WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 ..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

COURT OF APPEAL FOR ONTARIO

DATE: 20200408 DOCKET: C66241

Hoy A.C.J.O., Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Daniel Adler Appellant

Counsel: Gerald Chan and Stephen Aylward, for the appellant Michael Perlin, for the respondent

Heard: March 10, 2020

On appeal from the convictions entered on July 20, 2018 by Justice Malcolm McLeod of the Ontario Court of Justice.

Nordheimer J.A.:

A. Overview

[1] Daniel Adler appeals his convictions for possession of child pornography, making child pornography, and sexual assault. He submits that the police breached his rights under the Canadian Charter of Rights and Freedoms in a number of different aspects and that the trial judge erred in not excluding the evidence the police obtained as a result of those breaches, under s. 24(2) of the Charter. For the reasons that follow, I would allow the appeal, set aside the convictions, and enter acquittals in their place.

B. Background

[2] The background facts are not really in dispute.

[3] On August 25, 2016, police officers on patrol at the Canadian National Exhibition (“CNE”) were informed by a woman that she had seen a man (later identified as the appellant) filming up the skirt of a young woman using a camera concealed in the head of a stuffed owl. As police approached the appellant, they saw him fumble with the stuffed owl’s head, place something in his mouth, and then swallow.

[4] Upon arresting the appellant, the police seized a number of items incident to the arrest, including the stuffed owl and three digital devices: a video camera, an iPod Touch, and a laptop. The police noticed the video camera did not have a memory card. They formed the belief that what they had earlier seen was the appellant removing the memory card and swallowing it.

[5] The police arrested the appellant at 6:40 pm. He was not advised of his right to counsel until ten minutes later. He told the arresting officer he had the name of a lawyer he wanted to call but did not have the phone number. The officer responded that he would be given an opportunity to speak duty counsel. The appellant was taken to 14 Division, where he was told by the booking officer that he would not be allowed to speak with a lawyer until after the police had searched his apartment, because of a concern that evidence at his apartment might be destroyed. At 9:59 pm, more than three hours after his arrest, the appellant was finally allowed to speak with his lawyer.

[6] Before the appellant was allowed to speak to his lawyer, police conducted a level 3 strip search to determine if he had secreted another memory card on his person. The appellant was later taken to a dry cell and placed on a bedpan vigil in an effort to recover the swallowed memory card.

[7] That same evening, while the appellant was detained, and before he was given the opportunity to call counsel, the police entered his apartment without a warrant. They used the appellant’s keys, which the police had found on the appellant, to enter his apartment. Upon entry, police observed various devices in plain view, determined that no one was present, and then left to await authorization to continue the search. They obtained a tele-warrant authorizing a night-time entry to search the apartment and seize the devices. In obtaining the tele-warrant, the police did not advise the justice of the peace that they had already entered the apartment. Later that night, the police re-entered the apartment on the tele-warrant’s authority. The police found parts of stuffed animals and several devices, including a Western Digital external hard drive.

[8] The next morning, on August 26, 2016, the police brought the appellant before a justice of the peace for a bail hearing. Crown counsel requested a three-day adjournment of the bail hearing on the grounds that “further investigation” was necessary. Crown counsel did not inform the justice of the peace that the purpose of the adjournment was to facilitate the bedpan vigil, because the police had not informed Crown counsel of this purpose.

[9] Based on the adjournment request, the justice of the peace put the bail hearing over for three days to August 29. The appellant was transported to Toronto South Detention Centre, where he was detained in a dry cell for the bedpan vigil. He eventually passed the memory card, which was recovered from his cell on August 28. The memory card was irreparably damaged. No data could be recovered from it.

[10] The police examined the electronic devices seized from the appellant’s residence for further evidence of voyeurism. In the course of these searches, the police discovered evidence of child pornography. The police then obtained a second warrant to conduct further searches of the appellant’s devices for child pornography. This second warrant, however, was obtained on the basis of information obtained from the execution of the tele-warrant.

[11] In the course of carrying out the searches authorized by this second warrant, the police found a video of the appellant engaged in sexual contact with an unknown woman who appeared to be unconscious. The identity of the woman in the video remains unknown. This forms the basis for the sexual assault conviction.

[12] The trial judge first ruled on the s. 10(b) and s. 8 Charter breaches. He found some, but not all, of the Charter breaches that I will outline later. A few weeks after that ruling, the trial judge issued his ruling on whether the evidence should be excluded under s. 24(2) of the Charter. The trial judge indicated that he would have excluded the evidence that he believed was most closely tied to the events at the CNE, namely the voyeurism and obstruction charges. However, given that some of this evidence was also relevant to the other charges, the trial judge chose not to exclude any of the evidence under s. 24(2). Rather, he chose to impose a stay on the voyeurism and obstruction charges, and let the charges related to child pornography and sexual assault proceed.

[13] The appellant proceeded to trial on the child pornography and sexual assault charges. Based entirely on the evidence found on the appellant’s devices, the trial judge convicted him of three counts of possession of child pornography, one count of making child pornography, and one count of sexual assault.

[14] Of the various devices seized from the appellant at the CNE and his apartment, only four were found to contain evidence that was the basis for the convictions at trial: a Western Digital external hard drive (seized from the appellant’s apartment), an iPod Touch, a laptop, and a digital video camera (all seized from the appellant at the time of his arrest). The majority of the evidence, though, came from the Western Digital external hard drive.

[15] On December 20, 2018, the trial judge sentenced the appellant globally to 40 months imprisonment, broken down as follows: 18 months on the sexual assault conviction; 12 months on the making child pornography conviction; and 12 months on the possession of child pornography convictions. The trial judge granted the appellant two months’ credit for time served (the four days of unlawful detention) as enhanced credit to reflect the onerous conditions and unconstitutional bedpan vigil at the Toronto South Detention Centre.

C. Analysis

[16] The appellant raises three issues on this appeal:

1. Did the trial judge err in finding reasonable and probable grounds for the search of the appellant’s home, and the seizure of the devices therein, in his review of the tele-warrant?
2. Did the trial judge commit errors of law in his s. 24(2) ruling?
3. Should the evidence from the digital devices be excluded under s. 24(2)?

(1) The tele-warrant

[17] The trial judge found a number of s. 8 breaches in relation to the search of the appellant’s apartment: the warrantless initial entry, the invalid tele-warrant, and the search of the appellant’s electronic devices based on a tele-warrant that did not expressly authorize such a search. While the trial judge quashed the tele-warrant on other grounds, he rejected the appellant’s argument that there were no reasonable and probable grounds to support the tele-warrant. The trial judge identified four possible grounds to justify the search of the appellant’s residence: (i) the appellant was likely to return home to view the voyeuristic videos; (ii) the appellant may have used his devices to transmit data to devices in his home; (iii) the appellant likely prepared for the offence at home; and (iv) it was likely that the appellant had committed other voyeurism offences in the past.

[18] The third and fourth possible grounds do not appear in the Information to Obtain (“ITO”) for the tele-warrant. The affiant did not offer any subjective belief that would sustain the tele-warrant being issued for either of those reasons. Further, in terms of the fourth ground, there was nothing but speculation or stereotypical thinking offered in support of that ground. As Fish J. cautioned in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 79: “[t]o permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence”.

[19] The third ground might have provided a basis for the tele-warrant but that would only have justified a search for other stuffed animals or stuffed animal parts. It would not have justified a search for other recording devices since there was no suggestion that other devices were used, or were part of, the CNE offences.

[20] In terms of the first possible ground, it is difficult to see how the appellant could have returned home to view the videos when he was under arrest and being detained. However, even if he could have managed that in some way, it is also difficult to see how that conduct would justify a search of the appellant’s apartment unless it is assumed that he would have transferred any video to another device, such that there would then be an electronic record of it. The appellant could not have done that himself after his detention, and there was no evidence that the devices found on his person were configured to transfer material automatically or that he did so mechanically.

[21] In terms of the second possible ground, as I have just said, there was no evidence that the devices that were found on the appellant were capable of transmitting data to the appellant’s home. Certainly, there was nothing contained in the ITO to suggest that that was possible. However, even if they could have done so, the evidence would still be there if the police proceeded to obtain a search warrant in the normal course. The appellant was not in a position while detained to remotely wipe his devices of data, assuming he had the capability to do so. Again, there is no suggestion in the ITO of such a possibility. There was also no reason to believe that the appellant was connected to other persons, in relation to the suspected offences, who would have acted to destroy evidence.

[22] In the end result, there was no information in the ITO that would have established the necessary urgency to justify a tele-warrant. Equally there was no information in the ITO that would have justified a night-time entry. In addition, as I will detail later, there was the failure to disclose the warrantless entry and there was a misleading inclusion regarding the appellant’s prior contact with the police. The tele-warrant should not have been issued.

(2) The s. 24(2) ruling

[23] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada articulated three factors to be considered in determining whether evidence obtained in a Charter-infringing manner should be excluded under s. 24(2): (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

[24] In terms of the first factor, the appellant says that the trial judge failed to accord the proper degree of seriousness to the Charter breaches in this case. He particularly challenges the trial judge’s finding that the police acted in good faith throughout their investigation.

[25] On that latter point, the Supreme Court made clear in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44, that “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct” (citation omitted). In this case, many of the breaches of the appellant’s Charter rights fall into the category of clear violations of well-established rules. The warrantless search of the appellant’s apartment is a prime example. So too is the delay in providing the appellant with access to counsel.

[26] In my view, the trial judge was much too quick to excuse the police conduct in this case. Put at its highest, the police conduct was negligent and undertaken in a state of oblivion regarding the appellant’s rights. At worst, the police acted in multiple flagrant violations of his rights.

[27] On this point, it should be noted that the trial judge actively prevented counsel for the appellant from eliciting evidence that might have shown that the police acted in bad faith. When the voir dire on the search warrant began, the trial judge initially indicated that he did not want to hear any viva voce evidence. Both counsel objected to the trial judge’s position. The trial judge relented and evidence was called. However, the trial judge precluded counsel for the appellant from asking the police officers questions regarding their understanding of the appellant’s rights on the basis that these were matters for argument. The trial judge erred in this ruling. The state of the police officer’s knowledge of the right breached is relevant to the seriousness of a violation. An officer, who violates a Charter right while knowing better, commits a flagrant breach. For those officers who do not know of the relevant right, the reason they do not know can properly influence where on the good faith/bad faith continuum the Charter breach might fall. Ignorance may result, for example, from disinterest or an absence of care on the part of the individual officer, or systemic training deficiencies within the police service. The result was that counsel for the appellant was prevented from developing the very evidence that went to the issue of the good faith of the police.

[28] In any event, there was sufficient evidence before the trial judge that should have caused him concern regarding the motivations of the police in this case. Most notable is the failure by the police to advise Crown counsel of their real reason for wanting an adjournment of the appellant’s bail hearing, that is, the bed pan vigil.

[29] Another example is how the police obtained the tele-warrant. In obtaining the tele-warrant, the police affiant did not disclose that the appellant had remained in custody, which made it impossible for him to return home to view the voyeuristic video that the police believed he had just created. In addition, the affiant described the layout of the appellant’s apartment but did not disclose that the source for this information was the warrantless entry undertaken by the police earlier that evening. The trial judge failed to take these matters into account in his s. 24(2) analysis.

[30] Further, the police affiant included in the ITO the fact that “[t]here are two previous incidents on file with Toronto Police Services involving this male”. The affiant did not reveal that these two incidents involved the police responding to a threatened suicide by the appellant and the second incident involved a “Daniel Adler” who was the victim of a crime.

[31] The trial judge referred to this reference in the ITO but characterized it as “inconsequential”. With respect, it was not. The reference had the clear potential for suggesting to the reader of the ITO that the appellant had a history with the police that would support the theory that he had a propensity to commit similar offences, even in the context of the disclosure that he did not have a criminal record. There was no legitimate reason for including this reference in the ITO devoid of the information that would put it into a proper context.

[32] The trial judge also erred in his consideration of the impact of the police conduct on the appellant’s Charter rights. In terms of the s. 8 breaches flowing from the warrantless search of the appellant’s apartment, and the unauthorized search of his electronic devices, the trial judge said that they were “not found to be serious, either individually or cumulatively.”

[33] It is well-established that two of the areas where an individual’s right to privacy is paramount is in their home and in their electronic devices (a third being a person’s bodily integrity). The right to privacy in a person’s home was clearly set out in R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140. The right to privacy in a person’s electronic devices was clearly set out in Morelli, at para. 2. These decisions predate the actions of the police in this case by 21 years and six years respectively.

[34] In terms of these privacy interests, on the issue of the warrantless search of the appellant’s apartment, the trial judge said, in part:

It should also be noted that there was no indication that third party privacy interests were at stake and that police had no reason to believe that there was anyone in the residence who might be disturbed by the entry. On each occasion the police used a key and there were no significant problems with the way the security search and the subsequent seizure of the electronic devices were executed.

[35] On the issue of the search of the appellant’s devices, the trial judge said, in part:

The fact that by running some standard software programs the police can recover vast amounts of largely irrelevant data, some of which would be considered highly personal, does not make the search any more extraordinary than the fact that by kicking in the door of the subject’s home the police are enabled to recover vast amounts of largely irrelevant data, some of which would be considered highly personal. The privacy interests applied to the intimate secrets hidden in the subject’s sock drawer is the same as the privacy interest in the intimate secrets hidden in his computer.

[36] Neither of these observations accord the proper level of protection to the appellant’s privacy interests. The fact that the police did not disturb anyone when they illegally entered the appellant’s apartment does not lessen the invasion of privacy. Rather, at best, it represents the absence of a further aggravating factor.

[37] Similarly, the trial judge erred in comparing the search of a person’s personal electronic devices to a search of their sock drawer. As the Supreme Court of Canada noted in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 24: “The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets.” The trial judge did not apply this holding and consequently improperly minimized the privacy breach in this case. Further, the trial judge failed, in his analysis, to give appropriate weight to the fact that there was no information that would have supported the immediate night-time search of the appellant’s apartment.

[38] The trial judge concluded that “the first two lines of the Grant analysis do not support exclusion of the relevant video evidence”. This was an error. Both the seriousness of the breaches, and their impact on the appellant’s privacy interests, strongly suggested that the evidence ought to be excluded.

[39] Finally, while the trial judge acknowledged the need to consider the cumulative effect of the various Charter breaches, he did not do so. Rather, he artificially separated the breaches into two groups and then assigned most of them to the less serious offences. He then stayed those offences but allowed the more serious offences to proceed. The trial judge’s failure to properly consider the cumulative effect of the various Charter breaches is, itself, an error in principle: R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, at para. 91.

[40] Whether viewed individually or collectively, the trial judge’s errors are such that his s. 24(2) analysis is not entitled to deference. Consequently, it falls to this court to perform its own s. 24(2) analysis.

(3) The s. 24(2) analysis redone

[41] In redoing the s. 24(2) analysis, it will be evident from my comments above that I view both the first and second factors as favouring exclusion. The breaches of the appellant’s privacy interest in his home, the privacy interest in his devices, and the privacy interest in his body, were all serious ones. In addition, this was not a case of a single breach of an accused’s rights. Rather, in this case, there were multiple breaches. They include:

1. The failure to give the appellant his rights to counsel in a timely way;
2. The level 3 strip search for which there were no reasonable and probable grounds;
3. The bedpan vigil for which there was no judicial authorization;
4. The unlawful detention when the appellant’s bail hearing was adjourned based on misleading information provided to the presiding justice;
5. The warrantless entry into the appellant’s apartment;
6. The unlawful search arising from the invalid tele-warrant that was obtained without full disclosure, for which there was no urgency, and which did not require night-time entry;
7. The unlawful searches of the appellant’s devices that were undertaken without proper judicial authorization.

[42] That litany of breaches is remarkable for a single arrest on a single event. In my view, it reflects a sweeping ignorance by the police of the appellant’s constitutional rights. It also demonstrates a course of conduct by the police that taints the ultimate discovery of the evidence underlying the most serious charges, that is, the evidence that was obtained from the searches of the devices, particularly the external hard drive.

[43] All of this improper conduct began with the denial of the appellant’s right to counsel. That denial was based on the same flawed thinking that then led to the warrantless entry into the appellant’s apartment. That flawed thinking reflects unfounded speculation by the police that the appellant might have connections to other individuals who would attempt to destroy evidence, if they learned of his arrest.

[44] Turning to the individual Grant factors, and contrary to the trial judge’s conclusion, the first factor strongly weighs in favour of excluding the evidence. The Charter breaches set out above are breaches of well-settled Charter principles. They do not involve grey areas in the law nor do they involve new and novel situations. Rather, they demonstrate a reckless disregard by the police of fundamental constitutional rights of which any police officer ought to be well aware. I would add that the conclusion that the police were reckless regarding the appellant’s rights is the most favourable view one could take of the actions of the police. Viewed unfavourably, the police could be seen as intentionally disregarding the appellant’s rights, due to a particularly negative reaction to the appellant’s actions and the “type” of person he is.

[45] Again, contrary to the trial judge’s conclusion, the second Grant factor also weighs strongly in favour of exclusion. As I set out earlier, the appellant’s body, his home, and his personal electronic devices, are three areas that attract the highest expectations of privacy. In this case, all three were invaded, all in the context where the appellant was also denied his right to counsel. This court has emphasised that “[t]he right to counsel is a lifeline for detained persons”: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45. The breaches were very serious ones.

[46] In terms of the third Grant factor, I begin with two of Doherty J.A.’s observations in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643. First, he said, at para. 62: “The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion.” I have already made it clear that I view the breaches in this case to be at the high end of both the seriousness spectrum and the impact spectrum. Second, Doherty J.A. said, at para. 63: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility” (citations omitted).

[47] The third factor recognizes society’s interest in having an adjudication on the merits of any criminal offence but especially serious criminal offences. At least two of the offences here are serious. Nevertheless, society also has a strong interest in ensuring that the integrity of the administration of justice is maintained. That integrity is undermined by police conduct that violates citizens’ constitutional rights. If any person’s rights are violated, no one’s rights are safe. Nor can the ends be allowed to justify the means.

[48] In this respect, the Supreme Court of Canada made it clear in Grant that courts have to disassociate themselves from conduct that would bring the administration of justice into disrepute. In my view, this is just such conduct.

[49] Before concluding, I should address the remedy that the trial judge imposed — that is, a stay of the less serious charges — and whether that remedy adequately addresses the Charter violations in this case. I say that it does not. In my view, the trial judge drew an artificial distinction between the offences as they relate to the evidence that the police discovered and the manner in which they discovered it.

[50] The police conduct in this case was all part of the same investigation. Indeed, many of the violations were occasioned by the same officer. This was not a case where different officers gathered evidence through different means. In that situation, one might be able to distinguish the impact of Charter breaches from some pieces of evidence over others. But that is not this case. Here the Charter breaches were all part of a continuum of conduct by the police.

[51] The police conduct, in this case, was on a single straight line from the start of the investigation to the ultimate collection of the evidence that underlay all of the charges. The first breach led to the second breach and then to the third breach and so on. The breaches led to the apartment, then to the devices, and then to finding what was on those devices. That line of continuous conduct led the police directly to the evidence upon which the more serious charges – child pornography and sexual assault – were based. The fact that several of the voyeurism charges that the trial judge stayed related not to the investigation at the CNE but to evidence found during the apartment and device searches shows the artifice in attempting to sever breaches and remedies. One cannot separate one breach from the other nor can one erect a wall between the breaches. The improper conduct of the police tainted all of the evidence. A stay of the lesser offences, while allowing the more serious offences to proceed, does not disassociate the court from that improper conduct. Indeed, permitting the more serious offences to proceed might be viewed as rewarding that conduct.

[52] In the end result, the situation here mirrors the situation in McGuffie. I adopt Doherty J.A.’s conclusion in that case with equal application here. He said, at para. 83:

In summary, the police conduct demonstrates a blatant disregard for the appellant's constitutional rights. That conduct all but negated several of the appellant's Charter-protected interests. The court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence. In doing so, the court acquits a person who is clearly guilty of serious criminal offences. In my view, the long-term interests of the due administration of justice require the exclusion of the evidence. This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.

D. Conclusion

[53] I would allow the appeal and set aside the convictions. In light of my conclusion that the evidence ought to be excluded under s. 24(2), the appropriate relief is to order that acquittals be entered.

[54] Finally, in light of the COVID-19 emergency, the court relieved the appellant from the term of his bail that required him to surrender into custody prior to this decision being released.

Released: (“A.H”) April 8, 2020

“I.V.B. Nordheimer J.A.”

“I agree. Alexandra Hoy A.C.J.O.”

“I agree. David M. Paciocco J.A.”