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Charter breach is a Charter breach, no matter when it happens

|Written By Mallory Hendry

The court of appeal has ruled evidence collected against an accused should be excluded if the police breached their Charter rights — regardless of whether the breach occurred before or after the evidence was collected.

The ruling in Pino makes a subtle but important point in Charter litigation, says Howard Krongold.
In R. v. Pino, the Ontario Court of Appeal acquitted the accused after excluding the evidence collected before the Charter violations.

Howard Krongold, a partner at Abergel Goldstein & Partners LLP in Ottawa and counsel for Eneida Pino in the case, says the May 24 ruling is a further step towards a broad liberal approach to s. 24(2) of the Charter that the courts have traditionally taken.

“It’s been the law for a long time — that you don’t need to have a causal connection between a Charter breach and evidence — but it’s been at the very least uncertain whether you could have a case where the evidence comes first and the breach only materializes later,” says Krongold.

Michael Lacy sees the ruling as resolving “in a very final way” the debate in the cases, and among academics, about what the phrase “obtained in a manner” means in relation to s. 24(2).

“Essentially, you don’t need a straight-line connection between the breach and obtaining exclusion,” says Lacy, a criminal lawyer at Brauti Thorning Zibarras LLP in Toronto,.

While he feels the ruling will give “significant guidance to future courts,” Lacy says he won’t be surprised if the Crown seeks leave to appeal.

Beyond reaffirming Charter breaches should make it easier to get exclusion even when breaches occur after evidence is obtained, Krongold and Lacy both say Pino is breaking new ground by stating exclusion should also apply when police are found to be dishonest about their misconduct.

“While the accused bears the burden, there’s an evidentiary shift onto the Crown to deal with matters like good faith or the police mitigating explanation for their Charter breach,” says Krongold.

Pino reaffirms a principle originally set out by the Supreme Court of Canada in R. v. Bartle, where the court ruled the prosecution is required to provide evidence to explain Charter breaches.

“That’s an important principle as well because the way the trial decision came down in this case, it really put an accused in an impossible situation,” says Krongold.

In Pino, the accused convinced the judge the police were lying about their version of events, but had no way to explain why they lied. The trial judge had assumed the reason for the dishonesty — an explanation was never given by the Crown. The Court of Appeal ultimately found the trial judge’s assumed reason was speculation and reaffirmed the accused isn’t required to explain the Charter breaches by the police.

“It’s a subtle point but a really important one in Charter litigation,” explains Krongold.

“Frequently you have a conflict between what the accused says happened and what the police say happened. If the accused is able to show the police are being dishonest it’s very helpful to gain exclusion when you don’t have to also explain why they’re being dishonest.”

He’s not aware of any steps taken with respect to the officers involved in spite of the fact there was a “very clear finding by the judge that one of them in particular was less than truthful in his testimony in court under oath.”

On May 13, a similar appeal ruling came out in R. v. McGuffie, another Ottawa case that again saw evidence excluded following the police’s violation of an accused’s Charter rights and the trial judge “making mistakes,” says Krongold.

For Lacy, the appeal decisions in McGuffie and Pino are “a reminder that Charter jurisprudence is alive and well.”

“The Charter is going to be given a robust interpretation by the court as a check against improper state conduct.”


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