Case Name:
R. v. Rachkovsky

Between
Her Majesty the Queen, respondent, and
Erik David Rachkovsky, applicant

[2005] O.J. No. 5682
Court File No. CRIMJ(F) 7926/04

Ontario Superior Court of Justice
J.C. Murray J.

Heard: June 15-16, and July 13, 2005.
Judgment: October 24, 2005.
(57 paras.)

Constitutional law - Canadian Charter of Rights and Freedoms — Legal rights — Protection against unreasonable search and seizure — Remedies for denial of rights — Specific remedies — Exclusion of evidence — Application by accused for exclusion of cocaine found after warrantless search of his vehicle allowed — No reasonable grounds to arrest accused — More likely that officer found cocaine on ground after accused's detention and after preliminary search of vehicle — Accused's detention unreasonable — Searches of accused and vehicle unreasonable — Admission of evidence would bring administration of justice into disrepute and would amount to judicial condonation of unacceptable police conduct.

Criminal law — Powers of search and seizure — Search — Warrantless searches — Application by accused for exclusion of cocaine found after warrantless search of his vehicle allowed — No reasonable grounds to arrest accused — More likely that officer found cocaine on ground after accused's detention and after preliminary search of vehicle — Accused's detention unreasonable — Searches of accused and vehicle unreasonable — Admission of evidence would bring administration of justice into disrepute and would amount to judicial condonation of unacceptable police conduct.

Application by accused for exclusion of cocaine seized pursuant to warrantless search of his vehicle — Accused claimed his rights under s. 8 of Charter were violated — Applicant claimed cocaine and other evidence was discovered by police during course of arbitrary detention — Police had observed accused sitting in vehicle parked near a tavern known for drug trafficking — Two men from tavern approached vehicle on two occasions — One man would sit in passenger seat while other would stand by passenger door — Officers believed they witnessed a drug deal — Police claimed they saw man in passenger seat drop two packages to ground - Police approached vehicle and arrested all three men for possession of cocaine — After searching accused, police searched accused's vehicle — One man told police there was more cocaine in vehicle — Man accurately described to police a black case in which cocaine was kept — Police unable to locate case — Man then searched vehicle thoroughly and located case containing 50 baggies of cocaine — Accused claimed he sold eight baggies to one of the men — Accused claimed police could not see inside vehicle due to black reflective glass — Accused claimed no bags were dropped from vehicle — Accused claimed man in passenger seat removed cocaine packages from his trouser pockets before exiting the vehicle — Accused then noticed four bags of cocaine on ground beside vehicle — Accused claimed police searched vehicle before any cocaine was found by officers — Accused claimed man in passenger seat did not know where cocaine was hidden in vehicle — HELD: Application allowed — Police did not observe passenger drop cocaine out of vehicle — Packages likely dropped as man exited vehicle — Fact that police failed to include in synopsis of evidence prepared after accused's arrest that officer saw man in passenger seat drop drugs to ground was problematic — No adequate explanation given for omission — Evidence of both officers also contradictory in parts — Synopsis provided by police was consistent with accused's evidence — Unlikely that passenger would have searched entire vehicle if he knew where black case was kept — Police evidence that passenger did not know where drugs were located in vehicle was consistent with accused's version and inconsistent with police version — More likely that officer found cocaine on ground after accused's detention and after preliminary search of vehicle — No reasonable grounds for police to believe that drugs were on accused or in vehicle — No reasonable grounds to arrest accused — Accused's detention unreasonable — Searches of accused and vehicle unreasonable — Admission of evidence would bring administration of justice into disrepute and would amount to judicial condonation of unacceptable police conduct.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982 s. 8, s. 10(a), s. 10(b), s. 24(2)

Controlled Drugs and Substances Act s. 11(7)

Counsel:

Carol Letman, for the respondent

Christian Angelini, for the applicant


REASONS FOR JUDGMENT

 1      J.C. MURRAY J.:— This is an application brought on behalf of Eric Rachkovsky for an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude certain evidence (including a quantity of cocaine) seized pursuant to a warrantless search. The applicant asserts that his right to be secure against unreasonable search and seizure as guaranteedby s. 8 of the Charter was violated because the officers involved had no reasonable and probable grounds to search him, or his vehicle. The applicant also asserts that his right not to be arbitrarily detained as guaranteed by s. 9 of the Charter was violated.

 2      The Crown asserts that the search was conducted incident to a lawful arrest of the applicant. The Crown says that a police officer, while approaching a vehicle operated by the applicant, saw a passenger in the motor vehicle drop cocaine on the ground beside the vehicle. The Crown says that this dropping of cocaine was literally at the feet of the officer and in plain view. This observation is said to be the basis of the arrest of the applicant and the justification for the warrantless search of the vehicle that followed immediately after the arrest.

 3      The applicant was detained and searched by police on May 17, 2003. Two markedly different versions of the facts have been presented on this voir dire.

 4      The applicant alleges that cocaine and other evidence was discovered by police during the course of an arbitrary detention, and that the search of his person and vehicle were conducted incident to the arbitrary detention and are therefore unreasonable.

The Crown's Evidence

 5      Constables Smith and King of the Peel Regional Police testified that they were observing a black Cavalier automobile driven by the applicant for a period of time while it was parked outside a local strip club known as the Cannonball Tavern. Both officers testified that the Cannonball Tavern was notorious and known to be a place where drug dealing, liquor licence and firearms offences occur with regularity.

 6      While parked in an unmarked police van watching the parking lot of the Tavern, they witnessed the black Cavalier automobile drive to the parking lot of the Tavern and park. The applicant did not exit from the automobile. During the period of their surveillance of the vehicle, they witnessed two men exit the tavern and visit the vehicle on two different occasions. These men were subsequently identified by the officers as Mr. Martin Bravo and Mr. Paulo Bazzano. On each visit, Mr. Bravo got in the passenger side of the vehicle and Mr. Bazzano stood beside the window of the vehicle on the driver's side. On the first visit, while Mr. Bravo remained in the vehicle, Mr. Bazzano was seen to go to a red van and then return to the black Cavalier. A few moments later, both men returned to the Tavern. After a few minutes, the same two males returned to the black Cavalier and again, Mr. Bazzano went to the driver's side of the vehicle and stood by the driver's window. Mr. Bravo went to the passenger side of the vehicle and entered. Again, the officers witnessed Mr. Bazzano re-attend at the van parked nearby. After spending a few minutes in the van, Mr. Bazzano returned and stood by the passenger door of the Cavalier next to the driver's window. Officers Smith and King concluded that they were probably witnessing a drug deal.

 7      After they moved their unmarked police vehicle, they decided to approach the applicant's automobile on foot. Both officers were equipped with flashlights and had their police badges hanging around their necks. Both officers approached the Cavalier from behind. Constable King went to the driver's side and Constable Smith walked around to the passenger side from behind the vehicle. Constable Smith said that when he was walking around to the passenger side, the passenger window was open, he made eye contact with the passenger whose right arm was sticking out the window of the vehicle and observed the passenger drop two packages, which he believed to be cocaine, on the ground. The police evidence is that immediately after witnessing this drop, all three men were arrested for possession of cocaine. The officers told the occupants of the vehicle to get out and Constable King searched the applicant. Constable King recovered a pager and a cell phone and a roll of currency from the applicant. Constable King said he searched the vehicle immediately after searching the applicant.

 8      Mr. Bravo was described as compliant by Constable Smith and told the police that there was more cocaine in the vehicle. Mr. Bravo was told by Constable King that he would be released unconditionally if he helped the police find the cocaine hidden in the car. Before the cocaine was found, Mr. Bravo was able to describe accurately to the police the hard black case in which the cocaine was kept. Eventually, after Constable King had unsuccessfully searched the vehicle on three occasions, Mr. Bravo, at the request of the police, searched the vehicle. Bravo, during his search, found the small black case secreted behind the dashboard. Approximately 50 "baggies" of cocaine were located.

 9      Neither Bravo nor Bazzano testified.

The Applicant's Evidence

 10      The applicant's version of the facts is very different from that of the officers.

 11      The applicant admits that he sold cocaine (8 baggies) to Mr. Bravo just prior to the arrival of the police officers at the side of the car. He says that any view from outside the vehicle of the inside of the vehicle would have been completely obscured because of its black reflective windows. The applicant said that when the police approached his vehicle the windows were closed except for a gap of about four to 6 inches at the top of the passenger side window and the driver side window. He said that Mr. Bravo did not have his arm out the window and did not drop any cocaine from the passenger side of the automobile when the police were approaching.

 12      Rachkovsky's testimony is that the two police officers approached the vehicle from the driver's side of the car and identified themselves as police. At that time, the applicant put $350.00, which he had just received from Mr. Bravo, under the floor mat. Mr. Bravo put his hand in the left pocket of his trousers and removed cocaine packages. The police told the occupants of the car to get out. The applicant says Mr. Bravo had cocaine in his hand when he exited the car. The applicant says that he did not see what Bravo did with the drugs.

 13      Constable King then instructed the applicant, Bazzano and Bravo to go to the back of the car. According to the applicant, Constable Smith then immediately started a search of the vehicle. While Constable Smith was searching, Constable King said that he knew they had drugs and asked them where they were. Neither the applicant Bravo or Bazzano responded. While Constable King was talking to Bazzano, Bravo and the applicant behind the vehicle and while Constable Smith was searching the car, the applicant says that he saw four bags of cocaine lying on the ground beside the black Cavalier on the passenger side. He walked over and tried to kick the bags under the car without being observed. If the applicant's evidence is accepted, it is likely that Bravo dropped the packages of cocaine on the ground as he exited the vehicle. This dropping of the cocaine would not have been in plain view of the officers because the applicant says that both officers were standing on the passenger side of the vehicle when the applicant and Bravo were told to get out.

 14      According to the applicant, Constable Smith during his search of the vehicle found the $350.00 which had been placed by the applicant under the floor mat in the front of the car. Constable King then searched the applicant and found a roll of currency (according to the applicant, the amount of money seized was $3,150.00), a pager and a cell phone. Constable King seized all these items.

 15      The applicant says that Constable Smith, in the course of his search of the vehicle, looked on the ground adjacent to the passenger side of the vehicle and found two bags of cocaine. Constable Smith then came to the rear of the automobile with the two bags of cocaine. When confronted, none of the three individuals admitted to owning it or to knowing where any other drugs might be found.

 16      It is Rachkovsky's evidence that at this point in time Constable King put him and Mr. Bazzano back in the Cavalier. Officers Smith and King then talked to Mr. Bravo at the rear of the vehicle. Rachkovsky says it was when he was inside the car with Bazzano and the Officers were standing behind the car with Mr. Bravo that he took the small hard black case that contained the drugs (that he had earlier placed between the driver's seat and the centre console) and hid it behind the dashboard.

 17      After speaking with Bravo, the police told Bazzano and the applicant to get out of the car and at that time all three men were arrested for possession. The applicant was handcuffed and taken to the police van and then taken to 22 Division. Bravo and Bazzano were not taken to 22 Division. The police eventually released them without being charged.

 18      In short, the applicant says that he was arbitrarily detained and searched and that his vehicle was searched before any cocaine was found by either officer.

The Issue

 19      If the Crown's evidence is believed, that is if Constable Smith saw Bravo casually drop baggies of cocaine onto the ground while seated in the passenger side of the vehicle, then it is conceded that reasonable grounds to arrest existed and the search of the applicant and of the vehicle were lawful.

 20      If the applicant's version of the facts is correct and Bravo never dropped cocaine of the window of the vehicle in plain view of Constable Smith, the detention was arbitrary and the searches of him and his vehicle were unlawful not being properly incidental to a lawful detention or arrest.

The Burden of Proof

 21      Warrantless searches are presumptively unreasonable. Once it has been established that the search was warrantless, the onus shifts to the Crown to establish on a balance of probabilities that the search was reasonable. In order to be reasonable, a search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. See Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, (2003) S.C.C. 30 at para. 32. As Doherty J. said in Regina v. Belnavis and Lawrence, 107 C.C.C. (3d) 195:

If the respondents can demonstrate a reasonable expectation of privacy, the onus shifts to the Crown to show that the warrantless search was a reasonable interference with that expectation of privacy: Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at pp. 109-10.

 22      It remains to determine, based on the evidence, whether the Crown has met the burden of proof that the search of the applicant and of the black Cavalier was reasonable. In order to establish the reasonableness of the search the Crown must show that the conditions for obtaining a warrant existed, but because of exigent circumstances it was impossible to obtain one (s. 11(7) of the Controlled Drugs and Substances Act).

The Evidence

 23      Viewing the police officers evidence as a whole, serious concerns arise.

 24      Of significant concern is a synopsis of the evidence prepared by Constable King on his return to 22 Division after the arrest of the applicant. The synopsis does say that drugs were found on the ground but, significantly, no mention is made of Constable Smith witnessing the drugs being dropped by Bravo. The synopsis was made prior to Constable King making notes in his notebook of events of the evening. Constable King's evidence was that the purpose of making the synopsis was to provide the Crown and the defence with a record of "the facts in issue relating to the arrest". In short, according to Constable King, the synopsis was to summarize the "who, what, when, where and how".

 25      In cross-examination, when Constable King explained the reasonable grounds for arresting the applicant, they were twofold. First, their surveillance led them to believe they were watching a drug transaction; secondly, as the officers approached the vehicle, Constable Smith saw drugs dropped on the ground by the passenger.

 26      With respect to the first ground, the police based their assessment, in large part, on the fact that the parking lot of the Cannonball Tavern was a notorious location for drug dealing. They did not see any drugs or any hand-to-hand transaction. They did see that the applicant did not get out of the car and was visited twice by two white males. In that location, notorious for drug dealing, they concluded that they were likely witnessing a drug transaction in progress. Certainly these observations together with witnessing Bravo dropping cocaine out the passenger side window in plain view of the police would have justified arrest and search.

 27      Constable Smith's testimony of seeing cocaine being dropped from the vehicle, if accepted, is of central importance. Given the significance of the observation by Constable Smith of cocaine being dropped from the vehicle, and given the fact that the synopsis was prepared to be provided to the Crown and to defence counsel, I am greatly troubled that this very significant fact was omitted from the synopsis. The evidence on the voir dire discloses no adequate explanation was given for this omission.

 28      The facts as set out in the synopsis are consistent with the testimony of the applicant that Constable Smith found the cocaine on the ground beside the passenger door. It will be recalled that the applicant said the discovery of the cocaine by Constable Smith occurred after he had been told by the police to get out of the automobile, after he had been detained and searched and after the search of the vehicle by Constable Smith had begun.

 29      There are also contradictions between the evidence of Constables Smith and King. Constable King said that Smith said to him when they initially approached the vehicle: "I observed the passenger in the motor vehicle drop a package of cocaine out the window". Constable Smith said that he told King: "I found some crack or cocaine".

 30      Officers King and Smith contradict each other on when Constable Smith announced that he had observed to Bravo drop the cocaine. Constable King testified that Smith observed the cocaine being dropped from the vehicle by Bravo, reported his observation to Constable King and then Constable Smith then told the passengers in the vehicle that they were under arrest for possession of a controlled substance. Constable Smith testified that the arrest took place before he told Constable King what he had seen.

 31      I mentioned above that the synopsis of the evidence is consistent with the evidence of the applicant. There is another significant fact that bolsters the applicant's version of the facts. That is, Bravo did not know where in the car the black case was hidden.

 32      The police officers said that at no time after the initial arrest was the applicant allowed back in the car. If the applicant had not returned to the car after the initial arrest, it is reasonable to conclude that Bravo, who saw the applicant's black case when the sale of cocaine took place (or else he would not have been able to describe it accurately to the police officers) would have seen the applicant hide the case under the dashboard.

 33      According to the officers, both the applicant and Bravo were made to exit the police car at the same time. If the officers' version of events is accurate, it is highly likely that the applicant could not have hidden the drugs behind the dashboard except in plain view of Bravo. Bravo was sitting next to him in the car when the police arrived. He and the applicant had just completed a drug transaction. However, when Bravo is authorized by the officers to search the vehicle, he did not immediately search under the dash but made a thorough search of the interior of the vehicle, including the backseat, before he found the case behind the dash. He knew what he was looking for but not where to find it. It is therefore probable that he did not see where the applicant had hidden the drugs or else he would have looked behind the dash first.

 34      The applicant said that when the police first arrived at his vehicle, he put the black case containing the drugs between the driver's seat and the centre console. He says he hid the black case under the dash. He said he hid it there after he and Bazzano were told by the officers to get back in the car so that they could speak to Bravo privately. The police officers deny that they told applicant and Bazzano to get into the vehicle while they spoke to Bravo. If the applicant did not get back in the car with Bazzano, he would have had no opportunity to hide the drugs behind the dash without being observed by Bravo. The police evidence was that Bravo did not know where in the vehicle to locate the drugs. This fact is consistent with the applicant's version of the facts and inconsistent with the police version.

 35      There are other aspects of police conduct on that evening that have caused me concern. I must assess the credibility of the officers in the context of the events of that night.

 36      In the early morning hours of May 18, back at 22 Division, the officers interviewed the applicant. The applicant gave a statement and signed a Consent to Search form which led to a search of his residence and the seizure of more drugs. The applicant was interviewed in a room with video equipment but the video equipment was not used and the interview was not videotaped. There has been substantial judicial comment on the value of videotaping interviews. Videotaping allows the conduct of the police and the accused person to be monitored.

 37      At the outset of the voir dire, the Crown conceded that the inculpatory statement taken from the applicant and a large quantity of cocaine seized from his house is not admissible at trial. This concession was made notwithstanding the Consent to Search form signed by the applicant.

 38      Mr. Rachkovsky alleges that the police used threatening and intimidating behaviour during the interview. In this case, it is not necessary to determine whether such threatening conduct took place but to state the obvious, the videotape would have shed light on the truth of this allegation.

 39      Based on the officers' testimony, breaches of ss. 10(a) and 10(b) of the Charter were established. When the applicant was arrested he was only advised he was under arrest for the offence of possession. At no point prior to the taking of the statement was he ever advised that he was being charged with the more serious offence of possession for the purposes of trafficking. It follows that he was not advised of his rights to counsel or cautioned with respect to the offence of trafficking.

 40      I cannot help but comment on the police using Mr. Bravo as their agent for purposes of searching the vehicle. In R. v. Buhay, [2003] 1 S.C.R. 631, the Supreme Court of Canada commented on individuals acting as agents of the police. It is clear from the reasons for judgment that the court did not want to discourage citizens from helping the police. However, in this case, it is questionable whether the police were well advised to use Bravo to search the applicant's vehicle.

 41      Mr. Bravo was arrested by the police for possession of a controlled substance. The police told Mr. Bravo that he would be unconditionally released if he helped them find the cocaine. Mr. Bravo had a significant personal interest in finding cocaine in the car and asserting that it belonged to the applicant. It is not difficult to see how an interested accused person might compromise the integrity of an otherwise legal search if authorized to search by the police. There was no reason for the police to have delegated authority to Mr. Bravo to search of the applicant's vehicle. While I am not an expert in investigative techniques, it is not difficult to see why this particular method of investigation was inappropriate.

 42      It is in this context that I return to the main question of whether Constable Smith observed Bravo drop cocaine out the window of the passenger door at the feet of Constable Smith at the same time as he made eye contact with Constable Smith. I conclude that on a balance of probabilities, Constable Smith did not make such an observation.

 43      I find it is more likely that Constable Smith found the bags of cocaine on the ground beside the passenger door after the detention of the applicant had commenced and after Constable Smith had made a preliminary search of the vehicle. In this regard, I prefer the evidence of Mr. Rachkovsky.

Conclusion

 44      Counsel for the applicant cited judgments from a number of the United States' courts holding that evidence of accused drug traffickers dropping narcotics in full view of police officers is inherently unreliable. The findings of fact in this case are based on the evidence before me and not on any theory of inherent unreliability of police evidence in cases where narcotics are allegedly dropped in plain view of the police.

 45      Since the officers did not see Mr. Bravo drop cocaine on the ground, they did not have reasonable grounds to believe that there was a controlled substance on the applicant person or inside his vehicle. There were no reasonable grounds to arrest the applicant. Reasonable grounds must be subjectively held and objectively justified. Grounds based on a hunch or on intuition are not sufficient. See R. v. Storrey (1990), 53 C.C.C. (3d) 316. The power of search incident to arrest provides lawful authority for warrantless search in some circumstances. An arrest requires reasonable and probable grounds. However, since the legality of the search is derived from the legality of the arrest, if the arrest is invalid, the search will also be invalid.

 46      In this case, I find that the search of the applicant and the initial search of the vehicle took place pursuant to an investigative detention. As Iacobucci J. said in R. v. Mann (2000), 185 C.C.C. (3rd) 308 at paragraph 20:

A detention for investigative purposes is, like any other detention, subject to Charter scrutiny. Section 9 of the Charter, for example, provides that everyone has the right "not to be arbitrarily detained". It is well recognized that a lawful detention is not "arbitrary" within the meaning of that provision. Consequently, an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee's rights under s. 9 of the Charter.

 47      Iacobucci J. further stated at paragraph 34 and 35:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

R. v. Mann (supra) establishes that police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect that the individual is connected to a particular crime and that such a detention is necessary. In addition, police have limited rights incidental to detention to search an individual. Where a police officer has reasonable grounds to believe that his safety or that of others is at risk, the officer may engage in a protective pat-down search. The right to search incidental to detention is therefore distinguishable and more limited than the incidental power to search on arrest.

 48      The fact that an individual is in a so-called high crime area is relevant only so far as it reflects his or her proximity to a particular crime. The high crime nature of a neighbourhood is not, by itself, a basis for detaining individuals. See R. v. Mann, supra. Therefore, the fact that the Cannonball Tavern was known to be a high crime area did not create reasonable grounds to detain the applicant. Neither did that fact combined with the observations made by the police during the surveillance of the applicant while in the black Cavalier create reasonable grounds for detention. As the police themselves said, they were acting on a hunch or intuition.

 49      The detention of the applicant being unreasonable, it follows that the searches of both the applicant and his vehicle violated the applicant's Charter rights. The police recovered a pager, cell phone and a roll of cash as a result of the search of the applicant. The applicant did have control over the vehicle he was operating. Although owned by his father, he clearly controlled the vehicle. He could and did control who got in as a passenger. He had an expectation of privacy in the vehicle. Without reasonable and probable grounds to arrest, the search of the applicant and of his vehicle exceeded the proper parameters of the search incidental to a lawful detention. In this case, I have found the detention to be arbitrary and in violation of the applicant's Charter rights.

 50      There is also little doubt in my mind that the recovery of cocaine beside the vehicle after the unlawful detention and after the unlawful search of the vehicle had commenced was the direct result of the unlawful detention. There is both a causal and temporal connection. The detention commenced when Bravo and the applicant were told by Officers Smith and King to get out of the vehicle. As noted above, on a balance of probabilities, it is likely that when exiting the vehicle, Mr. Bravo dropped cocaine on the ground beside the vehicle.

 51      The Crown has not rebutted the presumption that the warrantless search was unreasonable.

Section 24(2) of the Charter

 52      In R. v. Collins, [1987] 1 S.C.R. 265 the Supreme Court grouped the circumstances to be considered under s. 24(2) into three categories:

(1)

the effect of admitting the evidence on the fairness of the subsequent trial,

(2)

the seriousness of the police's conduct; and

(3)

the effects of excluding the evidence on the administration of justice.

Trial judges are under an obligation to consider these three factors.

 53      Evidence obtained in violation of the Charter which does not emanate from the accused but rather existed independently of the violation is classified as non-conscriptive evidence. Its admission will not affect adjudicative fairness. The evidence obtained in this case is non-conscriptive. Its admission would not impact on trial fairness.

 54      It remains to consider the second and third sets of factors. In R. v. Buhay, supra, Arbour J. stated:

The second set of factors relates to the seriousness of the Charter violation. The seriousness of the police's conduct depends on "whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, willful or flagrant" (Therens, supra, at p. 652). It is also relevant to consider whether the violation was motivated by a situation of urgency or necessity: Therens, [1985] 1 S.C.R. 613, at p. 652; R. v. Silveira, [1995] 2 S.C.R. 297, at p. 367; Law, [2002] 1 S.C.R. 227, supra, at para. 37. Also pertinent is whether the police officer could have obtained the evidence by other means, thus rendering her or his disregard for the Charter gratuitous and blatant; Collins, supra, at p. 285; Law, at para. 37. The court may also look at some or all of the following factors: the obtrusiveness of the search, the individual's expectation of privacy in the area searched and the existence of reasonable and probable grounds (R. v. Caslake, [1998] 1 S.C.R. 51, at para. 34).

 55      There was no articulable cause for the detention of the applicant. Throughout the evening the police disregarded the applicant's Charter rights. I have found the police evidence to be unreliable. It was tailored to meet constitutional scrutiny. There was no subjective or objective basis for arrest or detention. Police conduct of this sort should be deterred. As Sopinka J. said in R. v. Kokesch, [1990] 3 S.C.R. 3 at p. 29:

Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation is plainly more serious than it would be otherwise, not less.

 56      The evidence that the applicant seeks to exclude is key to the Crown's case. The offence of trafficking in cocaine is very serious. While these factors may favour admission, in my view, admission of the evidence in this case would amount to judicial condonation of unacceptable conduct by the police. Its admission would bring the administration of justice into disrepute.

 57      The application is granted and the evidence shall be excluded.

J.C. MURRAY J.

QL UPDATE:  20060117
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