Court File and Parties
Citation: R. v. Bullen, 2016 ONSC 7875 Court File No.: CR-13-30424 Date: 2016-12-14
Ontario Superior Court of Justice
Between:
Her Majesty the Queen
– and –
David John Bullen Defendant
Counsel: R. W.A. Sonley, and M. Jarmoc, for the Crown V. Clifford, and G. McInnis for the Defendant
Heard: December 9, and 12–14, 2016 at Ottawa
Before: Ray, J.
Reasons for Decision
[1] Following my decision of 2016 ONSC 7684 in which I set aside Authorization 1, and found the evidence obtained was in violation of s 8 of the Canadian Charter of Rights and Freedoms, I heard submissions concerning whether the evidence obtained pursuant to the authorization is be excluded under s 24(2) of the Canadian Charter of Rights and Freedoms. This decision should be read as a continuation of the above decision. It was heard in stages for reasons of judicial economy. This is the second stage.
[2] The recent decision of R v Edwards[^1] is a very helpful guide to the law and the procedure to be followed, even though it dealt with the issue of evidence having been acquired before the charter breach had occurred.
[3] The analysis requires a two stage process. First a review of the “obtained in a manner” requirement of s. 24(2) takes place. It is a broad net and not necessarily limited to a causal connection between the breach and the evidence obtained. It is necessary to determine what evidence, in addition to the evidence obtained in violation of s. 8, is to be the subject of exclusion. Second, the Grant factors are applied in order to determine if admission would bring the administration of justice into disrepute. Following that analysis, I would then need to consider the subsequent authorizations to the extent that they relied on the evidence obtained from Authorization 1. The defendant conceded in argument that if I declined to exclude the evidence from Authorization 1, that it would not be necessary to proceed to a consideration of the subsequent authorizations. It is for the defendant to show on a balance of probabilities that the evidence sought to be excluded was “obtained in a manner” that infringed his Charter rights, and that the admission of the evidence would bring the administration of justice into disrepute.
[4] Authorization 1 was a ‘one-party consent’ to permit the recording of conversations between the defendant and Edwards, the police agent, between December 12, 2013 and January 13, 2014. Any recordings obtained pursuant to the terms of the authorization are caught by my order. However, other evidence was also obtained during the verbal interactions between the defendant and Edwards which could be introduced to the Court through the vive voce evidence of Edwards; and may be included in the ‘obtained in a manner’ that infringed the defendant’s Charter rights. If so, then it too would be included for consideration in the defendant’s s 24(2) motion.
[5] The defendant’s position is that vive voce evidence of the face to face conversation between the defendant and Edwards is connected to the recording of the conversation, should be included in the Grant analysis, and both should be excluded from evidence in the upcoming trial. The defendant relies primarily on the reasoning in R v Edwards, and R v Mohamud[^2].
[6] The Crown’s position is that, firstly, vive voce evidence of the verbal exchange between Edwards and the defendant ought not to be included for the purpose of the Grant analysis and relies on the reasoning in R v Fliss[^3]. Secondly, the Crown opposes exclusion of the recording on the basis of the Grant analysis; and on the ground that the recording forms part of the truth seeking exercise in ensuring the reliability of the verbal exchange between Edwards and the defendant.
Obtained in a Manner
[7] The determination of whether vive voce evidence of the verbal exchange between Edwards, the police agent, and the defendant is to be included in the evidence to be excluded, requires a factual and contextual assessment. Examples of these analyses is found in the factual matrices and reasoning in R v. Mohamud and R v. Fliss. In the former, the judge found that the evidence of the verbal exchange by vive voce evidence of the undercover police officer was included with the recording because of the connection between them both; and excluded subject to a Grant analysis. In the latter case the Supreme Court of Canada confirmed that on the facts before the court, there was not a connection that required exclusion of vive voce evidence of the exchange along with the recording that was obtained in violation of the Charter. Both counsel have contended the two decision are distinguishable, but for different reasons. A factual assessment along with the applicable legal principles is necessary.
[8] As recited in my decision at the first stage, Edwards was recruited by the OPP as a police agent after being a confidential informant. The plan was for Edwards to contact the defendant, engage him in conversation to learn the identity of his associates, and to obtain incriminating admissions. A service provider agreement was entered into that provided for staged payments by the OPP to Edwards over an extended period of time. No mention was made in the agreement that required Edwards to be involved in a recording of communications. The s 184.2 one party consent authorization was obtained after the service provider agreement was entered into. The authorization anticipated that Edwards would wear a recording device during his conversation with the defendant. Since the authorization was set aside, then the recording was obtained in contravention of s 8 of the Canadian Charter of Rights and Freedoms. The conversation between Edwards and the defendant was not illegal, was not in breach of the defendant’s Charter protected rights; and is admissible by itself to the extent it would be relevant to the charges facing the defendant. The evidence in the ITO as amplified and edited makes it clear that the OPP did not consider Edwards reliability to be sufficient without the recording.
[9] The court in Fliss, faced with a similar issue, was obliged to engage in an analysis of whether the evidence had been conscripted or whether it was a real evidence in considering “obtained in a manner”. Those distinctions and that analysis are no longer necessary to an analysis.[^4] However, the court, in finding that the vive voce evidence concerning the defendant’s confession was admissible, found that the evidence from the defendant was obtained as part of a long undercover operation and that with or without the (wiretap) the investigation was going to proceed. In other words his confession was not linked to the recording.
[10] I accept that the current approach is as set out in R v Edwards. I accept that Edwards deals with evidence acquired before the breach, but I don’t accept that it is restricted in that way. I accept that the following principles are applicable to the question of what evidence is included in “obtained in a manner”:
• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire “chain of events” between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.[^5]
[11] If the authorizing judge had declined to grant the authorization, according to the evidence in the ITO, the face-to-face conversation between Edwards and the defendant for the purpose of obtaining the defendant’s evidence would not have gone ahead. I am satisfied that Edwards’ face-to-face conversation with the defendant was dependent on the recording; and the recording was dependent on the conversation.[^6] I accept that vive voce evidence concerning those conversations as well as the recordings must be part of the s 24(2) analysis.
The Grant Factors
[12] Section 24(2) of the Canadian Charter of Rights and Freedoms provides that evidence shall be excluded from a defendant’s trial where admission of the evidence would bring the administration of justice into disrepute. In R v Grant, the court laid out a four factor test for determining when the admission of evidence will affect the repute of the administration of justice.[^7]
a) Seriousness of the Breach
[13] This enquiry requires an evaluation of the seriousness or gravity of the offending state conduct that led to the breach on a continuum from minor or inadvertent violations to wilful or reckless disregard[^8]
[14] Careless drafting of an ITO is not viewed in general as a minor, inadvertent or good faith error on the part of the affiant. Where the ITO is replete with inaccuracies and selected or exaggerated narrative, or where a wiretap is obtained on the ground of mere suspicion they cannot be characterized as minor or trivial.[^9] Where the ITO is materially misleading then it should be considered at the more serious end of the spectrum.[^10]
[15] I do not consider the seriousness of the police conduct in this case to be at the serious end of the spectrum nor do I consider it to be trivial. The ITO failed in connection with the third branch of s 184.2(3), not in its entirety. There were ample grounds for RPG that an offence had or was being committed- they are serious offences. This evidence was obtained in breach of the defendant’s charter rights after a lengthy investigation involving a dozen or more wiretaps and extensive surveillance.
[16] The principal failure in the ITO was to address the reliability of the police agent with sufficient detail in connection with the investigative plan.
b) Charter Protected Interests of the Defendant.
[17] An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy is more serious than one that does not. Wiretaps retain their intrusive nature even where one party has consented to the interception.[^11]
[18] While the law properly acknowledges that a wiretap is still intrusive even with a one party consent, this recorded conversation took place in a restaurant. It was a public area, and the defendant freely and willingly engaged in the conversation with the police agent and another individual who was identified as an associate of the defendant. Other than the subject of the conversations concerning planning of criminal activity, the circumstances of the conversation did not merit a high expectation of privacy. A higher expectation of privacy does not arise simply because the discussion concerned criminal activity.
[19] I find that in the circumstances of this case, breach of the defendant’s charter protected interests by recording his conversation with the police agent were less serious.
c) Society’s Interest in Adjudicating the Case on its Merits
[20] The seriousness of the case must not take on disproportionate significance since the seriousness “cuts both ways”[^12]. The defendant contends that exclusion of the evidence will weaken but not ‘gut’ the Crown’s case; whereas the Crown argues that the evidence is essential to its case since it lays the foundation for the names of the defendant’s associates, the defendant’s participation in drug related activities, and evidence of a criminal organization.
[21] It is acknowledged that society expects a criminal allegation to be adjudicated on its merits; however this enquiry is to determine if the truth seeking function of the court would be better served by admission of the evidence, as opposed to its exclusion. The offences are serious. Drug trafficking and criminal organizations are troubling to the public. The evidence sought to be excluded is reliable. It is a recording of the exact words used by the defendant during his conversation. The utterances by the defendant to the police agent would have been admissible and relevant. I found that the conversation and the recording were part of the same transaction; and that both were to be considered under the s 24(2) analysis. However, to exclude evidence of those conversations because they were recorded in contravention of s 8 of the Charter; and where, as here the recording makes evidence of the conversation more reliable tips the balance in favour of admission. “…conversely, the exclusion of highly reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.[^13]
d) Balancing the Factors in Grant
[22] Finally, it is the task of the trial judge to weigh the various factors. There is no overarching rule[^14]
[23] The Court of Appeal has recently provided further guidance to trial judges at this balancing phase as follows: In practical terms, the third inquiry [under section 24(2)] becomes important when one but not both, of the first two inquiries pushes strongly toward the exclusion of evidence…. 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.[^15]
[24] On balance I find the evidence of the conversation and the recording of the conversation between the police agent and the defendant ought not to be excluded. If the ITO had been less persuasive concerning the RPG for the commission of an offence, I would have been more inclined to exclude the evidence. Any Charter breach is serious. The breach in this case is no less so. However, it is neither egregious nor at the higher end of the continuum. On the facts of this case, it is concerning to see reliable relevant evidence excluded where the ITO supported the view that there were RPG that an offence had been committed. It would be tempting to exclude the recording but admit evidence of the conversation. However, that would raise the very real possibility that the reliability of the vive voce evidence, in the absence of the recording, would render the vive voce evidence unreliable. These offences are serious. The public is concerned with these types of offences. To exclude this evidence would offend the public’s expectations, and would bring the administration into disrepute.
Honourable Justice Timothy Ray
Released: December 14, 2016
Citation: R. v. Bullen, 2016 ONSC 7875 Court File No.: CR-13-30424 Date: 2016-12-14
Ontario Superior Court of Justice
Her Majesty the Queen
– and –
David John Bullen Defendant
Reasons for Decision
Honourable Justice Timothy Ray
Released: December 14, 2016
[^1]: R v. Edwards, [2016] O.J. No. 2656, 2016 ONCA 389 (ONCA); also of assistance is the detailed analysis by Code, J, in R v. Jaser, [2014] O.J. No. 6424, 2014 ONSC 6052 (ONSC)
[^2]: R v Mohamud, [2008] OJ. No. 3922 (ONSC)
[^3]: R v Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, [2002] S.C.J. No. 15 (SCC)
[^4]: R v Grant, [2009] S.CJ. No. 32, 2009 SCC 32, para 121
[^5]: R v Edwards, note xx, para 72, (OCA)
[^6]: To paraphrase R v Mohamud, note 2, para 68.
[^7]: R v Grant, note 4, para 71
[^8]: R v Grant, note 4, paras 73,74
[^9]: R v Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, paras 109-111 (SCC); R v L.F.(2002), [2002] O.J. No. 2604 (ONCA) at para 44
[^10]: R v Rocha, 2012 ONCA 707, [2012] O.J. No. 4991, paras 35-37 (ONCA)
[^11]: R v Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 para 33, 35, 36 (SCC); R v Duarte, [1990] 1 S.C.R. 30,[1990]S.C.J..No.2, para 51(SCC)
[^12]: R v Grant, note 4, para 84
[^13]: R v Grant, note 4, para 81
[^14]: R v Grant, note 4, para 86
[^15]: R v McGuffie, 2016 ONCA 365, 2016 ONCA365 at para.63.(ONCA)