WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE

(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.

Court Information

Ontario Court of Justice

Date: June 25, 2018

Court File No.: Halton 17-29

Between:

Her Majesty the Queen

— AND —

Christian Lamontagne

Before: Justice D.A. Harris

Heard on: May 28 & 29, & June 1 & 4, 2018

Reasons for Ruling released on: June 25, 2018

Counsel:

• David King, counsel for the Crown
• M. Martin, counsel for the accused Christian Lamontagne

Decision

D.A. HARRIS J.:

INTRODUCTION

[1] Christian Lamontagne has been charged with 3 offences, all of which are alleged to have occurred in Milton on August 25, 2017. More particularly, he is accused of:

1. kidnapping;
2. abduction; and
3. breach of probation.

[2] The first two charges are indictable offences. Crown counsel elected to proceed by indictment with respect to the breach charge. Mr. Lamontagne elected trial in the Ontario Court of Justice. He pled not guilty and a trial began.

[3] Mr. Lamontagne had applied for an order that any evidence of him being identified by the witness KT should be excluded on three separate bases. These are:

1. to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at the outset;

2. that the probative value of the evidence is outweighed by the prejudice which may flow from it; and

3. pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that Mr. Lamontagne was held for more than 24 hours before being brought before a Justice of the Peace as required by section 503(1)(a) of the Criminal Code, thereby infringing his right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice as guaranteed by section 7 of the Charter, and his right not to be arbitrarily detained or imprisoned as guaranteed by section 9 of the Charter.

[4] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the application and to the trial itself.

[5] Five witnesses were called by Crown counsel up to this point. These were KT, Halton Regional Police Detectives Mike Rotsma, Matt Cunnington, Robert Todd, Dana Gray and Jody Dennis.

[6] No one testified for the defence on this application.

[7] I will deal with the first two bases for the application together as they do overlap. I will then deal with the Charter application separately.

EXCLUSION PURSUANT TO R v. HARRER OR R v. SEABOYER

[8] In R. v. Harrer, the Supreme Court of Canada recognized that it is a "trial judge's duty, now constitutionalized by the enshrinement of a fair trial in the Charter, to exercise properly his or her judicial discretion to exclude evidence that would result in an unfair trial".

[9] In R. v. Seaboyer, the Supreme Court of Canada recognized "a power in the trial judge to exclude evidence on the basis that its probative value is outweighed by the prejudice which may flow from it".

[10] In this case the onus is on Mr. Lamontagne to establish either claim on a balance of probabilities.

[11] I begin my analysis here with an assessment of the probative value and the potential prejudice arising from the proposed evidence.

[12] Counsel for Mr. Lamontagne argued that the evidence of KT identifying Mr. Lamontagne as the person who attempted to abduct her son has very little if any probative value because of flaws in the photo lineup process that made her an unreliable witness.

[13] More particularly, she argued that the process used in this case failed to comply with the recommendations flowing from The Inquiry Regarding Thomas Sophonow.

[14] Accordingly, I will address each of those recommendations separately.

1. The photo pack should contain at least 10 subjects.

[15] There were twelve subjects in the photo pack in this case.

2. The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.

[16] Counsel for Mr. Lamontagne argued that neither recommendation was complied with here.

[17] She argued that KT had identified the offender as "east Indian" rather than "black" but a significant number of the photos were of black men and almost none were "east Indian".

[18] I reject counsel's argument on this point for the following reasons.

[19] KT first described the person in response to somewhat leading questions put to her by the 911 operator. When asked if the person was a white male, KT responded that he was definitely not white. She was then asked if the man was black or east Indian. She replied "I want to say east Indian but I am not sure". When interviewed later by a police officer, she said that "his skin was darker, like east Indian." Saying he was "darker, like east Indian" is very different from identifying the man as being east Indian.

[20] In any event, I am not prepared to accept that one could not be both black and east Indian. Further, KT never explained to anyone at that time what she meant by those terms. Accordingly, it is open to the police officer preparing the photo deck, or counsel, or me to all have our own opinions as to who might fit the description of being black or being east Indian or being darker like east Indian.

[21] As to my own opinion, I would accept that Mr. Lamontagne might be described as having skin that "was darker, like east Indian" but I would not describe him as "being east Indian".

[22] Counsel also argued that most of the photos were of men whose hair was inconsistent with both KT's description and with Mr. Lamontagne's appearance.

[23] KT told the 911 operator that the man did not have much hair. He was balding. What hair he had was dark.

[24] She told Detective Rotsma that "he had black hair. It was really thin on top. He didn't have thick hair at all but it was thinning as it went down. He was bald on top and his hair started again like right above his ears".

[25] I would agree with counsel that many of the photos were of men with short cropped hair on the top of their head as opposed to thinning hair or baldness. Since Mr. Lamontagne's hair matches the description given by KT, these men do not look like him in that regard either.

[26] I accept that these are factors that must be considered in determining what weight to give the photo lineup results but I do not accept that the process was unfair.

[27] I did not hear from the police officer who put the photo deck together. I do not know if she thought that these photos were consistent with the description given by KT or that they were close to Mr. Lamontagne or that it was simply a case of her putting together a collection of the closest matches she could find to one or the other or both.

[28] In that regard, I remind myself again that the onus is on Mr. Lamontagne to establish that the process was unfair.

[29] Other aspects of the description given by KT were that the man had bushy eyebrows. His facial hair was scruffy like he had not shaved in 4 or 5 days. He had a really strong jaw line. The jaw bones were really square. She told the 911 operator that he was in his late 30's or 40's.

[30] Some of the photos show men who may be described as having bushy eyebrows. The amount of facial hair varied dramatically from photo to photo. KT was aware of the fact that the photos might not be contemporaneous and that facial hair can change from day to day or even hour to hour if someone shaved shortly before the photo was taken. All of the men shown could be described as having strong or square jaws. All but one or two appeared to me to be in their late 30's or 40's but I again observe that KT and I and anyone else looking at these photos might have differing subjective opinions of the ages of these men.

[31] Having made these observations, I also note that the Sophonow recommendations do not suggest that courts should exclude all photo lineups for noncompliance with one or more of the recommendations. I will deal later on with the recommendations with respect to what instructions should be given to jurors in these cases. For now, I will simply say that I accept that any deficiencies in the photo lineup process should be taken into account when determining what weight should be given to the evidence, but they should not lead to automatic exclusion. Further, I am not aware of any case law suggesting otherwise. I will address that later too.

3. Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up.

[32] This was done in this case.

4. Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up. In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately.

[33] This was done here.

[34] Counsel for Mr. Lamontagne argued that the photo lineup was flawed because before she was shown the photos KT knew that a suspect was in custody and that the police were confident that they had found the right person.

[35] I will start by saying that I see no problem with her knowing that the police suspected someone. The Inquiry's recommendations, including this one, include repeated references to "the suspect". So clearly the Inquiry expected that witnesses would be aware that there was a suspect. The recommendations are clearly intended to reduce the possibility that the witness might draw improper inferences from this.

[36] The fact that she knew that the suspect was in custody might make her believe the police must have other evidence to justify the arrest and the fact that the police are confident that they have the right person is even more problematic in that regard, but again I am satisfied that this is best dealt with by my considering these factors when determining how much weight to attach to her identification evidence.

[37] I also note that KT asked beforehand what would happen if she did not pick anyone and she was told that the police would continue the investigation.

[38] During the process itself, she was told that the suspect might not be included in the photos. She was also told that it was important to clear the innocent.

[39] These cautions clearly had an effect on KT. She did not identify Mr. Lamontagne's photo or that of anyone else initially.

5. The photo pack must be presented sequentially and not as a package.

[40] This was done here.

6. In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness.

[41] This was done here.

7. Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.

[42] Detectives Cunnington and Dennis both spoke to KT following the line-up.

[43] I accept Detective Cunnington's evidence that he intended only to say good-bye to her and to assure her that the police would continue their investigation.

[44] According to KT, he told her that she need not worry, that the photo lineup was only "one nail in the coffin". When asked to explain, he told her that it was just one part of the investigation.

[45] Detective Cunnington denied using the phrase "one nail in the coffin". It was not something he would say. He did tell her that it was just one part of the investigation.

[46] Both agree, however, he did speak to her about her inability to identify anyone. That was how he came to learn that she was having second thoughts about her failure to pick one particular photograph.

[47] I also accept that the police officers were unsure of what they should do next because none of them had experienced this particular sequence of events before. They attempted to deal with the situation in what they thought was the best way available to them. However, this meant that Detective Dennis also spoke to KT about her inability to identify anyone.

[48] Further, both Detectives Cunnington and Dennis knew who the suspect was in this case and that his photograph was contained in the photo deck. However, I have the ability to assess whether either of them did anything to steer KT towards picking Mr. Lamontagne's photograph. I am satisfied that they did not.

[49] Again, I am satisfied that these are all factors that I must consider in assessing the weight to give the proposed evidence. They do not lead me to conclude that the evidence should be excluded.

[50] I am satisfied that there is probative value to the evidence.

[51] The extent of that probative value will be determined by me at the conclusion of the trial after I have heard all of the evidence.

[52] With respect to potential prejudice, it is necessary to evaluate both moral prejudice (i.e., the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual charge against the respondent).

[53] Clearly, the potential for prejudice is not as significant in judge alone trials such as this one. I should be capable of recognizing the risk of either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice. If I was not and I was unable to set aside the potential moral prejudice arising out of KT's identification evidence, it would be necessary for me to declare a mistrial now and recuse myself from the case, as I have already heard the proposed evidence. Such is the difficulty facing all judges trying these cases without a jury.

[54] Counsel for Mr. Lamontagne made it clear that she was neither asking for a mistrial, nor suggesting that I could not instruct myself as to the law or that I could not follow those instructions.

[55] In that regard, I note the recommendations of the Sophonow Inquiry with respect to the instructions that should be given to a jury, or by extension to the trial judge in a judge-alone trial:

1. There must be strong and clear directions given by the trial judge to the jury emphasizing the frailties of eyewitness identification. The jury should as well be instructed that the apparent confidence of a witness as to his or her identification is not a criteria of the accuracy of the identification. In this case, the evidence of Mr. Janower provides a classic example of misplaced but absolute confidence that Thomas Sophonow was the man whom he saw at the donut shop.

2. The trial judge should stress that tragedies have occurred as a result of mistakes made by honest, right-thinking eyewitnesses. It should be explained that the vast majority of the wrongful convictions of innocent persons have arisen as a result of faulty eyewitness identification. These instructions should be given in addition to the standard direction regarding the difficulties inherent in eyewitness identification.

3. Further, I would recommend that judges consider favourably and readily admit properly qualified expert evidence pertaining to eyewitness identification. This is certainly not junk science. Careful studies have been made with regard to memory and its effect upon eyewitness identification. Jurors would benefit from the studies and learning of experts in this field. Meticulous studies of human memory and eyewitness identification have been conducted. The empirical evidence has been compiled. The tragic consequences of mistaken eyewitness identification in cases have been chronicled and jurors and trial judges should have the benefit of expert evidence on this important subject. The expert witness can explain the process of memory and its frailties and dispel myths, such as that which assesses the accuracy of identification by the certainty of a witness. The testimony of an expert in this field would be helpful to the triers of fact and assist in providing a fair trial.

4. The trial judge must instruct and caution the jury with regard to an identification which has apparently progressed from tentative to certain and to consider what may have brought about that change.

5. During the instructions, the trial judge should advise the jury that mistaken eyewitness identification has been a significant factor in wrongful convictions of accused in the United States and in Canada, with a possible reference to the Thomas Sophonow case.

[56] I will certainly be instructing myself in accordance with these recommendations.

[57] I note again that the Inquiry does not suggest that evidence flowing from a less than perfect photo lineup should be excluded.

[58] Neither do the court decisions provided to me.

[59] In R. v. Hibbert, the Supreme Court of Canada stated the following shortly after the release of the Inquiry's report:

51 The danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification has been well documented. Most recently the Honourable Peter deC. Cory, acting as Commissioner in the Inquiry regarding Thomas Sophonow, made recommendations regarding the conduct of live and photo line-ups, and called for stronger warnings to the jury than were issued in the present case (Peter deC. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) ("Sophonow Inquiry"), at pp. 31-34).

52 While it is unnecessary to consider these recommendations in detail, I share the concern expressed by the Commissioner and, in this particular case, I think it would have been prudent to emphasize for the benefit of the jury the very weak link between the confidence level of a witness and the accuracy of that witness (Sophonow Inquiry, at p. 28). Moreover, here it should also have been stressed that the impact of Mrs. McLeod having seen the appellant arrested by the police as her alleged assailant could not be undone. Nor could she be expected to divorce her previous recollection of her assailant from the mental image that she formed after having seen the appellant on television.

53 What will be required to displace the danger that the jury will give an eyewitness identification weight that it does not deserve will vary with the facts of individual cases. Here, at a second trial, and in light of the identification history, I think a stronger warning would have been appropriate.

[60] Twenty years after R. v. Seaboyer, supra, and ten years after the Sophonow Inquiry, the Supreme Court of Canada observed in R. v. White that:

Once evidence is found to be relevant, it is generally admissible and the jury is left to decide how much weight to give a particular item of evidence. Similarly, once evidence is determined to be relevant with respect to a particular live issue, the jury should normally be free to weigh the evidence in drawing conclusions about that live issue. This is subject to specific exclusionary rules and the judge's discretion to exclude evidence that is more prejudicial than probative.

[61] The Supreme Court further observed that:

Once jurors are alerted to the risks that are not necessarily apparent to the average citizen, they can be trusted to properly weigh the evidence. Our jury system is predicated on the conviction that jurors are intelligent and reasonable fact-finders. It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidence unreasonably or draw irrational and speculative conclusions from relevant evidence.

[62] Of specific relevance to the current case, the Supreme Court observed that:

Eyewitness identification evidence provides an even more striking example of the importance of distinguishing a limiting instruction that removes evidence from the jury's consideration from a warning that tells the jury to be careful with the evidence. In the vast majority of cases, eyewitness identification will be relevant to the issue of identity, i.e. whether the accused is the person who committed the offence. However, eyewitness identification can be "deceptively credible" because an honest and sincere witness may be mistaken (R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 50-51, specifically referring to "eyewitness in-court identification", but also discussing eyewitness identification generally; see also R. v. Curran (2004), 188 O.A.C. 1, at para. 29 (Ont. C.A.)). The appropriate response is not to instruct the jury that they cannot consider eyewitness testimony in determining the issue of identity. Rather, it is to warn the jury that the evidence may not be as reliable as it seems. Indeed, this is what judges generally do (emphasis added).

[63] That is what judges generally do and that is what I will be doing here.

[64] Counsel for Mr. Lamontagne provided me with two trial decisions in which photo lineup evidence was excluded. Neither decision is binding on me. Further, in the circumstances, neither is particularly persuasive.

[65] The facts in R. v. H.M.L.S. are very different from those before me.

[66] The judge found one photo lineup to be "a patently unfair line-up, given the fact that her distinguishing features of braided hair, looped earrings and a strapped top, are not found on any of the other persons composing the line-up, and she possesses little or no similarities to the other photographs".

[67] The judge went on to state:

I find on the evidence that not one of the Sophonow recommendations were followed in the photo line-ups conducted in this case, (except for an audiotape of one of the line-ups), which is compounded by the fact that I find the composition of the C.M.I.W. line-up patently unfair, and there are numerous discrepancies in the evidence of those who identified the accused in the photo line-up regarding the clothes the accused were said to be wearing at the time of the robberies. On this basis alone I find that the photo line-ups of both H.M.L.S. and C.M.I.W. should be excluded from evidence.

[68] As I stated above, these facts are entirely different from those before me.

[69] For the most part, the police officers in this case were unaware of the recommendations of the Sophonow Inquiry and only one or two knew who Thomas Sophonow was. They were aware however that the Halton Regional Police Service had a written protocol regarding the conduct of a photo lineup. This protocol is clearly based on the recommendations of the Sophonow Inquiry.

[70] Further the police officers here tried to comply with the directions set out in the protocol. I am satisfied that they succeeded with regard to most of them. With regard to the others, I am satisfied that any shortcomings should go to weight rather than lead to exclusion of the evidence.

[71] In R. v. Dhillon, the judge stated:

11. I do not say that it would always be fatal to a photo line-up to follow the procedure Constable Bernard did. It is obviously, based on the recommendations of the Sophanow Inquiry not ideal, but in other cases it might go to the weight to be given at the trial of evidence otherwise admissible.

12. Here, however, the court has such grave concerns as to the reliability and trustworthiness of the evidence, given the above tainting and the evidence of Mr. Randhawa at this trial, that I find this is an appropriate case, in the interests of justice, to exclude the photo line-up evidence and to ensure a fair trial.

[72] In that case she found it necessary to exclude the evidence to ensure a fair trial. I on the other hand have decided that any deficiencies in the process should go to the weight to be given the evidence at trial.

[73] I am not satisfied on a balance of probabilities that the probative value of the evidence is outweighed by any prejudicial effect.

[74] I am not satisfied on a balance of probabilities that the introduction of the evidence would result in an unfair trial.

[75] This application is dismissed.

[76] Before moving on to the next issue, I wish to make it clear that I hope that applications such as this one will not become common occurrences in judge alone trials. Judges are capable of determining the probative value of evidence. They are capable of ensuring that evidence does not have prejudicial effect. Further, it is not appropriate to weigh each piece of evidence separately and discard that which is wanting.

[77] Rather, the appropriate process is described in one of the cases provided by counsel for Mr. Lamontagne as follows:

If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.

[78] That then leaves me with the Charter argument.

EXCLUSION PURSUANT TO THE CHARTER

[79] I am satisfied that Mr. Lamontagne's rights as guaranteed by sections 7 and 9 of the Canadian Charter of Rights and Freedoms were infringed here.

[80] Section 7 provides that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".

[81] A person who is detained by police for approximately 28 hours is clearly deprived of the right to liberty.

[82] Section 503(1) of the Criminal Code, requires that, where a justice is available, a person detained in custody must be taken before a justice without unreasonable delay and in any event within 24 hours of arrest.

[83] I am satisfied that Mr. Lamontagne was taken before a justice without unreasonable delay but more than 24 hours after his arrest. So his continued detention contravened section 503(1). This clearly is not in accordance with the principles of fundamental justice.

[84] Accordingly I am satisfied that Mr. Lamontagne's section 7 rights were infringed.

[85] Section 9 of the Charter provides that "everyone has the right not to be arbitrarily detained or imprisoned".

[86] Once Mr. Lamontagne's detention exceeded the outer time limit of 24 hours, that detention was in contravention of section 503(1). A detention not authorized to by law is arbitrary and accordingly infringed his section 9 rights.

[87] As I stated above, while Mr. Lamontagne was taken before a justice more than 24 hours after his arrest, I was satisfied that he had been taken before the justice without unreasonable delay. To understand that, it is necessary to look at what happened here.

[88] The offence is alleged to have occurred at approximately 7:45 p.m. on August 25. KT called 911 shortly after that.

[89] Detective Rotsma was assigned to the investigation at 8:30. At 9:20 he audio recorded a statement from KT. He went to the scene of the crime to get a feel for that location. He began to canvas neighbours but found no witnesses or vehicles matching the description provided by KT.

[90] At 12:30 a.m. he received information regarding a possible vehicle belonging to Mr. Lamontagne. He examined a photo of Mr. Lamontagne and decided that he was a suspect.

[91] Detective Rotsma then arranged for the Lamontagne residence to be kept under surveillance while he applied for and obtained a Feeney warrant.

[92] Mr. Lamontagne was arrested at 5:30 a.m. He was transported to the Central Lock Up which is located at 20 Division in Oakville.

[93] As per Halton Regional Police Service policy the investigation was to be turned over to either the Homicide Unit or the Child and Sexual Abuse Unit. Detective Todd was the acting supervisor of both units. He assigned the lead investigation role to Detective Cunnington.

[94] Detective Cunnington began his shift at 7:00 a.m. He read the occurrence report, and debriefed Detective Rotsma.

[95] He spoke to KT about obtaining the clothing worn by her child. He spoke to the police forensic unit about examining that clothing.

[96] He assigned another officer the task of obtaining search warrants for the Lamontagne residence and motor vehicle. He put the forensic unit on notice of his desire that they examine the car and any clothing or other evidence seized from the residence.

[97] During this time, Detective Todd prepared multiple drafts of a media release that was eventually released. This led to telephone calls from the media and from concerned citizens reporting various occurrences that the citizens thought might be related.

[98] This was further complicated by the fact that KT had posted some information to a FaceBook group.

[99] The detectives organized a more extensive canvas.

[100] They spoke to an Assistant Crown Attorney to determine what charges might be appropriate here.

[101] Arrangements were made for Mr. Lamontagne to speak to a lawyer a number of times.

[102] A request to interview Mr. Lamontagne's wife was granted but the questions had to be put in writing and submitted through a lawyer. These questions were prepared and submitted.

[103] Information was obtained from Mr. Lamontagne, again with the assistance of counsel, as to how the police could execute the warrant and enter the house without causing any damage.

[104] The supervisor of the surveillance unit was consulted to discuss the possibility of following Mr. Lamontagne if it became necessary to release him without charge.

[105] Arrangements were made for another detective to interview Mr. Lamontagne. Detective Cunnington monitored that.

[106] A photo lineup was requested at 7:58 p.m. It arrived at the station at 10:00 p.m.

[107] Up until KT identified Mr. Lamontagne, the police felt that they had grounds to arrest him but not to charge him. Had she not identified him, the police would have released him.

[108] Once she did identify him, he was formally charged.

[109] Then at 9:00 a.m. he appeared by video before a Justice of the Peace sitting in the Week-end And Statutory Holiday (WASH) bail court. That was 27 ½ hours after he was arrested. He was remanded to another day for his bail hearing. I do not know when he returned to court or what happened then.

[110] As a result, I cannot say that the failure to get Mr. Lamontagne before a Justice of the Peace earlier prolonged the time which he spent in custody.

[111] Section 24 of the Charter reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[112] Counsel for Mr. Lamontagne argued that I should exclude the identification evidence pursuant to both subsection 24(1) and subsection 24(2).

[113] She argued that I should invoke 24(1) on the basis that the introduction of the evidence would render the trial unfair. I have already rejected that argument above and I will not repeat my comments regarding that issue.

[114] With respect to section 24(2), the first question to be answered is whether the evidence was obtained in a manner that infringed or denied a Charter right.

[115] The Ontario Court of Appeal has stated that the following considerations should guide a court's approach to the "obtained in a manner" requirement in section 24(2):

(1) The approach should be generous, consistent with the purpose of s. 24(2);

(2) The court should consider the entire "chain of events" between the accused and the police

(3) The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

(4) The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

(5) But the connection cannot be either too tenuous or too remote.

[116] In the circumstances here, I am not satisfied that the identification evidence was obtained in a manner that infringed or denied a Charter right.

[117] The continued detention of Mr. Lamontagne was not necessary for the photo lineup to be held. It did not impact the conduct of the photo lineup in any way.

[118] Even if I was satisfied otherwise, I would not have excluded the evidence pursuant to section 24(2) because I am not satisfied that the admission of it in the proceedings would bring the administration of justice into disrepute.

[119] In that regard the Supreme Court of Canada decision in R. v. Grant directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(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.

[120] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[121] In R. v. Grant, supra, the Court discusses the first factor, the seriousness of the Charter-infringing state conduct, as follows:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess 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. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[122] The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.

[123] 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.

[124] Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

[125] I am very much of two minds as to the seriousness of the breach here.

[126] Mr. Lamontagne was held without seeing a Justice of the Peace for only 3 ½ hours longer than permitted pursuant to the Criminal Code.

[127] On the other hand, he should not have been held any longer at all than was permitted by law.

[128] The fact that the overholding was for only 3 ½ hours should be considered during my analysis of the second Grant factor, not this one.

[129] I do not see the Charter violation as being inadvertent or minor.

[130] On the other hand, this was not a wilful or reckless disregard of Mr. Lamontagne's rights.

[131] The police were constrained by the fact that they had limited access to a Justice of the Peace on weekends and Mr. Lamontagne was arrested on a Saturday morning.

[132] WASH court was available up until approximately 1:00 pm. After that, it would not be available until 9:00 a.m. the following day.

[133] That was too tight a schedule for the police to conduct an investigation to the degree where they could charge him and take him before a Justice of the Peace that first day.

[134] They would have been far better off in that regard if they had arrested him 4 hours later than they did.

[135] One option available to the police would have been to release Mr. Lamontagne and keep him under surveillance until they determined whether he should be re-arrested or the investigation discontinued.

[136] One downside to that is that they could be releasing someone who might be a danger to the community. Surveillance would provide some protection in that regard but would not be a sure thing.

[137] Another downside is that it would be unfair to Mr. Lamontagne to let him go, only to take him back into custody again a few hours later.

[138] After considering all of this I conclude that the first branch of Grant weighs in favour of exclusion of the evidence, but only to a slight degree.

[139] With respect to the second factor, the impact of the breach on the Charter-protected interests of the accused calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. 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.

[140] As I stated earlier, I cannot say that the failure to get Mr. Lamontagne before a Justice of the Peace earlier prolonged the time which he spent in custody at all.

[141] At most, I could find that he was kept in custody without seeing a Justice of the Peace for 3 ½ hours more than is permitted pursuant to the Criminal Code.

[142] After considering all of this I conclude that the second branch of Grant weighs in favour of inclusion of the evidence.

[143] As for the third factor, society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the section 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

[144] The reliability of the evidence is an important factor in this line of inquiry.

[145] The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry.

[146] I must also consider the seriousness of the offence at issue. This can cut both ways because, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[147] In this case, the charges are serious and I was told by both counsel that the evidence is very important to the Crown's case.

[148] After considering all of the above, I find that the truth seeking function would be better served by the admission of the evidence than by its exclusion.

[149] As I stated above, I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. No overarching rule governs how the balance is to be struck. The balancing is qualitative in nature and therefore not capable of mathematical precision.

[150] However, the Ontario Court of Appeal has stated that the third inquiry will seldom, if ever, tip the balance in favour of admissibility if both the first and second inquiries make a strong case for exclusion. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.

[151] I conclude that the long term interests of the administration of justice are better served by the inclusion of the identification evidence.

[152] Accordingly, the application to exclude that evidence pursuant to section 24 of the Charter is dismissed.

Released: June 25, 2018

Signed: Justice D.A. Harris