R. v. Gallinger and Parks: The 24(2) Analysis

This is the third of three blog posts on the decision of Justice Heather Perkins-McVey in R. v. Gallinger and Parks. The case, which was reported in the Ottawa Citizen, involves an application by the accused Mr. Parks for the exclusion of various items found at his home following the execution of a search warrant.

I have broken the discussion of this case, which provides an excellent review of the law of search warrants, into three separate blog posts. This post concerns the court’s analysis on the exclusion of the evidence found in the search of Mr. Parks’ residence pursuant to s. 24(2) of the Charter.

Facts (pertaining to the Charter breach)

A more thorough synopsis of the facts can be found by reviewing both Part I and Part II of this blog post.  As explained, the court held that the search of Mr. Parks’ residence became a warrantless search and a breach of his s. 8 Charter rights as a result of:

  1. Problems with the information provided regarding the confidential informants and careless and misleading drafting of the information to obtain.
  2. The legislative standard for the issuance of the telewarrant not being met.

In reaching this decision the court stated at para. 75 that the “issuance of the telewarrant is the more flagrant breach”.

The Law Pertaining to a s. 24(2) Analysis of a Search Conducted in Breach of s. 8

In R. v. Grant, [2009] 2 SCR 353, the Supreme Court set out the test for determining whether evidence should be excluded pursuant to s. 24(2) of the Charter.  The Supreme Court stated at para. 71 of Grant:

When faced with an application for exclusion under s. 24(2), a court must 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 (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to 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.

Once these factors are considered the court must then balance the three factors and determine whether they favour exclusion of the evidence.

Analysis

Justice Perkins-Mcvey addressed the second and third prongs of the Grant test prior to assessing the first prong, explaining at para. 84:

In the case at bar, there is no real dispute between the parties in relation to the second and third prongs of the Grant test, the Crown properly concedes that the impact of the breach on the Charter protected interests of the accused is high and that this prong militates in favour of exclusion of the evidence.  The police entered the accused’s private residence with the Tactical Unit who arrived with an armoured car which was parked in the accused’s driveway.

The court, in considering the first prong of the test, went on to explain at para. 85 that a person’s dwelling house attracts a high expectation of privacy and that a search of one’s residence is a significant breach.

In terms of the third prong, the court explained at para. 88 that the gun seized is real evidence and that “There is a heightened public interest in trying firearms cases on their merits particularly given the increasing and very public gun problem in this province and in this region and the very real risk guns pose to public safety”.

In this case the court held that it was the first prong of the Grant test, the seriousness of the breach, was the main factor for consideration.  In this analysis the court gave great consideration to the actions of the police.  The Crown argued that the police conduct was not serious and that there was no careless disregard for Charter rights.  The defence argued that the conduct of the officer was “demonstrated a careless disregard or lack of knowledge of constitutional standards and that it had the effect of misleading the issuing Justice” (para. 93).

Although the court did not find the officer acted in bad faith, Her Honour also stated at para. 96 that it cannot be found that the officer acted in good faith.  The court went on to state that the officer’s “casual and careless approach to adherence to Charter standards are such that the Court must disassociate itself from such conduct.  Hence I find it to be a serious violation of the accused’s rights and one which favours exclusion of the evidence”.

The next step in the Grant analysis is for the court to balance the three factors.  In excluding the evidence, Justice Perkins-McVey held at para. 102:

In the case at bar, I have found the conduct of the police was a serious breach and that the impact on the accused was significant given that it involved an unauthorized search of a private residence.  In my view, this is the kind of conduct the Court should be disassociating itself from.  I appreciate the evidence is highly reliable and the Crown’s case will likely fail without it.  I am acutely aware that there is a real societal interest in prosecuting gun cases.  But in this case, the level of carelessness and casual disregard for Charter standards is such that in my view, admission of the evidence would bring the administration of justice into disrepute.  Therefore the evidence found in Mr. Parks’ residence seized pursuant to the search will be excluded.

An individual can be convicted of a criminal offence based on the testimony of one witness.  The trier-of-fact, of course, would have to believe the witness, and be convinced of the guilt of the accused beyond a reasonable doubt.  It happens quite often that a crucial witness to a Crown’s case has somewhat of a questionable background.  This is where an unsavoury witness warning, called a Vetrovec warning, comes into play.

In R. v. Pelletier, 2012 ONCA 566, Justice Watt provides a useful refresher of how a jury should be instructed in assessing the evidence of such a witness:

[64]       First, as a matter of general principle, the evidence of a single witness is sufficient to support a conviction of any offence other than treason, perjury or procuring a feigned marriage: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 2.

[65]       Second, where proof of the guilt of an accused rests exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is especially acute: Khela, at para. 2. Thus, in jury cases, we try to ensure that the jury understands when and why it is unsafe to rest a conviction on the unsupported evidence of witnesses to whom descriptors like “unsavoury”, “untrustworthy”, “unreliable”, or “tainted” apply: Khela, at para. 3. Such an instruction, a Vetrovec caution, is not mandatory in judge alone trials: R. v. Snyder, 2011 ONCA 445 (2011), 273 C.C.C. (3d) 211, at paras. 24-25.

[66]       Third, where a Vetrovec warning is provided, in appropriate cases the trial judge should also draw the attention of jurors to evidence capable of confirming or supporting the material parts of the otherwise untrustworthy evidence: Khela, at para. 11.

[67]       Fourth, to be confirmatory of the testimony of an unsavoury witness, evidence must come from another source and tend to show that the unsavoury witness is telling the truth about the guilt of the accused: Khela, at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R 328, at para. 15. Confirmatory evidence must be independent of the tainted witness, but need not implicate the accused: Khela, at paras. 39-41; Kehler, at para. 16. Where the only issue in dispute is whether an accused committed the offence, the trier of fact must be comforted that the tainted witness is telling the truth in that regard before convicting on the strength of the tainted witness’ testimony: Khela, at para. 43; Kehler, at para. 20.

[68]       Fifth, after considering the totality of the evidence, a trier of fact is entitled to believe the evidence of a disreputable witness, even on disputed facts that are not otherwise confirmed, if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful: Kehler, at para. 22.

[69]       Finally, at least in the absence of evidence of collusion or collaboration, the evidence of one unsavoury witness can confirm the testimony of another: R. v. Roks, 2011 ONCA 526, (2011), 274 C.C.C. (3d) 1, at para. 67.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

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