Ontario Superior Court of Justice

COURT FILE NO.: 1-625847
DATE: 2014/02/24

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Dane Felix Charles-Roberts

Counsel:

Maryse Nassar, for the Crown
Joanna Goldenberg, for Dane Felix Charles-Roberts

HEARD: February 18 – 20, 2014

RULINGS ON AN APPLICATION

(Under sections 8 and 9 of the Charter of Rights and Freedoms)

B.A. ALLEN J.: (Orally)

THE APPLICATION

[1] On October 30, 2011 Dane Charles-Roberts was arrested and charged with possession of crack cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. Mr. Charles-Roberts seeks to have the evidence excluded under s. 24(2) of the Charter on the grounds that his rights under sections 8 and 9 of the Charter were violated by an unlawful detention and search and seizure by the police.

THE EVIDENCE

Factual Background

[2] On the evening of October 30, 2011 Officers Gee, Poirier, Khan and Durocher, members of the Toronto Police Service TAVIS unit, were dispatched on bicycles and in uniform to patrol the area of Livonia Place. Officer Poirier testified the neighbourhood is known for minor community complaints about youth disturbances and drug use. The officers were not called to investigate a tip or complaint that night. They set out initially in couples, Officers Gee and Poirier together to one area and Officers Khan and Durocher to another.

[3] At about 11:23 p.m. Officers Gee and Poirier came upon a car parked in a parking lot next to 50 Livonia Place, a unit in a row of townhouses. There were two occupants in the car that appeared to be sleeping. Officer Poirier approached the passenger side window to investigate and Officer Gee, the driver’s side window. The officers observed a male, Mr. Charles-Roberts, in the driver’s seat and a female in the front passenger seat, Mr. Charles-Roberts’ then girlfriend, Danielle. The officers knocked on the car windows and aroused the occupants from sleep.

[4] Officers Gee and Poirier testified their reason for deciding to investigate and for knocking on the windows was to do a wellness check to determine whether the occupants had any health or safety issues and might need assistance. The Officers agreed that their concerns about health and safety were soon allayed. The Officers’ and Mr. Charles-Roberts’s evidence was in agreement that the initial period of the wellness check, or the time lapse before Mr. Charles-Roberts was asked for his identification, lasted from one to two minutes.

[5] Officer Gee then asked Mr. Charles-Roberts for his driver’s licence and Officer Poirier asked Danielle for hers. The occupants’ identification indicated neither resided at Livonia Place.

[6] At about 11:25 p.m., Officers Durocher and Khan arrived to assist. Officer Khan went to the driver’s side where Officer Gee was speaking to Mr. Charles-Roberts and Officer Durocher went over to the passenger side near Officer Poirier. The two driver’s licences were passed to Officer Durocher to run checks over the radio. It took about 10 to 12 minutes for Officer Durocher to get returns on the checks. The check on Mr. Charles-Roberts revealed the vehicle was a rental car and that Mr. Charles-Roberts was subject to conditional sentence conditions which were not specified in the check results. There were no returns on the girlfriend.

[7] After the check results came back, Mr. Charles-Roberts was asked to step out of the vehicle.

[8] The parties disagree about whether there was an intervening factor after the checks that resulted in the police asking Mr. Charles-Roberts to get out of the vehicle.

[9] Officer Poirier testified that after the checks he retrieved a 0.09 gram piece of marijuana on the rear passenger floor of the vehicle. It is Officer Poirier’s and the other officers’ evidence that Officer Poirier announced his find to the other officers and this prompted Mr. Charles-Roberts being asked to get out of the car. Mr. Charles-Roberts testified that he was asked to leave the vehicle about two minutes after the check results came back and that he was not advised why he was asked to get out of the car. He did not hear Officer Poirier say he found marijuana in the car.

[10] I will return to a fuller discussion of this discrepancy when I discuss the parties’ positions.

[11] Officers Gee and Khan testified that at about 11:41 p.m., they arrested Mr. Charles- Roberts and charged him with possession of marijuana, cocaine and proceeds of crime.

[12] Mr. Charles-Roberts testified that he was cuffed on the ground at this time but was never told he was arrested. He stated that at the police station he was simply told he was arrested for “p for p”. He testified he thought it was Officer Poirier who showed him a piece of marijuana when he was in the cruiser. On cross-examination, Mr. Charles-Roberts recalled that when he was in the cruiser, he was asked if he wanted to speak to a lawyer. This suggests he had been arrested before he reached the station. He agrees cocaine and money were found in his possession and that he was shown marijuana. Although his final evidence in this area is not entirely clear, I find it can be inferred that he was arrested for possession of marijuana, cocaine and proceeds of crime while still at the scene.

[13] Danielle was arrested at the same time by Officer Durocher but was released unconditionally without being charged with any offence.

[14] Mr. Charles-Roberts was first patted down by Officer Gee and the pat down was completed by Officer Khan. Officer Gee retrieved a pocket knife, a scale, and some $400 cash from Mr. Charles-Roberts’ clothes. Officer Khan retrieved 9.8 grams of cocaine from his jacket pocket. Officer Khan also retrieved a $20 bill in a second pat down search at the cruiser just before transport to the police station.

[15] Officer Khan testified he searched the vehicle after his second pat down and retrieved two cellphones, a package of Zigzag rolling papers and a wallet. Where these items were located in the car and whether a second scale was found in the car or on Mr. Charles-Roberts’ person is contentious but not critical to my ultimate determination. What is of more concern about this vehicle search is that according to Officer Khan’s evidence this search would have been conducted after Officer Poirier found the marijuana and after Mr. Charles-Roberts’ arrest. Officer Khan testified he did the search with Officer Poirier and yet Officer Poirier did not mention this search or a second search by him in testimony and presumably made no note of it.

[16] At about 11:43, Mr. Charles-Roberts was transported to the police station. Mr. Charles-Roberts was therefore detained for 18 minutes before being taken away. He underwent a level three strip search at the police station. No further contraband was located.

THE LAW

Detention

[17] The basic principles governing police authority to detain are well-established. Section 9 of the Charter provides everyone has the right not to be arbitrarily detained or imprisoned. It is the defence’s burden to prove on a balance of probabilities that a detention was arbitrary.

[18] Courts have considered the concept of “arbitrary detention”. The Supreme Court of Canada in R. v. Grant held for a detention to be non-arbitrary it must be authorized by law and the law itself must be non-arbitrary. The authority to detain can arise at common law [R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C)].

[19] At common law, a police officer may briefly detain for investigative purposes where in the totality of the circumstances the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence. This type of detention is not considered a breach of s. 9 Charter rights. However, failure to observe the guiding principle will render a detention arbitrary.

[20] Officers cannot operate on a mere hunch or whim in detaining a person on an investigative detention [R. v. Mann, [2004] 2 S.C.R. 59 (S.C.C.)]. The law stipulates when such a search is allowed. Police are authorized to detain to preserve the peace, to prevent crime and to protect life and property. Police officers are clothed with the authority to ensure officer safety and the safety of the public [R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.)].

[21] There is a special limit on the right not to be arbitrarily detained where a motor vehicle and driver are involved. The Highway Traffic Act allows the police the authority to randomly stop vehicles to conduct checks for motor vehicle offences. This authority recognizes the indispensable role police traffic checks play in fostering public safety, a power to detain which the Supreme Court of Canada has recognized as demonstrably justified in a free and democratic society under s. 1 of the Charter [R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621, at para. 20, (S.C.C.)].

[22] A reasonable detention requires there be a constellation of discernible facts that give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation [R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C. C. C. (3d) 482 (Ont. C. A.)]. The court must assess the reasonableness of the decision to detain in the context of all the circumstances [R. v. Mann, supra, para. 20].

[23] R. v. Grant defines detention as that point when the state has taken explicit control over a person or when the control can be said to be exercised on a psychological level. This has been defined as that point when the person does not feel they have a choice as to whether to stay and speak to the police or to leave. At this juncture the person’s right to counsel and the opportunity to exercise that right is engaged R. v. Grant, supra, at paras. [22, 30 and 31].

[24] This court must therefore consider whether when the officers detained Mr. Charles-Roberts they met the threshold test of having reasonable grounds to suspect he was involved in unlawful activity. The court must inquire into whether in the context of all the circumstances there was a set of objectively discernible grounds to justify the officers detaining him.

[25] It follows that an arrest and search conducted after an unlawful detention would also be unlawful.

Arrest and Search

[26] Police must have reasonable and probable grounds to arrest. There must be not only a subjective basis for the belief there are reasonable and probable grounds, there must also be an objective basis for the belief. It is not enough that a police officer personally believes reasonable and probable grounds exist. A reasonable person standing in the shoes of the officer must believe there are reasonable and probable grounds to arrest the person [R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.J. No. 12, (S.C.C)].

[27] Section 8 of the Charter provides protection from unreasonable search and seizure.

[28] The police conducted a warrantless search of Mr. Charles-Roberts and his rented vehicle. The protection afforded by the Charter is directed at protecting an individual’s reasonable expectation of privacy. On one side of the legal scale, Mr. Charles-Roberts would have had some expectation that his privacy in relation to the vehicle would not be interfered with by the police. This applies as well to the personal searches by the police. On the other side of the scale, police are authorized as a function of their police investigative duties to conduct searches in the private domains of individuals and searches of their persons if such searches can be justified as lawful.

[29] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. Absent a warrant a police search is presumed to be unreasonable [R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278, (S.C.C.)]. It is the Crown’s burden to prove the warrantless search was reasonable.

[30] An exception to the rule that warrantless searches are presumptively unreasonable is recognized in the authority at common law for police to conduct a search incident to an arrest. Once a lawful arrest is made, the police are authorized to conduct a search incident to the arrest. However, this authority is not without limits.

[31] The search must actually be incident to the arrest in the sense that it must be related to the purpose of the arrest. Reasonable and probable grounds need not exist for a search incident to an arrest but the purpose of the search must be based on a subjective reason related to the arrest and it must be objectively explainable on legal grounds such as in the interest of officer safety, to preserve evidence, to uncover evidence or on some other justifiable ground [R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 19 -20, (S.C.C.); see also Cloutier v. Langlois (1990), 1990 CanLII 122 (SCC), 53 C.C.C. (3d) 257 (S.C.C.) and R. v. Belnavis (1997), 1997 CanLII 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.)].

ANALYSIS

Was the Detention Lawful?

[32] For the following reasons, I find the police detention of Mr. Charles-Roberts was not lawful. It was arbitrary as not being based on reasonable grounds and as such constituted a breach of his rights under s. 9 of the Charter.

[33] Officers Gee’s and Poirier’s reason for approaching Mr. Charles-Roberts’ vehicle was to do a wellness check to see if there were health or safety concerns, to see if the occupants needed assistance. Both officers agree that within, at most, two minutes, those concerns were allayed. They had no concerns about Mr. Charles-Roberts being impaired. There is no question that Mr. Charles-Roberts was co-operative with the police. When Officer Gee approached the car, he immediately rolled down the window and spoke to Officer Gee.

[34] I find this should have been the end of the police interaction with Mr. Charles-Roberts. Instead, Officer Gee went on to ask him for his driver’s licence and passed the licence over to Officer Durocher to conduct checks.

[35] I find at this point, Mr. Charles-Roberts was detained. When asked why he turned over his licence, Mr. Charles-Roberts said he believed he was required to comply because of police authority. He stated that he did not feel he was free to go without his licence. I do not find in the least reasonable Officers Gee’s and Poirier’s evidence that Mr. Charles-Roberts was free to leave the scene even though he did not have his licence. This would mean Mr. Charles-Roberts could just go ahead and commit the offence of driving without a licence. Clearly, when the police took the licence this was the point when Mr. Charles-Roberts psychologically felt he did not have a choice as to whether to remain and speak to the police or to leave.

[36] The officers were authorized to briefly detain Mr. Charles-Roberts for investigative purposes. However, this authority should only be exercised where there are reasonable grounds to suspect there is a connection between the person to be detained and a recently committed or unfolding offence.

[37] Only Officer Gee attempted to explain the reason Mr. Charles-Roberts was detained beyond the two minute wellness check. Only Officer Gee said he was detained for a highway traffic offence investigation even though the car was stationary, the engine and lights were not on and there were no concerns about impairment. In fact, Officer Durocher expressed surprise at the prospect that the detention was a highway traffic check. He said he was just information gathering when he ran the checks.

[38] Officer Gee’s evidence was that he learned in talking to Mr. Charles-Roberts that he did not live in Livonia Place and concluded that Mr. Charles-Roberts had driven to Livonia Place from somewhere else and would therefore eventually be driving from Livonia Place since he did not live there. On the basis of that reasoning then Officer Gee felt the police were authorized to take the licence and conduct checks.

[39] To justify requesting the licence, the Crown relies on police powers under s. 33 of the Highway Traffic Act that requires a driver to surrender their to licence police on demand:

33. (1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

[40] Officer Gee’s rationale for requesting the licence is based on no more than specious reasoning. The vehicle was stationary with the motor and lights off and Mr. Charles-Roberts was in the driver’s seat sleeping when the police arrived. The police ruled out impairment as a concern. I do not find this is the type of circumstance contemplated by the driver being “in charge of a motor vehicle”. In any case, Officer Gee’s rationale is based on anticipating a future event – that Mr. Charles-Roberts would be driving the vehicle away from Livonia Place at some future point in time. That scenario clearly does not fall within what the Supreme Court meant by reasonable grounds to suspect involvement in an offence. Needless to say, this is highly speculative. There is no evidence that Mr. Charles-Roberts would be driving the vehicle. This is certainly not a reasonable basis to request his licence and run checks.

[41] There is another fact that runs counter to a highway traffic check being the true reason for the detention. The girlfriend who was in the passenger seat was also asked to surrender her licence and the police ran checks on her as well.

[42] The Crown was not able to justify the detention on legal grounds. There was no clear connection established between Mr. Charles-Roberts and the commission of an offence or the impending commission of an offence. The detention for that reason was unlawful and constituted a breach of Mr. Charles-Roberts’ s. 9 Charter rights.

[43] On this basis, the crack cocaine should therefore be excluded at trial.

Were the Arrests and Searches Lawful?

[44] I have found the detention unlawful. Any arrest or search that follows upon an unlawful detention is itself unlawful. I find however that even if I were to have found the detention lawful, there are issues about the legitimacy of the subsequent arrests and searches.

[45] The Crown’s position is that Officer Poirier’s discovery of the marijuana on the rear passenger floor of the vehicle is what justified the arrest of Mr. Charles-Roberts for possession of marijuana. The Crown argues the physical searches of Mr. Charles-Roberts that turned up the crack cocaine and other property and the subsequent search of the vehicle that turned up other items were lawful as being incident to the arrest.

[46] I have some difficulty with the evidence on the discovery of the marijuana.

[47] Officer Poirier testified he could smell what he described as a strong odour of marijuana through the passenger side window. He testified that this justified using his flashlight to search the vehicle. He found what he described as a small ball of unburned marijuana on the mat on the floor behind the passenger’s seat. Officer Poirier said the marijuana was in plain sight and that justified him seizing it. When asked what motivated him to search the vehicle, he said he was just curious.

[48] Mr. Charles-Roberts testified the marijuana was not his and that he was not aware there was marijuana in the vehicle. He testified that during the week he had the vehicle, he had given a number of people rides.

[49] None of the other officers smelled marijuana in the vehicle. Both Officers Gee and Khan had interacted with Mr. Charles-Roberts through the opened driver’s side window. They were close enough to have a verbal exchange with him and to retrieve his licence. It stands to reason that even if the driver’s window was opened a couple of inches as Officer Gee testified, and with the passenger side window opened, the officers should have been able to smell the strong odour of marijuana.

[50] There are also Officers Gee’s and Poirier’s wellness check concerns which included a concern about impairment. One would expect when they encountered the sleeping occupants they would be alert to the smell of any intoxicants like alcohol or drugs in deciding whether the occupants might be impaired. Again, Officers Gee and Poirier had no such concern. Aside from those questions, it is also reasonable to query whether a small ball of marijuana lying on the rear floor of the vehicle could emit such a strong odour.

[51] I do not find plausible that Officer Poirier was drawn to search the interior of the vehicle because of a strong odour of marijuana. He therefore had no legitimate reason for searching and as such the search of the vehicle and seizure of the marijuana were unlawful. I also question whether the marijuana could have been in plain sight. The lights in the vehicle were off and by the police’s own account the area was poorly lit by artificial lighting. I do not think it is reasonable, without first doing a search − which in effect defeats the application of the plain view doctrine − that a small ball of marijuana could be spotted on the floor of the vehicle from outside the vehicle.

[52] I also have another concern that casts a dubious light on the discovery of the marijuana. Officer Khan testified he conducted a search of the vehicle with Officer Poirier after the arrest but Officer Poirier never mentioned that search. Officer Khan was evasive when asked if the marijuana was found in the vehicle during that search. He referred the answer to that question to Officer Poirier. Of course, if the marijuana was in fact discovered after the arrest, that puts a further question to the lawfulness of the arrest.

[53] I find Officer Poirier’s search of the vehicle and the seizure of the marijuana to have been unlawful.

[54] It follows then that the arrest of Mr. Charles-Roberts for possession of marijuana was not lawful.

[55] The law permits a police officer to conduct a search of a person incident to an arrest and where a vehicle is connected to the offence, a search of the vehicle. The arrest itself must be lawful to allow the searches. The arrest being unlawful, I find the search of Mr. Charles-Roberts and the vehicle to have been unlawful. The seizure of the crack cocaine resulted from an unreasonable search and as such was a violation of Mr. Charles-Roberts’ rights under s. 8 of the Charter.

[56] The crack cocaine should also be excluded from evidence at trial on that ground.

The Section 24(2) Analysis

[57] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. Admitting the evidence must be weighed against the effect this would have on society’s confidence in the justice system. R. v. Grant sets out three inquiries to guide the decision whether to exclude the evidence: (a) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct); (b) the impact of the breach on Charter-protected interests of the accused (admission may send the message that individual rights count for little; and (c) society’s interest in the adjudication of the case on its merits.

[58] The seriousness of the breach falls along a spectrum: “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law.” On one end of the spectrum are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights R. v. Grant, supra, paras. [72 and 74].

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.

R. v. Grant, supra, para. [75].

[59] I find the officers’ violations of Mr. Charles-Roberts’ s. 9 and s. 8 rights to fall on the more serious end of the spectrum. Each of the officers who were members of the TAVIS team had some years of experience as police officers when they encountered the accused on October 30, 2011. They were not called out on a tip or because of a complaint. When Officers Gee and Poirier arrived at the vehicle there was no indication of any criminal activity or disturbance, no sense of urgency. Their legitimate concerns about the occupants’ wellbeing and safety were quickly satisfied. But they went beyond their authority and detained Mr. Charles-Roberts and went on to arrest and search him and the car when they had no legitimate reason to have detained him in the first place.

[60] I find flagrance and deliberateness in those violations which is all the more serious for the officers’ attempts to advance what I found to be unreasonable explanations aimed at legitimizing their conduct.

[61] I have already commented on the disingenuousness of Officer Gee’s explanation that he was investigating a prospective highway traffic offence. I found this to be a flagrant and deliberate effort to reconstruct the circumstances and attempt to create some legitimacy to the detention.

[62] Officer Poirier similarly succumbed to an attempt to reconstruct the facts to justify the arrest and searches. Again, for reasons I have already set out, his testimony about the strong smell of marijuana being the rationale to search the vehicle and the marijuana being in plain sight does not withstand the glare of reason. There is also the question raised by Officer Khan’s evidence about when in the chronology of events, the marijuana was found in the vehicle. Officer Poirier’s testimony that he searched the back of the vehicle for curiosity’s sake speaks to reckless disregard for Mr. Charles-Robert’s rights. Similarly, when Officer Durocher was asked about his purpose for running the checks he testified he was just collecting information without explaining the legitimacy of doing this.

[63] This type of conduct and attitude cannot be seen as the result of mere inadvertence or technical error. This is serious misconduct which the court cannot be seen to condone and must distance itself from it.

[64] On the second inquiry, I find the impact of the violations on Mr. Charles-Roberts’ rights not to be on the most severe end of the spectrum. However, neither would the impact have been minimal. On one side of the scale, the police detained Mr. Charles-Roberts for 18 minutes for no legitimate reason. They did not know him or anything about him and did not find reason to continue to detain him even after receiving the information from the searches. The unlawful detention led to an accumulation of other violations of his rights.

[65] I also considered the context of the violations as a somewhat aggravating factor. Four officers surrounded Mr. Charles-Roberts’ vehicle late at night and awoke him and his girlfriend from sleep. The police legitimately checked on their welfare and then swiftly, and I accept, without explanation, ordered them out of the car.

[66] On the other side of the scale, there is no allegation that the personal searches were conducted in an unreasonably invasive or demeaning manner. The search of a vehicle, particularly a rental vehicle, is not interference in the most private sphere of a person’s life. I find those facts mitigate the seriousness of the impact of the violation. But the searches, following upon an unlawful detention and arrest, should not be condoned by the court.

[67] The third inquiry requires the court to look at the seriousness of the offence. R. v. Harrison gives guidance on the court’s role on the third inquiry. In that case, 35 kilograms of cocaine was found in a rental vehicle being driven by the accused on a highway. Although a large quantity of drugs, the court found the cocaine was obtained as a consequence of serious Charter violations and excluded it from trial. The court in R. v. Harrison found the drugs to be highly reliable evidence and pivotal to the Crown’s case [R. v. Harrison 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.)].

[68] In the case before me, the police found 9.8 grams of crack cocaine on Mr. Charles-Roberts’ person. Although this amount pales in comparison to the drugs found in Harrison’s vehicle, it is potentially conclusive proof of Mr. Charles-Robert’s knowledge and possession. This type of evidence cannot therefore be regarded as operating unfairly in the court’s search for the truth at trial R. v. Harrison, at paras. [81 and 82].

[69] No doubt, the pervasiveness of illegal drugs like crack cocaine and related crimes are a scourge on society. There is clearly a public interest in this type of serious crime being tried and punished. This interest is weighed against whether in view of the Charter breaches admitting the cocaine into evidence would bring the administration of justice into disrepute.

[70] R. v. Harrison cautions that the seriousness of the offence cuts both ways. On one hand, serious consequences to our justice system can result from a failure to prosecute a serious crime because critical evidence had been excluded. On the other hand, consideration must also be given to the longer term effect on the justice system of prosecuting a crime where the evidence was procured through serious violations of an accused's rights R. v. Harrison, supra, at para. [84].

[71] The seriousness of the offence must be considered but must not take on disproportionate significance. This court must balance the public concern over the type of crime against the serious infringements of Mr. Charles-Roberts’ Charter rights. The court must undertake a qualitative balancing of the three lines of inquiry based on the particular facts before it. It is not simply a quantitative evaluation of whether the majority of the factors favour exclusion. The balancing must consider the effect that admitting the evidence would have on the long-term repute of the administration of justice R. v. Harrison, supra, at para. [36].

[72] I found the nature of police conduct to be on the more serious end of the spectrum and that the court should dissociate itself from that conduct. I found the impact of the breaches on Mr. Charles-Roberts not to be on the most extreme end of the spectrum. But I found in the circumstances, the police conduct would reasonably have had a sufficiently profound impact on Mr. Charles-Roberts that this court should not overlook it. I find those factors weighed against the offence of possession of 9.8 grams of crack cocaine, bode in favour of exclusion of the evidence.

[73] In the result, I find the nature of the violations to Mr. Charles-Roberts’ rights justifies the conclusion and that the long-term interest of the administration of justice would not be served by admitting the evidence. The reckless and deliberate actions of the police that underlie the violations tip the balance in favour of exclusion.

DISPOSITION

[74] The court orders that the 9.8 grams of cocaine is inadmissible at trial.

B.A. Allen J.

Released: February 24, 2014

COURT FILE NO.: 1-625847
DATE: 2014/02/24

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Dane Felix Charles-Roberts

RULINGS ON AN APPLICATION
(Under sections 8 and 9 of the Charter of Rights and Freedoms)

B.A. Allen J.

Released: February 24, 2014