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Conviction overturned based on 'negligent' investigation

|Written By Aidan Macnab
Conviction overturned based on 'negligent' investigation
Andrew Menchynski says the Court made it clear that merely applying for a warrant doesn’t earn a good faith characterization.

A recent Ontario Court of Appeal ruling overturned a man’s drug-trafficking convictions after the court found the evidence used against him was inadmissible because it was obtained through breach of his Charter rights.

In R. v. Szilagyi, police arrested George Szilagyi and searched him and his home based on information obtained from a confidential informant, who had told police that Szilagyi had a firearm. A gun was not found but the police found and seized cocaine, oxycodone, MDMA, cash and a cellphone.

Szilagyi sought an order excluding the illicit items found in his apartment on the basis that his ss. 8 and 9 Charter rights, which protect against unreasonable search and seizure and arbitrary detention and imprisonment, were violated. Szilagyi's defence counsel argued that the informant’s tips were insufficient to justify the search warrant.

The order was under s. 24 of the Charter, which excludes evidence gained through breach of any Charter rights if its admission would “bring the administration of justice into disrepute.”

To determine whether evidence gained while breaching an accused’s Charter rights is admissible, the Supreme Court of Canada created a three-part test called the ‘Grant analysis.’ The test weighs the seriousness of the police’s conduct, the impact of that Charter-infringing conduct on the interests of the accused and society’s interest in using the tainted evidence to settle the charge on its merits.

The trial judge, Lynne Leitch of the Ontario Superior Court of Justice, found that the information the police used to get a search warrant did not meet the R. v. Debot test in that it was not compelling, the police did not corroborate it and the source was not known to be credible. The police officer who filed the search warrant did not disclose to the judge that the informant had a criminal record. However, Leitch found that the police exercise of “good faith” meant it passed the Grant test.

Leitch had attributed good faith to the fact there were no misleading or false statements in the information the officer submitted to get the warrant. That the officer said he changed his practice of not disclosing criminal records when applying for warrants after learning it was “problematic” also earned him good faith.

In R. v. Grant, the Supreme Court of Canada states that “good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.”

Court of Appeal Justice Kathryn N. Feldman wrote that Leitch was wrong for understating the severity of the police conduct by calling it good faith, saying the the police investigation was “negligent.”

Since the Court of Appeal case R. v. Blake from 2010, most of the time, as long as the police apply for a warrant and don’t lie in the application or mislead the judge, good faith is attributed to their conduct, says Andrew Menchynski of Morphew Symes Menchynski Barristers, who represented Szilagyi’s on appeal.

“As a result, whenever there's a good faith finding, usually the evidence is admitted into trial,” Menchynski says.

Menchynski says the court made it clear that merely applying for a warrant doesn’t earn a good faith characterization, stating “the police do not get credit for doing what is expected.” They have also “introduced important nuance” to the question of good faith, he says.

“A conclusion as to good faith cannot be grounded on a lack of bad faith. The trial judge was incorrect to equate a lack of bad faith on the officer’s part to good faith conduct,” the decision states.

“The Court of Appeal recognizes the important distinction, that it's not a dichotomy. It's not just either good faith or bad faith,” Menchynski says.

In Szilagyi, the court did not reference Blake, which means the ruling is not a rejection, it’s direction, says Enrico Visca,  senior counsel at the Public Prosecution Service of Canada, who was the prosecutor in the case.

“The court didn't even consider Blake and, therefore, those principles that emerged from Blake continue to apply,” he says.

In the Court of Appeal’s “fresh” Grant analysis, as to the seriousness of the conduct, the officers in Szilagyi fell on the “more serious end of the spectrum,” all parties agreed to the significant impact on the accused from the Charter breach, ad thirdly, society’s interests in deciding the case on its merits favoured including the evidence. The court’s recognized equation on Grant, however, is that if the first two factors favour exclusion, the third almost never tips the balance.

The court found the evidence should be excluded and acquitted Szilagyi.

“It's an important Court of Appeal decision that will be helpful for defence counsel exploring this question in the future,” says Menchynski.


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