CITATION: R. v. Clarke, 2016 ONSC 1510
COURT FILE NO.: CRIMJ(F) 298/14
DATE: 2016 03 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
M. Dykstra, for the Crown
Respondent
- and -
Kadeem Andrew Clarke
C. Murphy, for the Applicant
Applicant
HEARD: February 22-24, 2016
Ruling on Charter application to Exclude Evidence
Baltman J
Introduction
[1] One evening in January 2014, Mr. Clarke arrived at Pearson Airport with a gutful of cocaine. Before departing Jamaica on a direct flight to Toronto he had swallowed 52 pellets of the drug. After he was arrested at the airport and spoke to duty counsel, he admitted to the crime and was escorted to the hospital, where over the next two days he expelled every pellet. Together they amounted to just under a half kilo of cocaine, with an estimated street value of between $15-26,000.
[2] Mr. Clarke argues that his arrest and search violated his ss. 8 & 9 Charter rights, and therefore the drugs should be excluded as evidence. I conducted a pre-trial hearing on that issue, which turned largely on the evidence of Joseph Smith, the Border Services Officer who plucked Clarke out of the horde of passengers leaving primary inspection and headed toward the baggage carousel. Smith directed Clarke to the secondary inspection counter, where after a five minute interrogation he arrested him.
[3] At the conclusion of the evidence the Crown conceded Smith had insufficient grounds to arrest Clarke. The hearing then fast forwarded to argument over whether the drugs should be excluded under s. 24(2) of the Charter.
[4] In deciding whether evidence should be excluded under the Charter, I must assess and balance three factors:
a) the seriousness of the Charter infringing conduct;
b) the impact of the breach on the Charter protected interests of the accused; and
c) society’s interest in the adjudication of this case on its merits: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.); R. v. Harrison 2009 SCC 34, [2009] S.C.J. No. 34.
[5] For the reasons that follow, I have determined that the conduct of the arresting officer and its impact on the accused is so egregious that it outweighs any interest society may have in a trial on the merits. Consequently, the evidence is excluded.
Seriousness of the Charter Infringing Conduct
[6] Throughout both the events at the airport and his testimony at this hearing, Officer Smith’s conduct was replete with errors, evasions, and excuses. The following are mere highlights:
a) Smith testified that he spent 39 minutes interviewing Clarke in secondary, when in fact less than five minutes transpired;
b) Smith claimed that during the interview Clarke was visibly shaking and, curiously, at the same time emotionless; the video of their interaction in secondary shows Clarke responding in a normal manner;
c) Smith asserted that during their interview Clarke avoided eye contact, looked toward the ground and had his arms crossed; the video shows that throughout most of their encounter, Clarke looked directly at Smith, including when he repeatedly denied accusations of importing, and at no point crossed his arms;
d) Smith stated that he became suspicious that Clarke had ingested narcotics, in part because he had an unopened water bottle and a barely eaten chicken patty in his carry-on bag – i.e. he was avoiding ingesting anything so as not to trigger a bowel movement. However, Smith did not ask Clarke whether he ate or drank anything during the preceding four-hour plane ride, and therefore had no basis to conclude that Clarke was avoiding food or liquids;
e) Smith claimed Clarke had a “dry mouth” – another sign, in his view, that Clarke was avoiding liquids – yet Smith could not explain what supported that observation. He agreed Clarke’s lips were not chapped or peeling;
f) According to Smith, Clarke’s story “shifted” from saying that he went to Jamaica to visit his cousin, to saying his cousin invited him to visit; remarkably, Smith interpreted those two statements as contradictory, adding to his “grounds” for arrest;
g) Smith admitted that most of the standard indicators of suspicious behaviour were absent here: Clarke did not pay cash for his ticket, or purchase it recently; he was in Jamaica for a full week, typical of many vacationers; he was polite, neatly dressed and fully cooperative; he did not have a distended stomach or appear to be in discomfort; and
h) Smith agreed that when he initially referred Clarke to secondary he had not yet formed any suspicion that Clarke was smuggling drugs. He denied the referral had anything to do with the fact that Clarke is black.
[7] On top of all that are some very egregious actions by Smith. Near the end of his brief interrogation of Clarke, Smith accused him repeatedly of ingesting drugs. Each time Clarke denied the charge. By the third volley Smith is seen in the video waving his arms aggressively back and forth in front of Clarke, who continued to deny the charge and added that he wished to speak to a lawyer. It was that request that triggered the arrest. In other words, as punishment for exercising his Charter rights, Smith arrested him.
[8] Moreover, between the time Clarke asked to speak to counsel and when that phone call took place, Smith continued to interrogate him about the drugs, thus failing to “hold off” further questioning while Clarke exercised his right to counsel.
[9] All in all, Smith’s actions strongly resemble the impugned conduct before the Supreme Court in Harrison, at para. 24:
The officer’s determination to turn up incriminating evidence blinded him to constitutional requirements of reasonable grounds. While the violations may not have been “deliberate”, in the sense of setting out to breach the Charter, they were reckless and showed an insufficient regard for Charter rights. Exacerbating the situation, the departure from Charter standards was major in degree, since reasonable grounds for the initial stop were entirely non-existent.
[10] Finally, the officer’s testimony in court was frequently evasive or misleading. Crown counsel admitted the officer “did a horrible job on the stand.” At certain points his answers literally changed from one minute to another, on important issues. This was not a case of Smith being inexperienced, as he has been a border officer since 1998. Revealingly, the “mistakes” he was caught in nearly always favoured his decision to arrest. This deception is a factor which the Supreme Court considered relevant to the first inquiry under 24(2) analysis, given the “need for a court to dissociate itself from such behaviour” (para. 26).
[11] I conclude that the Charter infringing conduct in this case was egregious, favouring exclusion of the evidence.
Impact of the Breach on the Accused
[12] This was a serious breach. After being arrested and handcuffed in public, Clarke underwent a strip search and was then detained for almost two days at the hospital, where he was placed on a “bedpan vigil”. Although the Supreme Court has held that a bedpan vigil is not as invasive as a body cavity search (R. v. Monney 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, para. 47, it is nonetheless an embarrassing and intrusive process.
[13] I recognize there is a lesser expectation of privacy at an airport, where the State has a compelling interest in protecting Canada’s border from the importation of dangerous drugs. But it is not a Charter free zone, where anything goes. Clarke was subjected to a prolonged and highly intrusive search, without justification. This factor also favours exclusion of the evidence.
Society’s Interest in Adjudicating the Case on its Merits
[14] The public has a vital interest in insuring that fundamental Charter protections are respected, particularly where the penal stakes for the accused are high.
[15] That said, it is undisputed that the evidence of the drugs obtained as a result of the Charter breaches was highly reliable, and virtually conclusive of Clarke’s guilt. Moreover, this is a very serious offence, which society has a strong interest in having determined on its merits.
[16] For those reasons, this factor favours admission of the evidence.
Conclusion
[17] I have found that while society has a strong interest in adjudicating this case on its merits, the evidence reveals serious misconduct that had a significant impact on the accused. On balance, I easily conclude that the evidence should be excluded.
Baltman J
Released: March 8, 2016
CITATION: R. v. Clarke, 2016 ONSC 1510
COURT FILE NO.: CRIMJ(F) 298/14
DATE: 2016 03 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Dykstra, for the Respondent
- and –
KADEEM ANDREW CLARKE
C. Murphy, for the Applicant
RULING
Baltman J
Released: March 8, 2016