R. v. Pino (E.), 2016 ONCA 389

• Judge: Laskin, Tulloch and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 29, 2015
• Jurisdiction: Ontario
• Citations: 2016 ONCA 389;(2016), 349 O.A.C. 269 (CA)

R. v. Pino (E.) (2016), 349 O.A.C. 269 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MY.022

Her Majesty the Queen (respondent) v. Eneida Pino (appellant)

(C56288; 2016 ONCA 389)

Indexed As: R. v. Pino (E.)

Ontario Court of Appeal

Laskin, Tulloch and Pardu, JJ.A.

May 24, 2016.

Summary:

The accused, a 43-year-old house cleaner with no previous criminal record, was convicted of possessing 50 marijuana plants for the purpose of trafficking. The marijuana was seized from the trunk of her car following a search incident to her arrest on an Ottawa street. The accused brought a motion before trial to exclude the marijuana on the ground the police had violated her constitutional rights under the Charter. The trial judge found the following three Charter violations: (1) the manner of the police search was unreasonable (s. 8) because the police carried out the accused's arrest by a dangerous and unnecessary masked take-down at gunpoint; (2) the police misinformed the accused about her right to counsel (s. 10(b)); and the police denied the accused her right to consult counsel without delay (s. 10(b)), by holding her incommunicado in a jail cell for nearly five and a half hours after her arrest. The trial judge also found that the two police officers who testified about the accused's arrest lied to the court. Nonetheless, the trial judge refused to exclude the marijuana seized from the accused's car under s. 24(2) of the Charter. He concluded the evidence was not "obtained in a manner" that infringed the accused's right to counsel because both s. 10(b) breaches occurred after the police discovered the marijuana. The trial judge then found that the breach of the accused's s. 8 right was "of more than modest seriousness, but "far from at the extreme end of seriousness"; the impact of the s. 8 breach on her interests was "of qualified significance"; and exclusion of the evidence "would therefore gut the prosecution against her". After balancing these three considerations, the trial judge concluded that admitting the evidence would not bring the administration of justice into disrepute. The accused appealed her conviction.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and entered an acquittal. The trial judge erred in law by concluding that he could not exclude the evidence because of the two s. 10(b) breaches. The trial judge erred in law by holding that Charter breaches after the discovery of the challenged evidence could not meet the "obtained in a manner" requirement in s. 24(2). All three Charter breaches found by the trial judge satisfied the "obtained in a manner" requirement in s. 24(2) where they were all "temporally" and "contextually" connected to the evidence sought to be excluded; and they all occurred in the course of the same "transaction", being the accused's arrest. Further, the trial judge understated the seriousness of the s. 8 breach by speculating about why the police lied in their testimony. The court held that the evidence should be excluded under s. 24(2).

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - See paragraph 46.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - See paragraphs 38 to 78 and 100 to 108.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 1 to 108.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - See paragraph 46.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - See paragraphs 44 and 45.

Evidence - Topic 108

Degree, standard or burden of proof - Standard or degree of proof - Conjecture or speculation - See paragraphs 91 to 98.

Police - Topic 3185

Powers - Search - Following arrest or detention - See paragraph 46.

Words and Phrases

Obtained in a manner - The Ontario Court of Appeal discussed the meaning of this phrase as found in s. 24(2) of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 48 to 78.

Counsel:

Howard L. Krongold, for the appellant;

John North, for respondent.

This appeal was heard on October 29, 2015, by Laskin, Tulloch and Pardu, JJ.A., of the Ontario Court of Appeal. Laskin, J.A., delivered the following reasons for decision for the court on May 24, 2016.