New & Notable: Illustrating the need for 24(2)

TGH sexually abused his step-son and step-daughter when they were children. The abuse spanned a period of 10 years. The abuse included acts of oral and anal sex that would give the step-son a direct view of TGH’s anal area. The step-son reported to police (and later testified at trial) that TGH had a flap of skin or “skin tag” over his anus. The step-son provided a detailed description of the skin tag, including its approximate size, appearance, and location.

TGH was arrested, provided with his right to counsel, interviewed, and ultimately released from custody. Ten months later the detective in charge of the case obtained a general warrant pursuant to section 487.01 of the Criminal Code, authorizing her to take TGH to a hospital, examine his anal area, and if a skin tag was found to photograph it. The detective attended TGH’s home and showed him the warrant. She did not advise TGH of his right to counsel when she detained him, or at any time during the execution of the warrant. TGH was brought to the hospital where he was told to bend over or lie on the bed and spread his buttocks. The detective observed a skin tag near TGH’s anus and took three photographs.

At trial the accused applied to exclude the evidence of TGH’s skin tag pursuant to section 24(2) of the Charter, on three grounds:

  1. The search in this case interfered with the bodily integrity of TGH, and consequently was outside of the scope of the general warrant provisions of the Criminal Code, thereby breaching his rights under s. 8.
  2. The search was not carried out in a reasonable manner, in that the detective required TGH to spread his buttocks, which was not expressly authorized by the warrant, thereby breaching his rights under s. 8.
  3. The detective did not advise TGH of his right to counsel when she detained him and brought him to the hospital to be examined, thereby breaching his right to counsel under s. 10(b).

The trial judge found that TGH’s Charter rights were not breached and admitted the evidence: [2012] OJ No 6478 (SCJ).

On appeal, TGH raised only the second and third ground. The Ontario Court of Appeal ruled that the search was carried out in a reasonable manner and no s. 8 breach occurred. The court found that TGH’s s. 10(b) rights were breached, but admitted the evidence under s. 24(2). In the result, the appeal from conviction was dismissed: 2014 ONCA 460 

The search was carried out in a reasonable manner

The Court of Appeal acknowledged that the search authorized by the general warrant was “invasive under any definition of that word,” and agreed that the powers granted to police by such a warrant should be both carefully delineated and narrowly construed [para. 47].

Nevertheless, the Court held that a warrant authorizing police to view a part of a person’s body necessarily includes positioning or bodily movements that allow a full viewing:

Setting aside intrusive measures that could compromise bodily integrity and, therefore, exceed the scope of a general warrant, I regard the authority to view a part of a person’s body as necessarily including positioning or bodily movements so as to allow a full viewing.  For example, if the police were authorized to view the area under a person’s arm for the presence of a tattoo, I have no doubt that the warrant would empower the police to require the subject to lift his arm.  The requirement that the appellant spread his buttocks, while no doubt more embarrassing than lifting one’s arm, is qualitatively no different for the purposes of assessing the reasonableness of the manner in which the police executed the warrant.  [para 48]

Police were required to advise TGH of his right to counsel upon detention

It was not in dispute that TGH was detained when the detective attended his house, showed him the general warrant, and brought him to the hospital to be examined. The arguments on appeal focused on whether, having complied with the right to counsel at the time of initial arrest, a second right to counsel warning was required when TGH was detained 10 months later for the purpose of executing the general warrant.

The Supreme Court of Canada in R v Sinclair, 2010 SCC 35 (CanLII), held that in most cases an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b) [para 2].

The Ontario Court of Appeal disagreed that this principle relieved police of the obligation to provide the right to counsel when TGH was detained for the purpose of executing the general warrant.

First, the Court held that the facts of this case were distinguishable from Sinclair because there were two different detentions separated by a significant period time:

I do not think Sinclair supports the trial judge’s holding that the police were not obliged to advise the appellant of his s. 10(b) rights.  I come to that conclusion for two reasons.  First, the principle enunciated in Sinclair assumes a single ongoing detention and speaks to situations in which the police are obliged to repeat the detainee’s s. 10(b) rights in the course of that single detention.  In my view, Sinclair has no application to a situation like this where the appellant was arrested, advised of his s. 10(b) rights as required, released, and then some 10 months later detained for the purpose of executing the general warrant.  The initial detention upon arrest in January 2011 and the subsequent detention for the purpose of executing the warrant in October 2011 were entirely distinct from each other and must be treated as such for the purposes of s. 10(b).  The question raised on these facts is not whether the police were required to restate the appellant’s s. 10(b) rights in the course of his detention, but rather whether they were required to comply with s. 10(b) when they detained the appellant for a second time many months after the initial detention. [para 37]

Second, the Court held that, in any event, Sinclair requires police to provide the right to counsel a second time when the circumstances are such that the purpose animating the right to counsel requires a repetition of the s. 10(b) rights:

Even if I am wrong and the principle in Sinclair does apply, the appellant’s detention in October 2011 for the purpose of executing the general warrant falls squarely within one category of cases that Sinclair recognizes as requiring a second compliance with s. 10(b).  As Sinclair explains, at para. 50:
The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee.  Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation.  It follows that to fulfill the purpose of s. 10(b) of providing the detainee with information necessary to make a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary. [Citation omitted; emphasis added.]
The examination authorized by the general warrant was about as far from a “routine procedure” as one could get.  No one would suggest that the appellant’s lawyer, when he was advising the appellant at the time of his arrest, could have anticipated an order in the terms of the general warrant and given the appellant the appropriate advice.  It also is irrelevant that the appellant was required to comply with the warrant and that any advice he might have received from his lawyer would not have altered that reality.  The appellant was entitled to legal advice even if that advice left him with few, if any, options other than compliance.  The appellant was entitled to legal advice about the scope of the warrant and exactly what he had to do or, more importantly, not do, to comply with the warrant.  In any event, and assuming the lawyer could do nothing other than tell the appellant to comply with the warrant, that advice could be important in that a reasonable detainee, in the appellant’s position, might well refuse to allow the police to do what the warrant authorized.  Without proper legal advice, a detainee might well refuse to cooperate and find himself in further difficulty with the law. [paras 39-40]

The absence of a causal connection and the nature of the allegations were factors supporting admission of the evidence under s. 24(2)

In its s. 24(2) analysis the Court first noted the absence of a causal connection between the Charter breach and the evidence that was obtained. However, the evidence could still be excluded under s. 24(2) because there was a “clear temporal and transaction link between the breach, the execution of the warrant, and the retrieval of the evidence.” In this case the link was sufficient to trigger the exclusionary power of s. 24(2) [para 52].

Regarding the seriousness of the breach, the Court noted that the detective treated TGH with respect and dignity during the search procedure. Her conduct did not require a court to dissociate itself from the evidentiary fruit of her conduct [para 57]. The seriousness of the breach was also reduced because the detective did not question TGH, thus respecting his right to silence [para 56].

The Court concluded that the impact of the breach on the Charter-protected interests of the accused was tempered by two factors.

First, the police did not attempt to take advantage of the absence of legal advice by attempting to elicit incriminating evidence from the appellant in the form of admissions or other statements [para 59].

Second, there was no causal connection between the breach of TGH’s right to silence and the evidence obtained. Nothing suggested that anything a lawyer may have said would have altered the course of the police conduct:

The police would have taken the appellant to the hospital, executed the warrant as they were entitled to do and the photographs would have been taken.  The absence of any causal connection between the breach of s. 10(b) and the obtaining of the challenged evidence leads me to conclude that the evidence would have been available even if the police had complied with s. 10(b).  This diminishes, to some degree, the significance of the breach on the appellant’s Charter-protected interests: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 69-74; R. v. MacMillan, 2013 ONCA 109, 296 C.C.C. (3d) 277, at paras. 67-72. [para 60]

Finally, the Court held that society’s interest in an adjudication on the merits strongly favoured admission of the evidence. This was true, firstly, because the evidence was reliable.

The Court went further and held that the availability of reliable evidence capable of corroborating the complainants had additional significance in a trial of historical sexual assault allegations:

The negative impact on the administration of justice when reliable evidence is excluded is arguably particularly significant in cases involving allegations of historical sexual assaults.  In many of those cases, there is little evidence independent of the complainant’s allegations and the accused’s denials.  The outcome often turns on difficult credibility assessments.  The availability of independent reliable evidence can be important to the maintenance of confidence in the administration of justice in this kind of case.  To exclude that kind of evidence under s. 24(2) runs a real risk of bringing the administration of justice into disrepute. [para 62]

In the result the Court concluded that the observations and photographs of TGH’s anal area were admissible under s. 24(2).