R. v. Blake, 2010 ONCA 1, released today, is one of the first significant considerations of the Supreme Court decision in R. v. Grant (2009), 245 C.C.C. (3d) 1 (S.C.C.). As such it is a helpful review and application of the new test for exclusion of evidence for breaches of Charter rights or freedoms:
[21] In Grant, the Supreme Court of Canada took a judicial wire brush to the 20 years of jurisprudential gloss that had built up around s. 24(2) and scrubbed down to the bare words of the section. Chief Justice McLachlin and Justice Charron, writing for the majority, observed at para. 67 that “[t]he words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice”. They continued at para. 68:
The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[22] The majority identified three lines of inquiry that are relevant to the identification and balancing of the interests at play when s. 24(2) is invoked. According to the majority, the trial court must examine the seriousness of the Charter-infringing state conduct, the impact of the Charter violation on the Charter-protected interest of the accused and society’s interest in the adjudication of the case on its merits.
[23] The inquiry into the nature of the state conduct that resulted in a Charter breach seeks to place that conduct along a continuum of misconduct. As explained in Grant, at paras. 72-74, the graver the state’s misconduct the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct. That disassociation is achieved by excluding the evidentiary fruits of the state misconduct.
[24] The trial judge found that the police acted in “good faith” in their attempt to acquire legal authorization for the search. I accept that finding. The police were clearly aware of the need to obtain a warrant and proceeded accordingly. They cannot be said to have acted negligently or in ignorance of any of the applicable Charter requirements. A finding of “good faith” obviously reduces the need for the court to disassociate itself from the state conduct that resulted in the Charter infringement, and supports the admissibility of the challenged evidence.
[25] Not only do I agree with the trial judge’s finding of good faith on the part of the investigators, I can see no possible criticism of the police conduct on this trial record. Throughout the process that culminated in the seizure of the evidence, they acted exactly as they were obligated to under the law. They were required to obtain a warrant before entering the residence. They did so. They were required to make full disclosure to the justice of the peace. There is no suggestion that they did not do so. The police, and later the Crown, were legally obligated to protect the identity of the confidential informants by removing all material from the information that could identify the informants before making that material available to the defence. They did that. Given the manner in which the s. 8 claim was litigated, the police acted not only in good faith, but as required by the law. The police conduct in this case does not fit anywhere on the misconduct continuum described in Grant, at para. 74.
[26] The police conduct in this case is somewhat analogous to the conduct considered in cases where the police have gathered evidence according to the law as it was understood at the time the evidence was gathered only to have the law changed or declared unconstitutional at some subsequent point, but before the evidence is tendered at trial: see e.g. R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 59-60; R. v. Wijesinha, [1995] 3 S.C.R. 422, at paras. 55-56. In those cases, the police acted not only in good faith, but in accordance with the law as it stood at the time. Under the Collins approach, real evidence obtained in this manner was inevitably admitted.
[27] The nature of the state conduct resulting in the constitutional infringement in this case seems to fall outside the paradigm described in Grant. If it is within that paradigm, it is clearly at the far end of the spectrum favouring admissibility. The appellant has not availed himself of the various options open to him that would potentially have allowed further assessment of the police conduct. In these circumstances it would be inappropriate to presume that the police did anything other than conduct themselves in accordance with the applicable legal rules.
[28] The second line of inquiry directed in Grant – the impact of the breach on the Charter-protected interest of the accused – points strongly toward exclusion of the evidence. As the trial judge observed, this was a “very serious breach” of the appellant’s constitutional rights. The appellant had a high expectation of privacy in his own residence. That privacy was compromised by an intrusive and extensive police search. The powerfully-negative impact on the core of the appellant’s legitimate privacy interests creates the risk that the admission of the fruits of the search could bring the administration of justice into disrepute: R. v. Grant, at paras. 76-78.
[29] The seriousness of the impact of the breach on the appellant is not mitigated by the fact that the police may have had reasonable and probable grounds when they obtained the warrant, but were unable to demonstrate those grounds at trial because of the confidential-informant privilege. The Crown chose to proceed on the redacted information. The assessments of whether there was a breach and of the impact of that breach on the appellant must be measured against the substance of that redacted information. Assessed from that perspective, this was an extensive, unjustified search of the appellant’s home.
[30] The third arm of the inquiry mandated by Grant looks to society’s interest in an adjudication of a criminal trial on its merits. As indicated in Grant at para. 82:
The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system”.... [Citation omitted.]
[31] Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. The evidence in issue here, particularly the crack cocaine, was entirely reliable and essential to the Crown’s case. The charge is also a serious one, although as the majority point out in Grant, at para. 84, the seriousness of the charge will “cut both ways” when assessing society’s interest in an adjudication on the merits.
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