Docket
39531
Her Majesty the Queen v. Liam Reilly
(British Columbia) (Criminal) (As of Right)
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2021-11-18 | Appeal closed | |
| 2021-10-28 | Transcript received, 49 pages | |
| 2021-10-14 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2021-10-14 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2021-10-14 | Judgment on the appeal rendered, CJ Mo Ka Côt Br Row Mar Kas Ja, The appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Number CA46220, 2020 BCCA 369, dated December 17, 2020, was heard on October 14, 2021, and the Court on that day delivered the following judgment orally: MOLDAVER J. — We would dismiss this appeal, substantially for the thorough reasons of Justice Griffin on behalf of the majority of the Court of Appeal. We agree that the trial judge erred in his analysis under s. 24(2) of the Canadian Charter of Rights and Freedoms by considering Charter-compliant police behaviour as mitigating. We also agree that the trial judge erred by improperly conducting the overall balancing — whether including the evidence would bring the administration of justice into disrepute — within the first two factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The language of Grant is clear: this overall balancing occurs at the end (para. 85). Judges must first consider whether each of the three factors weigh in favour of inclusion or exclusion of the evidence before asking whether — having regard to all factors — inclusion of the evidence would bring the administration of justice into disrepute. Conducting overall balancing within the first two Grant factors waters down any exclusionary power these factors may have. This type of analysis undermines the purpose and application of s. 24(2). With respect, however, we are unable to agree with the majority of the Court of Appeal that the trial judge properly considered all relevant Charter-infringing state conduct under the first Grant factor. The trial judge considered the Charter-infringing state conduct related to only two of the three s. 8 breaches. Failing to consider state conduct that resulted in the third breach — the clearing search — was an error. Regardless of whether the third breach was caused by the first two breaches, and regardless of the fact that it was considered necessary in the wake of Constable Sinclair’s unlawful entry, it was nonetheless a breach of Mr. Reilly’s s. 8 Charter-protected rights and must be considered under the first Grant factor. Trial judges cannot choose which relevant Charter-infringing state conduct to consider. The trial judge committed errors that required the majority of the Court of Appeal to conduct a fresh s. 24(2) analysis. In our view, we do not lack jurisdiction to consider alleged errors in the majority’s fresh analysis. We see no reason to interfere with their fresh analysis. Accordingly, we would dismiss the appeal and affirm the exclusion of evidence and the order for a new trial. Dismissed |
|
| 2021-10-14 | Hearing of the appeal, 2021-10-14, CJ Mo Ka Côt Br Row Mar Kas Ja Decision rendered |
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| 2021-10-12 | Respondent's condensed book, (Book Form), (Printed version filed on 2021-10-13) | Liam Reilly |
| 2021-10-12 | Appellant's condensed book, (Book Form), (Printed version filed on 2021-10-12) | Her Majesty the Queen |
| 2021-10-01 | Notice of appearance, William E. Jessop will appear before the court, and will present oral arguments. |
Liam Reilly |
| 2021-09-07 | Notice of appearance, Mark K. Levitz, Q.C. will appear before the court, and will present oral arguments. | Her Majesty the Queen |
| 2021-06-28 | Reply factum on appeal, (Book Form), Completed on: 2021-08-12, (Printed version filed on 2021-06-28) | Her Majesty the Queen |
| 2021-06-28 | Notice of hearing sent to parties | |
| 2021-06-28 | Appeal hearing scheduled, 2021-10-14 Decision rendered |
|
| 2021-06-22 | Order on motion to file a reply factum on appeal, by KASIRER J. | |
| 2021-06-22 | Decision on the motion to file a reply factum on appeal, Kas, UPON APPLICATION by the appellant for an order granting it permission to file a reply factum not exceeding five (5) pages on or before June 28, 2021; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion is granted in part. The appellant is permitted to serve and file a supplementary factum, not exceeding five (5) pages, as to this Court’s jurisdiction in this as-of-right appeal, on or before June 28, 2021. The respondent may serve and file a response, not exceeding five (5) pages, to the appellant’s supplementary factum as to this Court’s jurisdiction in this as-of-right appeal, on or before July 5, 2021. Judgment accordingly |
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| 2021-06-22 | Submission of motion to file a reply factum on appeal, Kas | |
| 2021-06-04 | Reply to motion to file a reply factum on appeal, (Letter Form), Completed on: 2021-06-07, (Printed version due on 2021-06-11) | Her Majesty the Queen |
| 2021-05-31 | Response to motion to file a reply factum on appeal, (Book Form), Completed on: 2021-05-31, (Printed version filed on 2021-05-31) | Liam Reilly |
| 2021-05-19 | Motion to file a reply factum on appeal, (Book Form), Missing: Filing Fee, Incomplete, (Printed version due on 2021-05-27) | Her Majesty the Queen |
| 2021-05-05 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2021-05-04 | Certificate (on limitations to public access), Require: Amended 23A - error on Appellant last name (rec'd 2021-05-04), (Printed version filed on 2021-05-04) | Liam Reilly |
| 2021-05-04 | Respondent's factum, (Book Form), Completed on: 2021-05-07, (Printed version filed on 2021-05-04) | Liam Reilly |
| 2021-03-09 | Certificate of counsel (attesting to record), (Letter Form), 24A, (Printed version due on 2021-03-16) | Her Majesty the Queen |
| 2021-03-09 | Appellant's record, (Book Form), (3 volumes), Completed on: 2021-05-17, (Printed version filed on 2021-03-09) | Her Majesty the Queen |
| 2021-03-09 | Appellant's factum, (Book Form), Completed on: 2021-03-09, (Printed version filed on 2021-03-29) | Her Majesty the Queen |
| 2021-01-27 | Letter acknowledging receipt of a notice of appeal | |
| 2021-01-18 | Certificate (on limitations to public access), (Letter Form), (Printed version due on 2021-01-25) | Her Majesty the Queen |
| 2021-01-18 | Notice of appeal, (Letter Form), Completed on: 2021-01-18, (Printed version due on 2021-01-25) | Her Majesty the Queen |
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