R. v. O'Brien

R. v. O'Brien Collection Decisions of the Court of Appeal Date 2023-03-22 Neutral citation 2023 ONCA 197 Docket numbers C69988 Judges Simmons, Janet M.; Paciocco, David M.; Zarnett, Benjamin Subject Criminal Decision Content WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. COURT OF APPEAL FOR ONTARIO CITATION: R. v. O'Brien, 2023 ONCA 197 DATE: 20230322 DOCKET: C69938 Simmons, Paciocco and Zarnett JJ.A. BETWEEN His Majesty the King Respondent and John O’Brien Appellant Paul Socka, for the appellant Andrew Hotke, for the respondent Heard: February 6, 2023 On appeal from the conviction entered on June 14, 2021, and the sentence imposed on November 1, 2021, by Justice Elaine A.A. Burton of the Ontario Court of Justice. Paciocco J.A.: OVERVIEW [1] A caregiver created pornographic images and videos of a seven-year-old child in her care. Police learned that she had been sharing images and videos with several individuals, including with someone using an IP address that was linked to the appellant, John O’Brien’s, home. On February 28, 2019, police obtained a warrant to search Mr. O’Brien’s home for electronic devices and related items, including notes of device passwords The execution of that warrant yielded evidence that led to Mr. O’Brien being charged with accessing child pornography over the previous eleven-month period. [2] At his trial Mr. O’Brien applied to have the evidence secured during the execution of the search warrant excluded because of alleged breaches of the Canadian Charter of Rights and Freedoms. The trial judge found that the manner in which the search was executed contravened s. 8 of the Charter, and that during the search the police also breached ss. 9 and 10(b) of the Charter. The trial judge excluded evidence extracted from Mr. O’Brien’s iPhone after the trial Crown conceded its exclusion but held that the admission of the evidence secured from a Dell computer located in the house, as well as a seized USB thumb drive and photographs taken in the basement of the home would not bring the administration of justice into disrepute. [3] On the strength of the admitted evidence, Mr. O’Brien was convicted of accessing child pornography contrary to s. 163.1(4.1) of the Criminal Code, R.S.C., 1985, c. C-46. [4] Mr. O’Brien was sentenced, after a joint submission, to one year in jail followed by two years of probation, as well as ancillary s. 161 orders. The trial judge included two three-year s. 161(1) prohibition orders in Mr. O’Brien’s sentence that were not the subject of the joint sentencing position, namely an order pursuant to s. 161(1)(c) that he not have unsupervised contact with anyone under the age of 16 years, and an order made pursuant to s. 161(1)(d) that he not use the internet or other digital network. [5] Mr. O’Brien appeals his conviction, arguing that the trial judge erred in her s. 24(2) decision by admitting the evidence that she did, thereby requiring a new trial. He also seeks leave to appeal the two s. 161 orders I have just described. [6] For the reasons that follow, I agree that the trial judge erred in admitting evidence seized from the Dell computer. I would therefore allow Mr. O’Brien’s conviction appeal and order a new trial. Given this outcome it is unnecessary for me to comment on the sentence appeal. I will say no more about it. MATERIAL FACTS [7] On February 28, 2019, at approximately 9:00 a.m., Mr. O’Brien and his wife, Kathryn King, were awakened by banging on the door of their home, where they were sleeping. When Mr. O’Brien robed and answered the door, three police officers were present. They identified themselves, showed him the search warrant, which included the authority to search and seize electronic devices, and entered the house. [8] It is unclear exactly what transpired during the search, which lasted slightly more than an hour and culminated in Mr. O’Brien’s arrest. The police officers had incomplete notes with “disappointing” gaps on several points, and although the trial judge found Mr. O’Brien and Ms. King to be credible witnesses, she found that they may not be entirely reliable because they were somewhat overwhelmed by events. In her reasons for decision, the trial judge described the factual claims of both parties in some detail but did not offer a complete factual narrative of the events. [9] For their part, Mr. O’Brien and Ms. King described a highly intrusive police entry, with Ms. King in bed wearing only a tank top when the officers entered, yelling commands, directing Mr. O’Brien and Ms. King’s movements, separating them, and not telling them they were free to leave or that they did not require permission to undertake acts such as making coffee or going to the bathroom. They testified that almost immediately upon entry, the officers demanded the passwords to their personal electronic devices – in Mr. O’Brien’s case to his iPhone and Dell computer, and in Ms. King’s case to her iPhone. Mr. O’Brien and Ms. King testified that they provided the passwords, believing they were compelled to do so. With respect to the Dell computer that was kept in the basement, Mr. O’Brien testified that he followed an officer down to the computer and wrote the password down on a piece of paper. [10] The officers denied separating Mr. O’Brien and Ms. King. D.C. Rieder testified that she advised Mr. O’Brien and Ms. King that they were free to leave. None of the officers had any recollection of asking for the passwords to the Dell computer, but D.C. Rieder testified that she asked Mr. O’Brien for the password to his iPhone after entering the home. She also believed that she obtained the password for Ms. King’s phone. [11] D.C. Dunnill, the forensic computer examiner who was present during the search, confirmed that he accessed and previewed Mr. O’Brien’s iPhone with a password provided by another officer. He testified that upon executing search warrants for electronic devices, police routinely ask for passwords without explaining that it is unnecessary to comply, and without explaining what the consequences of compliance would be. [12] D.C. Hagstrom testified that he gained access to the Dell computer using a password he found written on a piece of paper that was in front of the Dell computer. The Section 8 Violation [13] Based on the evidence before her, the trial judge found that the manner in which the police conducted the search violated s. 8 of the Charter. Specifically, she found that the police contravened s. 8 of the Charter by asking Mr. O’Brien and Ms. King for passwords to their electronic devices during the execution of the search warrant, without seeking their informed consent. The trial judge found that the police did so, knowing that Mr. O’Brien and Ms. King had a heightened expectation of privacy in their digital devices and passwords, and that Mr. O’Brien and Ms. King were not required to provide those passwords. She found, based on the evidence, that this was routine behaviour, and commented, “I am very concerned about the apparent cavalier attitude towards obtaining passwords, by asking for them without explaining the basics of valid consent.” She commented at the end of her decision, “This is a serious matter which needs to be addressed by the police service.” [14] Although she did not say so expressly, it is clear from her decision that the trial judge accepted the evidence before her that without the password to Mr. O’Brien’s iPhone it would have been very difficult to access its contents. She also accepted the evidence before her that it would be an easy matter to gain access to the Dell computer without the password. Indeed, she concluded that although Mr. O’Brien gave the police the password to the Dell computer, and may well have done so in writing, this was not the written record D.C. Hagstrom used to gain access to the Dell computer. The piece of paper containing the password that he used was already in front of the computer when the police arrived. The Sections 9 and 10(b) Violations [15] The trial judge concluded that although the execution of the warrant was calm and orderly and not forceful, a reasonable person in Mr. O’Brien’s position would conclude that they were detained, as the result of the focused investigation that took place in their home for approximately an hour under the lawful authority of the search warrant. The trial judge did not accept the testimony of D.C. Rieder that she had advised Mr. O’Brien and Ms. King that they were free to leave. As a result, she found that Mr. O’Brien “[was] not aware of [his] rights and options, including the right to leave, [his] level of freedom within the house, and the right to call counsel for advice”, and that even though the police had not separated Mr. O’Brien and Ms. King or told them that they must ask permission to do things, they reasonably believed that they were being separated and needed such permission. The trial judge commented, “I find it is not necessary to determine a specific starting point [for the detention], but this conversation [advising them of their rights] should have taken place early in the search process.” She therefore concluded that “both sections 9 and 10(b) were infringed.” Section 24(2) [16] The trial judge set out the governing test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The Grant test determines whether the admission of unconstitutionally obtained evidence would bring the administration of justice into disrepute, thereby requiring exclusion, based on a balancing of three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the Charter violation on the Charter-protected interests of the accused, and (3) society’s interest in an adjudication of the case on its merits. The trial judge did not explain her application of the three Grant factors to the search of Mr. O’Brien’s iPhone, after accepting the trial Crown’s concession that the contents of that search required exclusion, pursuant to s. 24(2). She did explain her application of the three Grant factors to the balance of the evidence and found that its admission would not bring the administration of justice into disrepute. It is convenient to describe her material reasoning in this regard while analyzing the grounds of appeal. ISSUES [17] Mr. O’Brien argues that the trial judge committed two errors in undertaking her s. 24(2) analysis and he raises three issues: A. Did the trial judge err in her assessment of the seriousness of the s. 8 violation by ignoring her findings that the officers had a routine practice of unlawfully demanding device passwords? B. Did the trial judge err in her assessment of the impact of the Charter breaches by failing to consider the iPhone breach? C. If the trial judge erred, should the balance of the evidence be excluded? [18] For the following reasons, I would allow ground of appeal A. I am persuaded that the trial judge erred in legal principle in her assessment of the seriousness of the s. 8 violation. [19] I would not allow ground of appeal B. I am not persuaded that the trial judge erred in her assessment of the impact of the Charter breaches by failing to consider the impact of the iPhone breach. [20] As the result of the trial judge’s error in assessing the seriousness of the Charter violations, deference is not owed to her decision to admit the evidence that she did: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. I would therefore undertake the s. 24(2) analysis anew, and exclude the evidence secured from the Dell computer, but not the USB thumb drive, or the photographs taken by the police in the basement during the execution of the search warrant. I would therefore set aside the conviction and order a new trial. ANALYSIS A. The Seriousness of the s. 8 Violation [21] I will note at the outset that the Crown argued on appeal that the request by the police for the passwords to the electronic devices was not a breach of s. 8. Rather, the appeal Crown conceded that a serious s. 10(b) violation occurred when the police asked for the passwords before Mr. O’Brien had a reasonable opportunity to consult counsel. Given the trial judge’s detention finding, which was not challenged on appeal, I accept the Crown’s concession that s. 10(b) was violated and that this violation was serious. A similar violation occurred in R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240 (Ont. C.A.), at para. 11. However, I do not agree that no s. 8 violation occurred. [22] I need not address the more general question of whether or when asking questions can amount to a search within the meaning of s. 8 to explain why the trial judge was correct in this case in finding a s. 8 violation. It is trite law that an otherwise lawful search can become unreasonable because it was executed unreasonably: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. It is important to recognize, in my view, that the execution of a search warrant creates an inherently coercive atmosphere. Officers are empowered by law to enter a place, in this case a dwelling house, and to take control of the occupants to facilitate the search. It was while making commands under the authority of the search warrant, in this coercive atmosphere, and almost immediately upon entering the dwelling house, that police officers began to ask the occupants for their passwords, knowing that the occupants were not lawfully required to furnish them. In these circumstances, I agree with the trial judge, and with the apparent concession of the trial Crown, that the manner in which this search was conducted contravened s. 8 of the Charter. [23] I also agree that the trial judge erred in assessing the seriousness of this breach. I do not accept the Crown’s submission that she simply gave less weight to the seriousness of the breach than others may have done, as she was entitled to do. As Mr. O’Brien argues, the trial judge erred by failing to consider her own findings about the systemic nature of the s. 8 breach when assessing its seriousness. I will elaborate. [24] In Grant, at paras. 72-75, McLachlin C.J. and Charron J. for the majority explained that this first line of inquiry under the Grant test – the evaluation of the seriousness or gravity of the offending state conduct – focuses upon the level of fault of the breaching officers in the circumstances. In R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 82, Jamal J. explained that there is a spectrum or scale of police misconduct. The more serious the offending conduct, the more pressing the need for the court to dissociate itself from the fruits of that conduct. [25] It is also settled law that the seriousness of the breach is aggravated where there is a systemic problem or pattern of Charter-infringing conduct: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286 (Ont. C.A.), at para. 85, citing Grant, at para. 75; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25. This follows from the prospective role that the exclusionary rule is to play, in which “the judge’s analysis must focus on systemic concerns”: Grant, at para. 201. [26] In this case, the trial judge made strong findings about what can only be characterized as a deliberate pattern of systemic misconduct by the cybercrime officers involved in Mr. O’Brien’s investigation. As I have indicated, the trial judge found that the officers involved in the search understood the heightened expectation of privacy in electronic devices and in passwords for such devices, yet routinely asked for passwords while acting under the compulsory authority of search warrants, without concern for the validity of the consent they were seeking. Not surprisingly, given this finding, the trial judge expressed concern about the “apparent cavalier attitude” of the police in obtaining passwords and noted that this “is a serious matter which needs to be addressed by the police service.” [27] Yet, without mentioning these findings when assessing the seriousness of the police conduct, she concluded that “[t]he section 8 breach in relation to the Dell was … minimal.” Her finding that the breach was minimal is entirely incompatible with her characterization of the offending police conduct as systemic. Notably, under the heading in her decision, “Seriousness of police conduct”, the trial judge makes no mention of the routine, cavalier attitude of the cybercrime officers in securing passwords without concern for valid consent. I am persuaded that the trial judge erred by failing to consider the impact that her finding of systemic violations should have had on a proper characterization of the seriousness of the s. 8 breach. [28] The appeal Crown sought to defend the trial judge’s characterization of the seriousness of the s. 8 breach as minimal by noting that the police did not need the password to access the Dell computer, thereby reducing the seriousness of the privacy breach. Even if this was her thinking, it was in error. The fact that evidence was discoverable without a breach is relevant and potentially important to the second Grant factor – the impact of the breach on the Charter‑protected interests of the accused – but has nothing to do with the seriousness of the police misconduct. The seriousness of the breach is an evaluation of the mode that was used for the purpose of acquiring the evidence, a consideration entirely unaffected by the availability of alternative modes of discovering the evidence. Moreover, it is illogical to think that discoverability in the instant case somehow lessens the seriousness of a systemic course of Charter violations over multiple cases. [29] I am therefore satisfied that the trial judge erred in principle in evaluating the seriousness of the breaches without considering the systemic nature of the violations, and by finding that the breach relating to the Dell computer was of minimal seriousness. B. ThE Impact of the Breach [30] The trial judge found that “the impact of the section 8 breach was minimal” because it was inevitable that the contents of the Dell computer would be discovered without the password that Mr. O’Brien furnished. Mr. O’Brien argues that the trial judge erred in principle in characterizing the impact of the s. 8 breach as minimal without considering the impact of the s. 8 breach relating to Mr. O’Brien’s iPhone. [31] I agree with Mr. O’Brien that where there are related breaches, the cumulative impact on the Charter-protected rights of the accused should be considered when assessing this Grant factor: R. v. Just, 2020 ONCA 362, 388 C.C.C. (3d) 273, at para. 38; R. v. Culotta, 2018 ONCA 665, (2018), 142 O.R. (3d) 241, at para. 62, aff’d 2018 SCC 57, [2018] 3 S.C.R. 597. That is not to say that differential outcomes cannot be arrived at, with some unconstitutionally obtained evidence being admitted and other such evidence being excluded: Just, at para. 52, citing the pre-Grant decision in R. v. Lauda, (1999), 45 O.R. (3d) 51 (C.A.), at paras. 100-103, as illustrative. Differential outcomes may be required because a number of the factors for consideration in determining whether the admission of evidence will bring the administration of justice into disrepute are linked to the specific evidence sought to be excluded, such as the discoverability doctrine (R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 69-70), the absence of a causal link between the breach and the discovery of the evidence (R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1006; R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 112-16; R. v. Desilva, 2022 ONCA 879, at paras. 87, 97), or even the kinds of evidence sought to be excluded (Grant, at paras. 87-128). The instant point is that cumulative negative impacts on the Charter-protected interests of the accused can enhance the need to exclude evidence to preserve the repute of the administration of justice but should not be permitted to obscure the impact of material considerations that are linked to the specific evidence sought to be excluded. [32] Although the cumulative negative impacts on the Charter-protected interests warrant consideration for related breaches, I am not persuaded that the trial judge failed to consider the overall effect of all the Charter breaches, including the s. 8 iPhone breach, when assessing whether the balance of the evidence obtained during the execution of the search warrant should be excluded. After she excluded the contents of Mr. O’Brien’s iPhone from evidence and commenced her analysis of the admissibility of the remaining evidence, the trial judge said that she did “not intend to spend much time on the issue of the iPhone, as that matter has been settled.” She then recognized explicitly that the s. 8 iPhone breach continued to have “relevance [as] a piece of the larger picture.” Given this, and the presumption that trial judges know the law, I cannot find that the trial judge failed to consider the iPhone breach in assessing the overall impact of Charter violations on Mr. O’Brien’s Charter-protected interests. [33] I would therefore reject this ground of appeal. C. should the balance of the evidence be excluded? [34] Given that the trial judge erred in legal principle in her s. 24(2) analysis, I must undertake the s. 24(2) analysis afresh. I will include consideration of the s. 8 breach relating to Mr. O’Brien’s iPhone in that analysis, as it is a related breach that can affect the assessment of the Grant factors. However, the trial Crown consented to the exclusion of the contents of Mr. O’Brien’s iPhone at trial, and the appeal Crown has not asked for reconsideration of that determination. I will therefore refrain from commenting on how the Grant factors bear on the admission of the contents of Mr. O’Brien’s iPhone and will confine my comments on the effects of each factor on the admission of evidence that is at issue on this appeal, namely the contents of the Dell computer, the USB thumb drive, and the photographs taken during the search of the basement area of Mr. O’Brien’s home. [35] For the following reasons, I would exclude the evidence extracted from the Dell computer but would not exclude the USB thumb drive. Nor would I exclude the photographs of the basement the police took during the search. The Seriousness of the Breaches [36] In my view, on the factual findings made by the trial judge, the s. 8 Charter breaches that occurred when Mr. O’Brien was asked to provide the passwords to his electronic devices were at the most serious end of the spectrum. Those breaches can only be described as wilful, given the trial judge’s finding that the police, aware of the heightened expectation of privacy that Mr. O’Brien had in his electronic devices, decided to seek the passwords without concern for obtaining his valid consent and despite knowing what valid consent entails. These “cavalier” and deliberate s. 8 violations were significantly aggravated by their systemic character. The trial judge found that this was routine behaviour and recognized that it is a serious matter that needs to be addressed.[1] [37] I accept the trial judge’s conclusion that the s. 9 breach was of minimal seriousness. There is no basis on the evidence for inferring that the police intentionally set out to detain Mr. O’Brien or acted negligently in doing so. I would say, however, that given the inherently coercive nature of warrant execution, and the reaffirmation in R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, that psychological detention can occur during the execution of search warrants, police officers who assume control over occupants in order to secure the scene of a search should pay closer attention to whether there are objectively reasonable indications that those persons may consider themselves to be detained than the police officers did in this case. It is a simple matter to explain to occupants why they are being directed, and to notify them when and where they are free to go. [38] I cannot share the trial judge’s conclusion that the s. 10(b) breach was of minimal seriousness. As the appeal Crown conceded before us, not only did the police not advise Mr. O’Brien of his right to counsel but they used him as a source of self-incriminating evidence before he had a reasonable opportunity to consult counsel, a breach the appeal Crown recognizes to be serious. [39] Moreover, the ss. 9 and 10(b) breaches, along with the s. 8 breaches, were part of a larger pattern of Charter violations, which enhances the case for exclusion: R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415; R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 81. [40] In my view, the seriousness of the Charter violations, particularly the s. 8 violation and the s. 10(b) violation in using Mr. O’Brien as a source of evidence against himself before he had a reasonable opportunity to consult counsel, strongly favours the exclusion of the remaining unconstitutionally obtained evidence, all of which was temporally and contextually connected to these violations. The Impact of the Breaches [41] I will consider the impact of each Charter breach, in turn, and then collectively. [42] The impact of the s. 8 Charter breach relating to the search of the iPhone was considerable. In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 2, Fish J. commented that “[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search of a personal computer” given the broad spectrum of personal information that personal computing devices, including cellphones, contain. The police had a lawful warrant to seize the iPhones, but on the evidence before the trial judge, they effectively required the password to Mr. O’Brien’s iPhone to access its contents. The s. 8 breach in securing the password to Mr. O’Brien’s iPhone therefore had a significant impact on his Charter‑protected interests. [43] In contrast, the s. 8 breach relating to the Dell computer had little impact on Mr. O’Brien’s Charter-protected interests. The discoverability doctrine, relied upon by the Crown, is not needed to blunt the impact of the s. 8 breach relating to the Dell computer password because of the trial judge’s finding that the password provided by Mr. O’Brien in response to police requests was, in fact, not used to gain access to its contents. Moreover, the police had a valid warrant to view the contents. Apart from the privacy interests inherent in the password itself, the s. 8 violation had no impact on Mr. O’Brien’s Charter-protected interests relating to the Dell computer. [44] Similarly, the s. 8 violations had no discernible impact on Mr. O’Brien’s privacy interest in the USB thumb drive, which was not password protected, and no discernible impact on any Charter-protected interests relating to the photographs taken by the police in the basement. [45] The trial judge found the impact of the s. 9 violation on Mr. O’Brien’s Charter‑protected interests was lessened because the police were firm but not verbally or physically abusive or threatening. I agree. The duration of the unconstitutional detention was also brief and occurred within the relative comfort of Mr. O’Brien’s home, as opposed to a police vehicle or cell. [46] In contrast, the s. 10(b) breach was impactful. Not only was Mr. O’Brien not advised of, or provided with, the right to counsel when detained, the police conscripted him as a source of information that could be used against him in his own investigation, without first providing him a reasonable opportunity to consult counsel. [47] The trial judge found that the impact of this s. 10(b) breach was lessened in significance because “[l]egal advice options would have been limited at that point and would not have brought the lawful search to an end”. With respect, this understates the impact of the s. 10(b) violation. [48] First, even where apparent legal options may be limited, such as where breath demands have been made in alcohol-driving cases that must be complied with, this does not lessen the impact of a s. 10(b) breach. Neither the right to consult counsel or its importance is contingent on the prospect that the advice will have a significant impact in ameliorating the legal peril the accused is facing. In any event, Mr. O’Brien provided his passwords because he felt compelled to do so. Had he received legal advice he may have discovered that he was not required to furnish them. [49] In addition, the right to counsel serves a range of interests that go beyond the receipt of substantive legal advice, including providing a “lifeline to the outside world” (R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561 (C.A.), at para. 105), educating the subject about the “procedures brought to bear”, such as bail release, and ensuring that the subject is not entirely at the mercy of the police while detained” (R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 (C.A.), at para. 45). Mr. O’Brien did not enjoy these benefits because of the s. 10(b) breach. [50] The primary impact of the s. 10(b) breach, however, arises from the fact that Mr. O’Brien was conscripted to assist in the investigation against him by providing his passwords, without having had a reasonable opportunity to consult counsel. As I have explained, the police wanted the password as a means of gaining access to incriminating information. By asking Mr. O’Brien to provide that password they were seeking self-incriminating information from him. The indignity of being conscripted to assist in one’s own incrimination in this way, in violation of s. 10(b) of the Charter, is not an insignificant deprivation of Mr. O’Brien’s Charter-protected interests, even in the absence of a causal connection between that breach and the evidence sought to be admitted. [51] In all of the circumstances, the impact of the s. 10(b) breach was moderate, arguably even serious. [52] As indicated, apart from the contents of the iPhone, the admissibility of which is not at issue before us, Mr. O’Brien sought the exclusion of three categories of evidence, namely, the contents of the Dell computer, the USB thumb drive, and the photographs. There are further considerations that are linked to the particular evidence sought to be excluded relevant to an evaluation of the impact of the Charter breaches on Mr. O’Brien’s Charter-protected interests. I differentiate between each of the categories of evidence, below, when balancing the Grant factors to determine what evidence requires exclusion. It is convenient to identify and discuss the evidence-specific considerations that bear on the impact of the breaches on Mr. O’Brien’s Charter-protected rights when conducting that balancing. Society’s Interest in an Adjudication on the Merits [53] This Grant factor requires courts to consider the impact that exclusion would have on the truth-seeking function of the trial process. The exclusion of reliable evidence can compromise the ability of the Crown to prove the case on its merits, thereby damaging the repute of the administration of justice, even after appropriate consideration is given to the value in excluding evidence in order to protect the integrity of the administration of justice: Grant, at paras. 79-82. The more important the evidence is to the Crown’s case, the greater the risk of disrepute from its exclusion: Grant, at para. 83. [54] The contents of the Dell computer comprise reliable evidence that, if admitted, would enhance the truth-seeking function of the trial process. However, the appeal Crown acknowledged during oral submissions that even if the contents of the Dell computer are excluded, it would still have a “decent case”, provided the USB thumb drive and photographs are admitted into evidence. [55] I recognize that the charge Mr. O’Brien faced was serious. This is a relevant consideration, but I would give it modest weight since the seriousness of the offence charged “has the potential to cut both ways.” “[W]hile the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.”: Grant, at para. 84. [56] In these circumstances it is my view that the third Grant factor – society’s interest in the adjudication of the case – favours admissibility of the contents of the Dell computer, but not heavily so, provided the USB thumb drive and photos are not excluded. In contrast, exclusion of all of this evidence would gut the Crown’s case and damage the repute of the administration of justice. Balancing [57] After balancing the three Grant factors in all the circumstances I am persuaded that the admission of the contents of the Dell computer would bring the administration of justice into disrepute and must be excluded. [58] I would exclude the Dell computer from evidence primarily because of the seriousness of the ss. 8 and 10(b) violations relating to the conscription of Mr. O’Brien to provide his passwords. As the majority reaffirmed in Lafrance at para. 90, “while the first two [Grant] lines of inquiry typically work in tandem it is not necessary that both of them support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute”. The seriousness of the violations makes exclusion of the Dell computer appropriate, even though I have made more modest findings relating to the impact of the breaches on Mr. O’Brien’s Charter-protected interests. [59] Ordinarily, the third Grant factor pushes in favour of admission, but as I have explained, this factor does not heavily favour the admission of the contents of the Dell computer, provided the USB thumb drive and the photographs are admitted. As I explain below, I am persuaded that the admission of USB thumb drive and the photographs taken in the basement would not bring the administration of justice into disrepute. They should therefore be admitted. Admitting this other evidence reduces the negative impact that exclusion of the contents of the Dell computer would have on the administration of justice. [60] I am therefore satisfied that the admission into evidence of the contents of the Dell computer would bring the administration of justice into disrepute. I would exclude the contents of the Dell computer from the evidence. [61] As indicated, I do not arrive at the same outcome with respect to the USB thumb drive and the photographs. The ss. 8 and 10(b) Charter violations that occurred when the police secured Mr. O’Brien’s passwords related to the investigation of the electronic devices, not this evidence. In my view, this reduces the need to exclude this evidence, notwithstanding the seriousness of the s. 8 and s. 10(b) violations, and the impact of the breaches. It is well established what even where there is a temporal and contextual link between breaches and the discovery of evidence, the absence of a causal connection is a factor that may reduce the need to exclude evidence: Strachan, at para. 47; Keshavarz, at paras. 112-16; Desilva, at paras. 87, 97. I find that it does so in the circumstances of this case. The exclusion of the contents of the Dell computer, which have a more compelling contextual link to the breaches, will adequately signal that the Charter breaches cannot be condoned and that Charter rights matter. [62] Moreover, since the USB thumb drive and photographs provide cogent, reliable evidence of a serious offence that is needed to permit a trial on its merits given the exclusion of the contents of the Dell computer, exclusion of this additional evidence will bring the administration of justice into disrepute. [63] In my view, in these circumstances the repute of the administration of justice is best preserved by admitting the USB thumb drive and the photographs, and I would do so. CONCLUSION [64] I would allow Mr. O’Brien’s appeal since the trial judge erred in principle in her s. 24(2) decision. Considering the s. 24(2) issue anew, I would exclude the contents of the Dell computer but not the USB thumb drive and photographs. I would therefore set aside the conviction and order a new trial at which the contents of the Dell computer would not be admissible. Released: March 22, 2023 “D.M.P.” “David M. Paciocco J.A.” “I agree. Janet Simmons J.A.” “I agree. B. Zarnett J.A.” [1] I note in passing that the systemic nature of this Charter misconduct is punctuated by the fact that the police even secured Ms. King’s password and previewed her phone, despite knowing that their suspect was a man who had sent a photograph of his penis to the caregiver.