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Digest of the Week | Exclusion of Evidence "Obtained in a Manner"

Evidence discovered prior to extremely serious Charter breaches was "obtained in a manner" within the meaning of s. 24(2)

R. v. Pino
2016 ONCA 389
Ontario Court of Appeal

Criminal law --- Charter of Rights and Freedoms — Charter remedies [s. 24] — Exclusion of evidence

Marijuana was seized from trunk of accused's car following search incident to her arrest — Accused was charged with possessing 50 marijuana plants for purpose of trafficking — Trial judge found that manner of search was unreasonable under s. 8 of Canadian Charter of Rights and Freedoms due to dangerous and unnecessary masked take-down at gun point — Trial judge found violation of s. 10(b) in that police misinformed accused about right to counsel, and found that police denied accused right to counsel without delay under s. 10(b) by holding her incommunicado in jail cell for five and half hours after arrest — Trial judge found that two police officers lied to court — Trial judge refused to exclude marijuana under s. 24(2) of Charter — Accused was convicted — Accused appealed — Appeal allowed; accused acquitted — Trial judge erred in law by holding that Charter breaches after discovery of challenged evidence could not meet "obtained in manner" requirement in s. 24(2) — Breaches were all temporally and contextually connected to evidence sought to be excluded; they all occurred in course of same transaction — Crown's "harmless error" argument was rejected — Trial judge unreasonably discounted seriousness of officers' dishonest testimony about arrest by speculating about their motives for lying — Three Charter breaches were close to "extreme end of seriousness" — Admission of evidence in light of seriousness of breaches, and especially officer's dishonest testimony, could send message that justice system condoned this conduct.
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