Notice of Constitutional Question (RTA)

TSL-62310-15-IN (Re), 2015 CanLII 85061 (ON LTB)

1. The Tenant served the Landlord and the Attorney General of Ontario with a Notice of Constitutional Question. The Tenant claims that, on February 3, 2015, TPS conducted a warrantless search of the unit and that such search was in breach of sections 7 and 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, (“the Charter”). The Tenant argues that any and all evidence obtained during the course of the search must be excluded pursuant to s. 24 of the Charter as the search was warrantless and unreasonable.

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3. Although this was not argued by the parties, before turning to the determination Tenant’s motion, I should first deal, generally, with the issue of admissibility in civil proceedings of evidence that was obtained in breach of the Charter and Kelly v. Ontario, 2014 ONSC 3824 (CanLII), is a good starting point. After referring to the dissenting judgment by Major and McLachlin JJ. In Mooring v. Canada (National Parole Board) 1996 CanLII 254 (SCC), [1996] 1 S.C.R. 75, Belobaba J. states, at paragraphs 18 and 36-37, as follows:

In other words, context is everything and the criminal context is significantly different than the civil or administrative context. The importance of context has been acknowledged by appellate courts and in lower court decisions.

Nonetheless, even where there is serious police misconduct in a criminal proceeding and the unlawfully obtained evidence is or could have been excluded under s. 24(2), it does not follow that the same evidence will or should be excluded in a civil or administrative proceeding. The strong message of the Supreme Court in the Mooring to Conway line of cases discussed earlier is two-fold: one, evidence excluded in criminal proceedings may well be admitted in administrative proceedings because the context of the s. 24(2) inquiry in the civil or administrative context is very different; and two, given that specialized administrative tribunals have primary jurisdiction to make s. 24(2) decisions, they should be allowed to do so.

In other words, the Discipline Committee should be allowed to continue with its hearing and decide whether or not the impugned evidenced should be excluded under s. 24(2) of the Charter. In my view, it is the Discipline Committee that is in the best position to understand its regulatory context and whether or not the admission of the impugned evidence in this context would bring the administration of justice into disrepute.

4. Earlier, in Chrysler Credit Canada Ltd. V. Arnold, 2006 CanLII 12424 (ON SC), Belobaba J. stated, at paragraphs 11-12, as follows:

Even if the issue that is being “relitigated” is characterized as whether or not the breathalyzer evidence is admissible in a judicial proceeding, the case law is clear that the issue of the admissibility of evidence can indeed be “relitigated” when one moves from the criminal forum to the civil forum because criminal and civil proceedings are “entirely different.” Criminal proceedings, even where the Charter or Rights is invoked, cannot per se determine the admissibility of evidence in civil proceedings: P.(D.) v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. 3d 229 (C.A.) at para. 77. Also see Houle v. Mascouche (Ville) (1999) 1999 CanLII 13256 (QC CA), 179 DLR (4th) 90, (Que. C.A.)

The second ground, bringing the administration of justice into disrepute, draws on the language in s. 24(2) of the Charter of Rights. The Court of Appeal has held that whether or not the administration of justice is brought into disrepute is a matter that requires the trial judge in the civil action to “consider all the circumstances of the case:” Wagg, supra, at para. 69. These circumstances will include, for example, the seriousness of the Charter breach and the effect of denying a litigant that had nothing to do with the unconstitutional conduct that led to the exclusion in the criminal action relevant evidence that it may need to prove its civil action.

5. In the instant case, I do not have the benefit of the guidance of a decision in previous criminal proceedings excluding the impugned evidence. As stated below, it appears that the Crown has withdrawn the drug-related charges against the Tenant, however, the reasons for the Crown’s decision is not evidence before me. Unlike in Chrysler, supra, the issue of admissibility of evidence is not being “relitigated” before me, rather the Board is the forum of first instance determining the admissibility of the impugned evidence and it is the Landlord seeking to have the evidence at issue admitted.

6. For these reasons, as proceedings before the Board are essentially civil proceedings, and in keeping with the direction of the Ontario Court of Appeal in Wagg, supra, I must consider all the circumstances of the case in reaching a decision about whether the admissibility of the impugned evidence would bring the administration of justice into dispute. In my view, a proper and complete consideration of all the circumstances, as required, involves a legal analysis akin to that which would be necessarily undertaken in criminal proceedings while keeping in mind that the proceedings before me are civil in nature.