COURT FILE: SCA 15-0359 DATE: 2016 05 30 ONTARIO SUPERIOR COURT OF JUSTICE (Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN A. D. Doney, for the Respondent Respondent
- and -
BRANDON RICHARDS B. Goldman, for the Appellant Appellant
HEARD: May 26, 2016, at Guelph
REASONS FOR JUDGMENT
[on appeal from conviction by McGowan J. on April 28, 2015]
HILL J.
Introduction
[1] At trial, the appellant was convicted of simple possession of cannabis marihuana and sentenced to a $100.00 fine.
[2] During the appeal hearing, the appeal against sentence was abandoned.
[3] The sole witness at trial was Guelph Police Service Constable Trevor Hern. In his testimony, the officer described the seizure of 1.15 g. of marihuana from the appellant during a traffic stop on October 4, 2014.
[4] Before the summary conviction trial court, the appellant challenged the legality of the seizure submitting that Const. Hern obtained the marihuana by breaches of his ss. 8, 9, 10(a) and 10(b) Charter rights.
[5] The trial judge concluded that the appellant’s s. 10(b) Charter right had been breached. The unconstitutionally obtained evidence was then admitted pursuant to s. 24(2) of the Charter.
[6] On appeal, Mr. Goldman submitted that: (1) the trial judge erred in “misapplying the Grant criteria” (2009 SCC 32, [2009] 2 S.C.R. 353) (2) the trial judge provided insufficient reasons respecting the appellant’s s. 8 Charter argument.
Background Facts
[7] On October 4, 2014, Const. Hern was on general patrol. At about 1:00 a.m., he observed a vehicle leaving the parking lot of a licenced establishment called The Manor.
[8] When the vehicle made “a wide right turn” onto Waterloo Avenue, the officer activated his cruiser’s emergency lights with a view to stopping the vehicle “to conduct a sobriety check”.
[9] As the constable followed the subject vehicle for about a kilometre until there was a straightaway to safely pull the car over, he ran a check on the Quebec licence plate affixed to the vehicle finding it to be registered to Enterprise Rent-a-Car.
[10] The officer observed no abnormal driving as he followed the vehicle. The only “suspicion” he had was based on the car’s exit from a licenced establishment.
[11] Positioned at the driver’s door directly beside the driver’s window of the stopped vehicle, Const. Hern requested driver and vehicle documentation. At trial, the officer testified that he detected a strong odour of unburnt marihuana coming from the vehicle interior. There was no smell of alcohol.
[12] In his testimony, Const. Hern described the sequence of events which followed: (1) he inquired whether the appellant had had anything to drink at The Manor (2) the appellant replied that he had not had anything to drink (3) the appellant was further questioned about this subject (4) “I cautioned him at 1:02 a.m. in regards to possession of a controlled substance”…[he] let him know that he didn’t have to answer, he didn’t have to tell [him] anything about the marihuana” – the appellant replied that he understood (5) “I then asked if he had any marihuana in the vehicle” (6) the appellant then reached into the area of the vehicle’s centre console and gave the constable an item of plastic completely wrapped around a green leafy substance which the officer believed to be marihuana (7) at 1:03 a.m., the appellant was arrested for possession of a controlled substance (8) “I then … read his rights to counsel and caution” (9) a search of the appellant’s vehicle resulted in the discovery of Bounce dryer sheets, cologne and a can of air freshener but no further marihuana (10) during the vehicle search, Const. Hern “could still smell the strong odour of unburnt marihuana”.
[13] In cross-examination, Const. Hern agreed that the 1.15 g. of seized marihuana, with a street value of about $10.00, was “a very small amount of marihuana” which, in a wrapped form, would be hard to smell”.
The Charter Arguments At Trial
[14] At trial, a number of submissions were advanced respecting alleged constitutional violations in furtherance of exclusion of the marihuana evidence including the following: (1) the vehicle stop said to be for a sobriety check was “a pretext to engage in further criminal investigation” thereby breaching the appellant’s s. 9 Charter right (2) reliance upon 1.15 g. of wrapped marihuana in a vehicle with odour-retarding items as providing a strong odour of unburnt marihuana was not plausible as a basis for detention (3) while the appellant was “cautioned” respecting possession of marihuana, he was then immediately asked to incriminate himself without being advised of his s. 10(a) and 10(b) Charter rights (4) the question of the detained appellant as to whether he was in possession of drugs itself amounted to a warrantless search breaching the appellant’s s. 8 Charter right as did the warrantless seizure of the marihuana produced in response to the officer’s question.
[15] The Crown’s position at trial may be summarized in these terms: (1) there was a valid s. 48 Highway Traffic Act stop and a lawful detention without “any secondary agenda” on the part of the officer (2) “it might be preferable if the police officer had immediately given his 10(a) and 10(b) rights” but there was “sort of an immediate transaction” – “a caution, a question and the material is handed over” – what could “the officer have done to prevent” the appellant handing over the marihuana?
[16] In addressing the admission/exclusion issue at trial, counsel for the appellant emphasized (1) the seriousness of the submitted Charter breaches and in particular the action of the officer seeking to have the appellant incriminate himself without being fully advised of his constitutional rights, (2) the impact upon the appellant of coercive state action while unlawfully detained, and (3) the “very, very small amount” of marihuana seized diminished society’s interest in prosecution on the merits. It was submitted that a balance of the Grant factors properly supported exclusion of the marihuana evidence.
[17] In response, the prosecution submitted that (1) there was no serious violation of the appellant’s Charter rights in the absence of a finding of wilful misconduct on the part of the officer – it was the appellant who “cut short the issue of speaking to counsel by handing over the marihuana”, and (2) the impact of any constitutional breach was not serious: “it’s important that the controlled substance is handed over sort of not in response to anything …”.
Reasons of the Trial Judge
[18] In summary, the summary conviction trial court made these findings: (1) the onus was upon the appellant on a balance of probabilities to establish a breach of his Charter rights (2) there was a detention based on articulable cause to stop the appellant’s vehicle for a sobriety check (3) there was no evidence of Const. Hern acting “on a pretext” – once he detected a strong odour of marihuana, leading to a “very strong suspicion” of an unlawful substance in the vehicle, the officer cautioned the appellant, “tell[ing] him that he did not have to answer any questions” (4) the officer then asked the appellant if he had any marihuana leading to the appellant producing “rather quickly” the small quantity of marihuana – this was a “damning question” by the officer having “embarked upon an investigation” of marihuana possession (5) the officer obtained the marihuana when “he got through part of the section 10 rights but he did not go far enough to tell the accused that he had a right to counsel” before questioning him about drugs – the constable ought to “have completed all of the necessary cautions” before questioning the appellant about marihuana – accordingly, “there was a breach of the accused’s rights to be properly advised of his rights under section 10 of the Charter (6) on the subject of s. 24(2) of the Charter and application of the Grant analysis, this was “not … a serious violation”: The officer had certainly gone partway through the appropriate information to the accused and simply did not go quite far enough. This was a rather hasty interaction between the accused and the officer and the accused very quickly produced the offending substance. This was one of those cases where we are on the verge of an investigation. Nonetheless, as I said, the officer should have cautioned him about his right to counsel before asking the incriminating question. There was no suggestion that there was a pattern of abuse by the police in this regard. Given the amount large amount of – the large overwhelming smell of marihuana, I suppose the officer could have proceeded with his investigation and searched the vehicle without having asked the accused to produce the substance involved. (7) by way of conclusion: In my view, admitting the evidence of this small amount of marihuana is not contrary to the public interest. While I find that there was a breach, I find that the breach was minimal and the substance will be admitted…
Analysis
[19] The trial judge rejected any suggestion that the initial stop of the appellant’s vehicle was a pretextual ruse merely for Const. Hern to conduct a criminal investigation. While a police officer may, in some cases, legitimately have a duality of purpose in imposing detention of a driver through a motor vehicle stop (R. v. Pham, 2016 ONCA 258, at para. 7; R. v. Jensen, [2015] O.J. No. 3761 (C.A.), at para. 8 (leave to appeal refused [2015] S.C.C.A. No. 390); R. v. Shipley, 2015 ONCA 914, at paras. 3-7; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 37-40), the record here fully supports the trial judge’s conclusion that the stop of the appellant’s vehicle related exclusively to the objective of a check of the driver’s sobriety.
[20] While the constable observed the appellant leaving the property of a licenced establishment at 1:00 a.m. was a factor informing his decision to stop the appellant’s vehicle, specific cause was not required, in enforcing public safety, to have articulable cause for such a stop – a random stop would have been entirely permissible of a vehicle at 1:00 a.m. to protect the community from the risk posed by an impaired driver: R. v. Ladouceur, [1990] 1 S.C.R. 1257.
[21] There was of course no dispute between the parties that Const. Hern was entitled to question the driver of the stopped vehicle about driver/vehicle documentation as well as the subject of the consumption of alcohol. While the appellant was physically and psychologically detained during these limited inquiries, the officer was not constitutionally required to inform the detainee of his s. 10(b) Charter right to consult and retain counsel: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 33-60.
[22] On the evidence, with the appellant able to produce his relevant documentation, a denial of alcohol consumption, no perceived odour of alcohol, no evidence of observed indicia of alcohol consumption or impairment, and, essentially normal driving activity, the animating reasons for the traffic stop terminated soon after the imposed detention.
[23] It should be noted that it was not Const. Hern’s evidence at trial, nor was it argued at trial or on appeal, that the constable’s inquiry about marihuana in the appellant’s vehicle was directly in furtherance of a check stop to determine the driver’s impairment to drive “by … a drug” (Criminal Code s. 253(a), 254.1, 254(2)). Accordingly, a different case will consider the scope of permissible questioning in such circumstances, together with the suspension of the s. 10(b) Charter right recognized in drinking/driving traffic stops.
[24] As observed in Nolet, at para. 23, “[a] roadside stop is not a static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey”. The “only questions that may justifiably be asked are those related to driving offences” (Ladouceur, a p. 1287) and a “check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over” either by physical search or a search initiated through interrogation: R. v. Mellenthin, [1992] 2 S.C.R. 615, at p. 629.
[25] It cannot be said that the trial judge’s factual finding was unreasonable that Const. Hern detected a strong odour of marihuana as he stood at the driver’s window of the stopped vehicle. The witness’ evidence was uncontradicted on this point. The trial judge had the recognized advantage of seeing and hearing the officer testify. Nor does the evidence and logic that the plastic-wrapped 1.15 g. of marihuana would not have been the source of the detected odour give cause to disturb or question the court’s finding. An earlier presence of unburnt/fresh/raw marihuana in the vehicle leaving residual odour or mistake on the officer’s part in discriminating between unburnt marihuana and the odour of marihuana smoked in the vehicle in the preceding hours would easily explain the strength of the odour reported by the constable.
[26] An odour of marihuana detected in an otherwise lawful traffic stop can provide grounds for investigative detention: Pham, at paras. 3, 9; R. v. Rompre, 2015 ONCA 707, at paras. 1, 5; R. v. Morris, 2013 ONCA 223, at para. 6.
[27] Const. Hern understandably elected to act on what the trial court described as his “very strong suspicion” that the appellant was in possession of marihuana. While he was entitled to pursue a Controlled Drugs and Substances Act inquiry, and whether described as a prolonged detention or a new detention (see R. v. MacDonald, 2012 ONCA 495, at paras. 27-32), certain constitutional obligations came with his shift in focus from traffic/road safety objectives to a criminal investigation.
[28] The constable was required to immediately inform the detained driver of the reason for his ongoing detention and certainly to alert him to his changed legal jeopardy. As I read the officer’s testimony, while he cautioned the appellant as to his right to remain silent and not to respond to questions, there was no explicit notice on the part of the officer to the effect of, “I am detaining you further on suspicion of possession of marihuana”.
[29] The s. 10(a) Charter right obliges the police to provide a detainee the reason for the imposed detention – while this is to be done immediately upon detention in order to, amongst other reasons, facilitate the detainee’s exercise of the right to counsel, no precise or technical language is required provided an officer’s clear and simply notice conveys the substance of the reason(s) for the detention: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21; R. v. Evans, [1991] 1 S.C.R. 869, at para. 35; R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at paras. 16-20.
[30] While the trial judge made no express finding as to whether Const. Hern complied with his obligation to provide the appellant his s. 10(a) Charter information, the court did state that the officer was “through part of the section 10 rights”. It is unclear whether this is a misapprehension of the evidence, or a finding by the trial judge that when the officer “cautioned” the appellant “in regards to possession of a controlled substance” that statement by Hern was sufficient notice to the appellant of an ongoing detention now unrelated to a traffic/driving stop and raising jeopardy respecting possession of an illicit narcotic. If a fair reading of the reasons supports the latter interpretation, because adequate s. 10(a) compliance may be inferred from all the circumstances, then the officer’s statement might reasonably meet constitutional standards.
[31] Without deciding what the trial judge determined or whether the appellant met his onus of establishing a s. 10(a) Charter breach, this case falls to be decided, not on the s. 10(a) issue, or indeed any submitted s. 8 Charter breach, but rather on consideration of the violation of s. 10(b) of the Charter.
[32] A detainee’s s. 10(b) Charter right is intimately concerned with his or her right against self-incrimination: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24, 26, 29, 36. The trial judge properly found that the constable breached the appellant’s s. 10(b) Charter right when he elected first to pose an investigative question (“Do you have any marihuana in the vehicle?”) rather than giving the driver his s. 10(b) Charter rights. The appellant’s s. 10(b) Charter right had crystalized before he was interrogated about marihuana in his vehicle. The s. 10(b) right had to be complied with “immediately” (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37, 39, 41-42), subject only to legitimate concerns for officer or public safety (R. v. McGuffie, 2016 ONCA 365, at paras. 42-44), concerns which did not exist on the facts of this case.
[33] There was no informed waiver of the right to counsel. The fact that Const. Hern cautioned the appellant before making an investigatory inquiry did not justify dispensation with giving the driver his s. 10(b) Charter rights. This is consistent with a clear reading of Suberu, the noted distinction between ss. 7 and 10(b) (Sinclair, at para. 29) and from review of those decisions which have involved a finding of non-compliance with s. 10(b) despite notice of the right to silence: R. v. Manninen, [1987] 1 S.C.R. 1233, at paras. 5-8; R. v. Wong, 2015 ONCA 657, at paras. 10-12 with the court further stating at paras. 50-52, 70:
50 I agree with the appellant that her s. 10(b) right to counsel was breached. Section 10(b) of the Charter requires a police officer to inform a detained person of her right to counsel "without delay". This phrase means "immediately": R. v. Suberu, at para. 41.
51 The officer did not inform the appellant of her right to counsel when he began to question her for his drug investigation, or at any time before her arrest. He did inform her of her right to silence, a right closely related to the right to counsel. At the same time, however, he made it clear to the appellant that he was looking for her cooperation. He suggested that the best way out of her predicament was to provide an explanation for the drug-related paraphernalia and, later, to direct him to her boyfriend's contraband.
52 The officer encouraged the appellant to incriminate herself by demonstrating knowledge of the presence and location of the contraband, without advising her of her right to speak to a lawyer. This goes to the very heart of the principle underlying s. 10(b). The appellant had a right to remain silent unless and until she made an informed decision to waive that right and to provide the requested information to the police: R. v. Harris, 2007 ONCA 574, 225 C.C.C. (3d) 193, at para. 40. By failing to comply with s. 10(b), the officer prevented her from making that informed decision: see R. v. MacDonald, 2012 ONCA 495; R. v. Koczab, 2014 SCC 9, [2014] 1 S.C.R. 138, adopting dissent 2013 MBCA 43, 309 C.C.C. (3d) 183.
70 The negative impact of the breach of s. 10(b) is not mitigated by the officer telling the appellant that she did not have to speak to him. Sometimes, an indication that the accused is not obliged to speak to the officer will mitigate the damage done by a failure to advise an accused of her rights under s. 10(b). Here, however, the officer's comment that the appellant could remain silent was made along with statements that clearly invited her to speak to him and tell him where the drugs were in order to avoid arrest: "I cautioned her that she didn't need to speak with me, but I would appreciate her ongoing cooperation."
[34] The appellant’s submission respecting the trial court’s treatment of the s. 24(2) determination is decisive of the result in this appeal.
[35] In McGuffie, at paras. 59-64, Doherty J.A. stated:
59 Section 24(2) directs that where evidence is obtained in a manner that infringes a right guaranteed by the Charter, "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
60 Section 24(2) recognizes that the admission of constitutionally tainted evidence and the use of that evidence to convict persons may bring the administration of justice into disrepute. As observed in Grant, at paras. 67-71, s. 24(2) is premised on the assumption that there must be a long-term negative impact on the administration of justice if criminal courts routinely accept and use evidence gathered in violation of the legal rights enshrined in the Charter. At the same time, however, s. 24(2) accepts that the exclusion of evidence can also bring the administration of justice into disrepute. In Grant, the Supreme Court provided the framework for differentiating between those cases in which the exclusion of the evidence would promote the proper administration of justice and those cases in which the proper administration of justice would be further harmed by the exclusion of otherwise relevant and probative evidence.
61 After Grant, at paras. 71-86, the admissibility of evidence under s. 24(2) is approached by examining:
• the seriousness of the Charter-infringing state conduct; • the impact of the breach on the Charter-protected interests of the accused; and • society's interest in an adjudication on the merits.
62 The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.
63 In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.
64 The three inquiries identified in Grant require both fact-finding and the weighing of various, often competing interests. Appellate review of either task on a correctness standard is neither practical, nor beneficial to the overall administration of justice. A trial judge's decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination: see Grant, at paras. 86, 127; Côté, at para. 44; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82; Jones, at para. 79; R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 72.
[36] While, as noted in McGuffie, appellate deference is generally owed to a trial judge’s s. 24(2) Charter analysis (see also R. v. Pino, 2016 ONCA 389, at para. 98), “”[d]eference is not warranted” where “the trial judge’s reasoning on the application of s. 24(2) of the Charter [is] sparse, deficient and erroneous in material ways”: R. v. Harflett, 2016 ONCA 248, at para. 55.
[37] In this case, the trial court erred in two significant respects: (1) in characterizing the s. 10(b) Charter breach as “minimal” and “not … a serious violation” (2) in failing to apply the second and third Grant guidelines to the facts of the breach and then to balance the assessments under 3 lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[38] Quite fairly, in oral argument, Mr. Doney acknowledged the second error. The trial court’s ultimate conclusion that the evidence should be admitted is undeserving of deference.
[39] Turning to the seriousness of the s. 10(b) breach, the trial court minimized the gravity of the breach on consideration of these factors: (1) Const. Hern “did not go quite far enough” in providing “appropriate information to the accused” (2) there was no suggestion of a pattern of abuse by the police “in this regard” (3) the officer may have proceeded with his investigation “and searched the vehicle” without “ask[ing] the accused to produce the substance involved”.
[40] Taking these factors in order, these observations are warranted.
[41] The constable asked an investigatory question encouraging the appellant to incriminate himself rather than complying with the constitutional directive of Suberu, decided well over 5 years prior to the traffic stop, to immediately provide the detainee his s. 10(b) Charter rights. Traffic stops are a routine feature of the duties of uniformed patrol officers. There should have been no legal uncertainty as to the officer’s obligations. This is hardly a trivial, technical, or inadvertent breach. The officer’s conduct was deliberate and, on the evidence, not going “quite far enough”, amounted to a serious violation.
[42] The absence of evidence of a pattern of abuse was a neutral factor not a circumstance capable of supporting good faith or diminishing the seriousness of the violation: McGuffie, at paras. 67-68.
[43] It is unclear whether the trial judge had in mind an “inevitable discovery” consideration in stating that the constable might have seized the marihuana had he investigated further without the investigatory questioning during the currency of a s. 10(b) Charter breach. It is not apparent what further investigation the trial judge had in mind or indeed whether it would actually have transpired. She identified the officer having a strong suspicion – a standard supportive of investigative detention and permitting a safety search, not an evidence or contraband search of a detainee’s vehicle. The observations of Strathy C.J.O. in Wong at paras. 79-81 are apposite here:
79 In determining the impact of the breach on the appellant's rights, it is appropriate to consider the "discoverability" of the evidence -- that is, whether the evidence was discoverable independent of the breach: Grant, at paras. 122, 125. If the evidence was independently discoverable, the impact of the breach on the accused's rights may be attenuated.
80 In this case, however, I do not think discoverability has any impact. This is because it cannot be said with any confidence that the evidence would have been discovered independent of the breach: Grant, at para. 122.
81 At the time of the appellant's detention the officer had observed a smell of marijuana and paraphernalia associated with marijuana. He had none of the evidence that ultimately formed the core of the Crown's case. That core evidence was then either obtained in a manner that infringed s. 10(b), or, in the case of the search warrant evidence, relied on evidence so obtained. All the important evidence therefore falls under the purview of s. 24(2). It is not clear that the officer had grounds to obtain a warrant at that point or that he would have proceeded to do so had he not secured the appellant's cooperation.
[44] As to the impact of the constitutional violation on the Charter-protected interests of the appellant, the pointed investigatory question implicated the driver’s self-incrimination interest. Conscripting the appellant against himself, without the benefit of his s. 10(b) Charter right, leading to compelled production of the marihuana amounts to a serious incursion upon the appellant’s rights. This is a very different circumstance than in R. v. Sebben, 2015 ONCA 270 where the detainee “voluntarily and unilaterally produced a bag of marihuana” to the investigating officer.
[45] As to the final line of inquiry, the marihuana is reliable evidence. Its exclusion from evidence would defeat society’s interest in having criminal cases decided on their merits. That said, the summary conviction prosecution for possession of 1.15 g. of marihuana is the type of case which not infrequently results in diversion from arrest and charge. This is not an allegation of serious criminality and, as acknowledged by Mr. Doney, it falls at the “very lowest end” of drug prosecutions.
[46] While the third prong of the Grant analysis is somewhat neutral, the seriousness of the Charter breach and the significant negative impact upon the appellant’s Charter-protected interests of the constitutional violation leading directly to discovery of incriminating evidence, tend toward compelling exclusion of the evidence. In the overall balance, the appellant has established that the truth-seeking objective of the admission of real evidence is outweighed in all the circumstances by the desirability of the court disassociating itself from the unconstitutional state conduct in this case. The long-term interests of the due administration of justice demand nothing less.
Conclusion
[47] The appeal is allowed, the conviction is set aside, and an acquittal is entered.
Hill J.