COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Bacon,

 

2012 BCCA 323

Date: 20120727

Docket: CA038752

Between:

Regina

Respondent

And

James Kyle Bacon

Appellant

RESTRICTION ON PUBLICATION: Pursuant to the order of Lytwyn P.C.J. dated December 10, 2010 there will be a ban on the publication or broadcast, including the internet, of certain evidence, exhibits and submissions of counsel, and comments of the judge in relation to a sentencing hearing of James Bacon on Surrey Information 165784-5-C.
This ban on publication lasts until the sequestration of the jury in the trials of James Bacon and others on New Westminster Registry Indictment X072945 or until further order of the Provincial Court.

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Low

The Honourable Mr. Justice Hinkson

On appeal from: Provincial Court of British Columbia, May 13, 2010
(R. v. Bacon, Surrey Docket No. 165784-5-C)

Counsel for the Appellant:

D. Layton

Counsel for the Respondent:

P. Hogg

Place and Date of Hearing:

Vancouver, British Columbia

March 23, 2012

Place and Date of Judgment:

Vancouver, British Columbia

July 27, 2012

 

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Low

The Honourable Mr. Justice Hinkson


 

Reasons for Judgment of the Honourable Madam Justice Saunders:

[1]             James Bacon appeals from conviction by Judge Lytwyn of ten counts relating to possession of four loaded handguns and five magazines loaded with ammunition contrary to ss. 91(1) and 91(2) (unauthorized possession of a firearm), s. 95(1) (possession of a prohibited or restricted firearm with ammunition), and s. 108(1)(b) (possession of a firearm knowing the serial number has been tampered with) of the Criminal Code. The firearms and ammunition were found in a hidden compartment discovered in the course of police installation of a tracking device in an SUV vehicle. The appellant says the learned judge erred in failing to exclude the fruits of the discovery essential to conviction, having found they were obtained in the course of an entry into the vehicle contrary to s. 8 of the Canadian Charter of Rights and Freedoms.

[2]             The appeal centers on the judge’s finding that she was “not satisfied that the admission of the evidence would bring the administration of justice into disrepute” and her consequent conclusion that exclusion of the evidence as a remedy for the Charter breach under s. 24(2) was not appropriate. The appellant contends the judge erred in law at each stage of her analysis of the three considerations required under s. 24(2) of the Charter as elucidated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: the seriousness of the state conduct found to have infringed the appellant’s Charter rights; the impact of the breach on the appellant’s Charter-protected interests; and society’s interest in adjudicating the charges against the appellant on their merits.

[3]             The circumstances leading to the discovery of the guns and ammunition that are the subject of the charges started on April 10, 2007. Members of the Criminal Intelligence Section of the Surrey RCMP detachment were conducting ongoing investigations into the suspected criminal activities of the appellant and his brother, Jarrod. As part of those investigations, on April 10, 2007 an RCMP constable obtained a tracking warrant, that is, a warrant under s. 492.1(1) of the Criminal Code, that permitted surreptitious installation of a tracking device in an SUV vehicle. The vehicle was registered to Dennis Karbovanec, then in custody, and was seen driven by the appellant and his brother, Jarrod.

[4]             The judge found that from April 10, 2007 until shortly before midnight April 12, 2007 the police had the appellant under surveillance in an effort to find a time to install the tracking device in the vehicle. The police had seen the appellant in the vehicle in and about his family home but had not had an opportunity to install the device. On April 12, 2007, the surveillance team saw the appellant get into a Corvette at the Bacon residence and drive into Vancouver. Surveillance was called off at about 11:30 p.m. Shortly thereafter, around 1:00 a.m. on April 13, 2007, the appellant returned to the Bacon residence. As he exited the Corvette a shooter or shooters fired multiple shots at him. One shot hit the appellant in the back between the shoulder blades. But for body armour he was wearing he would have suffered serious injury. This shooting put into gear a new investigation into what the police considered an attempted murder of the appellant. In the course of this new investigation the police entered the Bacon residence to ensure there were no injured persons in it or persons who could cause harm to either the occupants or police. After the house was cleared, two police officers entered the home and conducted a warrantless search in violation of s. 8 of the Charter. The police then obtained a warrant to search the Bacon home for certain items that might be connected to the shooting (shell casings, clothing, firearms, ammunition, blood/DNA, body armour and a phone book). At the same time they obtained the warrant to search the house, the RCMP obtained warrants authorizing the police to search the Corvette and the SUV, then in the garage, for items including firearms and ammunition. The investigation of the shooting was conducted independently of the ongoing investigations in which the tracking warrant was obtained, and by different officers.

[5]             Pursuant to the warrants issued on April 13, 2007 in response to the shooting, the police searched the SUV twice, once while it was in the garage at the Bacon residence and again after it was removed to the Surrey RCMP detachment on April 14, 2007, without finding the evidence in issue.

[6]             After those searches, the SUV was handed over to two members of a specialized unit to install the tracking device permitted by the tracking warrant issued April 10, 2007. During this installation on April 14, 2007, the installing officers heard an unusual sound that led them to a further search of the SUV and to the discovery of a secret compartment containing the hand guns and ammunition at issue in this appeal.

[7]             The tracking warrant obtained on April 10 was issued on the strength of an information to obtain. In the disclosure process the Crown provided a redacted version of the information to obtain in which material portions were deleted. The judge was told this was done to protect the confidential source of the information. The redacted document does not contain sufficient information to support the issuance of the warrant. The appellant challenged the tracking warrant at trial and, there being insufficient information in the redacted document to support a warrant, the Crown conceded that steps taken under it breached s. 8 of the Charter. It should be mentioned that this concession was made with both the defence and the Crown treating the discovery during installation of the tracking device as only authorized by the tracking warrant and ignoring the fact police had seized the SUV under a valid search warrant entitling officers to search the vehicle for guns and ammunition. There is accordingly, in this case, a degree of artificiality about the issue posed, the issue which I will now address.

[8]             At trial the appellant did not contest the search warrants obtained by the police on April 12, 2007. He asserted, however, that the warrantless search of the Bacon residence after it had been secured and before the search warrants were obtained coloured the admissibility of the items found later when the tracking device was installed. He further contended that the search of the Bacon residence extended beyond the limits set out in the search warrants; for example, an officer opened a cell phone belonging to a girlfriend, searched a computer and printed photographs. Accordingly, he argued the search was unreasonable. None of those items bore upon the finding of the guns and ammunition disputed in this appeal, which were located during installation that had been planned when the tracking warrant was obtained. The appellant nevertheless contended that the cumulative effect of police Charter breaches in the shooting investigation, in respect to which there was a valid search warrant for the vehicle, weighed against admission of the evidence discovered in the secret compartment. It would be fair to describe the appellant’s position at trial as centering on his contention that what the judge found were two investigations was in reality one, and that errors made in respect to the searches effected in connection with the shooting incident were closely tied to discovery of the evidence now in dispute.

[9]             The judge found the police had breached Charter rights in the course of investigating the shooting, but held:

[56]      I believe, however, that the significance of the breaches occurring during the execution of the search warrant is much less than stated by the Defence. ... The items, the U-Haul contract, the cellular phone and the photographs on the computer, were items that James and Jarrod Bacon had, at best, a reduced expectation of privacy as they were items belonging to others or shared by others. Notwithstanding efforts to show otherwise, no casual connection to the discovery of the handguns and loaded pistol magazines or to any other evidence had been shown. Although s. 8 of the Charter was breached by Cpl. Burks and Cst. Exantus during the execution of the search warrant, on the continuum between minor and serious violations, their conduct was closer to a minor violation than a serious or egregious disregard of Charter rights. [Emphasis added.]

[10]         The judge then addressed the effect of the installation of the tracking device. She observed that the SUV was properly seized by police under the warrants obtained in the shooting investigation. She described the discovery of the guns and ammunition:

[59]      Around 7:00 p.m., Cpl. Pang and Cst. Ashdown began to install the tracking device in the Chevrolet Suburban. The first step is a vehicle survey, an inspection of the vehicle to determine possible sites for the tracking device. As Cpl. Pang and Cst. Ashdown were going through the vehicle survey, they heard an unusual sound, a beeping or humming – one they had never heard before when installing a tracking device. They both stated that they searched for the source of the noise, never having heard a noise before during an installation, because of a concern that it might compromise the installation.

[60]      They searched around the console, looking at and then lifted the cupholder on the centre console. Under the cupholder, they found a sophisticated secret compartment with a strong magnetic lid, operated by solenoids, that contained the four loaded semi-automatic handguns and five loaded pistol magazines, one of which contained more than ten bullets.

[11]         The judge observed that had the tracking warrant been valid, there would be no s. 8 Charter breach in the discovery of the evidence now in issue:

[62]      If the tracking warrant was valid, Cpl. Pang and Cst. Ashdown would have found the secret compartment in the course of a lawful search, one with judicial authorization, and s. 8 of the Charter would not have been breached. The Crown concedes, however, that the tracking warrant was not valid and that there was a breach of s. 8 of the Charter.

[12]         Because the information to obtain had been redacted by the Crown to protect informer confidentiality to the point the judge could not determine whether the tracking warrant was properly authorized, the information to obtain was not before the judge. Nonetheless the Crown took the position that the officers were acting in good faith in accordance with what they believed was a valid warrant, citing R. v. Goncalves, [1993] 2 S.C.R. 3, 81 C.C.C. (3d) 240, and R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389. The defence contended the Charter breach was serious and they were hampered by the judge’s inability to determine the issue of good or bad faith, or misleading or fraudulent disclosure. On this issue, in discussing the significance of the unavailability to her of the confidential informant information (and before directly addressing the s. 24(2) Charter remedy issue), the judge said she accepted the Crown’s statement that the information to obtain had as its basis information from confidential sources who were entitled to confidentiality. She observed there is a reduced expectation of privacy in motor vehicles, and that a tracking warrant is an investigatory tool to which a lower standard of belief applies. She then turned to the issue of admissibility under s. 24(2) of the Charter. Citing Grant, she set her task as assessing and balancing the effect of admitting the evidence on society’s confidence in the justice system having regard to:

a)       the seriousness of the Charter-infringing state conduct;

b)       the impact of the Charter violations on the Charter-protected interests of the accused; and

c)       society’s interest in the adjudication of the case.

[13]         The appellant challenges the judge’s conclusions on each of the three Grant factors.

Discussion

[14]         Before turning to each factor, I consider it is useful to observe that our role as an appellate court is constrained to correcting errors of principle or law, or in factual matters, to interfering only where there is a mistake in a finding of fact such that it is unsupported by evidence and material to the outcome. In particular, we may only interfere with a judge’s exercise of discretion when satisfied the judge did not give weight to all relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1; Harelkin v. University of Regina, [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14; and MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. The same deferential approach described in those cases applies in the criminal context. In particular, the application of s. 24(2) of the Charter engages the discretion of the trial judge and accordingly high deference must be accorded the trial judge.

The Seriousness of the Charter-Infringing State Conduct

[15]         The appellant agrees that the judge correctly summarized the factors to be applied in exercising her discretion under s. 24(2) of the Charter but says she erred in their application. The first criterion to be considered, following a Grant analysis, is the seriousness of the Charter-infringing state conduct. The judge’s analysis on this issue focussed largely upon the Charter breaches connected to the searches of the Bacon residence. She discussed and rejected the defence position that there were strong causal and temporal connections between those breaches and discovery of the evidence in issue. She also rejected the notion that the Charter breaches committed by police officers in respect to the residential search so tainted the actions of the officers who discovered the evidence in issue that they must be considered to have had bad faith or wilful disregard of the appellant’s rights in their discovery of the guns and ammunition. The trial judge’s focus on the relationship between the residential searches and the admissibility of the items at issue, of course, was responsive to the case put to her. This is not to say that the appellant did not also complain of the warrantless search under the tracking warrant, but that complaint was not the primary submission at trial, and accordingly the judge did not focus upon the Charter breach that is taken to have occurred in respect to the tracking warrant.

[16]         Before this Court the appellant focuses upon the actions of the officers installing the tracking device. He complains that the judge gave positive weight to the fact the police officers were acting under a tracking warrant, and complains that the judge considered the police officers had acted in good faith. The appellant says the Crown should not have benefitted from the admission of the evidence obtained as a consequence of the tracking warrant when it did not provide the information to obtain to the trial judge for review.

[17]         The appellant couches his submission under several sub-complaints. He says: (1) the approach of the judge undermines the balance struck between informer privilege and an accused’s right to disclosure of the information to obtain and his right to challenge the admissibility of evidence as developed in R. v. Parmar (1989), 53 C.C.C. (3d) 489 (Ont. C.A.); R. v. Garofoli, [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161; and Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, 60 C.C.C. (3d) 132; (2) the approach of the judge violates the principle that an accused is entitled to know the case he is to meet as discussed in R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; and R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389; (3) allowing the Crown both to withhold information covered by informer privilege and to rely upon it to support a finding that the breach is not serious is incongruent with R. v. Campbell, [1999] 1 S.C.R. 565, (subnom. R. v. Shirose) 133 C.C.C. (3d) 257; (4) the judge’s approach is inconsistent with established authority that the evidentiary burden to establish the reasonableness of a warrantless search lies upon the Crown, see R. v. Bartle, [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289; R. v. Greffe, [1990] 1 S.C.R. 755, 55 C.C.C. (3d) 161; (5) the Crown did not avail itself of Step 6 of the procedure for editing informer-privileged material set out in Garofoli; and (6) the treatment of the Charter breach occasioned by the warrantless installation of the tracking device as other than very serious is contrary to the direction of cases such as Grant; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; and R. v. Coté, 2011 SCC 46, [2011] 3 S.C.R. 215, encourages the police to cut corners, short-cuts further investigation by the police and encourages over-editing by the Crown under the guise of protecting informer privilege.

[18]         Section 24(2) is a remedy section for Charter breaches and it allows, but does not compel, a ruling of inadmissibility as a Charter remedy. The reasons for judgment, as I have indicated, do not address at length the issue as it is now presented, given the focus at trial. On the issue of the warrantless installation of the tracking device and consequent discovery of the evidence in issue, the judge observed she could not determine from the redacted material, for herself, “the issues of good or bad faith, misleading or even fraudulent disclosure”. She then said, before turning to the s. 24(2) submissions before her:

[66]      ... I am, however, prepared to accept the Crown’s statement that the Information to Obtain had as its basis information from confidential informants who are entitled to confidentiality. The Crown has consistently maintained this position, which was not challenged in the Notice of Application or during the giving of evidence.

[19]         In discussing s. 24(2) the judge adverted to the possibility of police disregard for the appellant’s Charter rights, doing so in the context of the defence’s theory of one over-all investigation:

[78]      When one looks at the totality of the circumstances, it is clear there were two, albeit intersecting investigations, of the same people for different offences. ... There is a significant time span between the breaches and there were a number of steps taken in compliance with the Charter. I am not satisfied there was a pattern of wilful disregard, or systemic police disregard of Charter rights. There were multiple violations of the Charter, some very serious ones, but not a pattern of wilful disregard or systemic disregard.

[20]         These comments, on my reading of the reasons for judgment, comprise the judge’s entire discussion of good faith.

[21]         The appellant has approached the reasons for judgment as the judge finding good faith on the part of the police, and as assuming there was no misleading information in the information to obtain. This approach may over-read the judge’s comments which, consistent with the case presented, are brief on the matter of the good faith of police in respect to the tracking warrant. It seems to me the judge was not prepared to make a finding of bad faith or disregard of the appellant’s rights; she simply accepted, as she was entitled to do given the defence position at trial, Crown counsel’s representation that the materials upon which the tracking warrant relied came from a privileged informant. The agreement between the Crown and the defence on this matter is reflected in the transcript of proceedings. The judge sought clarification, including in this exchange during the voir dire:

THE COURT:  Well, we have a clear agreement. All counsel, as I understand it, agree that the warrant has been – or the Information to Obtain was excised or edited to an extent that it’s not supportable upon review, but that was, by admission, to protect informants.

MR. JETTĒ:  Yes.

MS. MITCHELL-BANKS:  Yes.

THE COURT:  And Mr. Westlake?

MR. WESTLAKE:  I think – I think that’s accurate.

THE COURT:  Okay. Sorry, but I needed to clarify that.

[22]         Given the exchanges between counsel and the judge, she was entitled to treat as a fact that the information to obtain was edited to protect informants. The agreement does not address the quality of the redacted information, but does provide a sound basis for the judge to conclude there was some information not before her upon which the warrant was based. Just as in R. v. Asp, 2011 BCCA 433, 278 C.C.C. (3d) 391, in which this court concluded that advice by counsel of a non-contentious fact entitled the judge to treat the fact as part of the record, so too the admission of the reason for the redaction in this case became an evidentiary fact the judge could rely upon. The question is how far that takes us.

[23]         It seems to me, on considering the submissions, that the appellant would have the bare concession of a s. 8 Charter breach determine the seriousness of the Charter-infringing state conduct for purposes of the s. 24(2) analysis. I do not consider the cases to which we are referred support this approach. Most of the cases cited address the issue that was conceded by Crown in this case – the s. 8 breach. For example Garofoli and Dersch, cases in the early days of the Charter concerning opening the packet upon which wiretap authorizations were granted, addressed the procedure whereby the accused may challenge the constitutionality of a search or seizure, but did not focus upon the judge’s exercise of discretion under s. 24(2) of the Charter.

[24]         Nor, in my view, do Ahmad or Charkaoui assist the appellant. Both are cases affirming the right of a person whose liberty is in issue to know the case they must meet. This case engages disclosure at a different point in the proceedings – in a voir dire dealing with a Charter remedy in respect to evidence that is well known to the appellant.

[25]         The appellant relies upon Campbell, a case in which the Supreme Court of Canada found the Crown had waived privilege of a legal opinion obtained prior to the impugned police conduct through its submission that the fact the legal opinion was obtained demonstrated good faith on the part of the police. Campbell, in my view, is not congruent with the issue before the trial judge. There, the argument on good faith invoked the assumption the police had conformed to the advice received whereas here, the police never asserted they relied upon the contents of the information to obtain. Rather, the Crown submits the police relied upon the existence of the tracking warrant. It was open to the defence to challenge the reliance by the police officers on the existence of the tracking warrant, but the good faith of those officers did not appear to depend upon the content of the information to obtain. To the extent there may have been overlap between those officers and the affiant on the application for the tracking warrant, it was open to the defence to explore that possibility in the evidentiary phase of the voir dire but they did not do so.

[26]         Nor do I consider the approach of the judge to be inconsistent with jurisprudence on the evidentiary burden. The appellant’s submission of such an inconsistency rests heavily on Bartle and Greffe. In Bartle, Chief Justice Lamer observed that once a s. 8 Charter breach is established, the breach will be seen as serious unless the Crown can show reasonable and probable grounds for the police actions. However, in both cases the police acted without what they believed was a valid warrant, and Crown was unable to present an argument of good faith based on an understanding there was a valid warrant authorizing the police activity. Apart from the different circumstances, the proposition in those cases addresses the burden with respect to the larger issue of the reasonableness of the search, and does not dictate determination of a s. 24(2) remedy. Neither case involved the situation before us in which the Crown placed before the judge the reason the information to obtain was redacted to the point Crown conceded a s. 8 Charter breach, and the police entering the vehicle had a warrant that was, on its face, validly issued.

[27]         The appellant advances Step 6 in Garofoli as a tenable procedure for the problem it says it faced by the unavailability of the redacted information. The Garofoli Step 6 procedure envisages the judge reviewing the material and providing a judicial summary of the contents. While it is true that this procedure was available, in my view, the failure to pursue it is not a reversible error. It was open to the appellant to propose this procedure. Equally, he could have cross-examined the police officers on their reliance upon the existence of the tracking warrant, declined to accept the basis proffered by the Crown for the redactions, or cross-examined the affiant police officer who drew the information to obtain to test his process in preparing the application or determining the reliability of the redacted information. That none of these steps were taken is not surprising given the focus of the admissibility issues at trial. The appellant says any cross examination of officers or challenge to reliability would have been fruitless because the critical information supporting the tracking warrant was redacted. However, the good faith of the police depends not only upon the content of the information to obtain, but also upon the approach taken by the affiant officer and the thought processes of the officers who entered relying upon the warrant. Absent some challenge, or demand for a more informative process, it was open to the judge to be satisfied that bad faith was not present.

[28]         Last, the appellant contends that several policy considerations support his submission that the judge erred in treating the Charter-infringing state conduct in respect to the tracking device as not serious. He alleges unfairness in the voir dire and posits evils that may result from repetition of the course followed in this case. With respect, these are all submissions for consideration by the judge charged with exercising her discretion under s. 24(2). It is always open to an accused to put these propositions in issue by declining to make admissions, by seeking information on the approaches taken to the tasks of drawing or redacting the information to obtain or even by employing a procedure such as discussed as Step 6 in Garofoli. There is, however, no rule on the weight or seriousness that must be assigned to the police actions. It is an assessment made by the judge, who knows all the circumstances before the court, and as such is entitled to deference.

[29]         In this case, the police who discovered the evidence were acting on warrants that could reasonably be thought of as valid. This fact weighs in favour of admissibility: R. v. Evans, [1996] 1 S.C.R. 8, 104 C.C.C. (3d) 23; Grant; and R. v. Caron, 2011 BCCA 56, 269 C.C.C. (3d) 15. Recently in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, the Ontario Court of Appeal addressed a similar situation, although in the context of a Charter breach in the search of a residence by officers possessing a search warrant. The Crown relied upon a version of the information to obtain a search warrant that was redacted to protect confidential sources. As here, the accused did not try to bring his case within the innocence-at-stake exception. Nor did the appellant challenge the Crown’s assertion of confidential information, or ask the judge to embark on a Garofoli Step 6-like procedure. The Court of Appeal upheld the trial judge’s admission of the evidence gained on the search, saying:

[27]      The nature of the state conduct resulting in the constitutional infringement in this case seems to fall outside the paradigm described in Grant. If it is within that paradigm, it is clearly at the far end of the spectrum favouring admissibility. The appellant has not availed himself of the various options open to him that would potentially have allowed further assessment of the police conduct. In these circumstances it would be inappropriate to presume that the police did anything other than conduct themselves in accordance with the applicable legal rules.

...

[33]      Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant. [Emphasis added.]

[30]         The appellant says Blake is wrongly decided and we should not find it persuasive. I do not agree. The passages replicated above fully accord with my understanding of the law in this matter, and I would adopt them as accurate.

[31]         In this case the property entered was a motor vehicle that had transported the accused, and the entry was to effect installation of a tracking device under a tracking warrant, as to which the level of belief required is lower than for a search warrant. Although the judge did not rely upon this, it is not insignificant that police investigating the shooting incident had obtained a valid search warrant supporting a search of the same vehicle. In these circumstances it was fully open to the judge, in my view, to conclude that the Charter-infringing state conduct was less than serious. I would not accede to this ground of appeal.

Impact on the Charter Protected Rights of the Appellant

[32]         The second Grant factor is the impact of the Charter breach on the Charter-protected rights of the appellant. The appellant contends that the judge erred in principle in addressing this factor by assigning a reduced expectation of privacy to the location of the challenged evidence, a vehicle in a garage. He says its location in the garage makes the vehicle akin to an office or a residence, and puts it outside the reasoning of Justice Cory in R. v. Belnavis, [1997] 3 S.C.R. 341, 118 C.C.C. (3d) 405. Further, he contends the judge’s approach to the first Grant factor had a “knock-on” effect.

[33]         This ground of appeal addresses a passage of the judge’s reasons at para. 69 on the seriousness of the breach and at para. 82 on the second Grant factor:

[69]      A tracking warrant, however, has a lower standard, “reasonably suspects”, than in search warrants, as there is a reduced expectation of privacy in motor vehicles. R. v. Wise, supra. This reduced expectation of privacy remains even though the Chevrolet Suburban was found in an enclosed garage as it was a vehicle that had been consistently driven. ...

And:

[82]      The Charter breaches in this case infringed James and Jarrod Bacon’s right to privacy in a place, a motor vehicle and their home. There were no violations to their physical integrity. Although there is a high expectation of privacy in a home, the expectation of privacy in the Chevrolet Suburban is a reduced one and this is so even though the vehicle was found in an enclosed garage. These factors render the breaches less serious and weigh toward admitting the evidence.

[34]         The judge’s proposition that the impact of the Charter breach upon the appellant’s rights was reduced because the search was of a vehicle is supported by cases such as R. v. Wise, [1992] 1 S.C.R. 527, 70 C.C.C. (3d) 193; Belnavis; and Harrison. There is, however, no absolute rule. Just as situations vary, so too will the level of expectation of privacy that may be accorded in respect to a vehicle. Ultimately this was a question steeped in circumstances and best decided by the judge. The location of the SUV in a garage is but one circumstance relevant to this determination. The fact the SUV was regularly outside of the garage and used by the appellant, that it was owned by another person, that it was properly seized under a valid search warrant and moved to the police detachment under that warrant, and that the entry in question was for the limited purpose of installing a tracking device were other relevant considerations. I see no error on the part of the judge in assessing the impact that the search of the SUV had on the appellant’s rights. I would not accede to this ground of appeal.

Society’s Interest in Adjudicating the Case on its Merits

[35]         The appellant contends the judge erred in ascribing undue importance to the seriousness of the offences when she considered the third Grant factor, relying upon Grant itself; Harrison; Coté; R. v. Reddy, 2010 BCCA 11, 251 C.C.C. (3d) 151; Caron; and R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53. To this list may be added the recent decision of R. v. Dhillon, 2012 BCCA 254, which applied Harrison and Grant in much different circumstances – a case of the absence of good faith where the police officer lacked the necessary subjective belief of criminal activity.

[36]         In Grant, the Supreme Court of Canada addressed the propriety of assessing the seriousness of the offence at issue when considering society’s interest in an adjudication on the merits:

[84]      It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [Emphasis added.]

[37]         The Supreme Court of Canada also addressed this issue in Harrison:

[33]      At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown's case.

[34]      The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits. [Emphasis added.]

[38]         In her reasons for judgment the judge adverted to the seriousness of the offences charged, at para. 82:

This third avenue of inquiry requires a consideration of whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of evidence. It is in the interest of society that persons who commit crimes should be prosecuted and dealt with according to law. The exclusion of the handguns would result in the dismissal of all charges related to the possession of the handguns and prohibited device. To adopt the language of the Supreme Court in Grant, the exclusion of the evidence of the seizure of the handguns would gut the prosecution. (Paras. 82, 83.) Firearms offences are viewed as serious offences, as “there is no good or benign purpose for such a weapon”. R. v. Alkins, 2007 ONCA 265, at para. 55. Moreover, courts have long commented that in general, the exclusion of firearms would more negatively impact the administration of justice than their admission. R. v. Mpamugo, [2009] O.J. No. 953 (S.C.), at para. 48. Society’s interest in the adjudication of this case on its merits favours inclusion of the evidence. [Emphasis added.]

[39]         As can be seen from the passages from Grant and Harrison replicated above, the seriousness of the offences themselves should no longer be accorded the weight that certain cases pre-dating Grant (such as R. v. Mpamugo, [2009] O.J. No. 953 (S.C.J.)) would suggest. In this I consider the judge should not have given weight to the nature of the charges against the appellant. The other factors she considered however – society’s interest in the prosecution of the offences and the central position of the evidence in issue to the trial – weigh in favour of admission.

[40]         The issue for us is whether reducing or removing consideration of the seriousness of the charges from this factor would or should produce a different conclusion when the three Grant factors are balanced, as is required. In my view the answer is manifestly no.

[41]         The situation was charged with violence, as to which society has an interest in quelling. It is to be remembered that the SUV was seized under the authority of a valid search warrant, and that the entry of the vehicle that produced the weapons and ammunition discovery was under a tracking warrant, valid on its face, given for the limited purpose of installing a tracking device in a vehicle that was found by the judge not to attract a high expectation of privacy. The evidence is, by its nature, non-conscriptive and reliable. These factors alone strongly favoured admissibility of the evidence, and it was inevitable, in my view, on the facts found by the judge that the evidence would be admitted.

[42]         In other words, removing the nature of the offences charged from consideration has no impact upon the ultimate conclusion. Accordingly, I would dismiss the appeal.

“The Honourable Madam Justice Saunders”

I AGREE:

“The Honourable Mr. Justice Low”

I AGREE:

“The Honourable Mr. Justice Hinkson”