7
In order to address these main issues, the background facts must be found and considered.
Background Facts
8
On June 2, 2006, Durham Regional Police Service officers Shaddick and Boccinfuso were working in Whitby in plainclothes in an unmarked police car. Officer Shaddick was driving the car westbound on Dundas Street when the officers noticed the accused Wilson who was talking on his cell phone while standing on the sidewalk, beside the road, in front of the apartment building at 610 Dundas Street West. The officers testified that, when they saw Wilson, Officer Shaddick told Officer Boccinfuso that Shaddick knew Wilson to 1) live at 610 Dundas Street West, 2) be involved in drug culture, and 3) have been violent with the police in the past.
9
Officer Shaddick then drove his car to the parking lot of a pizza restaurant that was located almost directly across the road from 610 Dundas West. He did so to allow the officers to continue to observe Mr. Wilson and so that Officer Shaddick could get something to eat.
10
While in the restaurant parking lot, the officers saw Mr. Wilson wave and nod to a green Mazda car that was driving west along Dundas Street. The Mazda slowed, as it neared Mr. Wilson, and then turned into the driveway of 610 Dundas West and drove towards the building's parking lot at the rear of the building. The officers saw Mr. Wilson follow the Mazda down the driveway.
11
Officer Boccinfuso testified that he was certain that the officers, while in the restaurant parking lot, could no longer see either the Mazda or Mr. Wilson after both the Mazda and Mr. Wilson turned to the right off the driveway, around the corner of the apartment building and into the building's rear parking lot. His evidence was supported by the various drawings of the site that became exhibits. Officer Shaddick's testimony was to the contrary, but his evidence was internally inconsistent and did not make sense.1 Also, I find that, throughout his testimony, Officer Shaddick was terrible at estimating distances - he often estimated distances ridiculously lower than the actual distance. For these reasons, I reject Officer Shaddick's testimony and I find that from the restaurant parking lot, neither officer could see either the Mazda or Mr. Wilson in the rear parking lot of 610 Dundas West.
12
With Officer Shaddick driving, the officers drove their car from the restaurant parking lot, across Dundas Street, into and down the driveway of 610 Dundas West, and into the building's rear parking lot. They were driving quickly.
13
As soon as they completed driving down the driveway and passed the back corner of the apartment building, Officers Shaddick and Boccinfuso saw that the Mazda was parked at the rear of that parking lot. The officers could see that there were people in the Mazda and no other persons were standing outside in the parking lot.
14
Within one or two seconds of entering the parking lot, Officer Shaddick had pulled up and parked the unmarked police car very near the Mazda. Immediately, Officers Shaddick and Boccinfuso got out of their car, drew their handguns, and yelled to the Mazda's occupants, "Police, don't move."
15
The Mazda's driver got out quickly and fled barefoot. Officer Boccinfuso decided not to pursue him.
16
Mr. Franklin was sitting in the front passenger seat of the Mazda. Mr. Wilson was seated in the rear seat (behind the driver) of the Mazda. Both Franklin and Wilson somehow got out of the Mazda, followed the officers' instructions, and lay on the ground where they were handcuffed.
17
Officers Shaddick and Boccinfuso then searched the Mazda. On its floor were found two packages of crack cocaine - one weighed 1 gram and the other weighed 5.7 grams. Officer Shaddick searched the trunk and found two packages of marijuana, totaling 424.9 grams.
Analysis
Findings With Respect to the Arrest/Detention and Nature of the Search
18
In order to properly evaluate the alleged breaches, the major issues, and the exclusion requests, it is first necessary to examine the arrest/detention and the search of the Mazda.
19
As stated above, the Crown during argument conceded that the officers' search of the Mazda breached the applicants' section 8
Charter rights protecting against unreasonable search and seizure. Based on the background facts found above and for the reasons that follow, I too am satisfied by the applicants on a balance of probabilities that the applicants' section 8
Charter rights were breached.
20
Based on the Crown's concession of the breach, the evidence heard, and the facts as found, I agree and find that the applicants had a reasonable expectation of privacy in the Mazda and their property contained therein. The search was warrantless. Therefore, it is presumed to be unreasonable. To rebut that presumption, the Crown relied upon Officer Shaddick's testimony that he believed the accused Wilson to be involved in the drug culture and have been previously violent with the police. The Crown also relied on both officers' testimony that the events seen by the officers had the hallmarks of a drug transaction taking place.
21
However, Officer Shaddick's basis for his belief about Mr. Wilson's reputation was based on very weak, inaccurate, and insubstantial hearsay information. He testified that he had read reports that contained statements about Mr. Wilson's involvement in drug culture. But, Officer Shaddick did not provide any details of the amount of reports where he had read about Mr. Wilson's involvement or what any of these reports stated - i.e. as to the nature (as a user or dealer) or the extent of involvement. Further, during cross-examination, Officer Shaddick did not dispute that Mr. Wilson had been only charged once previously with a drug offence and that was many years ago and that charge was itself withdrawn.
22
Officer Shaddick's basis for his belief about Mr. Wilson's violent nature was similarly weak, inaccurate, and insubstantial. Officer Shaddick testified that he previously had been to 610 Dundas West in a situation that involved Mr. Wilson allegedly breaching release conditions. Yet, once again, during cross-examination, the officer did not dispute that during the officer's entire police career, there was no record of Mr. Wilson being involved in any such event. Officer Shaddick must have been mistaken when he testified about prior involvement with Mr. Wilson at 610 Dundas West.
23
Prior to this incident, Officer Boccinfuso had no involvement with Mr. Wilson and no knowledge of Mr. Wilson's reputation. Officer Boccinfuso relied entirely on Officer Shaddick's knowledge about Mr. Wilson's reputation.
24
Both officers testified that, because of their police officer experience with drug transactions, they had reason to believe that a drug transaction may be taking place.
25
Officer Shaddick testified that the following facts gave him reasonable and probable grounds to believe that a criminal offence was about to take place: 1) his knowledge of Mr. Wilson, 2) Mr. Wilson standing on the sidewalk beside the road talking on a cell phone while looking around, 3) Mr. Wilson waved and nodded at a Mazda as it drove towards him, 4) the Mazda slowed near Mr. Wilson and then turned into the driveway of 610 Dundas West and towards its parking lot, and 5) Mr. Wilson followed the Mazda on foot down the driveway and towards the parking lot. At that point, Officer Shaddick testified that he had decided to arrest Mr. Wilson. Officer Shaddick's decision to arrest was based on only those facts.
26
As discussed above, Officer Shaddick had only minimal information, much of which was inaccurate and almost all of which was hearsay, about Mr. Wilson's reputation. The actions of Mr. Wilson and the Mazda were consistent with a far greater number of legitimate, legal explanations than with being reason to believe a crime was about to take place. Ordinary people frequently talk in public on their cell phone. Ordinary people frequently wait for people. It is not uncommon for people to sit and talk in a parked car. At no relevant time, did either officer know the identity and/or reputation of the other persons in the Mazda. At no relevant time prior to searching the Mazda, did either officer see any drugs or what they suspected were drugs. At no relevant time, did either officer see a weapon in the Mazda or in the possession of an occupant of the Mazda.
27
For those reasons, after considering those facts cumulatively, I find that the facts, relied on by Officer Shaddick, were simply not sufficient to satisfy the objective component of the reasonable and objective grounds requirement. Further, because of the weakness of the information giving rise to Officer Shaddick's belief about Mr. Wilson's reputation and the multiple, legitimate, possible explanations of what was being observed, I find that the objectively discernible facts did not give Officer Shaddick reason to suspect that it was possible a crime was about to take place. For those reasons, I find that when Officer Shaddick decided to arrest Mr. Wilson and the Mazda's occupants, Officer Shaddick had no reasonable and probable grounds to arrest or reasonable suspicion giving rise to a right to detain Mr. Wilson or the Mazda's occupants for investigative purposes.
28
Officer Boccinfuso testified that he believed that there were reasonable and probable grounds to arrest based on the same facts as Officer Shaddick together with some additional facts. In particular, Officer Boccinfuso testified that he did not believe that there were reasonable and probable grounds to arrest until the police car turned into the rear parking lot of 610 Dundas Street West and he saw that there were three men in the Mazda (including Mr. Wilson) and Mr. Wilson handed some money to the driver. At that point, together with his belief about Mr. Wilson's reputation (obtained entirely from Officer Shaddick), the other events that he had seen since first seeing Mr. Wilson, and his own police officer experience, Officer Boccinfuso believed that a drug transaction had occurred or was occurring and that he had reasonable and probable grounds to arrest Mr. Wilson and the Mazda's occupant section.
29
I do not accept Officer Boccinfuso's testimony that his decision to arrest was made only after seeing the transfer of money. By their own testimony, the officers' car was moving quickly when it went down the driveway at 610 Dundas West and into the parking lot. Further, both officers testified that it took only a second or two from them first seeing the Mazda (in the parking lot) until the officers' car was pulled up to the Mazda and the officers were jumping out with guns drawn to arrest the persons in the Mazda. Officer Boccinfuso had only one or two seconds, in a quickly moving car, to look through his car's front window and through the front window of the Mazda to see money being passed (by a rear seat passenger who may have been possibly obstructed from the officers' view by the front passenger) and decide to make a gunpoint arrest. Also, both officers' testimony was very vague as to what "money" they saw passed. Further, although both officers testified that they never discussed making the arrest a "high risk takedown" (i.e. with guns drawn), they both jumped out of the car with guns drawn.
30
With
so little time in the parking lot,
so little time to observe, the obstructional problems, and the coordinated gunpoint takedown, I find that it was not coincidence that both officers decided to execute the gunpoint takedown. I find that there was insufficient time for Officer Boccinfuso to observe money passed and then so quickly decide on a gunpoint takedown that, coincidentally, Officer Shaddick also believed that they had previously agreed upon, although never discussed. In all of the circumstances, I find that both officers individually deciding on a gunpoint takedown was not coincidental and that the officers had discussed and decided to make a gunpoint takedown before their car entered the rear parking lot at 610 Dundas West. Officer Boccinfuso testified and I have found that reasonable and probable grounds for arrest did not exist at any time prior to entry into the rear parking lot. I have also found earlier that objectively looking at the facts, there was no reasonable suspicion at that point that gave rise to a right to detain.
31
As
stated above, the Mazda's driver
fled barefoot when the officers
leapt out of their police car with
guns drawn, yelling "Police, don't
move." Officer Shaddick's gun was pointed at the Mazda's passengers. Officer Boccinfuso, with his gun drawn, followed the Mazda's driver for only a few steps before deciding to assist Officer Shaddick with the Mazda's passengers. Both officers testified that the Mazda's two passengers were completely compliant with the officers' commands. The passengers immediately went to the ground, faces down, with their hands behind them. The passengers were immediately under control, at gunpoint, of the officers. The passengers were the two accused, Franklin and Wilson.
32
The officers handcuffed and conducted pat-down searches of Franklin and Wilson. The searches were made to look for weapons and drugs. Neither weapons nor drugs were found on either Mr. Franklin or Mr. Wilson. Mr. Wilson was the rear seat passenger that the officers testified they had seen pass money to the Mazda's driver. Both officers admitted that they never saw Mr. Wilson receive anything while he was in the Mazda. Mr. Franklin was the front seat passenger. Neither officer testified that they saw Mr. Franklin either pass or receive anything while seated in the Mazda.
33
After the officers had searched Franklin and Wilson, the officers searched the Mazda, during which search the drugs were found and seized. The Mazda was under the control of the officers. It was not going anywhere and there was no risk of losing any evidence that might be contained in the Mazda. Mr. Wilson and Mr. Franklin were handcuffed, lying face-down on the ground, without weapons, totally controlled by the officers, and totally compliant with the officers' commands. There was sufficient evidence and I find that no other persons or circumstances created safety concerns for the officers at that point.
34
The
officers had called for uniformed
back-up which they believed would
arrive very soon. But, the officers
searched the Mazda before back-up
arrived. As stated earlier, there
were no safety concerns and no other
exigent circumstances. For these
reasons, I find that the officers
must have felt very safe to search
the Mazda before the back-up
officers arrived.
35
There was no evidence and I find that, at no time before the drugs were found in the Mazda, either officer told any of the accused the reason for their detention or their arrest, if they were arrested.
36
Further, there was no evidence and I find that, at no time before the drugs were found in the Mazda, that either officer requested permission from any of the accused to search the Mazda. There was plenty of time for the officers to have requested that permission and the Mazda's occupants had been compliant with all police commands, but the officers searched the Mazda without requesting any permission.
Search Incidental to Arrest
37
Officer Boccinfuso testified and Crown counsel submitted that the drugs were validly found and seized during search incidental to the arrest of Mr. Franklin and Mr. Wilson.
38
I disagree.
39
As found above, prior to the gunpoint takedown, the officer had no reasonable suspicion to detain. Even if they had reasonable suspicion to detain, there were no safety concerns or other exigent circumstances that necessitated searching the Mazda without a warrant.
40
Also, the Crown did not satisfy me that the accused men were lawfully arrested prior to the search of the Mazda. As found above, the officers did not have reasonable and probable grounds to arrest the Mazda's occupants until the officers started searching the Mazda. Further, prior to searching the Mazda, neither officer told any of the accused men that they were under arrest, and
certainly did not communicate the reason for their arrest or detention.
41
As stated by Carty J.A. in
R. v. Young, "If the arrest was illegal, then the search was equally illegal ... ".2
42
In this case, there were no reasonable and probable grounds to arrest. Accordingly, any arrest was illegal. Therefore, the search of the Mazda cannot be said to be a legal search incidental to arrest.
43
For these reasons, the Crown has not satisfied me that the drugs were legally found during a valid search incident to arrest and the drugs cannot be admitted into evidence on that basis.
The Alleged Charter Breaches
The Section 8 Charter Breach
44
The Crown conceded that the search of the Mazda breached the section 8
Charter rights of the accused persons. On the facts as found above, and for the brief reasons that follow, I agree.
45
Generally, there is a lesser expectation of privacy in a car and its contents. However, in this case, by conceding that there was a section 8 breach, the Crown was also effectively conceding (and I find on the facts before me) that all three accused persons had a reasonable expectation of privacy in the Mazda and its contents.
46
The search of the Mazda was without consent and warrantless and, therefore, presumptively unreasonable. Once again, by conceding the section 8 breach, the Crown effectively conceded that the Crown had not rebutted the presumption of unreasonableness.
47
There
were no safety concerns, exigent
circumstances, and/or any other
reason to justify the warrantless
search of the Mazda. On the
evidence, I find that the Crown did
not rebut the presumption that the
search was unreasonable.
Accordingly, on the evidence, I am
satisfied that the search of the
Mazda was a breach of the section 8
Charter rights of all three accused men.
48
The drugs were found during the search of the Mazda.
49
Even if the Crown had not conceded the section 8 breach, for these reasons, I am satisfied on a balance of probabilities that all of the drugs, that the officers found in the Mazda, were obtained as a result of the officers breaching the section 8
Charter rights of all three accused men.
The Section 9 Charter Breach
50
As stated and found above, prior to the gunpoint takedown, the officers had no reasonable and probable grounds to arrest any of the accused persons. Also as stated and found above, objectively looking at the facts, there was no reasonable suspicion at that point that gave rise to a right to detain any of the accused persons. I agree with Officer Shaddick's testimony and I find that because the officers intended to arrest the Mazda's occupants prior to the officers' police car entering the narrow driveway of 610 Dundas West and because the Mazda would not have been able to drive past or away from the police after the police car had entered the driveway, all three accused persons were effectively detained as soon as the officers' car entered the driveway.
51
For these reasons, I find that all three accused persons were unreasonably and unlawfully detained and/or arrested by the officers. The drugs that were seized by the officers, after that detention and/or arrest, were obtained as a result of that unreasonable and unlawful detention and/or arrest.
52
For these reasons, the applicants have satisfied me on a balance of probabilities that all of the drugs, that the officers found in the Mazda, were obtained as a result of the officers breaching the section 9
Charter rights of all three accused men.
The Section 10(a) Charter Breach
53
As stated and found above, prior to the drugs being found in the Mazda, neither officer had told any accused the reason for his detention and/or arrest. Further, there were no safety concerns, exigent circumstances, and/or any other reason that justified the warrantless, non-consensual search of the Mazda. No accused person was offered the opportunity to consult counsel prior to the officers searching the vehicle. The drugs were found in that search. Mr. Franklin and Mr. Wilson were advised of their arrest after the drugs were found. Although there was no evidence of when Mr. Lewis was advised of the reason for his arrest, it obviously occurred some time after the discovery of the drugs in the Mazda.
54
The drugs are the most important evidence in this case. The drugs were found in a warrantless, non-consensual search that occurred prior to any accused having the opportunity to consult counsel and obtain counsel's advice as to whether to object to the search of the Mazda. In these circumstances, the failure of the officers, prior to searching the Mazda, to advise any accused person of the reason for his detention and/or arrest was a breach of each accused person's
Charter right to be promptly advised of his reason for detention or arrest.
55
On a balance of probabilities, I am satisfied that most counsel would have advised the accused not to consent to the officers searching the Mazda.
56
For these reasons, the applicants have satisfied me that the drugs, that the officers found in the Mazda, were obtained as a result of the officers breaching the section 10(a)
Charter rights of all three accused men.
Summary on Charter Breaches
57
On a balance of probabilities, each applicant has satisfied me that there was a breach of his section 8, 9, and 10(a)
Charter rights and the drugs were found as a result of the officers violating those
Charter rights of each applicant. The next issue to be addressed is whether the drugs should be excluded from evidence pursuant to section 24(2) of the
Charter.
The Section 24(2) Charter Analysis
58
The drugs are real, discoverable, non-conscriptive evidence that were obtained as a result of breaches of
Charter rights of each accused man, including breaches of each accused man's section 8
Charter rights. Accordingly, the evidence is excluded only if the seriousness of the
Charter breaches is so serious that it outweighs the State's interest in admitting the evidence.3
The Seriousness of the Charter Breaches
59
There are many factors involved when considering the seriousness of a
Charter breach. I will consider the factors that I find applicable in this case.
60
It was at least an error in judgment for the officers to search the Mazda without a warrant after the officers had Mr. Franklin and Mr. Wilson under control. At that point, the officers and any reasonable person should have been aware that were no dangers to life, health or safety or other exigent circumstances that required searching the Mazda before obtaining a warrant. All of the relevant evidence could have been obtained without any need to infringe
Charter rights. The evidence is real, discoverable, non-conscriptive evidence that would easily have been obtained in a search authorized by a search warrant. There were no concerns over preservation of evidence that necessitated the warrantless search of the Mazda.
61
A telewarrant could have been obtained if the officers were in a hurry. There was no evidence of lack of resources that made it unfeasible or unreasonable to secure the room in some manner while awaiting a warrant.
62
On the evening of June 2, 2006, both of the officers, Shaddick and Boccinfuso, were police officers with several years of policing experience. Both officers testified that on that evening, they did not discuss obtaining a warrant to search the Mazda. Further, both officers testified that on that evening, they did not consider whether a search warrant should have been obtained. Both officers also testified that they have often testified in court in
Charter applications. Lastly, both officers testified that they would not do anything differently if they encountered the same situation again.
63
As part of their initial training, police officers are made aware of the need to comply with the
Charter and to properly conduct searches and seize evidence. Having often testified in
Charter voir dires, I am satisfied and I find that both Officers Shaddick and Boccinfuso are aware that evidence seized as a result of
Charter violation(s) might be excluded at trial and that, if the evidence is excluded, there is a possibility of dismissal of serious charges. Both officers were aware of the importance and seriousness of ensuring that evidence must almost always be obtained without
Charter breaches. In these circumstances, I do not accept and it is unreasonable that these two officers truly believe that they acted properly in failing to even consider the necessity of a search warrant. Similarly, I also do not accept and it is unreasonable that both officers still adamantly and truly believe that they do not need to consider the necessity of obtaining a warrant in similar situations. In these circumstances, I do not find that the
Charter breaches were made in good faith. These factors all add to the seriousness of the section 8 breaches.
64
To a large extent, in deciding to make the gunpoint takedown and the subsequent search of the Mazda, both officers relied on the same weak, inaccurate, and insubstantial information on which Officer Shaddick based his belief about Mr. Wilson's reputation. Officers should ensure that they are relying on strong reliable information before arriving at negative conclusions about a person's reputation that might lead to violations of
Charter rights and possible criminal charges. The officers' reliance on weak information adds to the seriousness of the
Charter breaches.
65
The Crown conceded that the gunpoint takedown was an aggravating factor that adds to the seriousness of the
Charter breaches. Although the Crown did not elaborate, I am satisfied that the Crown's concession was made on all of the facts of this case including, but not restricted to, a) the feeble basis of the officers' belief about Mr. Wilson's reputation, b) the very neutral facts that the officers actually observed were consistent more with legitimate, legal acts than with illegal acts, c) there was no reasonable suspicion giving rise to a right to detain for investigative purposes, d) there were no reasonable and probable grounds to arrest, e) there was no evidence of the presence of weapons, e) the officers had no knowledge of the identities or reputations of the Mazda's occupants, other than Mr. Wilson, and f) the officers' guns were unnecessarily drawn in the early evening behind an apartment building, in a heavily populated residential area, near a seniors' residence, just off of one of the most heavily-travelled streets in the city. Based on those factors, I agree and find that the gunpoint takedown is an aggravating factor that adds to the seriousness of the
Charter breaches.
66
Also, in this case, the officers flagrantly and unnecessarily breached multiple
Charter rights of each accused man. This significantly adds to the seriousness of the
Charter breaches.
67
The seriousness of the totality of the
Charter violations must be determined after considering all of the factors set out above. Having considered all of those factors, I find the totality of these
Charter violations to be very serious.
The Effect on the Administration of Justice
68
The final matter to be considered is whether the repute of the criminal justice system would be
better served by admission or exclusion of the drugs found during the search of the Mazda.
69
As found above, the
Charter breaches in this case were flagrant, multiple, unnecessary and very serious. There were no safety concerns, urgency, exigent or other circumstances that explained or justified the
Charter breaches. Considering the weakness of the information relied upon by the officers and their inconsistent testimony (particularly that of Officer Shaddick), I cannot find that the
Charter breaches were made in good faith by the officers.
70
The evidence in question is real, non-conscriptive evidence that could have been obtained with a search warrant.
71
Mr. Wilson faces only one charge - possession of crack cocaine for the purpose of trafficking. It is a serious charge. However, in the Mazda, the officers found and seized a total of 6.7 grams of crack cocaine which is a relatively small amount of crack cocaine compared to the amounts that are normally seen in cases before me where the charge is possession for the purpose of trafficking.
72
Mr.
Franklin and Mr. Lewis both face two
serious charges. They both face the
same charge as Mr. Wilson, namely,
possession of crack cocaine for the
purpose of trafficking. As stated
above, the amount of crack cocaine
is relatively small.
73
Additionally, Mr. Franklin and Mr. Lewis are both charged with possession of marijuana for the purpose of trafficking. In the Mazda, the officers found and seized 424.9 grams of marijuana which is a relatively moderate amount compared to what I normally see on a charge of possession of marijuana for the purpose of trafficking.
74
The drugs are absolutely essential for proof of the Crown's case. If the drugs are excluded from evidence, the Crown cannot prove any of the charges.
75
I find that, essentially, the officers acted on a hunch that there might be a drug transaction occurring. They may possibly have been correct, although exactly what transaction occurred may have been difficult to prove. However, the officers relied on very weak and inaccurate information about Mr. Wilson and allowed that weak and inaccurate information to influence what they believed was taking place. What the officers believed to have been a drug transaction was more likely to have been just three people sitting in a car and doing nothing illegal. The officers acted very precipitously in effecting a gunpoint takedown in these circumstances. Innocent occupants of a car would have been terrified to experience a gunpoint takedown. Innocent bystanders could easily have become involved and possibly hurt, or worse. And, in any event, the amount of drugs that were found in the Mazda was not that large and there was no evidence that this incident was part of a larger trafficking operation.
76
Police
officers are expected to use their
knowledge and experience. However,
officers are not to quickly jump to
conclusions, based on weak
information, that put innocent
people at unnecessary risk of arrest
or injury or charges that are
without merit.
77
In
this case, the same charges could
easily have been made without the
risk of the gunpoint takedown. It
may have required a little more
investigation, but that additional
investigation would have more safely
and validly led to the seizure of
the drugs and laying of the charges.
78
The negative long-term effect of excluding the drugs is that police officers may be hesitant to act on their hunches. However, I am satisfied that negative effect is far outweighed by the long-term benefits of encouraging reliance on stronger and more accurate information and more comprehensive investigations prior to detaining or arresting individuals. More importantly, safety would be fostered by those long-term benefits.
79
The facts of this case differ from the recent highly-publicized case of
R. v. Harrison.4 In
Harrison, over 70 pounds of cocaine were found in the vehicle. That amount of cocaine was many times more both by weight and value than the 6.7 grams of crack cocaine that were found in the Mazda in this case. Even adding the value of the almost one pound of marijuana that was found in the Mazda's trunk, the value of drugs found in the Mazda was worth only a very small fraction of the amount of drugs that were involved in the
Harrison case. Further, in this case, there was no evidence on the
voir dire that the amount of drugs was sufficient to prove that the drugs were possessed for the purpose of trafficking. In
Harrison, the amount was so large, that possession for the purpose of trafficking was really not an issue. Lastly, in this case, the Crown has very significant problems in proving possession of the various drugs when Mr. Wilson had only seconds earlier entered the car, the marijuana was in the trunk, and there was no evidence tying any of the Mazda's occupants to the car's owner.
80
In this case, for all of the reasons set out above, I am satisfied that the administration of justice would be brought into greater disrepute by admitting the relatively small or moderate amount of drugs to possibly support charges of possession for the purpose of trafficking rather than excluding the evidence in order to encourage reliance on better, accurate information and more comprehensive investigations prior to effecting gunpoint takedowns that potentially put at risk large numbers of innocent people.
Conclusion
81
For all of the reasons set out above, the marijuana and crack cocaine, that were seized in the
June 2, 2006 search of the Mazda, are excluded from evidence at this trial.
D.W.E. SALMERS J.
1 Officer Shaddick testified that by moving only one foot, the officers were able to see behind the corner of 610 Dundas West and into its parking lot. I find that could not be possible based on the agreed locations and physical layouts of the restaurant parking lot and 610 Dundas West.
