Court File and Parties
Court File No.: Toronto
Ontario Court of Justice
Between:
Her Majesty the Queen
Mr. K. Yeh, for the Crown
— And —
Avery Assiu
Mr. T. Rodocker, for the Accused
Heard: March 1, April 12, 13, 2012
Decision
NAKATSURU J.:
Introduction
[1] The accused, Mr. Avery Assiu, is charged with possession of oxycodone, possession of oxycodone for the purpose of trafficking and failure to comply with his recognizance. Mr. Assiu pleaded guilty to the last offence. Regarding the former charges, he has opted for a trial and brought an application under the Charter to exclude the evidence of the drugs seized by the police. I granted the application. These are the written reasons explaining my decision.
[2] On September 8, 2011, on the sidewalk in front of a corner variety store in downtown Toronto, the accused and his brother were stopped by two police officers with the TAVIS unit. They were asked for their identity. While the officers investigated the names given by the two men, admittedly false names, one of the officers discovered a plastic baggie of oxycodone in the sleeve of Mr. Assiu. Mr. Assiu ran a short distance before he was tackled and arrested. At the time, Mr. Assiu was on bail on outstanding charges. One condition of that bail was to observe a house arrest condition. Mr. Assiu was in breach of that condition.
[3] The defence alleges that Mr. Assiu was arbitrarily detained within the meaning of s. 9 of the Charter. In addition, it is submitted that the search conducted on Mr. Assiu was a violation of s. 8 of the Charter. Given these grave Charter breaches, the defence argues that the evidence of the drugs should be excluded under s. 24(2) of the Charter.
[4] The Crown submits that there was no detention within the meaning of s. 9. The officers were merely questioning Mr. Assiu and his brother. Alternatively, the Crown submits that the officers detained the accused for investigative purposes and did not exceed the proper limits of such a detention. With respect to the s. 8 issue, the Crown submits that the drugs were found in "plain view" due to the voluntary actions of Mr. Assiu. Finally, the Crown argues that should any violation be found, the evidence should not be excluded under s. 24(2).
Unreasonable Search and Seizure
[5] Credibility is a key issue on this Charter application. I am also mindful of the onus of proof to prove any breach of the Charter. It remains on the applicant except for the warrantless search, where the Crown must justify the reasonableness of that search.
[6] In this case, the two police officers and Mr. Assiu gave evidence regarding the circumstances of the finding of the drugs and the arrest. While in broad strokes their testimony is similar, when it comes to how the drugs were found, there is a significant difference. P.C. Damiani who found the oxycodone, testified that the bag of drugs became visible to her at the cuff of Mr. Assiu's jacket when he turned away from her. Mr. Assiu testified that P.C. Damiani found the drugs when she forcibly moved the sleeve of his jacket to search for tattoos. On this issue, I accept Mr. Assiu's testimony and reject the evidence of P.C. Damiani.
[7] In coming to this conclusion, I have carefully considered the whole of the evidence.
[8] P.C. Damiani is a relatively young officer who in September was executing her duties with the TAVIS program in the area of 14 Division. She and her partner, P.C. Haroon, were in uniform and driving a marked police cruiser on September 8, 2011. P.C. Haroon was driving. They both agree in their testimony that they came upon two males unknown to them standing at the corner of King Street and Gwynne Avenue, just outside of a variety store at around 9 p.m. These two males were the accused and his brother, Adriel Assiu. The officers observed the two males for a short while. They decided to go speak to them. They pulled up to the curb and began to speak to the males.
[9] There is a difference between the police officers' evidence with respect to how the interaction first began. P.C. Haroon testified that he got out of the police car to speak to the males. P.C. Damiani testified that P.C. Haroon began speaking to the males while he was still seated in the driver's seat. I find that this difference is of little consequence. It is the type of detail that honest witnesses may have differing recollections of.
[10] P.C. Damiani testified in examination-in-chief that they asked the two males if they lived in the area and then asked for identification. The accused and his brother did not have any but verbally identified themselves. The accused stated he was Adriel Assiu. Adriel Assiu identified himself as Brandon Assiu. P.C. Haroon returned to the cruiser to check out these names. As P.C. Damiani stood by, she noticed that the accused was shifting and cantering his body away. She then noticed a bulge in the right sleeve of the accused that caused her some concern. She asked him what it was. As the accused pulled his arm back, a plastic baggie with pills fell below his sleeve and became visible. She grabbed at it and his arm to make an arrest. Mr. Assiu ran off and P.C. Haroon quickly tackled him. Other officers also arrived to assist in the arrest. After his arrest, the accused eventually identified himself to be Avery Assiu.
[11] In P.C. Haroon's testimony, he confirmed the broad outlines of P.C. Damiani's evidence, but he admitted that he did not see P.C. Damiani discover the drugs. He was checking the names on the computer in the cruiser when he saw P.C. Damiani pull the plastic zip lock bag out from the accused's arms. He could not recall which arm nor could he see exactly where it came from. P.C. Haroon did not observe any bulge in the sleeve of the accused but he was mainly focussed on investigating Adriel Assiu.
[12] The accused, Mr. Assiu, testified on the Charter application. He admitted he was on a house arrest bail condition on September 8, 2011, and that he was in breach of that when he was visiting his brother Adriel. They had gone to the corner store near his brother's home for smokes. When Adriel exited the store, the officers pulled up in front of them, blocking their way. The accused has numerous tattoos on his arms. He attempted to hide his tattoos from the police to conceal his identity. He shook his sleeves down further over his hands and had his hands clasped together in front of him. The police asked questions of them such as where they lived and the fact the male officer had not seen them in the neighbourhood before. When the police asked for their identity, the accused spoke first identifying himself as Adriel Assiu in a voice loud enough for his brother to hear. His brother identified himself as Brandon Assiu. The officers took down the details of their identity when they advised that they had no ID. The male police officer went to the cruiser to check on the computer. The female officer stood by about 6 feet away and did not do or say anything. The male officer called the female officer over and they both looked at the computer screen.
[13] Mr. Assiu testified that the female officer then came back to speak to him while the male officer spoke to his brother. The female officer asked him whether he had any tattoos. Mr. Assiu showed her his right arm which had the Virgin Mary tattoo on it. She asked if he had any more and Mr. Assiu replied no. As the accused tried to hide his tattoos, the female officer grabbed his left forearm and pushed up his sleeve. It was at this point she saw the bag of drugs and pulled it out. She asked what this was and called over to her escort. At this point, he ran. Mr. Assiu testified that the female officer never asked about a bulge. The accused testified that he did not believe she saw the bag bulging as it was small and was not full.
[14] My overall assessment of the accused was that he was a good witness. He was clear and detailed. There was no significant exaggeration in the substance of his evidence. The description of the events was plausible. The accused was not shaken in cross-examination. The substance of his narrative remained consistent. His testimony had a ring of truth and he relayed what occurred to him with little artifice. I appreciate that the accused has amassed a substantial criminal record with numerous offences involving dishonesty. This does not, of course, enhance his credibility. However, the power of his testimony comes from the fact that it makes sense in the context of what was happening at the time and when it is considered along with the evidence of the police officers.
[15] The Crown submitted that the accused made a fatal admission in cross that supported P.C. Damiani's evidence. When asked about his tattoos, the accused testified that he shook his sleeves down to cover the tattoos on his hands. The Crown argued that this was when the bag of drugs slipped out and became visible. The Crown submits that it would defy the laws of gravity to accept that the bag remained in his sleeve and did not fall down as the accused would have me believe.
[16] While this is a very able argument, I do not find it persuasive. In court, when the accused demonstrated his action of shaking his cuffs down, it was a very brief and subtle movement; basically slipping the cuffs down slightly to cover more skin. It was not a vigorous motion. Indeed, to do that would have defeated the accused's intention to conceal if his actions were so noticeable. Given this, I do not find it unusual that the bag of drugs would not drop down as far as the Crown contends. Even if it did drop, the cuff appeared tight enough to stop it from becoming visible. Furthermore, the accused testified that he made further movements after making this act of shaking his cuffs downwards. This was not the last movement he made with his hands before the drugs were uncovered. He testified he placed his hands in front of him. Thus, if the bag had slipped out due to his shaking his cuffs down, the drugs would have been detected before he demonstrated his other tattoo and his palms as he testified to doing. In any event, the accused testified that the baggie did not slip out when he made this movement and I accept his testimony.
[17] My evaluation of P.C. Damiani's testimony is opposite to that of the accused. I did not find her testimony on this part of their interaction credible.
[18] Significant to this finding was the fact that P.C. Damiani did not mention asking about the tattoos in examination-in-chief. In chief, her testimony was plain that it was when she asked about the bulge that the accused moved his arm away and the baggie appeared. It was only in cross that she admitted that she asked the accused whether he had any tattoos. This admission came out most reluctantly at first and it was only after repeated questioning that this admission became firm. She hedged her testimony, was nervous, and not fully frank. P.C. Damiani admitted on cross that she had gone to the cruiser where her escort P.C. Haroon was doing the computer checks and saw Adriel's photo come up. Also information came up about the tattoos. She eventually admitted that she wanted to see if the accused had any tattoos as the officers were concerned that they were not given the right identities. Throughout this cross-examination, P.C. Damiani looked and testified most uncomfortably; her evidence on this point simply did not sit well. In re-examination, it did not improve. When asked why she did reveal this information initially in chief, her initial response that she did not because it did not discount her seeing the bulge was confusing. When asked again why she did not reveal it, she resorted to her belief that she had just forgotten to mention it. I find the officer not credible on this issue.
[19] P.C. Haroon testified that P.C. Damiani did not come over and look at any photos up on the computer screen while he did the checks. He could not recall specifically whether she came over or not; but it was his evidence he checked no photos until after the accused was arrested. This is not consistent with P.C. Damiani's testimony. It is further not consistent with how I find things unfolded. It makes sense to me that as P.C. Haroon was checking the identities, he called over P.C. Damiani to consult with her when P.C. Haroon could find nothing under Brandon Assiu. P.C. Haroon testified that he did find something under the name Assiu and there was information that revealed that this person had a number of tattoos. P.C. Haroon himself asked the accused's brother if he had tattoos and the real Adriel Assiu said no and rolled up his sleeves. I prefer P.C. Damiani's testimony that she came over to the computer, consulted, and looked at photos to that of P.C. Haroon since it is more reliable; P.C. Haroon did not have a good recall on this point and it is consistent with the testimony of the accused. However, I do accept P.C. Haroon's testimony that he asked Adriel Assiu about tattoos.
[20] In this context, it makes sense to me that P.C. Damiani would go and ask the accused about tattoos just like P.C. Haroon did with the accused's brother. The information must have been that the tattoos were located on the arms of this person. It makes sense to me that the accused was being reluctant in showing P.C. Damiani his arms, fearful that this may give away his identity. When P.C. Damiani observed the accused being half-heartedly cooperative and evasive, as the accused testified, she took matters into her own hands and took the accused by his arm and pushed up his sleeve. This was done without the Mr. Assiu's consent. It was only at this time, the bag of drugs became visible to the officer. It also makes sense that the Mr. Assiu was being careful in trying to hide these drugs and would not be as careless as to allow them to simply slip out accidentally.
[21] In addition, I did not find P.C. Damiani's evidence about observing a bulge credible. She stood close by the accused for some time while her partner was doing checks and she never noticed a bulge. Conveniently, it is only when she began focussing her investigation on his identity did she say she saw the bulge. In court, at this trial, the accused was wearing the same hoodie that he wore on the evening in question. The hoodie is made of thick black material with a large design on the front. It is loose fitting and appears to be larger in size than appropriate for the accused's build. The sleeves are wide and bulky. It is not at all form fitting. The cuffs at the end of the sleeve is more tight to the wrist but again is not form fitting. In my opinion, the very nature of the garment resists the conclusion that there would be a visible bulge in the sleeves. Certainly, it would be highly improbable to be able to detect a golf ball size bulge four inches up from the wrist as testified to by P.C. Damiani.
[22] In conclusion, I find that P.C. Damiani conducted an unauthorized and illegal search of the accused's person. She was looking to find tattoos on his arm. It was during the course of this, that the drugs were discovered. The pills were not discovered in plain view. They were discovered as a result of an unreasonable search and seizure. I therefore find a violation of s. 8 of the Charter.
Arbitrary Detention
[23] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 44, the Supreme Court of Canada set out the various factors to be considered in determining whether there has been a detention:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[24] The Crown submitted that there was no detention of Mr. Assiu by the police. I find that there was. Firstly, P.C. Haroon testified that he did not detain the two males and that they were, in his mind, free to go. However, at no point did P.C. Haroon ever tell the accused or his brother that they were free to go. Indeed, the very opposite was told to the two males. While the conversation may have initially started without there being a detention, the following exchange by P.C. Haroon moved the encounter into Charter protected territory:
Q. And okay, so go on, you ask those questions, have you had any trouble with the law before.
A. And they both replied, "No, nothing."
Q. Now what—okay, go on. So what did you do after that?
A. And I asked both males, "Do you mind if I check your ID, and you'll be on your way?" I asked them if they mind that if we check their names out and if they've never been in trouble with the police or if there's nothing outstanding they'd be on their way.
[25] In cross-examination, P.C. Haroon confirmed this was what he told the males. He testified that of course he realized that even if they had prior history with the Toronto Police Service that would not give him the authority to detain them or stop them and not let them go.
[26] Mr. Assiu testified that he had previously been stopped by the police a number of times. On this occasion, he testified that he did not feel that he could walk away. He was not impeached in cross-examination on this point.
[27] There are other relevant factors. While I accept that the police may have started out making general inquiries of the two men, it quickly evolved into a focused investigation into them. It must be remembered that the officers were not engaged in social conversation with two persons who by happenstance were standing next to them. A few minutes prior, they made careful observations of the two on the corner while they were parked up the street. They then made the decision to approach them and stopped their cruiser very close to the men. The conversation quickly turned to a question about whether they ever had any trouble with the law. By any reasonable assessment this is not an innocuous question.
[28] This encounter took place in a public street and Mr. Assiu was in the company of his brother and therefore was not alone. On the other hand, it was at night, at around 9 p.m., and both men were smaller, about 5 feet 6 inches and 145 lbs, and were members of a visible minority. While not youths, they were young men. The accused is 20 years old. The marked cruiser pulled up close to them and I accept that to the accused, he felt it blocked their way. The conversation was generally polite. There is no specific evidence as to how long the encounter took, but from the time the officers first saw the men to the time they left for the police station with the accused under arrest was about half an hour. I can infer that the encounter was not brief or momentary due to the nature of the steps taken by the officers including computer checks and conversations they testified to. The men were not surrounded by the officers or physically restrained in any way, but there was an officer in close proximity to each. The Crown argued that the accused has an extensive criminal history and is experienced with the police and therefore understood his rights, including his right not to speak to the police. This argument however was not fleshed out in cross-examination of the accused. I am being asked to infer it from the existence of his criminal record. Given this state of the evidence, I find that Mr. Assiu's own explanation that he did not feel he could walk away to be equally plausible. His own subjective past experience with the police may well be that he felt he was required to obey police direction whenever he encountered them. I do note that if the accused really did feel free to leave at any time, he probably should have given that he had just given the officers a false name and they were checking out the identities. The fact he did not leave supports his testimony that he did not feel free to do so. That he fled when the drugs were found does not diminish his testimony in this regard; this was simply the reaction of a man who panicked after being found with controlled drugs on him.
[29] Taking into consideration all of the factors, a reasonable person in Mr. Assiu's circumstance would conclude by reason of the state conduct that he had no choice but to comply with the police officers. Given what P.C. Haroon told the accused, that he could leave once he checked out his identity, regardless of what P.C. Haroon believed in his own mind, he essentially told the accused he was being detained until this check was completed. The other factors support this conclusion. The encounter was between two uniformed officers with two young men from a visible minority at night, and the behaviour and testimony of the accused at the time confirm the fact he felt detained. In my view, it was reasonable for him to believe that regardless of his previous criminal history.
[30] The Crown submitted that should I find there to be a detention, it was not arbitrary since the police officers were properly exercising their powers of investigative detention: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. I find this is not the case.
[31] At the moment the detention began, there were no reasonable grounds to suspect in all the circumstances that the accused was connected to a particular crime and the detention was reasonably necessary on an objective view of the circumstances. The accused and his brothers were pedestrians in the street. They were standing outside a corner variety store. There was no obligation on them either by common law or statute or regulation to provide the police their identity. They were not suspected of any crime. P.C. Haroon and P.C. Damiani were not investigating any crime. On their evidence, they were just asking questions of two people they did not recognize before in the neighbourhood. There is no power on the part of the police to detain individuals in these circumstances in order to run checks on their identity.
[32] It is true that the detention did not occur at the moment P.C. Haroon introduced himself and asked his first questions. However, the moment he told them he was going to check their identification and if cleared, they would be free to be on their way, a reasonable person would have assumed they were detained. At this point in time, there were no reasonable grounds to suspect the detainees of any wrongdoing.
[33] I have considered whether the detention turned into an investigative detention when the officer could not find any information on Brandon Assiu. I reject this conclusion. First of all, P.C. Haroon was investigating the accused's brother at this point. He was not investigating the identity given by the accused and had no reason to believe that this identity was false. Secondly, even with respect to Mr. Assiu's brother, there were no reasonable grounds to suspect that he had given a false name to the police for the purpose of obstructing them in their duties. I appreciate P.C. Haroon's testimony that in his experience that he had never come across a person whose name had not come up in the police databank. However, this does not provide reasonable grounds to suspect the name is false. Such an individual may have had no prior contact with the police and have not engaged in such regulated activities as driving which find their way into the databank. This may especially be so with respect to young persons. The fact that an individual has lived an exemplary and quiet life should not provide reasonable grounds for suspicion. Further, individuals sometimes go by different names, for instance, nick-names or shortened names, and may provide them to the police without any motive to mislead. This may be commonly so in cultures where anglicized names makes it easier for individuals to make their way through Canadian society. The fact that such a name is given by a pedestrian to a police officer affords no reasonable grounds to suspect a specific offence has been committed. Finally, for the offence of obstruct police officer to be committed, there must be mens rea behind the giving of a false name to the police.
[34] I fully appreciate the irony in that certainly Mr. Assiu and perhaps his brother were in fact trying to mislead the police by giving false identities. However, this ex poste facto analysis does not turn what was an arbitrary detention into an investigative detention by the police. At the time, on the objective facts known to the police, there were no reasonable grounds to suspect in all the circumstances that the accused or his brother was connected to a particular crime. I note that neither police officer testified that they were exercising any power of investigative detention. Their position was that they were not detaining the two young men.
[35] In conclusion, I find that the accused has proven that his s. 9 right to be free from arbitrary detention was infringed.
The s. 24(2) Analysis
A. The Seriousness of the Charter-Infringing State Conduct
[36] I have found two Charter violations in this case. They are both serious. In my opinion, they stem from police officers not acting within the limits of their authority while engaged in their duties patrolling our neighbourhoods. With respect to the s. 9 violation, I find it difficult to accept that a police officer saying what P.C. Haroon said to these two young men, could believe that he was not detaining them. P.C. Haroon understood he could not detain the individuals on the basis they had a past history with the police. While he was not asked about it, neither could he detain someone just to check them out to see if there were outstanding warrants. The accused and his brother were simply pedestrians in the street who were being approached by these officers. Yet, P.C. Haroon told the accused, even though politely by his evidence, that if they had never been in trouble with the police or if there was nothing outstanding, they could be on their way. This was a deliberate violation in the sense that P.C. Haroon either knew the men would feel detained or should have known they would feel detained based upon what he said and the other factors I have considered. It is also serious in that at the time, the officers had nothing on the men. They were randomly stopped because P.C. Haroon did not recognize them from the neighbourhood and they seemed to have no purpose standing at the corner outside the grocery store. While the police officers were correct in that they struck gold in their encounter, at the time, they had almost nothing to go on.
[37] The s. 8 violation is also serious. I find that P.C. Damiani's actions were deliberate. She wanted to check out the identity of the accused by searching for tattoos. She grabbed his arm without the accused's consent. She had no authority to do this and she knew it. When she testified in court, I did not find her evidence credible. Her testimony was evasive and misleading.
[38] The Supreme Court of Canada has confirmed in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, and more recently, in R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 that an officer's less-than-candid or misleading testimony in court can properly be a factor to consider under the s. 24(2) Grant analysis. It is reviewed under the first branch of the Grant test – the seriousness of the Charter-infringing state conduct – even though an officer's testimony is not part of the Charter breach itself. The majority of the Supreme Court in Harrison justified this approach for two main reasons: misleading or evasive testimony at trial can aggravate an officer's disregard for an accused's Charter rights; and there is a need for courts to dissociate themselves from such behaviour.
[39] Finally, I am struck by the nature of the violations in this case, not because I believe that they are the most egregious or abusive of police acts. They are not. Rather because it is easy to see how readily they could occur during the numerous encounters between the police and those they serve and protect. In Grant the Supreme Court of Canada recognized that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In my opinion, there is a strong need to dissociate the court from this type of conduct in order to preserve public confidence in and ensure state adherence to the rule of law.
B. The Impact on the Charter-Protected Interests of the Accused
[40] The Crown argued that the impact of the s. 8 Charter breach on the accused was minimal. At the most, the sleeve of his outer garment was pulled upon a few inches. From a certain perspective, there is merit to the Crown's argument. This was not the most invasive of searches in terms of the accused's bodily integrity. It was very limited. However, from another perspective, it is not so minor. An aspect of human dignity involves choice. Here the accused had that right, to choose to expose a part of his body or not. This choice was over ridden by the deliberate act of the police officer. The reality of the encounter between the two is that a young man from a visible minority, minding his own business on a public street is stopped by the police who are intent on ascertaining his identity and an officer who grabs his arm to search for a tattoo without his consent for that purpose. In another context, if that same act, let us say, occurred between friends, it would be of no moment. Here, when it occurs between a uniformed police officer clothed with state authority and a young man of a visible minority just standing on a street corner, it is demeaning.
[41] With respect to the s. 9 violation, this is an interference with the accused's liberty. Again, while he was otherwise dealt with politely and was not physically restrained in any way, the accused was simply minding his business on the street. While I appreciate that he was in breach of his bail order and possessed oxycodone, this is not highly probative to the analysis regarding the freedom that he as much as other individuals enjoy when travelling the streets of this city. The police cannot detain and curtail the liberty of individuals unless they have proper authority to do so.
[42] Again, assessing the impact of these violations on the accused's protected interests, they are serious in that citizens should be free to go about their business in the public streets and not be subject to improper police conduct towards them. Certainly, the police can and should engage with the citizenry in order to ensure public safety and acquire knowledge that can assist in their duties. But the limits of that authority must be respected. When it is not and evidence is admitted resulting from such conduct, I have little doubt that in the long term, this would just breed public cynicism and bring the administration of justice into disrepute.
[43] As a last point, the Crown submitted that there is less impact on the accused's interests since although young, he is an experienced criminal and does not suffer the same prejudice as an individual with no criminal history. I do not find this argument persuasive. It is the nature of the impact upon the accused's interests that is important. It is not whether subjectively the accused feels more or less aggrieved by the denial of his rights. Rights and freedoms are enjoyed equally by all who come within the protection of the Charter.
C. Society's Interest in an Adjudication on the Merits
[44] Consideration of this factor favours admission of the evidence. The evidence is reliable and fundamentally important to the prosecution. It would impair the truth finding process if the evidence of the drugs is excluded. While seriousness of the offence is a consideration that can cut both ways in the analysis, in this case, the Crown has conceded that it is unable to prove anything more than simple possession and cannot prove possession for the purpose of trafficking. Overall, I find that while consideration of this factor favours admission, it is perhaps as not as weighty a factor as in some other cases.
D. Conclusion
[45] After addressing these lines of inquiry, I find that admission of the drugs into evidence would bring the administration of justice into disrepute. The violations and the impact on the accused's interests are serious and multiple. There is a need to dissociate the court from the police conduct. While the evidence is reliable and its exclusion would adversely impact the truth finding process, the long term impact of admitting the evidence in this case would result in a significant erosion of rights enjoyed by all those who use the public streets and this would bring the administration of justice into disrepute. For these reasons, the application is allowed and the evidence of the drugs is excluded. As a result, the applicant will be acquitted on the first two counts.
Released: May 25, 2012
Signed: Nakatsuru J.