Court File and Parties

COURT FILE NO.: CR-23-15 DATE: 20240202 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Jermaine Watson

BEFORE: Justice David A. Broad

COUNSEL: Kevin McGilly, for the Crown/Respondent Harval Bassi, for the Accused/Applicant

HEARD: November 1, 2 and 27, 2023

RULING ON APPLICATION WITH RESPECT TO SS. 7, 8, 9 AND 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

(Orally)

Background

[1] The applicant Jermaine Watson is charged with one count of possession of a Schedule 1 substance, namely cocaine, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, 1996, Chap.19.

[2] The applicant has brought an application pursuant to section 24(2) of the Charter of Rights and Freedoms for an order excluding from his trial the evidence seized by police following searches of his person and his vehicle following his arrest, on the ground that his sections 7, 8 and 9 Charter rights were breached. In the alternative, the applicant seeks an order to stay the proceeding pursuant to section 24(1) of the Charter.

[3] At the commencement of the application hearing the following admissions, among others, by the applicant were entered into the record:

1. Seven Health Canada Certificates of Analysis confirming findings of cocaine and one Health Canada Certificate of Analysis confirming a finding of fentanyl;
2. The amount of cocaine is sufficient, with other indicia, to support the charge of possession for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 without the need to call expert testimony (12.7g of cocaine removed from the person of the applicant and 46.5g of cocaine removed from his vehicle);
3. If the Charter motion is not successful, the applicant will invite the Court to apply the evidence from the pretrial motion to the trial and find him guilty of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

Facts

[4] On May 27, 2021, five officers of the Brantford Police Service, all members of the Task Force Unit, which had been amalgamated with the Street Crime Unit (the “Unit”), were engaged in ongoing surveillance of specific targets in relation to the trafficking of illicit drugs in the City of Brantford. The members of the Unit on duty that day included Detective Constable Jason Nagy, Detective Constable Jefferey Birnie and Detective Constable Ryan Grant, each of whom testified on the hearing of the application.

[5] The members of the Unit were aware of a vehicle of interest being a 2013 four-door black Hyundai Sonata and of its Ontario license plate number and had information that it was involved in the drug trade and subculture. They were also aware of the identity of the registered owner of the vehicle, being the applicant Jermaine Watson. However, they were not aware of who was operating the vehicle.

[6] While involved in a separate investigation at approximately 4:52 PM Officer Birnie observed the black Hyundai travelling on Wellington Street and stopping in front of 210 Wellington Street, an address which was not considered of interest to police at the time.

[7] Officer Birnie set up his vehicle at the intersection of Peel Street and Wellington Street where he could view the black Hyundai. Shortly after the black Hyundai came to a stop, he observed an older male exit the front door of 210 Wellington Street and walk towards the front passenger window of the vehicle. The male was holding folded paper currency in his right hand and reached into the open front passenger window, leading with his right hand. He observed the male in this position for approximately 30 seconds.

[8] Officer Birnie used his cell phone to video from within his vehicle the male approach and reach into the black Hyundai. He stated that the window glass of the black Hyundai was not tinted. Although he was unable to see the occupant inside the black Hyundai, he stated that there appeared to be only one occupant who was seated in the driver’s seat.

[9] Officer Birnie observed the older male’s right hand extended out across the empty passenger seat to the driver’s seat and the male’s jaw moving, suggesting that he was speaking to the individual inside the vehicle. He then observed the male’s right hand move back towards his waist area and manipulate his waist area. He then observed the male walk back and re-enter 210 Wellington Street.

[10] Officer Birnie testified that, relying upon his past experience consisting of 9 months with the Unit (of a total of 8 years with the Brantford Police Service), he believed what he had observed was a “hand-to-hand” drug transaction by which the older male exchanged money for a small quantity of drugs on the street. In support of this conclusion, he pointed to the short duration of the interaction, the fact that the male had exited the dwelling at 210 Wellington Street immediately upon the approach of the black Hyundai, suggesting that he was expecting the interaction to happen immediately, as well as previous information that he had received respecting the involvement of the black Hyundai in the drug trade.

[11] Officer Birnie communicated with other members of the Unit by radio that he had grounds to arrest the driver of the black Hyundai. Officer Nagy then took over surveillance of the black Hyundai and Officer Birnie remained stationary in his vehicle, assuming the role of scribe for the Unit.

[12] Officer Nagy followed the black Hyundai on Wellington Street approximately 7 to 10 blocks to a residence at 25 Park Avenue where the vehicle turned into the driveway. Officer Nagy assumed a position with his vehicle a short distance away and observed the applicant enter the residence and then leave one hour and five minutes later. During that time, he observed persons going in and out of the residence, however, he did not observe any hand-to-hand transactions outside the house or in a vehicle and observed no interactions involving the driver of the black Hyundai. Officer Nagy confirmed that the decision of the members of the Unit to arrest the applicant had been formulated prior to his arrival at 25 Park Avenue, based upon Officer Birnie’s communication that he had observed a hand-to-hand drug transaction at 210 Wellington Street and had grounds to arrest the driver of the Hyundai.

[13] After observing the black Hyundai leaving the driveway at 25 Park Avenue, Officer Nagy followed it to the Maple Convenience Store at 373 Colborne Street where the applicant exited the vehicle and entered the store.

[14] Officers Nagy, Birnie and Grant agreed that for safety reasons they would arrest the applicant while he was returning to his vehicle from the convenience store.

[15] The applicant exited the convenience store at 6:05 PM and was arrested by the three officers. Officer Nagy grasped one of the applicant’s arms and Officer Grant the other.

[16] While Officer Birnie was attempting to apply handcuffs to him, the applicant reached several times to the rear area of his pants. Officer Birnie testified that the applicant was resisting and appeared to be trying to conceal or to reach for something and he became concerned for his own safety. The officers placed the applicant in a prone position face down on the ground. Officer Birnie conducted a pat down search of the applicant using the back of his hand. In the course of the search, he felt an unnatural object in the area of the applicant’s buttocks.

[17] The officers then escorted the applicant to a police cruiser parked to the side of the convenience store. The cruiser had one door open. The officers placed the applicant behind the open door and instructed him to widen his stance and squat. Officer Birnie testified that the applicant squatted once, and when Officer Birnie shook the right leg of the applicant’s pants below his knee a tightly wrapped ball covered by grey plastic fell out of his pant leg where Officer Birnie retrieved it. He testified that the applicant was wearing grey pants which fit “appropriately” and had open cuffs.

[18] The tightly wrapped ball was later determined to contain cocaine and fentanyl.

[19] The applicant Jermaine Watson offered in his testimony a different version of the circumstances of his arrest and subsequent search of his person which resulted in seizure by police of the tightly wrapped ball containing cocaine and fentanyl.

[20] The applicant testified that on the day in question he was wearing a construction shirt/vest, Nike “tech fleece” jogging pants which fit tightly at the bottom by his ankles and Nike sneakers. Beneath his jogging pants he was wearing tight-fitting boxers, the legs of which extended to 6 inches above his kneecaps.

[21] The applicant stated that after exiting the convenience store and taking three or four steps he was tackled to the ground and heard a voice state “you are under arrest.” He was unable to see who had tackled him. After being tackled he was on his stomach with the side of his face on the ground looking to the right. Handcuffs were placed on him. He was unable to see behind him. He stated that three police officers were standing over him.

[22] The applicant testified that one of the officers stated, “he’s clinching - there’s something in his ass.”

[23] Two officers then picked the applicant off the ground and brought him across the street to a marked police car with its right rear passenger door open. The applicant was stood up by the door with an officer holding him on each side.

[24] One of the officers pulled his pants and boxers down to his knees and the other officer asked him to squat three times. The applicant stated that he was wearing nothing underneath his boxers, and if someone had been standing behind him, they would be able to see his “butt cheeks” and his private parts. After squatting twice, the sack of drugs which he had earlier placed between his buttock cheeks fell. He stated that his pants were down for about 10 seconds before one of the officers pulled them up.

[25] In closing submissions, the Crown acknowledged that should the police be found to have carried out a strip search of the applicant in a public place as alleged by the applicant, a stay of the proceeding under section 24(1) of the Charter should follow.

[26] Following the search and recovery of the bag containing drugs, the applicant was placed into the rear of a marked police vehicle at 6:17 PM. Officer Nagy provided the applicant with his rights to counsel and caution, and he was transported to the Brantford police station.

[27] Another member of the Unit Detective Constable Sims initiated a search of the applicant’s vehicle, locating and seizing an iPhone, a Samsung cell phone and a ripped grey plastic bag. Officers Birnie and Nagy attended to assist with the search of the applicant’s vehicle during which Officer Birnie observed several scratch marks around the vehicle’s centre console which he determined to be pry marks. He removed the plastic moulding and located a blue cloth that held ammunition and a purple zip lock plastic bag containing crack cocaine and a digital scale.

Guiding principles respecting reasonable and probable grounds for arrest

[28] The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code. Paragraph 495(1)(a) allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.

[29] In the recent case of R. v. Beaver, 2022 SCC 54 the Supreme Court of Canada confirmed that the essential legal principles governing warrantless arrests are settled. At para. 72, the Court summarized those principles as follows (case authorities and citations omitted for brevity):

1. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint.
2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence Subjective grounds for arrest are often established through the police officer's testimony. This requires the trial judge to evaluate the officer's credibility, a finding that attracts particular deference on appeal.
3. The arresting officer's subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer.
4. Evidence based on the arresting officer's training and experience should not be uncritically accepted, but neither should it be approached with "undue scepticism." Although the analysis is conducted from the perspective of a reasonable person "standing in the shoes of the [arresting] officer", deference is not necessarily owed to their view of the circumstances because of their training or experience. The arresting officer's grounds for arrest must be more than a "hunch or intuition".
5. In evaluating the objective grounds to arrest, courts must recognize that, often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. Courts must also remember that determining whether sufficient grounds exist to justify an exercise of police powers is not a scientific or metaphysical exercise, but one that calls for the application of common sense, flexibility, and practical everyday experience.
6. "Reasonable and probable grounds" is a higher standard than "reasonable suspicion". Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime. At the same time, police do not require a prima facie case for conviction before making an arrest. Nor do the police need to establish that the offence was committed on a balance of probabilities. Instead, the reasonable and probable grounds standard requires a reasonable belief that an individual is connected to the offence. A reasonable belief exists when there is an objective basis for the belief which is based on compelling and credible information. The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest.
7. The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest.
8. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds.

Position of the applicant regarding lack of reasonable and probable grounds for arrest

[30] The applicant submits that, at its highest, Officer Birnie had a suspicion that what he observed to have taken place between the occupant of the black Hyundai and the male who had exited the residence at 210 Wellington Street was a drug transaction. On cross-examination Office Birnie acknowledged that he had no knowledge of who the male he observed was, whether he had a criminal record, or whether he was known to police.

[31] Moreover, the applicant submits that Officer Birnie’s belief that he observed a drug transaction was based on no objectively discernible facts. The totality of the evidence that existed at the time supporting Officer Birnie’s determination that be had reasonable grounds to make an arrest was that the police had previous information from an unreliable source that the Hyundai vehicle was involved in the drug trade.

[32] The applicant points out that, if Officer Birnie’s evidence is accepted, he only observed the male reaching into the vehicle with cash. He did not observe the cash being exchanged for anything. He did not know the identity of the occupant of the vehicle, whether he was previously known to police or had any criminal record. The only justification for describing the meeting as a “drug transaction” was because of a “rumour” that the vehicle was involved in the drug trade.

[33] Although Officer Birnie testified that he observed something in the unknown male’s hands as he moved away from the vehicle, this important fact was not mentioned in his notes nor was it relayed to any other officer. It is not possible to detect anything in the male’s hands as he walked back from the vehicle to the residence from viewing the video taken by Officer Birnie, given its poor quality and the distance involved.

[34] In respect of Officer Nagy’s subsequent observations at 25 Park Avenue, the applicant notes that no information was provided respecting who resided at that residence, whether any police occurrences had taken place there in the past, or whether multiple families resided at the residence. Officer Nagy provided no information respecting who attended the residence while he observed it for over one hour, whether any of the individuals who entered the residence were known to police or were known drug users. Importantly, none of the individuals were observed interacting with the applicant. Officer Nagy did not state that the residence was a “known drug house.” Although Officer Birnie testified that it was, he offered no information to support this claim, nor did any reference to this appear in his notes.

Position of the Crown regarding reasonable and probable grounds for arrest

[35] The Crown submits that the police had reasonable and probable grounds to arrest the applicant based on the observations of Officer Birnie at 210 Wellington Street and Officer Nagy at 25 Park Avenue. The court cannot hold police officers to a standard of beyond a reasonable doubt or even a balance of probabilities. The Crown asserts that the applicant is asking the court to hold police to attain a higher standard than is supported by the authorities.

[36] In the case at bar, the police were aware that the black Hyundai vehicle was involved in drug activity and identified it as a target vehicle for investigation. While involved in another investigation, Officer Birnie coincidentally observed the black Hyundai and began filming with his cell phone and observed what he believed to be a hand-to-hand drug transaction which supports the existence of reasonable grounds. Based on the totality of the circumstances, when viewed subjectively and objectively, the police had reasonable grounds to arrest the applicant without warrant for possession of a controlled substance for the purpose of trafficking.

Discussion

[37] I am satisfied that Officer Birnie subjectively believed that he had the required grounds to make an arrest of the occupant of the black Hyundai. As noted previously, the question is whether the grounds were justifiable from an objective viewpoint based on the totality of the circumstances known to Officer Birnie, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience.

[38] Officer Birnie observed one interaction which he believed was a hand-to-hand drug transaction. It is not disputed that a single such incident can provide objective reasonable grounds for an arrest as in R. v. Phan (1997), 99 B.C.A.C. 6 (B.C.C.A.). See also R. v. Gill, 2015 BCSC 310 at para. 37.

[39] As noted, Officer Birnie stated that he relied upon his own experience in forming his belief that he had observed a hand-to-hand drug transaction. However, he had at the time relatively limited experience with the Unit. He offered no evidence of how many hand-to-hand drug transactions he had witnessed during his time with the Unit, nor did he describe the characteristics of the transactions that he did witness which led him to conclude that what he was observing on the day in question was similar.

[40] As noted previously, evidence based on the arresting officer's training and experience should not be viewed with undue scepticism. At the same time it is important that it not be uncritically accepted. In Gill at para. 47, Schultes, J. made the following observation which I adopt:

As to the interpretation offered by an officer's past experience, I think the danger to be avoided is that that officer will simply assert that certain behaviour is consistent with drug trafficking, without being able to ground that assertion in objective experience or to link in a transparent way what was observed to that experience, in a way that the court can assess.

[41] In my view, Officer Birnie did not ground his assertion that he witnessed the applicant engaging in a hand-to-hand drug transaction to any objective experience he possessed, nor did he link what he observed to that experience. The court is not in a position to assess the similarities and differences between what Officer Birnie observed to what he had witnessed on previous occasions in his experience. Moreover, Officer Birnie made no mention of any training he may have received upon which he relied in reaching his conclusion. In the absence of the foregoing information, the court is being asked by the Crown to uncritically accept Officer Birnie’s evidence without the necessary context and support.

[42] The only other element justifying Officer Birnie’s grounds for arrest of the applicant was Officer Birnie’s understanding that the black Hyundai was involved in drug activity, without any information on the source of this information nor its reliability. In my view, on the evidence, the assertion that the vehicle was involved in the drug subculture was no more than rumour and gossip.

[43] I therefore find that the Crown has failed to discharge the onus on it of showing that police had, in the totality of the circumstances, reasonable and probable grounds to arrest the applicant. Viewed objectively, Officer Birnie had no more than a suspicion that a drug transaction had occurred on the street in front of 210 Wellington Street.

[44] The warrantless arrest of the applicant therefore breached the applicant’s right not be arbitrarily detained or imprisoned under section 9 of the Charter.

[45] The police may search lawfully arrested individuals and their immediate surroundings to discover any object that may be a threat to the safety of the police the accused or the public, which may facilitate an escape, or which may provide evidence against the accused for the crimes for which he or she was arrested. (See R. v. St. Clair (2018), 2018 ONSC 5173, aff’d 2021 ONCA 895, at paras. 64-65).

[46] Given that the applicant’s arrest was unlawful, it follows that the searches carried out by police by which the drugs were discovered on his person and in his vehicle were unlawful warrantless searches and therefore represented breaches of section 8 of the Charter.

Should the evidence of the drugs be excluded pursuant to subsection 24(2) of the Charter?

Guiding Principles re ss. 24(2)

[47] The purpose of subsection 24(2) is to maintain the good repute of the administration of justice. The section does not focus on immediate reaction to an individual case, but rather looks to whether the overall repute of the justice system, viewed in the long-term, will be adversely affected by admission of the evidence. The inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute (see R. v. Grant, 2009 SCC 32 at paras. 67–68).

[48] The Supreme Court in Grant at para. 71 outlined three avenues of inquiry in relation to section 24(2), namely:

(a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on the Charter-protected interest of the accused; and (c) society's interest in the adjudication of the case on its merits.

Stage One: The seriousness of the Charter-infringing state conduct

[49] At the first stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence, particularly whether it involves misconduct from which the court should be concerned to dissociate itself. This will be the case where the departure from Charter standards was major in degree, or where the police knew, or should have known, that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[50] Extenuating circumstances may lessen the seriousness of police conduct that may result in a Charter breach. Good faith on the part of the police will also reduce the need for the court to dissociate itself from the police conduct. However, the court in Grant stated that ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith.

Stage Two: The impact on the Charter-protected interests of the accused

[51] The second factor looks at the seriousness of the infringement from the perspective of the accused, asking whether the breach seriously compromised the interests underlying the rights infringed or was the breach merely transient or trivial in its impact.

[52] The Court in Grant observed at para. 77:

The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

Stage Three: Society's interest in the adjudication of the case

[53] The final prong of the Grant analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

[54] The importance of the evidence to the Crown's case is a relevant consideration. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[55] The inquiry at the third stage reflects society's collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. A judge on a section 24(2) application should therefore consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[56] The court must ask itself whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial.

[57] However, the seriousness of the charged offence must not take on disproportionate significance, as, while the public has a heightened interest in seeing a determination on the merits when the offence charged is serious, it also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high (see R. v. Harrison, 2009 SCC 34 at para. 34).

Balancing

[58] After considering all three stages of the Grant analysis the court is tasked with weighing the various indications. The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

Analysis

Stage One - The seriousness of the Charter-infringing state conduct

[59] I did not understand the applicant to allege that Officer Birnie was dishonest in reference to the formation of his grounds for the arrest, nor does he challenge his credibility in reference to that issue (although he does challenge his credibility and that of Officers Nagy and Grant in reference to how the arrest and search of his person were carried out – namely whether he was tackled by police and strip searched on the street).

[60] In my view, Officer Birnie’s evidence respecting how he reached his conclusion that he had witnessed a hand-to-hand drug transaction was not reliable, as noted above, largely because he provided no link between what he said he witnessed and undisclosed incidents that he may have previously witnessed in his relatively brief prior experience to allow the court to assess their relevance.

[61] I find the following passage from the case of R. v. Dubensky, 2018 BCSC 1593 at para. 50 to be applicable to the case at bar in reference to the first stage of the Grant analysis:

The violation of the accused's rights under the Charter were not trivial. However, nor were they at the high end of the scale. While the violation was not deliberate in the sense of intending to breach the Charter, there was a failure to recognize the lack of reasonable and probable grounds for the arrest and the resulting search. At best, there was a suspicion. An individual on a city street is entitled to be free of police interference where there are no reasonable and probable grounds. The police are not entitled to arrest and search an individual on a mere suspicion. The right to one's liberty free of state interference is fundamental in our democracy.

[62] The Crown did not suggest that there were exigent circumstances requiring the applicant’s immediate arrest. It was not a case where Officer Birnie’s decision to advise the other officers of the Unit that he had grounds for arrest was required to be made quickly in a volatile and rapidly changing situation.

[63] In the totality of the circumstances, I find that the breach by police in effecting an arrest of the applicant without reasonable grounds and carrying it out where numerous members of the public were nearby to be serious. The first stage of the analysis pulls toward exclusion of the evidence, albeit not at the highest end of the spectrum.

Stage Two - The impact of the breach on the Charter-protected interest of the accused

[64] Regardless of whether the evidence of the applicant respecting the manner of his arrest and search by police is accepted, on the evidence led by the Crown the applicant was arrested and searched by three officers on a public sidewalk. It is common ground that there was considerable pedestrian traffic in the area in front of the convenience store at the time of the arrest. The applicant was placed by police in a prone position face down on the ground near the entry to the convenience store and handcuffed in full view of numerous members of the public.

[65] Even if the applicant should fail to discharge his onus of showing on a balance of probabilities that police carried out an unreasonable strip search of him, the applicant’s interaction with the police officers was not fleeting but was prolonged and intrusive. The applicant had the right to go about his day without interference by police. The breach therefore represented a serious breach of the applicant’s dignity and privacy rights.

[66] I find that the second stage of the Grant analysis pulls strongly towards exclusion of the evidence.

Stage Three - Society's interest in the adjudication of the case

[67] It is not disputed that the offence with which the applicant is charged is serious. The societal interest in having the scourge of the criminal opioid trade addressed by the fair and just prosecution of those involved in it according to the rule of law, is an important consideration at the third stage of the section 24(2) analysis.

[68] However, I remind myself of the admonition from R. v. Harrison, 2009 SCC 34 at para. 34 that the seriousness of the charge against the applicant is not to be given disproportionate significance as, while the public has a heightened interest in seeing a determination on the merits when the offence charged is serious, it also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high.

[69] The drugs seized as result of the search of the applicant are real and highly reliable evidence, are essential to the Crown's case, and may be considered virtually conclusive of the guilt of the applicant to the charges, if found to be admissible.

[70] The truth-seeking function of the criminal trial process would be better served by admission of the evidence, and therefore find that consideration of the third Grant factor favours inclusion of the evidence, as it almost invariably does.

Balancing

[71] In balancing the three factors, I find that the decision to arrest the applicant in this case without reasonable grounds was an error from which the court should dissociate itself. As stated by the majority in R. v. Le, 2019 SCC 34 at para. 143,

a "good faith" error on the part of the police must be reasonable and is not demonstrated by pointing to mere negligence in meeting Charter standards. In other words, the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards.

[72] In the case of R. v. Storrey, [1990] 1 S.C.R. 241, Cory, J. explained at para. 14 the reasons why it is critically important that police have reasonable and probable grounds to effect an arrest, especially an arrest without a warrant, as follows:

Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.

[73] I therefore conclude that, despite the reliability of the evidence and its importance to the Crown's case, the applicant has discharged his onus of showing, on a balance of probabilities, that the administration of justice would be brought into disrepute by its admission at trial.

Alleged strip search and the alternative claim for a stay of proceedings

[74] In light of the foregoing finding, it is not necessary to address the allegation of the applicant that police carried out an unreasonable and unlawful strip search of him incident to his arrest in support of his alternate claim seeking a stay of the proceeding pursuant to subsection 24(1) of the Charter.

Disposition

[75] The accused Jermaine Watson’s application for an Order excluding the evidence seized by police from his person and subsequently from his vehicle following his arrest pursuant to subsection 24(2) of the Charter is granted.

David A. Broad, J. Date: February 2, 2024