R. v. Poblete et al., 2018 BCPC 152 (CanLII)
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2018 BCPC 152 |
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Date: |
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File No: |
233972-4-C |
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Registry: |
Vancouver |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
MIRKO MARCELO POBLETE
STEVEN ROBERT CHOW
DAILLYN KIRSTINE SHELKE
RULING ON APPLICATION TO EXCLUDE EVIDENCE
PURSUANT TO S. 24 (2) OF THE CHARTER
OF THE
HONOURABLE JUDGE R.P. HARRIS
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Counsel for the Crown: |
D. Peltier |
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Counsel for Mr. Chow: |
K. Neurauter |
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Counsel for Mr. Poblete: |
S. Janicki |
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Counsel for Ms. Shelke: |
D. Hopkins |
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Place of Hearing: |
Vancouver, B.C. |
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Date of Hearing: |
June 11, 2018 |
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Date of Judgment: |
June 11, 2018 |
A Corrigendum was released by the Court on June 25, 2018. The corrections have been made to the text and the Corrigendum is appended to this document.
INTRODUCTION
[1] This is an application by Mr. Poblete to exclude evidence pursuant to s. 24 (2) of the Charter. For the reasons that follow the application is granted.
BACKGROUND
[2] On March 11, 2017, the police executed a search warrant at suite 315 – 1119 Hornby Street. A quantity of drugs were seized and Mr. Poblete was charged with three counts of possessing a controlled substance for the purpose of trafficking.
[3] On June 11, 2018, the search warrant was quashed and in the result the search of Mr. Poblete’s suite was deemed warrantless and therefore prima facie unreasonable and a violation of Mr. Poblete’s right to be secure against unreasonable search and seizure pursuant to s. 8 of the Charter. On this basis, counsel for Mr. Poblete applies to have the evidence seized from Mr. Poblete excluded.
THE LAW
A. The Charter
[4] Section 24 of Charter reads:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be 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.
B. Considerations
[5] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada revised the approach to be taken in determining whether evidence obtained in breach of a Charter right should be excluded. In doing so, the court brought clarity to the phrase, “bring the administration of justice into disrepute”, and it also identified three considerations that must be balanced in determining if the admission of the impugned evidence would bring the administration of justice into disrepute. As part of the court’s analysis, they commented on the purpose of s. 24 (2) McLachlin C.J. (as she then was) and Charron J., at paragraphs 67-70 noted:
67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.
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.
69 Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
70 Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
[6] Then at paragraph 71, the Court identified three avenues of inquiry:
71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charterwould bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2)application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. …
[7] The above principles were summarized in R. v. Reddy, 2010 BCCA 11, by Mr. Justice Frankel, at paragraphs 91-94:
91 In deciding whether to admit or exclude evidence, a court must now assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and
(3) society’s interest in the adjudication of the case on its merits.
See also: Harrison at para. 2
92 With respect to the first factor—seriousness of the breach—the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75):
“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: [citations omitted].
93 As for the second factor—impact of the breach on the accused—it was observed that “[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive”. The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted: paras. 76, 77.
94 The last factor—society’s interest in a decision on the merits—involves the question of “whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: para. 79. The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial. Although “seriousness of the offence” remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public’s short-term desire for a conviction: para. 84.
THE GRANT INQUIRY
A. The seriousness of the breach
[8] In Grant, the court recognized that state conduct resulting in a Charter violation ranges in seriousness. Violations may occur through inadvertence and they may be minor, hence, they are less serious and at the low end of the spectrum. While at the opposite end of seriousness, there are violations that are wilful, or demonstrate a reckless disregard of Charter rights. The more serious the state conduct, the greater the need for the court to disassociate itself by excluding the evidence. Similarly, the less serious the conduct, there is a reduced need for the court to disassociate itself: Grant, paragraphs 74-75.
[9] Counsel for Mr. Poblete argues the breach was serious, hence the court should dissociate itself by excluding the evidence. In this regard, counsel points to the lack of attention to detail and the obvious lack of care that Cst. Pughe, (the “Informant”) displayed in preparing the Information to Obtain a Search warrant, (the “ITO”).
[10] In support, counsel highlights the lack of any “dating” regarding the source information, the failure to provide more information regarding the Versaterm query results (paragraph 3.6), the mistake in stating that Mirko Poblete was released on conditions not to go to PriceSmart for three years (paragraph 3.8), failure to date when Cst. Brewer and Cst. Farrell did their walk through of 1119 Hornby Street, identifying Marco and Mirko as the same person in the absence of a factual underpinning and most significantly, claiming she had grounds to believe that Mr. Poblete was in possession of heroin on March 11, 2017.
[11] In response, the Crown argues the Informant was acting in good faith and that the ITO represents her efforts at being full and frank while trying to protect the confidential sources. As for some of the errors noted, the Crown points out that grammatical precision is not an indicator of good faith and that minor errors are to be viewed as inadvertent and not serious. For these reasons, the Crown asserts that the seriousness of the state conduct is minimal.
[12] I find the state conduct is concerning and approaches the serious end of the spectrum. A search warrant is a specialized tool which permits state access into the most private corners of an individual’s life. For these reasons, there are strict requirements that must be met before a search warrant is issued. These requirements serve to safeguard the process and individual privacy by ensuring that search warrants are only issued in the correct circumstances.
[13] The importance of search warrants require that those involved in the issuing process must perform their responsibilities with diligence and attention to detail. An ITO is not merely an exercise of stating conclusions; rather, the Informant must critically access all of the information in the ITO and ensure that there is full frank disclosure, further, that the information is accurate, and that the material supports their ultimate belief. On the evidence before the Court, I am not satisfied that the Informant was attentive to detail. In my view, by failing to consider if the ITO was accurate when she stated she believed Mr. Poblete possessed heroin on March 11, 2017, she demonstrated a lack of regard for import of the process.
B. The impact of the breach on Mr. Poblete’s Charter protected interest
[14] The approach to this inquiry is found at paragraphs 76-78 of Grant:
[76] This inquiry focusses on the seriousness of the impact of the Charterbreach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charterbreach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charterrights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[77] To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charterinclude the s. 7right to silence, or to choose whether or not to speak to authorities (Hebert) — all stemming from the principle against self-incrimination: R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
[78] Similarly, an unreasonable search contrary to s. 8of the Chartermay impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.
[15] Applying the above, the purpose of section 8 of the Charter is the protection of an individual’s privacy from state intrusion by guarding against unreasonable search and seizure: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145.
[16] As to the seriousness of the invasion, I observe the entry and search was to Mr. Poblete’s suite which was Mr. Poblete’s home. The degree of privacy expected in one’s home was commented on in R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at paragraph 141:
… [A person’s home] must be the final refuge and safe haven for all Canadians. It is there that the expectation of privacy is at its highest and where there should be freedom from external forces, particularly the actions of agents of the state, unless those actions are duly authorized. This principle is fundamental to a democratic society as Canadians understand that term. …
[17] In the circumstances, counsel agree the breach of Mr. Poblete’s right to be free from an unreasonable search and seizure had a significant impact on his privacy interests, thus, militating towards the exclusion of the evidence.
C. Society’s interest in the adjudication of the case on its merits
[18] This line of inquiry requires a consideration of whether the truth-seeking function of a criminal trial process is better served by the admission of the evidence or by its exclusion: Grant, paragraph 79.
[19] Considerations regarding the impact that the evidence would have on the truth seeking function includes; the reliability of the evidence and the importance of the evidence to the Crown’s case: Grant, paragraph 83.
[20] In the instant matter, the drugs that were seized is reliable evidence and crucial to the prosecution of Mr. Poblete. These observations support a ruling in favour of admitting the evidence.
CONCLUSION
[21] After balancing the factors discussed above, I conclude that the maintenance of the long-term repute of the administration of justice supports a conclusion that the evidence seized must be excluded.
_____________________________
The Honourable Judge R.P. Harris
Provincial Court of British Columbia
CORRIGENDUM – Released June 25, 2018
In my Ruling on Application to Exclude Evidence dated June 11, 2018, the following change has been made:
[1] On the cover sheet, the sequence of the accused names has been changed, it now reads as follows:
MIRKO MARCELO POBLETE
STEVEN ROBERT CHOW
DAILLYN KIRSTINE SHELKE