R v Love, 2022 ABCA 269
[47] Automatic excision refers to the removal of improperly obtained information from an ITO. Typically, the doctrine arises where information has been obtained in breach of the Charter: Nader Hasan et al, Search and Seizure (Toronto: Emond, 2021) at 608; R v Wawrykiewycz, 2018 ONCJ 199 at para 51, aff’d 2020 ONCA 269.
[48] The rule of automatic excision has its roots in R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, 60 CCC (3d) 161; Hasan at 609. Garofoli addressed the treatment of wiretap authorizations based on affidavits containing facts that were unreliable or that could compromise informant privilege. The Supreme Court concluded that unreliable facts must be excised from an affidavit, and that if the remaining facts did not meet the “reasonable grounds” threshold, the authorization was unlawful. It applied a then-operative Criminal Code rule of automatic exclusion of intercepted communications: see what was s 178.16 of the Criminal Code, 1970, c C-34 and Garofoli at 1452-1454 per Sopinka J.
[49] Garofoli did not deal with unconstitutionally obtained information and did not consider remedies under s 24(2) of the Charter. Therefore it did not establish a general rule of automatic excision of information obtained in breach of the Charter from an ITO: Hasan at 611
[50] Yet in R v Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223, 84 CCC (3d) 173; R v Wiley, 1993 CanLII 69 (SCC), [1993] 3 SCR 263, 84 CCC (3d) 161; and R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281, 84 CCC (3d) 203, the Supreme Court relied on Garofoli to assert that the excision of unconstitutionally obtained information is automatic: R v Lam, 2015 ONSC 2131 at paras 55-56; Hasan at 611. These cases involved warrantless perimeter searches of property; they did not involve wiretap or a Criminal Code rule of inadmissibility.
[51] The wiretap provisions at issue in Garofoli have been repealed. R v Pires; R v Lising, 2005 SCC 66 addressed the impact of the legislative change on procedure for testing wiretap ITOs. It did not address the automatic excision rule and its relationship to the repealed provisions, but it did note that “any remedy resulting from a finding of unconstitutionality must be determined in accordance with s. 24(2) of the Charter”: at para 8.
The rule, its rationale, and criticisms
[52] The automatic excision rule has become well-established since the 1990s. The proffered rationale for automatic excision is that the state should be “prevented from benefiting from the illegal acts of police officers.”: Grant at 251 cited to SCR; R c Rizzuto, 2021 QCCA 1789 at para 22.
[53] The automatic excision rule has come under criticism, centred on two themes. The first theme is that automatic excision is inconsistent with the balancing mandated under s 24(2) of the Charter for the admissibility of evidence at trial.
[54] Early in the history of the Charter, the Supreme Court rejected automatic exclusion of evidence as being incompatible with the wording and the purpose of s 24(2): R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265 at 280, 33 CCC (3d) 1. Section 24(1) allows for remedies that “the court considers appropriate and just in the circumstances.” There is a tension between the flexible wording of these provisions and the stark effect of automatic excision.
[55] It is now generally understood that the rule applies to any information obtained through any breach of the Charter, “irrespective of the nature of the breach and whether it is serious or more technical in nature, occurring in the context of good faith actions by the police”: Wawrykiewycz at para 65. The rigidity with which automatic excision must be applied at the investigation stage, where liberty is not at stake, seems out of step with the flexible and contextual approach taken under s 24(2) at the trial stage, where the liberty of an accused is unquestionably at stake: R v Jaser, 2014 ONSC 6052 at para 32.
[56] The proffered rationale for the rule also appears to be inconsistent with the principle that s 24(2) of the Charter “is not a remedy for police misconduct”: Collins 281 cited to SCR.
[57] The rigidity of automatic excision can produce “a metaphoric house of cards” in which “remov[ing] the foundation [...] topple[s] the entire structure”: R v Bhogal, 2020 ONSC 7327 at para 102. For instance, a flawed investigative step early in an investigation might taint an ITO and in turn taint subsequent investigative steps, retroactively undoing much of the investigation, despite the fact the police had obtained a warrant and relied on it. The result might be the exclusion of significant evidence, potentially out of proportion to the seriousness of the original breach.
[58] In addition to its potentially disproportionate effect on the search for truth, the rigidity of automatic excision may deny the accused a meaningful remedy. If a warrant falls after information is excised, the resulting search is considered warrantless, generating another Charter breach. Typically, however, in the 24(2) analysis courts will weigh the original breach rather than the retroactively warrantless search, raising the question of what the excision step added to the analysis. On the other hand, if the warrant is supported on the information that remains after excision, the analysis ends and no remedy is awarded, regardless of the severity of the breach. Thus automatic excision may not “provide meaningful vindication of a breach of Charter rights”: R v Kang, 2020 BCSC 1151 at para 109.
[59] The second theme of criticism is that the doctrinal source of automatic excision is “unclear”: Hasan at 611. Jaser elaborates at para 28:
It does not appear to be a s. 24(1) or s. 24(2) Charter remedy, as it is rigid and categorical and it can lack proportionality, given the absence of any of the contextual and flexible balancing that is now well-established under both of these provisions… It also does not appear to be a common law remedy as it is not based on trial fairness, reliability, or abuse of process considerations, nor on the balancing of probative worth and prejudicial effect, which are the traditional bases for common law exclusionary rules. All of these common law exclusionary rules involve flexible contextual tests.
[60] The results of automatic excision can be counterintuitive.
[61] Because of the absence of any balancing, automatic excision may result in the “seemingly illogical situation that an issuing or reviewing justice cannot rely upon evidence in support of the grounds for a search warrant that a trial court could rely upon to convict”: Wawrykiewycz at para 67, also see R v Chau, [1997] OJ No 6322 (Ont Sup Ct J) at para 50.
[62] Co-accused trials present another area of difficulty. Several courts have grappled with, and divided on, the question of “excision for one or excision for all”: Kang at para 21; Hasan at 612. Where information obtained in violation of one accused’s Charter rights formed part of an ITO that led to evidence against all accused, should the information be excised solely as against the accused whose rights were breached or as against all accused? Do the other accused have standing to raise the argument? The “lack of any clear doctrinal coherence”, and by extension the nature of the applicable principles, has complicated the analysis of such questions: Jaser at para 29; Kang at paras 92-136; R v Croft, 2013 ABQB 716 at paras 8-24; R v Hamid, Leyva and Andrews, 2019 ONSC 5622 at paras 45-75; R v Mahmood, 2008 CanLII 51774 (ON SC), [2008] OJ No 3922, 236 CCC (3d) 3 (Ont Sup Ct) at para 56; R v Colegrove, 2022 NSSC 132 at paras 324-352.
[63] Accomplices tried separately provide another illustration, inspired by the facts of R v Keith Ritchie, 2016 ONSC 1092. Police obtain a piece of information that directly inculpates accomplice A, and that is included in an ITO to gain further information on Accomplice B. During A’s trial, the court concludes the information against A was obtained through a Charter violation, but admits it into evidence after a s 24(2) weighing. A is convicted. The evidence is not led in B’s trial, but B argues the information about A was unconstitutionally obtained and must be automatically excised from the ITO against B. If the information is excised, the house of cards against B will fall and he will be acquitted. It would be difficult to view this scenario as a meaningful remedy for the violation of A’s rights.
[64] Perhaps as a means of avoiding any apparent conflict between automatic excision and the wording of s 24 of the Charter, some authorities have opined that excision of unconstitutionally obtained information from an ITO is not a Charter remedy. Rather, they interpret it as “but a procedural step in the overall Garofoli review”: Kang at para 85.
[65] The fact remains that the lower courts are governed by the Supreme Court’s authority, restated as recently as 2014 in R v Spencer, 2014 SCC 43 at para 74: unconstitutionally obtained information must be excised from an ITO.
Expansion of automatic excision
[66] The appellant submits the remedial role of automatic excision has expanded from Charter breaches to any illegally obtained information. He cites Kang at para 83, where “[t]he types of information that can be excised from an affidavit or ITO” were said to include “[u]nlawfully obtained information” as distinct from unconstitutionally obtained information. In the discussion that followed, the court cited authority for excision of information that was erroneous or misleading and information obtained through Charter breach, but no authority for the excision of information that was otherwise unlawfully obtained.
[67] Here, the appellant says, the information produced under the administrative subpoena was obtained in violation of US law and should therefore be excised from the ITOs. He acknowledges there is no binding authority to this effect but asks us to extend existing principles of automatic excision.
[68] In particular, he submits Hape’s balancing test for the admission of unlawfully obtained foreign evidence should not apply to information in an ITO because there should be no balancing at the excision stage:
... since foreign law governs access to information in the foreign state and excision does not depend on any balancing process involving trial fairness, the test in Hape has no applicability to excision. It only applies to exclusion of evidence seized in the foreign jurisdiction. The trade-offs in Hape are necessary because the Charter does not apply directly. Moreover, the nature of the test, which includes trial fairness considerations is fundamentally inconsistent with excision which is automatic. There is no principled reason for the test in Hape to apply to excision on the basis of breach of foreign law.
[69] We disagree. While we are bound to follow the automatic excision rule for unconstitutionally obtained information, we are not obligated to extend the rule to illegally obtained information. We do not see a doctrinal basis for doing so. Absent a convincing foundation, we decline to expand the practical difficulties that accompany automatic excision.
[70] We endorse the trial judge’s use of Hape and its balancing test at the stage of excision of information as well as at the stage of exclusion of evidence.
[71] Further, we find no reviewable error in his application of the test, which was largely an exercise of mixed fact and law. As the trial judge did not err, this ground of appeal is dismissed.
Ground Four: Excision of information from grounds for a warrantless arrest
The Storrey test
[74] In reviewing a warrantless arrest, the court considers whether the arresting officer subjectively had reasonable grounds for making the arrest and whether those grounds were objectively reasonable: R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241, 53 CCC (3d) 316. The same core analysis applies to warrantless searches, tailored to the specific warrantless search power: see for example, R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51 at 67, 121 CCC (3d) 97 and R v Clayton, 2007 SCC 32 at para 48.
[75] The first part of the Storrey inquiry is subjective: the arresting officer must subjectively have reasonable grounds to arrest. The objective inquiry is confined to information known to the officer at the time. In Paterson at para 19, the Supreme Court clearly stated that when assessing an officer’s grounds for the exercises of a warrantless power, only his or her “contemporary state of mind and conduct is at issue ... the inquiry is focussed upon whether it was reasonable for him or her to rely upon the statement as forming grounds for the action under scrutiny.”
[76] The Ontario Court of Appeal summarized the Storrey test in R v Golub, 1997 CanLII 6316, 117 CCC (3d) 193 at 203 (Ont CA) underscoring that officers may only exclude information from consideration if they have good reason to believe it is unreliable:
The police power to arrest under s. 495 of the Criminal Code was considered in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, 47 C.R.R. 210, 53 C.C.C. (3d) 316. Cory J., for the court, said at p. 251 S.C.R., p. 218 C.R.R., p. 324 C.C.C.:
In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.
In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 250-51 S.C.R., p. 218 C.R.R., pp. 323-24 C.C.C.; Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474, 48 C.C.C. (2d) 34 at p. 56; R. v. Hall (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289 at pp. 296-98, 39 C.R. (4th) 66 at pp. 73-75 (C.A.); R. v. Proulx (1993), 1993 CanLII 3677 (QC CA), 81 C.C.C. (3d) 48 at p. 51 (Que. C.A.). [emphasis added]
[77] In R v Chehil, 2013 SCC 49 at paras 33-34, the Supreme Court held Golub’s statement that “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable” was “self-evident”, adding there is no obligation on an officer “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”.
Authorities for and against extension of the automatic excision rule to warrantless contexts
[78] Applying the automatic excision rule in warrantless contexts would require the reviewing court to remove any unconstitutionally obtained information from consideration as part of the officer’s reasonable grounds.
[79] Trial courts are divided on whether the automatic excision rule ought to be extended to warrantless arrests and searches. Some courts have done so, reasoning it is a logical extension of, or analogous to, the rule for automatic excision of information from ITOs: R v Pelucco, 2013 BCSC 588 at paras 99-110; R v Vulic, 2012 SKQB 221 at para 27; R v Brown, Lambrecht and Manuel, 2014 BCSC 1872 at paras 52-65; R v Kyriakopoulos, 2008 CarswellOnt 348 at paras 71-76 (Sup Ct J); R v Riley, 2009 CarswellOnt 43 at paras 56-57, [2009] OJ No. 62 (Sup Ct J); and R v Lambert, 2020 NSPC 37 at para 185.
[80] Other courts have declined to do so. In R v Flintroy, 2019 BCSC 35, the court reviewed the authorities and concluded it was inappropriate to extend the rule given the controversy surrounding it and given the legal and contextual differences between search warrants and warrantless arrests. This reasoning has been applied in R v MG, 2021 ABPC 280 at para 84; and R v Latimer, 2020 BCSC 685 at paras 130-169.
[81] There appears to be only one appellate decision in which the court decided to apply automatic excision of unconstitutionally obtained information to the review of a warrantless arrest: R v Monney, 1997 CanLII 979 (ON CA), 1997 CarswellOnt 4461 at para 98, 120 CCC (3d) 97 (Ont CA). The Supreme Court allowed the Crown’s appeal, holding there had been no Charter violations and restoring the conviction; the validity of the arrest and automatic excision of information were not addressed: R v Monney, 1999 CanLII 678 (SCC), [1999] 1 SCR 652, 133 CCC (3d) 129.
[82] The appellant relies on R v MacEachern, 2007 NSCA 69, where the Nova Scotia Court of Appeal excised unconstitutionally obtained information from an officer’s grounds for arrest and held the resulting arrest was invalid. We note this result was based on a concession by the Crown rather than an adversarial analysis. Its precedential value is therefore reduced.
[83] The appellant also relies on R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615, 76 CCC (3d) 481 as an example of the excision of unconstitutionally obtained information from an officer’s grounds for a warrantless search. While he is not alone in this interpretation of Mellenthin, with respect we are not certain it is accurate.
[84] In Mellenthin at pp 623-625, the Supreme Court identified distinct steps taken by a police officer during a random checkstop. First, the officer shone a flashlight into the accused’s car to perform a visual inspection. The Court had no difficulty with the propriety of this step. Second, the officer asked some questions about a gym bag he had observed in the back seat, at a time when he had no suspicion of any wrongdoing linked to the bag. The Court held random stop programs must not be turned into unfounded general inquisitions or unreasonable searches. Third, the officer searched the appellant’s bag and vehicle. The Crown argued the search was done with the accused’s consent, but the Court found any consent was invalid in the context of the arbitrary checkstop detention. Fourth, after searching the bag, the officer arrested the appellant and searched the car. The Court devoted no express analysis to this step.
[85] The Court concluded the questioning, the search of the bag and the search of the vehicle “were all elements of a search” and “that search was made without the requisite foundation of reasonable and probable grounds.” Some have interpreted the Court’s brief comment as an example of excision: having found the prior steps unconstitutional, the information they yielded was excised from the grounds for the vehicle search, rendering it unreasonable.
[86] We perceive an alternate interpretation. The Court explained the practical necessity of the flashlight inspection. It did not assert there were any grounds to use the flashlight, and it never used the word “search” in this part of its discussion. While not expressly stated, it appears the Court concluded the use of the flashlight was not a search. By contrast, it used the word “search” throughout its analysis of the next two investigative steps and applied search doctrines to them. Finally, it found the three latter steps, including the vehicle search, “were all elements of a search”. Given the singular usage, this can be interpreted to mean the three latter steps formed one continuous search. When it began, there were no grounds for suspicion. Nor could any part of it be justified as a consent search, for which reasonable grounds would not be required. Viewed in this light, one need not infer that excision was applied.
[87] Acknowledging the potential for ambiguity, we favour the latter interpretation as being more consistent with the text of the judgment and the framework of search law. We note as well that while Grant, the seminal case on automatic excision, cited Mellenthin for other points, it did not rely on it as an authority for automatic excision.
[88] We conclude Mellenthin is not an authoritative example of automatic excision in the warrantless context. In any event, the case is not clear enough to overrule Storrey and decades of authority on the analysis of grounds for a warrantless arrest.
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