COURT FILE NO.: CR-19-50000074-0000
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROMAIN MILLER
David Tice, for the Crown
Rafik Kodsy, for Mr. Miller
HEARD: December 2 and 3, 2019
Davies J.
reasons for judgment
(Application to Exclude Evidence Under s. 24(2) of the Charter)
A. Overview
[1] Two men robbed a Rogers store shortly before 6:00 p.m. on July 22, 2018, stealing approximately 50 iPhones. One of the men was armed with a handgun. One of the phones stolen during the robbery had a GPS tracking device. Within 30 minutes of the robbery, the police traced that phone to a mall some distance away. There was another cell phone store, I-Tech Solutions, in that mall.
[2] Mr. Miller was arrested in the I-Tech Solutions Store at 6:36 p.m. The police searched Mr. Miller and a bag he was carrying incident to his arrest. The police seized a cell phone from Mr. Miller as well as a key to a Dodge Durango, which the police found parked outside the I-Tech Solutions. The police also searched the Dodge Durango incident to Mr. Miller’s arrest and discovered a handgun in a baby seat in the back of the car. As soon as the gun was located, the police stopped the search and had the car towed to a police storage facility. A warrant was obtained, and the car was fully searched a few days later. During that search, the police located a loaded magazine and a mask.
[3] Mr. Miller was advised of his right to counsel when he was arrested. He immediately and repeatedly said he wanted to speak to his lawyer. Mr. Miller told the officer his lawyer’s name and how to get his contact information. Section 10(b) of the Charter requires the police to give someone who is under arrest an opportunity to speak to counsel at the first reasonable opportunity. Officer Haworth made no effort to put Mr. Miller in touch with his lawyer until 10:28 p.m., three hours and 41 minutes after he first said he wanted to speak to counsel.
[4] Mr. Miller brings an application to exclude the firearm located during search of the Durango incident to arrest.[^1] He argues that the police violated his rights under s. 10(b) of the Charter by failing to implement his right to counsel at the first reasonable opportunity. Mr. Miller argues that the firearm was discovered as part of the same transaction as the breach of his Charter rights and should be excluded under s. 24(2) of the Charter.
[5] The Crown concedes that Officer Haworth violated Mr. Miller’s rights under s. 10(b) of the Charter. The Crown acknowledges that Officer Haworth was negligent in his duty to implement Mr. Miller’s right to counsel. However, the Crown argues that the firearm in the vehicle was not obtained in a manner that violated Mr. Miller’s Charter rights and, even if it was, the admission of that evidence at Mr. Miller’s trial would not bring the administration of justice into disrepute.
[6] On December 6, 2019 I ruled that the firearm was obtained in a manner that violates Mr. Miller’s Charter rights and that its admissions would bring the administration of justice into disrepute. I, therefore, excluded the firearm. These are my reasons for that decision.
B. Was the firearm “obtained in a manner” that violates Mr. Miller’s Charter rights?
[7] The text of s. 24(2) of the Charter states that before evidence is excluded, two conditions must be met. First, the evidence must be “obtained in a manner” that infringed a right guaranteed to the defendant by the Charter. At this stage of the analysis, the issue is whether the discovery of the evidence is sufficiently proximate to the Charter breach to warrant further analysis. If the threshold requirement is met, the focus then turns to whether the admission of the evidence must “bring the administration of justice into disrepute.”
[8] It is not necessary for Mr. Miller to show a causal connection between the breach of his Charter right and the discovery of the firearm to satisfy the threshold requirement that the evidence was “obtained in a manner” that violated his rights. In refusing to import a causal connection requirement into s. 24(2) of the Charter, the Supreme Court of Canada identified the danger such an approach would create in cases like this one:
Imposing a causation requirement in s.24(2) would generally have the effect of excluding from consideration under that section much of the real evidence obtained following a violation of the right to counsel. Violations of the right to counsel may frequently occur in the course of a valid arrest or, as in the present appeal, in the execution of a valid search power. In these situations, real evidence discovered on the person of the accused or in the course of the search will not, subject to one exception, have a direct causal relationship with the denial of the right to counsel. Derivative evidence, obtained as a direct result of a statement or other indication made by the accused, is the only type of real evidence that may be said to be causally connected to violations of the right to counsel in these situations. With the exception of derivative evidence, infringements of the right to counsel occurring in the course of arrest or execution of a search warrant, can only be causally connected to self‑incriminating evidence... A strict causal requirement would tend to preclude real evidence discovered after a violation of s. 10(b) from being considered under s. 24(2) of the Charter.[^2]
[9] For the purpose of s. 24(2) of the Charter, Mr. Miller need only establish a temporal, contextual or causal connection between the breach and the discovery of evidence that is not too remote to satisfy the requirement that the evidence was “obtained in a manner that” violates his Charter rights.[^3]
[10] Because the “obtained in a manner” requirement is a threshold requirement, and thus the gateway into the s. 24(2) analysis, the Court of Appeal for Ontario has encouraged trial judges to take a “generous approach” to this issue.[^4] If the Charter breach and the discovery of evidence are part of the same transaction, the evidence will have been “obtained in a manner” that violates the accused’s Charter rights, even in cases where the discovery of the evidence precedes the breach.
[11] The question then is whether the breach of Mr. Miller’s right to counsel was part of the same transaction that resulted in the discovery of the firearm during the search of the car incident to arrest. While I agree with the Crown that there is no causal connection between the breach of Mr. Miller’s right to counsel and the discovery of the firearm, I find that there is both a contextual and temporal connection between the breach and the discovery of the firearm during the search of the car incident to arrest.
[12] The firearm was discovered shortly after Mr. Miller’s arrest. It was discovered as a result of the police finding a key to the car during the search of Mr. Miller’s bag incident to arrest. Mr. Miller’s arrest was the event that gave rise to both the violation of his right to counsel and the discovery of the evidence. This provides a clear contextual connection between the breach of his right to counsel and the discovery of the evidence, even if the breach did not lead the police to discover the firearm.
[13] Importantly, there is also a temporal connection between the violation of Mr. Miller’s rights and the discovery of the firearm during the search incident to arrest. Mr. Miller was arrested at 6:36 p.m. and his bag was searched incident to his arrest. Mr. Miller was advised of his right to counsel. At 6:47 p.m., Mr. Miller said he wanted to speak to a lawyer. Mr. Miller was transported to a police station. He was processed and searched when he arrived at the police station. By 8:13 p.m. the search was completed. The police should have put Mr. Miller in touch with counsel at that time. It is at that point that the violation of his right to counsel crystallized. No efforts were made to contact Mr. Miller’s lawyer for more than two hours and there is no explanation for this delay.
[14] Using the key located in Mr. Miller’s bag, the police searched the Durango and discovered the firearm at 7:55 p.m., at the same time Mr. Miller was in police custody and being processed at the station. In other words, the breach of Mr. Miller’s Charter rights and the discovery of the firearm during the search of the car both occurred within an hour and a half of when he first said he wanted to exercise his right to counsel.
[15] The contextual and temporal connection between the breach and the discovery of the firearm during the search incident to arrest are not remote – they both flow from and took place a short time after his arrest. The discovery of the firearm and the breach of Mr. Miller’s right to counsel both occurred during the same transaction, his arrest and detention.
[16] The combination of the temporal and contextual connection between the breach of Mr. Miller’s right to counsel and the search of the car incident to arrest distinguishes the firearm discovered during that search from other evidence found in the Durango after the warrant was obtained (a mask and ammunition), which was not obtained in a manner that violates Mr. Miller’s Charter rights. In a separate pre‑trial ruling in this case, Monahan J. found that the warrant to search the Durango was valid. He also found that the warrant would have been issued even if information gathered during the warrantless search of the car incident to arrest was excised from the Information to Obtain the warrant.[^5] The police executed the warrant days after Mr. Miller’s arrest. As a result, there is no temporal connection between the breach of Mr. Miller’s right to counsel and the search of the Durango days later once the police obtained a warrant. Based on Monahan J.’s ruling that the warrant would have issues even if the police had not searched the car incident to Mr. Miller’s arrest, there is also no contextual connection the breach of Mr. Miller’s right to counsel and the search of the Durango after the warrant was obtained.
[17] I, therefore, find that the firearm located during the search of the Durango incident to Mr. Miller’s arrest was obtained in a manner that violates Mr. Miller’s right to counsel. This finding is consistent with the broad, purposive approach to this threshold requirement that has been approved by the Court of Appeal and the Supreme Court.
C. Would the Admission of the Firearm Bring the Administration of Justice into Disrepute?
[18] Once it has been determined that evidence was obtained in violation of a defendant’s Charter right, the court must consider the effect of admitting the evidence on society’s confidence in the administration of justice having regard to the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society's interest in the adjudication of the case on its merits.[^6]
[19] Officer Haworth was required to give Mr. Miller an opportunity to speak to counsel at the first reasonable opportunity after his arrest.[^7] The implementation of the right to counsel can, however, be delayed in exceptional circumstances. For example, the police can delay implementing the right to counsel if there are concerns about officer or public safety, or if there is a risk that evidence will be lost or destroyed.[^8] A short delay in putting a detainee in contact with counsel can also be justified if there is no phone immediately available that would allow the detained person to have a private conversation with counsel.[^9]
[20] It was reasonable for Officer Haworth to delay putting Mr. Miller in touch with his lawyer until he was in a private room at the police station. There was no privacy at the scene of his arrest. It was a dynamic situation and there were legitimate concerns about officer and public safety. The police were investigating allegations of a robbery that had been carried out with a firearm. It was reasonable in those circumstances for Officer Haworth to wait to put Mr. Miller in touch with his lawyer until he was away from the scene and in a private location. However, Officer Haworth and his partner did not take any steps to put Mr. Miller in touch with his lawyer for more than two hours after they arrived at the station.
[21] This case is not about whether the police had reasonable grounds to suspend Mr. Miller’s right to counsel. None of the officers in charge of this investigation told Office Haworth or his partner to suspend or delay Mr. Miller’s right to counsel once he was at the police station. There was no decision made by the investigative team to suspend Mr. Miller’s rights. In fact, the lead investigator testified he was surprised to find out that Mr. Miller still had not spoken to counsel hours after his arrest. Rather, this case is about the complete failure on the part of an experienced officer and his partner to take any steps to implement Mr. Miller’s right to counsel for more than two hours.
a. Seriousness of the Charter-Infringing State Conduct
[22] State conduct resulting in a Charter violation can vary significantly in terms of its seriousness. At one end of the spectrum, the Charter violation may be minor or the result of inadvertence on the part of the police. By contrast, the Charter violation may be the result of willful conduct or a reckless disregard for the Charter rights of an accused person. The more severe or deliberate the state conduct, the greater the need will be for the court to dissociate itself from that conduct by excluding evidence connected to that breach. When the Charter violation is the result of deliberate or reckless disregard for the Charter, that will “inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”.[^10]
[23] Here, the conduct of Officer Haworth and his partner was very serious. The obligation on the police to put a detainee in touch with counsel at the earliest reasonable opportunity is clear and well‑settled law.[^11] Officer Haworth was an experienced officer who understood his obligation to put Mr. Miller in touch with counsel immediately but failed to do so. In fact, he failed to take any steps at all to put Mr. Miller in touch with counsel until he was directed to do so by the Office in Charge of the investigation, more than two hours after they arrived at the station.
[24] Officer Haworth took custody of Mr. Miller at 6:47 p.m., 11 minutes after he was first arrested by another officer. Officer Haworth advised Mr. Miller of his right to counsel. Mr. Miller said he wanted to speak to counsel. Mr. Miller told Office Haworth that his lawyer’s name was Rafik. Mr. Miller could not remember his lawyer’s last name. Officer Haworth told Mr. Miller that he could speak to his lawyer or duty counsel when they got to the police station.
[25] When Mr. Miller was paraded before a Staff Sergeant at 12 Division he again said he wanted to speak to his lawyer. Mr. Miller said that his lawyer’s contact information was in the phone seized from him at the scene. He also said that his wife would also know his lawyer’s phone number. The Staff Sergeant said that Officer Haworth or his partner, Officer Baird, could get in touch with the arresting officer to get his lawyer’s number from the phone or Mr. Miller could have reasonable access to a phone to get the number from his wife. Officer Haworth, in the presence of Officer Baird, assured the Staff Sergeant and Mr. Miller that he would put Mr. Miller in touch with counsel as soon as Mr. Miller had been searched.
[26] The search of Mr. Miller was completed by 8:13 p.m. Putting Mr. Miller in touch with his lawyer should have been the very first thing Officer Haworth or his partner did after the search was complete.
[27] I appreciate that Officer Haworth did not have the last name of Mr. Miller’s lawyer. However, it is admitted fact that had Officer Haworth or his partner conducted a google search for “Rafik lawyer Toronto,” they would have easily found contact information for Mr. Miller’s lawyer.
[28] Officer Haworth did nothing to put Mr. Miller in touch with counsel. He did not conduct any internet search for contact information. He did not reach out to the arresting officer to get the contact information out of Mr. Miller’s cell phone. He did not consult the lawyer list at the police station. He did not attempt to reach Mr. Miller’s wife to get the contact information. There is no evidence that Officer Baird took any steps to facilitate contact between Mr. Miller and his lawyer either.
[29] Rather, at 8:35 p.m., Officers Haworth and Baird left 12 Division to return to their home division, leaving Mr. Miller in the interview room alone. Officer Haworth did not tell anyone that Mr. Miller had not spoken to his lawyer. He did not tell anyone the name of Mr. Miller’s lawyer. He did not tell anyone what Mr. Miller had said about how to get his lawyer’s phone number. Officer Haworth did not delegate to anyone the task of putting Mr. Miller in touch with counsel. He simply left Mr. Miller in an interview room having done nothing to fulfil his clear duty to facilitate his right to counsel.
[30] Officer Haworth was unexpectedly asked to return to 12 Division for a debriefing with Detective Robinson from the Hold-Up Squad, who was in charge of the investigation. He and Officer Baird got back to 12 Division just after 9:00 p.m. They waited for more than hour for the meeting with Detective Robinson. They did nothing during that time to facilitate Mr. Miller’s access to counsel.
[31] It was only after Officer Haworth met with Detective Robinson and obtained Mr. Miller’s cell phone that he made any effort to put Mr. Miller in touch with counsel. Mr. Miller finally spoke to counsel at 10:28 p.m., close to four hours after his arrest and more than two hours after he was searched at the station.
[32] Officer Haworth’s conduct demonstrates an utter disregard for Mr. Miller’s rights. His only responsibilities during this investigation were to transport Mr. Miller to the station and put him in touch with counsel. He was not responsible for any other part of this investigation or any other detainees. It is not difficult for the police to understand and carry out their duty to put a detained person in touch with counsel.[^12]
[33] I find that Officer Haworth was negligent in his duties to put Mr. Miller in touch with counsel. Officer Haworth’s only explanation for not contacting Mr. Miller’s lawyer was that he only had the lawyer’s first name. He made no efforts whatsoever to get his contact information. And it is an agreed fact that it would have taken Officer Haworth very little time or effort to locate counsel’s phone number. Office Haworth chose to do nothing and his conduct is inexcusable.
[34] The failure on the part of Officer Baird to put Mr. Miller in touch with counsel was also negligent and inexcusable. I did not hear from Officer Baird on this application. No explanation was given for why she did not make efforts to contact counsel for Mr. Miller.
[35] What is most troubling in this case is that the officers left 12 Division without telling anyone that Mr. Miller had not spoken to counsel or asking anyone to put Mr. Miller in touch with his lawyer. Officer Haworth testified that when they left 12 Division he thought he was no longer required there. He did not think he would be returning to 12 Division that night. In other words, he thought his involvement in this investigation was over even though he had not fulfilled his obligation to facilitate Mr. Miller’s right to counsel. Had Officer Haworth not been called back to the station for the debriefing with Detective Robinson, Mr. Miller might have been left indefinitely without access to counsel.
[36] Given the utter disregard shown by Officers Haworth and Baird for Mr. Miller’s Charter rights and their negligence in carrying out their duties, I find that the Charter-infringing state conduct was very serious in this case. The fact that the police did not attempt to interview Mr. Miller does not attenuate the seriousness of the conduct.[^13]
[37] The breach would have been even more serious if it was the result of a policy or practice.[^14] It also would have been more serious if Officer Robinson had not discovered the problem during the debriefing and taken steps to rectify it. Nevertheless, the conduct of Officers Haworth and Baird is very serious. This finding militates strongly in favour of excluding the evidence. The more severe 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”.[^15]
b. Impact on Mr. Miller’s Charter-Protected Interests
[38] At this stage of the s. 24(2) analysis, I am required to look at the extent to which the breach undermined the interests protected by the right infringed.[^16] Section 10(b) of the Charter protects the right to consult with counsel without delay. This right exists because individuals who are arrested or detained are vulnerable, require immediate legal advice, and cannot access counsel on their own.[^17]
[39] The right to counsel is a “lifeline” for detained people.[^18] It is their way to get information about the legal jeopardy they face and the process that will follow their arrest or detention, including investigative steps the police are entitled to take and the procedure for security bail.[^19]
[40] The right to counsel also ensures that a detainee understands his right to silence and “guard[s] against the risk of involuntary self-incrimination”.[^20] This aspect of the right to counsel was particularly important in this case. Mr. Miller was very talkative upon his arrest. Officer Haworth testified that he found it difficult to talk over Mr. Miller when he was advising him of his right to counsel. Despite receiving the standard police caution, Mr. Miller continued to talk to Officer Haworth after he was advised of his right to counsel. He repeatedly said that he did not understand why he was being arrested and that he was not involved in the robbery. Mr. Miller was at risk of making utterances to the officer that could be used against him at trial. Mr. Miller clearly would have benefitted from timely access to counsel to help him fully understand his right to silence and the consequences of waiving that right.
[41] Finally, the right to counsel is of significant psychological value to the detainee. It reassures them that they are not entirely at the mercy of the police.[^21] The impact on a detainee’s security of the person that is caused by a failure to implement the right to counsel was described by the Court of Appeal in Rover as follows:
In this case, instead of providing the appellant with the lifeline to counsel when he requested it, the police put him in the cells. The appellant was held for several hours without any explanation for the police refusal of access to counsel, and without any indication of when he might be allowed to speak to someone. His right to security of the person was clearly compromised. The significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests.[^22]
[42] The same can be said of Mr. Miller. He was left in an interview room for more than two hours without any explanation for why he was not able to speak to counsel and without any indication of when he might be able to do so. Mr. Miller asked to speak to counsel immediately upon his arrest but that right was denied. He repeated his request when he got to the police station. He was not required to give evidence about why he wanted to speak to counsel or how the denial of the right impacted him. The impact of the Charter-infringing conduct on the rights that s. 10(b) of the Charter is designed to protect was significant.
[43] The impact would have been more serious if there was a causal connection between the breach of Mr. Miller’s s. 10(b) rights and the discovery of the firearm. As set out above, there is no causal connection in this case. The police found the firearm in the car during a search incident to Mr. Miller’s arrest, not as a result of any statement made by Mr. Miller. The police later obtained a warrant to seize the firearm from the car. Considering the existence or strength of any causal connection between the Charter breach and the discovery of evidence at this stage of the s. 24(2) analysis is simply another way of giving effect to the concept of discoverability.[^23] The fact that the firearm was discoverable without the Charter breach lessens the impact of the breach and tends to weigh against the exclusion of the evidence.[^24]
[44] The fact that the impact could have been more significant does not detract from the reality that Mr. Miller was unreasonably denied access to counsel, and all the benefits that affords, for at least two hours and fifteen minutes. I find that the impact of the conduct on Mr. Miller’s Charter‑protected interests is significant, which on balance favours the exclusion of the evidence.[^25]
c. Society’s Interest in an Adjudication of the Case on the Merits
[45] The third line of inquiry under s. 24(2) focuses on whether the truth-seeking function of the criminal trial would be better served by the admission or the exclusion of the evidence. This factor strongly favours the admission of the evidence in this case.
[46] It is highly reliable evidence. And it is a firearm. The exclusion of reliable evidence will tend to bring the administration of justice into disrepute. Reasonable, well-informed people may well lose confidence in the rule of law if a handgun is excluded because of a breach of Mr. Miller’s right to counsel.
[47] The reliability of the evidence is not, however, the only consideration. The importance of the evidence to the prosecution’s case is also relevant. If the exclusion of evidence, especially reliable evidence, will gut the prosecution, that will have a more negative impact on public confidence in the administration of justice.
[48] Mr. Miller is currently facing 11 counts, including two counts of robbery with a firearm, two counts of possession of stolen property and several counts of breach of probation. The robbery on July 22, 2018 was very similar to another robbery of iPhones from a different Rogers store on July 19, 2018. There is evidence that two firearms were used during that robbery. Mr. Miller is charged in relation to the second robbery as well.
[49] Four of the counts on the Indictment relate directly to the firearm seized from the Durango: possession of a loaded prohibited firearm, possession of a firearm knowing he did not have a license to possess it, careless storage of a firearm and possessing a firearm while prohibited from doing so under s. 109 of the Code.
[50] Excluding the firearm will prevent the Crown from proceeding on the four firearm charges. It will not, however, gut the prosecution’s case on the two robbery with a firearm counts or the possession of stolen property counts or the breach charges.
[51] The main issue on the robbery counts is whether the Crown can prove beyond a reasonable doubt that Mr. Miller participated in the robberies. A U-Haul truck was used during both robberies. It is the Crown’s theory that Mr. Miller was the driver of the U-Haul truck for both robberies but did not go into the stores. Although I am not aware of all the evidence available to the Crown, I am aware that there is video surveillance of someone they believe to be Mr. Miller carrying a bag of stolen iPhones into the I-Tech Solutions shortly after both robberies. It is my understanding that the employees of I-Tech Solutions will testify that Mr. Miller sold them stolen iPhones on July 19, 2018 and was in the process of selling them stolen phones when he was arrested on July 22, 2018. While the exclusion of the firearm may weaken the Crown’s case on the robbery counts somewhat, they will still be able to prosecute Mr. Miller on those counts and the possession of stolen property counts.
d. Balancing of All the Factors
[52] In this case, the first branch of the Grant test strongly favour the exclusion of the evidence. There was a clear violation of a well-established rule. The breach was the result of unacceptable negligence on the part of two officers who could have easily facilitated Mr. Miller’s right to counsel. There is simply no explanation for their conduct. The exclusion of evidence is often warranted when there has been a clear violation of well-established laws governing state conduct.[^26]
[53] The second branch of the Grant test also favours the exclusion of the evidence, but not as strongly as the first. There was a significant impact on the interests protected by s. 10(b) of the Charter but there was no causal connection between the breach and the discovery of the evidence.
[54] The third branch of the Grant test favours the admission of the evidence. The evidence is reliable and important to the Crown’s case on serious firearms offences, although Mr. Miller will still be prosecuted on some counts if it is excluded. Firearms threaten public safety in an incomparable manner and the public has a heightened interest in the adjudication of firearms cases on their merits.[^27]
[55] The Court of Appeal for Ontario has said in the past that when 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.[^28] However, the balancing is more difficult in a case like this where the Charter infringing state conduct was so serious but the evidence in question is a firearm.
[56] In R. v. Omar, Brown J.A., in dissent, addressed how the third branch of the Grant test should be applied in gun cases. He accepted that there is no “‘firearms exception’ requiring that guns obtained in breach of the Charter be admitted”.[^29] Nonetheless, he noted that a firearm is not like other evidence. He held that the inherent dangerousness of firearms and society’s legitimate desire to live free from the “lethal threat of illegal handguns” should inform whether the exclusion of a firearm obtained in violation of the Charter will undermine public confidence in the administration of justice.[^30] The Supreme Court overturned the Court of Appeal’s decision in Omar, “substantially for the reasons of Brown J.A. at the Court of Appeal”.[^31]
[57] Brown J.A.’s ruling in Omar about the inherent dangers associated with guns, as endorsed by the Supreme Court, might suggest that cases involving the discovery of firearms in violation of the Charter are precisely the sort of cases that call for the admission of the evidence even if first two branches of the Grant test favour exclusion. However, the fact that the evidence obtained in violation of the defendant’s Charter rights is a firearm cannot tip the balance in favour of admission in every case. That would be tantamount to creating a “firearms exception” under s. 24(2), which was rejected in Omar.
[58] In fact, the Supreme Court reiterated in R. v. Le – a case decided one week after Omar, in which the Court overturned the trial judge’s decision and excluded a firearm– that disrepute may result from the admission of real, reliable evidence in circumstances that would amount to judicial acceptance of unacceptable conduct by the police.[^32] The Supreme Court noted that great care is required to resist creating special rules under s. 24(2) for certain types of cases. In that case, they were concerned about creating different rules for individuals who are seen to be dangerous or for neighbourhoods that are thought to have higher crime rates. The majority expressly rejected the idea that evidence obtained in violation of the Charter should be admitted in order to avoid the consequences of excluding it, which would be to return a dangerous person to the community. In other words, the Court held that the effect of excluding important evidence, even a firearm, cannot overwhelm the analysis under s. 24(2). The Court noted the “[r]equiring the police to comply with the Charter in all neighbourhoods and to respect the rights of all people upholds the rule of law, promotes public confidence in the police, and provides safer communities”.[^33] The same analysis must also apply in relation to the nature of the police investigation. Requiring the police to comply with the Charter in all investigations, no matter what type of evidence is involved, and to respect the rights of all people, no matter the nature of the alleged offences, upholds the rule of law and promotes public confidence in the administration of justice.
[59] The facts in this case are very similar to those in R. v. Noel, where the Court of Appeal overturned the trial judge’s ruling and excluded drugs (cocaine and marijuana), drug paraphernalia and a large quantity of cash because the police took no steps to implement the accused’s right to counsel for two and a half hours.[^34] The primary difference between this case and Noel is that Noel did not involve the seizure of a firearm. Placing too much emphasis on the nature of the evidence runs the risk of minimizing the Charter rights of some accused people and sending a message to the police that they do not have to be as vigilant about respecting the Charter if firearms are involved. In my view, that would have a much more negative impact on the rule of law and the repute of the administration of justice in the long run than excluding a firearm in a case where the officers demonstrated blatant disregard for the clearly defined, easily facilitated rights of an accused.
[60] In my view, it would be dangerous to the long-term interests of the administration of justice to be seen to be excusing the negligent conduct of the officers in this case. To be clear, the exclusion of the evidence in this case does not reflect an indifference on my part to community safety or the threat posed by firearms. Rather, the evidence is excluded to distance the Court from the way Officers Haworth and Baird chose to conduct themselves during the investigation of Mr. Miller.[^35] Although this is a close case, I find that the balancing of the Grant factors favours the exclusion of the firearm in order to maintain confidence in the administration of justice.
B. Davies J.
Released: December 19, 2019
COURT FILE NO.: CR-19-50000074-0000
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROMAIN MILLER
REASONS FOR JUDGMENT
B. Davies J.
Released: December 19, 2019
[^1]: Mr. Miller brought a separate application to exclude evidence under s. 24(2) of the Charter on the basis that his rights under s. 8, 9 and 10(b) of the Charter were violated. On November 22, 2019, Monahan J. dismissed that application: 2019 ONSC 6589. On that application, Mr. Miller argued that he was not advised of his right to counsel. Mr. Miller did not argue that the police failed facilitate his access to counsel before Monahan J. It was agreed by counsel that the implementation of Mr. Miller’s right to counsel would be argued as a separate application before me.
[^2]: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, at para. 52.
[^3]: R. v. Pino, 2016 ONCA 389, at para. 54.
[^4]: R v. Pino, at para. 56.
[^5]: 2019 ONSC 6589.
[^6]: R. v. Grant, 2009 SCC 32 at para. 71
[^7]: R. v. Suberu, 2009 SCC 33, at para. 38 – 42; R. v. Taylor, 2014 SCC 50, at para. 24.
[^8]: R. v. Rover, 2018 ONCA 745, at para. 26; R. v. Wu, 2017 ONSC 1003, at para. 78.
[^9]: R v. Taylor, at paras. 28 – 36.
[^10]: Grant at paras. 72-74.
[^11]: Suberu, at paras. 37 – 42.
[^12]: R. v. Noel, 2019 ONCA 860, at para. 34.
[^13]: Noel, at para. 19.
[^14]: Rover, at para. 40.
[^15]: Grant, at para. 72.
[^16]: Grant, at para. 76.
[^17]: Suberu, at para. 41; Noel, at para. 23.
[^18]: Rover, at para. 45.
[^19]: Rover, at para. 45; Suberu, at para. 41.
[^20]: Suberu, at para. 40
[^21]: Rover, at para. 45.
[^22]: Rover, at para. 46.
[^23]: Grant, at para. 121.
[^24]: Grant at para. 119; R. v. Do, 2019 ONCA 482, at para. 12, R. v. Lenhardt, 2019 ONCA 416, at para. 11.
[^25]: Noel, at para. 33.
[^26]: R. v. Paterson, 2017 SCC 15, at para. 44.
[^27]: R. v. Omar, 2018 ONCA 975, at para. 135, per Brown J.A. (dissent); rev’d 2019 SCC 32, “substantially for the reasons of Brown J.A.;” Grant, at para. 84.
[^28]: R. v. McGuffie, 2016 ONCA 365, at para. 63.
[^29]: Omar, at paras. 56, 122 – 123.
[^30]: Omar, at para. 135.
[^31]: 2019 SCC 32.
[^32]: R. v. Le, 2019 SCC 34, at paras. 160 – 166.
[^33]: Le, at para. 165.
[^34]: 2019 ONCA 860.
[^35]: Le, at para. 164.