I would quash all of the convictions and enter acquittals.

CITATION: R. v. McGuffie, 2016 ONCA 365 via CanLII – 2016 ONCA 365 (CanLII)

[2]         The appellant’s factual guilt on the charges for which he was convicted was never in doubt.  However, he argued that the police obtained the evidence relied on to establish his guilt in a manner that breached his rights under the Canadian Charter of Rights and Freedoms.  He sought to exclude the evidence pursuant to s. 24(2) of the Charter.  The trial judge found several breaches of the appellant’s Charter rights, but declined to exclude the evidence.  He convicted the appellant on the relevant counts.

[3]         The appellant appeals, renews his claim and argues that the evidence should have been excluded under s. 24(2).

[4]         I would allow the appeal.  The trial judge made three legal errors in his s. 24(2) analysis:

  •      he treated the absence of evidence of systemic institutional non-compliance with the requirements of the Charter as mitigating the seriousness of the police misconduct;
  •      he failed to give any consideration to the impact of the several Charter breaches on the constitutionally protected interests of the appellant; and
  •      he treated the seriousness of the drug charges as the paramount and overriding consideration.

[5]         On a proper s. 24(2) analysis, the evidence should have been excluded.  I would quash all of the convictions and enter acquittals.

The Appropriate Order

[84]        The exclusion of the drugs means that the appellant must be acquitted on the two counts of possession of cocaine for the purpose of trafficking (counts 1 and 2).  There is an argument that one of the breach of recognizance charges (being in an establishment that served alcohol contrary to the appellant’s bail conditions) does not depend on evidence gathered after the various Charter violations.  I do not propose to make that distinction.  Had Constable Greenwood complied with the Charter, the appellant would have been on his way after a brief detention.  He would never have been identified to the police and none of the charges would have been laid. 

[85]      I would enter acquittals on all counts.    


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