Criminal law Special powers Power of search Scope of power Power of search, evidence obtained, admission of Civil rights Canadian Charter of Rights and Freedoms Denial of rights Remedies, exclusion of evidence.
Motion by the accused for an order excluding the drug evidence. The accused was charged with possession of cocaine. According to the accused's wife, the arresting officer shone his light around their car and eventually discovered the cocaine in the door. The officer claimed that the cocaine was in plain sight.
HELD: Motion allowed. The evidence was excluded and the charge was dismissed. On a balance of probabilities the officer had not been frank about how he conducted this investigation. The judiciary could not be seen to condone the routine breach of section 8 of the Canadian Charter of Rights and Freedoms and certainly they could not be seen to condone an attempt to get something into evidence by inaccurately testifying as to circumstances which might bring it within some exception.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, s. 8.
Maria Gaspar, Counsel for the Crown.
N. Gorham, Esq., Counsel for Mr. Palmer.
¶ 1 ALLEN J. (orally): I think that counsel have properly outlined the situation here.
¶ 2 I found that Mrs. Palmer was very straightforward in her evidence and I have no reason, just considering her evidence in isolation to doubt anything that she said. There's nothing implausible about any of it. She didn't pretend that she didn't know what her husband was up to, pulling into the parking lot as he did under the circumstances.
¶ 3 But the stories are radically different from each other, not just in the sense of whether the door was open or how long the officer was paying attention to the interior of the car before he came across the cocaine.
¶ 4 Mrs. Palmer has a basketball game going on and her husband going up to presumably attempt to buy some marijuana from those people and the officers have nobody there at all, no other cars and of the two, it seems more plausible to me that if one were going to try and buy marijuana on the spur of the moment that one would go to where there was a group of people who might have it as opposed to an apparently empty place. I mean presumably the theory of the Crown is he was there to buy marijuana from the person on the bicycle and that person was presumably searched and nothing came up. I don't know, I didn't hear any evidence about that one way or the other but the scenario with the basketball game going on struck me as marginally more likely than the other.
¶ 5 The difficulty from the Crowns point of view is that the officer was very effectively cross-examined on the basis of his notes, the most fundamental aspect of which being that his notes say, he opened the door, not he pushed the door all the way open but that he opened the door and in the sequence of events as they're set out in his notes, that corresponds more closely with Mrs. Palmer's account of what happens in the car than with the officer's. I don't understand why he couldn't - the car is lit from the interior. Mrs. Palmer and her friend on their evidence are putting on their makeup, but why he wouldn't see them as he approached I don't know. The events really as they're described by her are closer to what's in his notes, not exactly the same, but then his notes are not what he says.
¶ 6 There are sequence issues. There is a discrepancy between his initial evidence about how much conversation he has with them and what his notes disclose. And he subsequently acknowledges in another one of his answers about that he doesn't recall if he ran the plate on C.P.I.C. or not. Well of course he does, he knows he didn't and that kind of answer doesn't assist his evidence either.
¶ 7 So I'm satisfied on a balance of probabilities that the events occurred as Mrs. Palmer says they did and particularly that he was shining the flashlight around in the interior of the car for some short period of time before he discovered the cocaine in the door. I don't think the cocaine was in plain view, I think it was discovered by him feeling around in the - I don't know how a Maxima door is set up but most doors have little pockets under the door handle and further down and where he retrieved this cocaine from, I don't know but I don't accept his evidence that it was in plain view as he approached. I don't accept his evidence that the car door was partly opened. I accept Mrs. Palmer's evidence that he opened the door, that he shone the light around and after exploring the interior of the car for some moments that he then found the drugs in the door.
¶ 8 It follows from that that I am satisfied on a balance of probabilities that he's not being frank about how he conducted this investigation and that is, as the Crown concedes, inconsistent with good faith. You've got to demonstrate good faith at the time and in court for it to be a factor to be considered in the assessment of the breach, the gravity of the breach. Again the evidence obtained by the breach is correctly characterized by both counsel as being real evidence and on the analysis that began with Collins,  1 S.C.R. 265, it's real evidence and it's admission would not affect the fairness of the trial. The issue then is would it's admission affect adversely the repute of the administration of justice.
¶ 9 Collins is not a licence for police forces to violate Section 8 and simply hold up real evidence when they find it as the answer to their violations and on the basis of my experience, particularly in the drug court in this jurisdiction, I would not find this to be an anomaly.
¶ 10 A couple of months ago I did a trial list in this court and at the end of the day it was apparent that of the eight cases before the court not one constitutionally valid search had occurred, and that was apparent because of the Crown taking lesser included charges and making submissions that could only reflect the severe weakness of the case at trial, and one case where the Crown simply stood up and abandoned the case partway through the investigating officer's evidence in-chief.
¶ 11 So this is not an anomaly. We dealt with a gentleman just after lunch in here who was alleged to be a participant in a disturbance at a doughnut shop and upon investigation was found to be in possession of a small amount of marijuana. There's no explanation about how that marijuana was discovered and on the basis of what I hear in the drug courts every time I sit I can only conclude that he was searched, absent any lawful authority. So this puts it in a very, very different light from the sort of mechanical analysis in a one off case under the principles set out in Collins.
¶ 12 The judiciary cannot be seen to condone the routine breach of Section 8 and certainly they cannot be seen to condone an attempt to get something into evidence by inaccurately testifying as to circumstances which might bring it within some exception.
¶ 13 I simply don't believe that as many people as are said to be walking around or driving around Peel with drugs on car seats and so on are actually doing it and it's a matter of trials, it's a matter of guilty pleas where people acknowledge they were in possession of the drugs but don't acknowledge the account of how that came to the attention of the police. It's a prevalent enough issue in my view, and I think I'm entitled to rely on my experience pursuant to R.D.S., that the administration of justice would be brought into disrepute by the condonation of what I find was a deliberate breach of Section 8 in this case by the police. They weren't trying to find out whether this car was stolen or not, they were looking for drugs and why they had to refer to the race of the people involved it's beyond me. There was no issue of identification in this case. I'm not going to be a party to that kind of thing in any respect.
¶ 14 The evidence will be excluded and the charges dismissed.
QL UPDATE: 20040930