On June 25, 2010, Eneido Pino came out of the house at 21 St. Claire Avenue in Ottawa and put a box in the trunk of her car while the police, armed with a search warrant, had it under surveillance. She drove away. The police then executed a masked takedown at gunpoint, arrested her and searched the car. They found 50 marihuana clone plants in the box and a grow operation in the house. Pino, a 43 year old house cleaner, was convicted of possession of a controlled substance for the purpose of trafficking. She appealed.

On May 24, 2016, the Ontario Court of Appeal released its ruling reported as R v Pino, 2016 ONCA 389. The evidence was excluded and the conviction overturned. The trial judge, on the exclusion motion, had found three violations of Pino’s Charter rights: (a) the manner of the search was unreasonable; (b) the police misinformed her about her right to counsel; and, (c) the police denied her right to counsel without delay. But the trial judge concluded that the manner of the search was not “at the extreme end of seriousness” and the breaches of Pino’s right to counsel occurred after the police found the marihuana and could not be factored into the analysis. The evidence was therefore admitted at trial. Justice John I. Laskin, speaking for a unanimous court, framed the issue on appeal this way, at para. 47: “Can Charter breaches that occur after the discovery of the evidence meet the ‘obtained in a manner’ requirement in s. 24(2) of the Charter?”

1. Unreasonable Search

The trial judge concluded that the police had probable cause to arrest Pino and conduct the incidental search. But the masked takedown at gunpoint was unreasonable. Justice Laskin adopted the conclusion of the trial judge, at para. 24: “…[T]he police do not have a licence to pull a gun whenever they stop and arrest a suspected drug trafficker. When an accused challenges the ‘manner’ of the search, the Crown must justify the police’s conduct. Here, the police offered no specific justification for an armed take-down, as neither Det. Savory nor Cst. Dinardo admitted that a gun was used.”

That critical finding, the unreasonable use of the firearm, framed the Charter s. 8 analysis. The police testimony about the use of the firearm was rejected by the trial judge. The one officer denied that he drew the gun; and the other said he couldn’t remember. Justice Laskin repeated the conclusions of the trial judge, at paras. 21-2, that the denial was “not a credible account of what happened” and the “memory lapse is almost silent evidence in the affirmative”.

2. Right to Counsel

The police delayed Pino’s access to counsel to prevent her from making a phone call that could have compromised the execution of the warrant. Although the trial judge accepted that rationale the police did not explain why the search was not expedited. And the rationale did not explain away the entire time Pino was held incommunicado in a jail cell for almost 5 1/2 hours. The initial delay in accessing counsel for approximately two hours during the search was not minimal and necessary. And there was no justification for the almost three hours that elapsed after the search was completed.

But, as Justice Laskin noted, at para. 38, the trial judge stated, “…as a matter of law, I cannot exclude under s. 24(2) the marijuana seized during the search of the car because of right to counsel breaches that occurred subsequently, no matter how serious they may have been.” The analysis of that conclusion, based on well settled but infrequently argued case law, is the first take-away here.

(a) Contextual Analysis

A superficial reading of Charter s. 24(2) might lead to the assumption that the obtained in a manner requirement can only be met by a causal connection between the violation and the discovery of evidence. This is sometimes called a “but for” test – the evidence would not have been discovered but for the violation. That, however, is not the law although the Supreme Court of Canada has never expressly held that the obtained in a manner requirement can be met by a Charter breach that occurred after the discovery of evidence. Justice Laskin correctly stated the law, at paras. 50-61, that I will summarize this way:

• In R v Strachan, [1988] 2 SCR 980 Chief Justice Brian Dickson held, at paras. 39-40 and 46, that obtained in a manner does not require a causal connection between the violation and the evidence. A temporal connection is enough, so long as the search and seizure is not too remote and provided that the breach and discovery occur in the course of a single transaction. There is no bright line rule and the entire chain of events is relevant in the analysis.

• In R v Plaha (2004), 189 CCC (3d) 289 (Ont CA) Justice David H. Doherty added “contextual” to the list of connections that could satisfy the obtained in a manner requirement, at para. 45: “A causal relationship between the breach and the impunged evidence is not necessary. The evidence will be obtained in a manner that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three.”

• In R v Wittwer, [2008] 2 SCR 235 Justice Morris Fish, speaking for a unanimous court, at para. 21, adopted the Plaha formulation stressing that the approach to the obtained in a manner requirement should be both purposive and generous. (See also: R v Aldaba, 2014 ABQB 291, not considered in Pino, where Justice Brian R. Burrrows excluded voice identification evidence in a wiretap case based on a Plaha analysis, at paras. 17-28. I previously wrote about the ruling in Aldaba on this blog. See: Voice Identification Breached Defendant’s Rights dated September 16, 2014)

(b) Regulatory Perspective

Justice Laskin also relied upon the opinion of Professor Kent Roach in Constitutional Remedies in Canada (2d ed.), at para. 10.880, that leads into the second take-away: “From a regulatory perspective, it should not matter whether the evidence was obtained before or after a serious Charter violation. In both cases, the administration of justice could be brought into disrepute if the courts appear to condone a serious Charter violation. If the court is concerned with responding to serious violations, there is no reason why evidence discovered before a violation should not be considered for exclusion.”

The regulatory perspective spotlights the integrity of the justice system. It is engaged by consideration of the long term repute of the administration of justice under the exclusion analysis mandated by R v Grant, [2009] 2 SCR 353. The disassociation of the courts from police misconduct transcends society’s interest in prosecuting a defendant for possessing some marihuana plants – conduct that was aggravated in this case by dishonest police testimony. As Chief Justice Beverley McLachlin said in R v Harrison, [2009] 2 SCR 494, at para. 26: “The integrity of the justice system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority.”

At the heart of systemic integrity resides the right to counsel – the right that is designed to offset the power imbalance between the citizen and the state on arrest. Justice Laskin put it this way, at para. 105: “These breaches were neither technical nor fleeting. Being forced to sit alone in a jail cell for over five hours after her arrest without access to counsel undermined the very interests s. 10(b) seeks to protect, correct information about the right to counsel and the immediate ability to consult with a lawyer. Ms. Pino was vulnerable and she needed counsel, not just for legal advice, but as a lifeline to the outside world.”

Justice Laskin therefore concluded, at paras. 101-3, that the finding of the trial judge that the violation of the right to be secure against unreasonable search and seizure was not at the “extreme end of seriousness” could not stand. The breaches of Pino’s right to counsel, when contextually factored into the Grant analysis, together with the dishonest testimony about the arrest, elevated the overall seriousness of the police misconduct. Taken together, the three Charter breaches were close to the extreme end of seriousness.

3. Conclusion

The ruling in Pino is an important component of the court’s recent trilogy of cases in which real evidence was excluded. I have previously discussed the other two on this blog: R v Harflett, 2016 ONCA 248 and R v McGuffie, 2016 ONCA 365. In McGuffie, Justice Doherty also relied upon the power imbalance rationale that was emphasized by Chief Justice McLachlin in R v Suberu, [2009] 2 SCR 460, where she and Justice Louise Charron wrote jointly, at para. 40: “…[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees to regain their liberty, and guard against the risk of involuntary self-incrimination.” (See: Ontario Court of Appeal Raps Arrogant Cop, dated May 14, 2016; and, Drugs Tossed By Ontario Court of Appeal, Again! dated June 2, 2016)