Aug 30, 2018

R. v. Szilagyi, 2018 ONCA 695 - Summary

R. v. Szilagyi, 2018 ONCA 695 (CanLII)

When "evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by" the Canadian Charter of Rights and Freedoms, it is possible to have it excluded "if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute": s. 24(2). To determine whether the admission of the tainted evidence would bring the administration of justice into disrepute, courts follow the test formulated in R. v. Grant, 2009 SCC 32.

An often raised argument by the Crown, under the first prong of the Grant test (Seriousness of the Charter -Infringing State Conduct), is that the police or other State agent acted in good faith. Indeed, a breach of rights is less serious if it stems from truly bona fide acts. This case deals with what "good faith" really entails, helping to interpret the following passage from par. 75 of Grant: " “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith" (cited at par. 56).

Here, the police got a search warrant to find a firearm in the accused residence. The information given to obtain the warrant (the ITO) relied largely on a confidential informant and was deficient in many aspects. The day the police executed the warrant, they first arrested the accused for firearm possession and made a search incident to this arrest. It only turned up a cellphone. During the search of the residence, they found drugs, cash and a cellphone, but no firearm. The cellphones then were the object of search warrants, based on the rest of the police findings.

Since the information that the police had given to obtain the search warrant was insufficient, the warrant was invalid. As such, the search of the residence was unreasonable, contrary to s. 8 of the Charter. The accused's arrest was also arbitrary because the police did not have the reasonable and probable ground that he was in possession of a firearm, contrary to s. 9 of the Charter. The search incident to his arrest was therefore (in addition to other issues) unreasonable as well, again contrary to s. 8 of the Charter. This snowballed to also make the search of the cellphones unreasonable and contrary to s. 8 of the Charter.

But should those infringements lead to the exclusion of the evidence? The trial judge had minimised the seriousness of the breaches by saying that though deficient, the ITO showed good faith from the police. This was an error. The Court of Appeal for Ontario held that the evidence should have been excluded, under the balance of the Grant test.

Indeed, to determine the seriousness of a Charter breach stemming from insufficient ITO, the court has to consider "whether the use of false or misleading information was intentional or inadvertent" (par. 54). In any case, "[a] conclusion as to good faith cannot be grounded on a lack of bad faith." (par. 55). "The police do not get credit for doing what is expected", here to truthfully disclose at the ITO stage (par. 59). Though a decision posterior to the police intervention in this case reiterated this principle, it did not make "that full and fair disclosure of all information regarding an informant’s credibility and reliability is required in an ITO" new law pour autant (par. 58). The fact that the police later changed their practice to conform to the law would not reduce the seriousness of the breach (par. 64).

As a whole, in this case, "the police conduct falls at the more serious end of the spectrum, favouring exclusion of the evidence. Although the police applied for and obtained a warrant, the ITO was seriously deficient: it did not provide the type of information from the informant [required], it used misleading language regarding the informant’s criminal record, and the police failed to corroborate any [meaningful] information [...]. Although the Rocha decision [which dealt with a similar situation] post-dated the police’s application to obtain a search warrant for the appellant’s home, the law relied on in Rocha to ground a similar analysis and exclude the impugned evidence in that case was not new. It was an error by the trial judge to mitigate the seriousness of the police conduct by characterizing it as good faith, even if the police did not have the specific intent to mislead." (par. 77)

This decision reminds us that true police good faith is the exception, not the norm. Again, "[a] conclusion as to good faith cannot be grounded on a lack of bad faith", because "[t]he police do not get credit for doing what is expected". A Charter breach usually indicates, if not bad faith, at least a neutral state of mind, and often negligence or wilful blindness. We should resist the attempt to label as bona fide routine violations of fundamental rights and freedoms.