Mr. Hyatt and Mr. Patrong, the appellant was subject to a warrantless wiretap implemented by Toronto police pursuant to s. 184.4 of the Criminal Code.

[2] In 2009, the appellant was tried in connection with the shootings of Mr. Charlton and Mr. Bell before Justice Dambrot. He was convicted on all counts including first degree murder. During that trial, Dambrot J. found the s. 184.4 intercepted communications to have been a "very serious" breach of the appellant's s. 8 Charter rights: R. v. Riley (2008), 234 C.C.C. (3d) 181 (Ont. S.C.). In a separate ruling, the evidence was excluded from the trial under s. 24(2) because "the admission of this evidence in these proceedings would bring the administration of justice into disrepute": R. v. Riley (2009), 184 C.R.R. (2d) 209 (Ont. S.C.), at para. 164 (Ruling #1). Justice Dambrot did not conduct his analysis as mandated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, because it had not yet been released.

[3] In April 2011, during pre-trial motions for what was scheduled to be a separate jury trial for the shootings of Mr. Hyatt and Mr. Patrong, the motion judge admitted the very same s. 184.4 intercepted communications into evidence at trial. On this occasion, the Crown conceded that the intercepts were obtained in breach of the appellant's s. 8 Charter rights. The motion judge, after conducting the s. 24(2) analysis as directed in Grant, found that "the failure of the police to exercise 'reasonable diligence' … does not equate to wilful or reckless disregard of Charter rights". He admitted the intercepts into evidence under s. 24(2) of the Charter because "a reasonable person informed of all of these circumstances would have their faith in the administration of justice shaken not by the admission of this evidence but by its exclusion": R. v. Riley, 2011 ONSC 3612, at paras. 76 and 92 (Ruling #2).

[4] On June 8, 2011, the appellant re-elected to be tried by a judge of the Superior Court, sitting without a jury. After pleading not guilty to the charges of attempted murder and firearms offences, the defence consented to an Agreed Statement of Facts ("ASF") being put before the trial court, constituting the entirety of the evidence for the Crown. Without conceding his guilt, the appellant acknowledged that the ASF accurately stated the evidence the Crown would have led at trial. The trial judge gave brief reasons for finding the appellant guilty on all counts. He noted that surveillance had placed the appellant in the general area where the shooting took place and placed him in the driver's seat of a car matching the one seen fleeing the scene. The trial judge placed significant weight on the appellant's intercepted communications, which included the appellant describing himself shooting Mr. Hyatt and Mr. Patrong.

[5] On August 11, 2017, this court dismissed the appellant's appeal from his convictions arising from the shootings of Mr. Charlton and Mr. Bell: R. v. Riley, 2017 ONCA 650, 137 O.R. (3d) 1 (First Appeal).

[6] The appellant now appeals his convictions arising from the attempted murder of Mr. Hyatt and Mr. Patrong. For the reasons that follow, we would dismiss the appeal.

THE ISSUE ON APPEAL

[7] The background facts are fully set out by the motion judge and are not challenged by the appellant. We will refer to the necessary background facts in the course of addressing the issue arising on appeal.

[8] The Crown conceded that the use of the s. 184.4 warrantless intercepts was a breach of the appellant's s. 8 Charter rights. The only issue before the motion judge, therefore, was whether the intercepted communications and evidence subsequently gathered should be excluded under s. 24(2).

[9] That issue, decided in Ruling #2, is now the subject of this appeal.

1. Grant Analysis in Ruling #2

(a) The Arguments on Appeal

[10] The appellant acknowledges that deference is owed to the motion judge's factual findings in Ruling #2; however, he submits that because relevant factors have been overlooked or disregarded, "a fresh s. 24(2) Charter analysis pursuant to Grant is necessary and appropriate": R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82.

[11] The appellant acknowledges that in the court below, because his s. 8 Charter rights were breached, he sought a s. 24(2) remedy that excluded all wiretap and derivative evidence from his trial, including the details of the arrest, the appellant's fingerprints inside the Audi, gunshot residue on one of his hands, and Marlon Wilson's evidence implicating the appellant in the shootings of Mr. Hyatt and Mr. Patrong. More specifically, the appellant argued that Marlon Wilson's evidence was "obtained in a manner" that violated his Charter rights, and should be excluded under s. 24(2).

[12] On appeal, however, he now argues that the s. 24(2) analysis must be considered once again by this court for two reasons. First, he points out that the motion judge stated, at para. 84:

…[T]he exclusion of the intercepted communications carries with it the exclusion of the other evidence including the anticipated evidence of Marlon Wilson. The exclusion of that evidence would end this prosecution – a fact acknowledged by the defence.

The appellant argues that, in spite of his position that the motion judge do precisely that, the analysis was legally flawed as it viewed the Charter-infringing evidence as an indivisible package suitable only for global admission or exclusion. This was wrong in principle, he says, because different pieces of evidence raised concerns of widely varying intensity under the three Grant factors.

[13] Second, the appellant argues that because Marlon Wilson's evidence was actually not "obtained in a manner", it should never have formed part of the s. 24(2) analysis. He emphasizes and relies on the opposite conclusion reached by Dambrot J. in Ruling #1, which was then confirmed on appeal to this court: First Appeal, at para. 316. As a result, the appellant says it was an error to consider this evidence "in the mix" when assessing the exclusion of all the evidence under s. 24(2).

[14] The Crown responds by saying there is no need to conduct a fresh s. 24(2) analysis because the trial judge considered the proper factors and his findings are reasonable, therefore, his "determination is owed considerable deference on appellate review": R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. In the Crown's view, it was open to the motion judge to conclude that exclusion of all of the evidence, including the intercepts, would bring disrepute to the administration of justice.

[15] We conclude there should be a fresh s. 24(2) Charter analysis in connection with Ruling #2 for the reasons set out below.

(b) The motion judge did not improperly package the impugned evidence

[16] In the specific circumstances of this case, there is no merit to the appellant's first argument. That is, we do not accept that the motion judge treated the s. 184.4 wiretap and subsequently-obtained evidence as an indivisible package suitable only for global admission or exclusion. Nor was he under the misapprehension that some rule of law required all of the evidence to be either excluded or admitted.

[17] The motion judge's decision to admit all the evidence, and his reasons explaining his decision, occurred because of the positions taken by counsel and the trial judge's own factual findings. The appellant never argued that the nature of certain evidence demanded different consideration under s. 24(2). Rather, he asserted that because there was clear evidence of a causal connection between the breach and all of the evidence, including that of Marlon Wilson, the motion judge should treat it all the same. No arguments were advanced to consider individual items of evidence separately. The motion judge accepted the appellant's argument that there was a strong relationship between the breach and all the impugned evidence. It was on this basis that he included all the evidence in his s. 24(2) analysis.

[18] At that end of his s. 24(2) analysis, the motion judge treated the evidence collectively because of his earlier conclusion that all the evidence was directly connected to the s. 8 breach. There was no error committed in this approach.

(c) Wilson's Evidence was not "obtained in a manner" that infringed the appellant's Charter rights

[19] As already noted, based on the evidence before him and in the context of the shooting of Mr. Hyatt and Mr. Patrong, the motion judge in Ruling #2 accepted the defence argument that there was a strong nexus between the breach and all of the impugned evidence, including Marlon Wilson's evidence.

[20] We agree with the appellant, that given this court's decision in the First Appeal, this conclusion constitutes an error.

[21] It is well established that evidence will have been "obtained in a manner" that infringes a Charter right if, "on a review of the entire course of events, the [impugned Charter] breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct": R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45. Justice Doherty further described it as:

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. Goldhart (1996), 107 C.C.C. (3d) 481 (S.C.C.) at 492-97.

[22] In Ruling #1, Dambrot J. thoroughly examined the issue of whether or not Marlon Wilson's proposed evidence was obtained in a manner that infringed the appellant's Charter rights. He concluded that it was not. This court upheld the ruling in the First Appeal and, at para. 315, squarely addressed the issue:

The appellants' real objective in this appeal is to exclude Marlon Wilson's evidence implicating them in the Charlton and Bell shooting. He decided to give that evidence some six months after the arrest. Perhaps even more importantly, in the intervening period, he was threatened by Riley. The trial judge reviewed these factors and determined that the connection between the arrest and Wilson's evidence was tenuous. None of the appellants' proposed fresh evidence is directed at undermining the trial judge's conclusion on that point. The bare fact that Nordheimer J. [in Ruling #2] reached a different conclusion regarding the "obtained in a manner" analysis is insufficient. (Emphasis in original.)

[23] The Crown's arguments as to why the findings in the two different rulings arising out of the same facts may be different yet sustainable may have merit in some circumstances. In this case, however, we conclude they do not. We see no principled reason to depart from our conclusion in the First Appeal, at para. 316:

In any event, the trial judge properly applied R. v. Goldhart, [1996] 2 S.C.R. 463 in concluding that Wilson's subsequent testimony was too remote in time and circumstance from the initial breach, and indeed the arrest, to have been "obtained in a manner" that breached the appellants' s. 8 rights. As he was required to do, the trial judge examined the entire relationship between the Charter breach and the impugned evidence, including the strength of the causal and temporal connection. He also properly considered whether the events were part of a single transaction and concluded they were not.

[24] In both Ruling #1 and Ruling #2 the temporal connection and the causal connection between the s. 184.4 wiretaps and Marlon Wilson's evidence are virtually identical. No persuasive reason has been advanced that would convince this court that inconsistent findings are appropriate in these circumstances. Accordingly, Marlon Wilson's evidence was not "obtained in a manner" as found in Ruling #2 and this amounts to an error giving rise to the need for a fresh s. 24(2) analysis of the s. 184.4 wiretaps.

[25] In any case, as we explain, the result of our analysis is the same and the wiretap evidence was properly admitted at trial.

2. The Fresh s. 24(2) Charter Analysis

[26] It is worth repeating that the appellant does not challenge any of the factual findings of the motion judge. Instead, he acknowledges that any fresh analysis by this court under s. 24(2) must be conducted on the basis of the factual findings made by the motion judge. This court will therefore conduct the s. 24(2) analysis with deference to those factual findings. The approach we take will be that prescribed by the Supreme Court in Grant, which requires three lines of inquiry. The following is our assessment of those three inquiries in this case.

(a) The Seriousness of the Charter-Infringing State Conduct

[27] The motion judge correctly described this first line of inquiry through reference to para. 72 of Grant, namely, that its purpose is to decide:

… whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

[28] He then noted, by reference to para. 74 of Grant, that police behaviour in obtaining evidence through a Charter breach, will engage varying degrees of seriousness:

At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration or justice into disrepute.

[29] The motion judge, in determining the seriousness of the state conduct, relied on a method of analysis outlined by the Supreme Court in a companion decision to Grant, namely, R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. That is, deciding whether the Charter-infringing police conduct is sufficiently concerning that the court must dissociate itself from it. "This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant": Harrison, at para. 22.

[30] The motion judge followed this with a thorough examination of the lengthy evidence called on the application. He found that the police strategy of keeping the appellant on the street for the sake of the investigation of the shooting of Mr. Charlton and Mr. Bell was risky and should have radically changed course after yet another suspected shooting involving the appellant: Ruling #2, at para. 52. He also found that Staff Inspector Ramer, who made the decision to implement s. 184.4, likely viewed the wiretap as a means to keep tabs on the appellant's movements rather than a means of effecting his arrest. The motion judge noted, at para. 67, that:

Section 184.4 was never going to be the solution to the situation that confronted the police regarding Mr. Riley and the concerns that they had respecting the option of arresting Mr. Riley. The requirements for the use of that section made it ill-suited for that purpose.

[31] Nevertheless, the motion judge found that Staff Inspector Ramer's decision to invoke s. 184.4 was part of a "legitimate effort" to balance the investigative goals and public safety concerns at stake in this situation. As he described it at para. 68:

… the decision to allow Mr. Riley to remain "at large" was made long before the decision was reached to invoke s. 184.4. While one can debate the wisdom of that decision, it did not direct the misuse of s. 184.4. In other words, it was not part of the police strategy to misuse s. 184.4 in order to advance their investigation.

The appellant's suggestion that s. 184.4 was resorted to for an "improper purpose" was completely rejected.

[32] On a full examination, we agree with the motion judge that the seriousness of the breach, in all the circumstances, was not major in degree. At the relevant time, the police did not fully understand all of the requirements of s. 184.4: Ruling #2, at para. 74. With respect to some of those requirements, lower courts were at variance, and no appellate guidance had yet been given. At the time, the police did not know that their conduct was in breach of the appellant's Charter rights, and there was no pattern or history of abuse of s. 184.4 intercepts. Other warrants arising from the investigation had been issued, and the police were in fact pursuing a Part VI authorization, which was granted in June.

[33] It is with this background that the police made the urgent decisions they did on the use of the s. 184.4 intercepts. The seriousness of the breach in these circumstances can reasonably be said to be somewhere in the middle of the seriousness continuum.

[34] It is worth noting, as the Crown does, that the impugned conduct is unlikely to be replicated because both the constitutional shortcomings of s. 184.4 and jurisprudential uncertainty have now been resolved: see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531. As well, the institutional concerns about its application have since been addressed through specific protocols within the Toronto Police Service and an oversight mechanism and notice to targeted individuals enacted by ss. 195(2.1) and 196.1 of the Criminal Code. Thus, the Charter infringing conduct in this case will not have a long-term negative impact on the administration of justice.

[35] As the motion judge concluded, while the breach did not arise from "entirely innocent errors" it also did not demonstrate a "wilful or reckless disregard of Charter rights." We agree that this factor weighs in favour of admission.

(b) The Impact on Charter-Protected Interests of the Appellant

[36] In Grant, the Supreme Court described the impact of a Charter breach as being within a "range from fleeting and technical to profoundly intrusive". The question is: how seriously did the breach impact on the Charter-protected rights of the accused? It requires an evaluation of the extent to which the breach actually undermined the interests protected: Grant, at para. 76. The way the range is measured is:

The 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.

[37] Further on, at para. 78 in Grant, the court provides us with further guidance on measuring the impact of a Charter breach:

[A]n unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

[38] Here, the intercepts did not take place in the appellant's home or bedroom, they did not capture anything of a personal nature such as intimate or personal exchanges, and they did not demean his dignity in any way. Indeed, the intercepts did not capture any private communications that are at the core of what the constitutional protection was meant to protect. Rather, the intercepts captured the appellant in a vehicle, before and after the shooting of Mr. Hyatt and Mr. Patrong, arranging illicit transactions and admitting to the shooting itself. The appellant cannot claim that he enjoyed a high expectation of privacy in these intercepts or that they would demean his dignity.

[39] In context, the impact on the appellant's privacy interests, while significant, did not lie at the serious end of the scale. This line of enquiry tips in favour of admission.

(c) Society's Interest in an Adjudication on its Merits

[40] The starting point for this inquiry is best described by Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 62:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

[41] The s. 184.4 intercepts do not impair the fairness of the trial. They are real, reliable evidence in connection with very serious criminal offences. Again, we agree with the motion judge who, at para. 85 of his reasons, added:

The seriousness of the charges are heightened by the aggravating factor that these shootings were undertaken to enhance the reputation of a street gang or, in the more formal words of the Criminal Code, a "criminal organization".

[42] The potential that Marlon Wilson's evidence might be admitted at trial does not, as the appellant submits, weigh against admission of the wiretap evidence. Marlon Wilson's evidence on its own was of limited value. The intercepts, on the other hand, stood as determinative of the appellant's guilt. The reliability of the incriminating intercepts weighs heavily in favour of admission. It is evidence that is critical to the Crown's case, and exclusion from the trial would be seriously damaging.

(d) Weighing the Three Inquiries

[43] In our view, on a fresh s. 24(2) analysis the evidence derived from the appellant through the s. 184.4 interceptions should be admitted. This is a case where the first two inquiries provide limited support for the exclusion of evidence, but not to the extent required to overcome society's considerable interests under the third inquiry. As Doherty J.A. noted in McGuffie, in cases where the first two inquiries provide weaker support for exclusion, "the third inquiry will almost certainly confirm the admissibility of the evidence": para. 63. That is the case here; the s. 184.4 intercepted communications should not be excluded.

[44] As the motion judge referenced at para. 90 of his decision, the ultimate question that arises from Grant is, "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": see Grant, at para. 68. We agree with the motion judge's conclusion at para. 92, that "a reasonable person informed of all of these circumstances would have their faith in the administration of justice shaken not by the admission of this evidence but by its exclusion."

CONCLUSION

[45] For the reasons given, the appeal is dismissed.

Released: December 7, 2018

"H.S. LaForme J.A."

"David Watt J.A."

"Gary T. Trotter J.A."