R. v. MacKenzie, 2011 ONCJ 875

COURT FILE No.: 09 LE 8306 Citation: R. v. MacKenzie , 2011 ONCJ 875 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BRANDEN KYLE MACKENZIE Before Justice Gregory A. Campbell RULING Charter Remedy ss. 8, 9 and 24(2) Released July 23, 2011 Ms. C. Aguero ……………………………………………………..Counsel for the Crown Mr. Frank Retar …………..… Counsel for the accused Branden Kyle MacKenzie CAMPBELL, J.: NATURE OF PROCEEDING: [ 1 ] Mr.

MacKenzie has been charged with the offence of possessing fifty-four grams of marijuana for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. [ 2 ] The accused has brought an application to exclude evidence on the basis of an arbitrary detention and an unreasonable search and seizure of the motor vehicle that he was occupying contrary to Sections 8 and 9 of the Charter. [ 3 ] Two police officers and Mr. MacKenzie testified on the voir dire .

SUMMARY OF RELEVANT FACTS [ 4 ] Officers Hutchinson and Atkinson were dispatched to a residence located near the intersection of Lamarsh and Churchill Streets in the Town of Leamington to respond to a call from a resident who complained about seeing a fire ball. [ 5 ] After speaking to the caller, officers discovered materials in the street that left them with the impression someone had been discharging molotov cocktails. They had no information about the number of people who may have been involved and no description of any individual either by height, age, gender or race.

They had no description about any vehicles or what if any mode of transportation that may have been used by any perpetrator involved with or associated with the explosions. No one could be seen out on the streets. The officers had nothing to go on that could lead to identifying who may have been involved. They therefore decided to drive around the neighbourhood in their separate marked police vehicles. [ 6 ] As officers Hutchinson and Atkinson fanned out from the area in separate directions, officer Hutchinson came upon a car stopped at a red light on Sherk street, facing Oak. Mr.

Mackenzie was seated in the passenger seat of that car. His girlfriend was driving. Officer Hutchinson testified that the passenger appeared to be looking away. The officer immediately turned off Oak and on to Sherk and while doing so, he activated his vehicle’s lighting package, and pulled his car up toward the stopped car, positioning it diagonally but placing himself “almost perpendicular” with the front end of driver’s side of the other car.

[ 7 ] Officer Hutchinson testified that he contacted dispatch either before or after he exited his vehicle indicating “I think I have something” and then walked to the driver’s door. When asked why he approached the accused’s vehicle, Officer Hutchinson stated “to obtain documents from the parties in the vehicle and the vehicle documents”. [ 8 ] The officer testified that when he asked Ms. Green for her documents, his focus was on investigating the explosion or the use of malotov cocktails.

Part of the conversation he had included small talk as he looked around the vehicle he said “to see if they were possibly involved in this… to rule them out that they’re not involved in this incident”. [ 9 ] Mr. MacKenzie and Ms. Green were described as being responsive and co-operative. The Officer said that he found no reason to believe the occupants were involved with the explosions. However, he added that as he stood at the side of the vehicle he looked inside and with the aid of his flashlight, he saw an open 1.14 litre bottle of whiskey in the middle of the back seat.

He testified that he also saw a box containing a digital scale in the back seat which he believed was used “for people that, uh, carry drugs and – and weigh them.” He was unable to describe precisely where the box was located when he found it, indicating only that it was among other personal effects on the back seat, including a bag. Officer Hutchinson then had the occupants exit the vehicle and conducted a search.

The officer said the purpose of the search was to “search for further liquor license offences...” He testified that he first removed the bottle of whiskey and the scale and then proceeded to search the rest of the car. [ 10 ] Officer Anderson arrived as the search was underway. He said that he stood just outside of the passenger’s side of the vehicle. Officer Anderson said that he saw the whiskey bottle and a corner of the box containing the digital scale sticking out from under some clothes that were in the back seat.

However, because this was Officer Hutchinson’s stop, Officer Anderson allowed Officer Hutchinson take the lead searching the car. [ 11 ] Officer Anderson recalled that officer Hutchinson motioned him from the back seat to take look under the front passenger seat because he had seen something. Officer Anderson therefore reached under the front passenger seat and pulled out a large freezer size zip-lock bag that contained two smaller bags with twenty-four grams and thirty grams of marijuana respectively. [ 12 ] Mr. Mackenzie testified that Ms.

Green was to spend the weekend with him so when she came to meet him after school, she brought a back pack containing her clothes along with her purse. These items, he said, were located on the back seat of Mr. MacKenzie’s car when officer Hutchinson conducted his search of the vehicle. Mr. McKenzie testified that prior to attending a friend’s birthday party, he and Ms. Green stopped at the liquor store and the beer store earlier in the evening. Although Mr. MacKenzie drove his car to the party, Ms. Green drove as they headed home from the party insofar as Mr. Green had been drinking and smoked some marijuana.

Mr. Mackenzie stated that the whiskey bottle found in the back of the car belonged to Ms. Green. He said the bottle was not lying on the back seat when the officer found it but rather was in her closed back pack among her clothes. [ 13 ] Mr. Mackenzie stated that they were simply stopped at the traffic light when officer Hutchinson pulled up with not only his car’s emergency lights on but also under the glare of the police car’s flood light glaring directly into the cabin of the car.

He recalled officer Hutchinson asked where they were going and what they had been doing before he mentioned anything about investigating an explosion or the use of molotov cocktails. Mr. Mackenzie stated that immediately after the officer asked Ms. Green for her driver’s licence, he began “scoping out the car” with the aid of his flashlight and “looking at us”. The officer then opened the back door of the car (driver’s side) and picked up Ms. Green’s purse. Mr. Mackenzie said that’s when he noticed the box containing the digital scale. Mr.

Mackenzie recalled that Officer Hutchinson put the purse on the back of the car on the trunk. He then picked up Ms. Green’s back pack, unbuckled it and began pulling clothes out before finding the whiskey bottle located beneath a pair of jeans. It was at or about this point when Officer Anderson pulled up. Although Ms. Green was already out of the car, Mr. Mackenzie had remained inside the car during officer Hutchinson’s search. It was at this point, after officer Anderson arrived, when the accused was directed to step out of the car. ISSUES: 1. Did the police have grounds to search the car?

Lawfulness of the stop Lawfulness of the search 2. If the search was unlawful, should the evidence be excluded? ANALYSIS: [ 14 ] There can be no doubt that the police had sufficient reason to believe that an offence had been committed in the area of LaMarsh and Churchill, from the evidence obtained indicating that someone had been exploding make shift devices.

With that, it was reasonable to expect that the police would search the area in an effort to gather any information that might lead to an eventual arrest. [ 15 ] It appears to me from a review of exhibit one, being a diagram to scale of the neighbourhood where the police found the

evidence and in proximity to where the accused was arrested, that the intersection of Sherk and Oak is approximately half a kilometreaway from the intersection of Lamarsh and Churchill. [16] It is trite to say that one’s right to liberty and privacy while travelling in a motor vehicle on a highway is not as great aswhat one would typically otherwise enjoy. The jurisprudence on this point has been consistent dating back to the English common lawdecision in R. v. Wakefield, [1963] 3 All E.R. 659.

Notwithstanding the compromised expectation of liberty and privacy rights whiledriving in a motor vehicle, the state’s authority to interfere with a citizen’s right to go about his business, even on a public highway, mustnevertheless arise from having a legal basis to do so. In short, the police cannot stop any car, search its contents and question itsoccupants without having lawful authority. [17] In this case, it is clear from Officer Hutchinson’s direct evidence that he did not stop the vehicle occupied by Mr. Mackenziepursuant to the provisions of the Highway Traffic Act.

The prosecution argued, however, that Officer Hutchinson had a legitimateconcern in relation to the commission of an offence so it was reasonable for him to approach Mr. Mackenzie’s vehicle and its occupantsin the manner he did as he was seeking out information. [18] Clearly, it would have been reasonable for the police officer to pull up to the Mackenzie vehicle for the purpose of asking theoccupants if they had any knowledge about the explosion. And in the course of doing this, there would be nothing preventing the officerfrom inquiring further about where they were going or what they may have been up to.

It would have been the occupants’ prerogative toanswer or refuse to answer such questions as they saw fit. The Supreme Court of Canada has made it clear that law enforcement isdependent on cooperation from members of the public. As such,

section 9 of the Charter does not require that the police abstain frominteracting with members of the public until they have specific grounds to connect the individual to the commission of a crime [see R. v. Grant (2009) 2009 SCC 32 , 66 C.R. 6th 1 at p. 25] [19] However, where an individual’s liberty is suspended either by a significant physical or psychological restraint, then detention within the meaning of s. 9 of the Charter will arise [see R. v. Grant (2009) 2009 SCC 32 , 66 C.R. 6th 1 at p. 27]. The questionhere is whether a reasonable person would conclude in the circumstances that Mr.

Mackenzie had no choice but to comply with thepolice. To determine whether a reasonable person in the Mr. Mackenzie’s circumstances would conclude that he had been deprived bythe state of the liberty of choice, the court may consider the circumstances that gave rise to the encounter, the nature of the police conduct and the particular circumstances of the individual [see R. v. Grant (2009) 66 C.R. 6th 1 at p. 27]. [20] There can be no doubt that a legitimate police objective arose following the discovery made by police at the intersection ofLamarsh and Churchill Streets.

That objective was to search the area for further evidence and make inquiries in respect of the particularoccurrence.

However, having found no-one and nothing to further that inquiry in the immediate or proximate area of concern, officerHutchinson confronted the first individuals he could find in a most aggressive manner by activating his emergency lights and pulling updiagonally across both lanes, positioning his marked police cruiser if nothing else, partially in there direct path or certainly in a mannerthat would cause any reasonable person to conclude that they were being prevented from continuing on their way. I accept the evidenceof Mr.

Mackenzie that the officer also saw fit to shine a flood light on and into the car notwithstanding the fact that this was a trafficlight controlled intersection. The answer officer Hutchinson provided about his initial involvement with Mr. Mackenzie and his vehicleis helpful: “I – at – at the point, I – I – the – the vehicle was already at a stop. Thereof – like, it was sitting there waiting at the traffic light,so I didn’t get behind it, wait for it to pull away or activate my emergency lights and pull the vehicle over. It was in the road. It wasstopped. There was nobody around.

Again, this was quite a serious offence that had just taken place on Lamarsh, um, so I immediatelyactivated my lights as I was turning that corner and – and – to direct the driver that they’re not to go anywhere.” Officer Hutchinson went on to indicate that he “ran the licence plate” before speaking with the driver and discovered the car wasregistered to the accused. Subsequent testimony supported by an audio recording revealed that officer Hutchinson didn’t run the plate butinstead it was officer Anderson who did so when he arrived.

Notwithstanding, Officer Hutchinson testified that after he received detailsabout the vehicles ownership, he “...approached the driver’s side of the vehicle, um, attempting to ascertain the documents of the – theparties in the vehicle and the vehicle documents”. [21] It is well settled that the police may patrol the highways and pull over motor vehicles and make inquiries of the driver withrespect to licensing, insurance and owner’s permit and may further make observations in regard to the driver’s ability to operate a motorvehicle.

Such inquiries have been held to be a reasonable interference with ones liberty because it is in the best interest of highway safetyand protection. However, to do so must be for a legitimate purpose. There is nothing I can glean from these facts either subjectively fromthe officer’s own evidence or objectively from the whole of the evidence that would justify the demand for documents from the partiesin the vehicle or in respect of the vehicle’s ownership. This was not a highway traffic stop.

Moreover, it may be worth stating that apolice officer’s power under the Highway Traffic Act does not encompass the authority to ask passengers for identification. (See Brownv. Durham Regional Police Force 1998, (131 C.C.C.) (3d) 1 (OCA). Officer Hutchinson testified that he questioned the occupants for“less than a minute” and concluded “in [his] first couple of questions” they were not involved in the throwing or tossing of Molotovcocktails. He stated that “the answers weren’t pointing towards that they were involved in throwing these gasoline filled bottles at thehouse”.

Nevertheless, throughout this initial period of time that officer Hutchinson was with Mr. McKenzie and Ms. Green, he looked inand around the car purportedly for officer safety. In this regard, office Hutchinson had this to say: “Um, well, while asking – while speaking to – to the driver, um just investigating and for officer safety was looking in andaround the vehicle, uh, with my flashlight, uh, shining it in the back seat to see if – again, while I was questioning, if there’s any evidencethat links these – these two parties to the, uh – to the incident that I’m – that I’m looking into.

And that’s when I see a bottle of, uh, whatended up being Canadian Club whisky on the seat.” [22] I am satisfied that Officer Hutchinson had no grounds to stop the vehicle and question the occupants in the manner he did.There can be no doubt the accused was detained. The manner by which the officer approached the Mackenzie vehicle and engaged theoccupants left no doubt that the vehicle and the occupants were not to go anywhere. Officer Hutchinson’s evidence clearly indicated thathe was detaining the occupants of this car so he could rule them out as suspects. No ordinary reasonably prudent person in such

circumstances would have concluded that he could have gone about his business or refuse to answer the officer’s questions. The accusedwas detained and unlawfully so. The detention was arbitrary and contrary to s. 9 of the Charter. [23] Insofar as the search is concerned, I am less than persuaded that the evidence adduced justified the search of this motorvehicle.

But for the unlawful detention, officer Hutchinson would not have found himself in a position to search the vehicle. [24] The Supreme Court of Canada in Regina and Mellenthin (SCC), [1992] 3 SCR 615, indicated that it had noquarrel with an officer’s visual inspection of a motor vehicle with the aid of a flashlight for officer’s safety incident to a routine stop. However, as I indicated, this was not a routine stop. It was an unlawful arbitrary detention. [25] Officer Hutchinson was without authority to stop the vehicle in the manner indicated. But it was more than that.

Hisobservations in regard to the items in the back seat of the vehicle, indicated to have been made by him under the guise of officer safety,were not simply the bi-product of an arbitrary detention, but more notably flowed from the manner of his engagement having stopped thecar at a controlled intersection, under emergency lighting and with the use of a flood light, all of which occurred before the use of theofficer’s flashlight.

With this, I am also concerned about the inconsistency in the testimony offered by the two police officers in regard towhat was actually visible in the back seat and the timing of when it was observed. [26] Officer Hutchinson said the reason for the search was because he saw an open bottle of whiskey and a digital scale on theback seat. [27] Firstly, with respect to the bottle of alcohol, Officer Hutchinson confirmed there was clothing in a bag that was on the backseat. Officer Anderson initially testified that he only saw the alcohol.

When the issue was revisited on day two of the trial, OfficerAnderson said that he saw other items in the back seat of the vehicle as well, including clothing. [28] Insofar as the digital scale is concerned, officer Anderson stated that the scale was covered by the clothing when he arrivednotwithstanding officer Hutchinson’s indication that he had removed the scale by the time officer Anderson arrived. [29] In addition to having good reason to question the reliability of the evidence from the foregoing, it is apparent to me thateven if this box was lying on the back seat among other items including clothing, I hold the opinion that it would have been difficult tobe able to conclude that the box contained a digital scale from a cursory survey of the back seat for officer safety.

The small box with apicture of the scale depicted on the box looks similar to a cell phone, if anything.

The word “digital scale” that is printed is quite smalI, Iwould estimate it to be something in the order of a number eight font. [30] If Officer Anderson’s testimony, indicating that this item was hidden under clothes with only the corner of the box beingevident from his vantage point, is to be believed, and for reasons indicated I found that testimony to be inconsistent with officerHutchinson’s version, I would find it hard to accept that Officer Hutchinson could have determined this item was a digital scale. [31] With this, I must consider the half open bottle of whiskey.

As I stated, Officer Anderson’s testimony was inconsistent inregard to what he saw in the back seat of the vehicle. That inconsistency may simply be the product of a compromised memoryassociated with the passage of time and with that the fact that this was not his investigation. Mr. Mackenzie’s recollection however wasclear. He described the bag in sufficient detail and how it was buckled, an observation he could make from his vantage point as theofficer opened his girlfriends back bag and emptied its contents. I am persuaded by his clear and detailed account.

I have good reason tobe concerned from the whole of the evidence including the manner of the stop, the questioning, and the inconsistent observations inregard to what was in the back seat of the vehicle and in regard to how those presented or were situated at the relevant period of time andhow they were handled. On balance, I have good reason to doubt that the half open bottle of whiskey was so readily visible.

In thecircumstances, I believe the bottle was located from a more intrusive examination of the vehicle and its contents that went beyond aroutine visual inspection of the vehicle by the officer as contemplated in R. v. Mellenthin. [32] On the whole, I have a marked degree of uncertainty in regard to the reliability of the evidence that formed the basis for thesearch of the vehicle which ultimately led to officer Hutchinson motioning officer Anderson to look under the front passenger seat wherethe zip lock bag containing the cannabis marijuana was found. [33] The Supreme Court of Canada stated in R. v.

Law 2002 SCC 10 , [2002] 1 SCR 227 at Paragraph 15, that “it haslong been held that the principle purpose of

Section 8 of the Charter is to protect an accused’s privacy interest against unreasonableintrusion by the state”. The Supreme Court of Canada also cited in R. v. Caslake (SCC), [1998] 1 SCR 51 (SCC)indicating that there are three ways in which a search can fail to meet the requirements to be justified and lawful. I have already foundthat the first of these three requirements has not been met.

That is, that the state authority conducting the search must be able to point toa specific statute or common law rule that authorizes the search. [34] In this case, there was neither a specific statute nor common law rule that authorized the search based on the facts as I havefound them. [35] The circumstances as I have found them were such that the officer detained the accused for questioning.

As I haveindicated, while a police officer is entitled to question any person, whether he or she is a suspect or not, the accused being the occupantof this motor vehicle could have in no way understood or appreciated that he had the right to proceed on his way. The manner by whichthe police unit pulled up with its the lights activated followed by the officer’s inquiry makes it clear to me that the officer was intent oninterrogation the occupants of the vehicle in an effort to determine if the accused and Ms.

Green had anything to do with the explosionthat occurred a fair distance away. [36] In the absence of any reasonable grounds to believe that this stop would have yielded evidence related to that investigationor resulted in an arrest and in the absence of this being a lawful stop under the provisions of the Highway Traffic Act, I am satisfied thatthe stop and subsequent questioning was an arbitrary detention that led to an eventual unlawful search of the motor vehicle and seizure ofthe controlled substance which forms the basis of the charge against Mr. Mackenzie.

[37] The routine inspection for officer safety with the aid of a flash light on this occasion arose as a result of Officer Hutchinsonacting without authority. That is to say, but for the unlawful and arbitrary detention of this vehicle, Officer Hutchinson would not havebeen standing next to Ms. Green and the accused’s vehicle and conducting the visual inspection of that vehicle with the aid of hisflashlight. [38] Moreover, for reasons previously indicated, I am not persuaded that the empty bottle of whiskey was readily apparent andvisible.

In the absence of the open whisky bottle being visible in the back seat, there was no justification for the wholesale search of thevehicle that took place, including the search under the front passenger seat where Mr. MacKenzie had been seated. [39] Agents of the state can only enter on to or confiscate someone’s property when the law specifically permits them to do so. In the absence of being able to point to a specific statute or common law rule that would authorize the search, the state cannot be said tobe authorized by law (see R. v.

Caslake, (SCC), [1998] 1 SCR 51). [40] Based on all the foregoing I am satisfied that not only was Mr. MacKenzie arbitrarily detained, but that the search of hismotor vehicle at the time of detention was not only was unreasonable but the seizure of the controlled substance found under the frontpassenger’s seat was as a result unlawful as being contrary to Sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

REMEDY – SECTION 24 (2) OF THE CHARTER: [41] In July, 2009 The Supreme Court of Canada developed a revised framework for determining whether evidence obtained inbreach of the Charter must be excluded under Section 24 (2). [42] One of the problems pointed out by the court that was associated with the historical approach to the 24 (2) analysis was thatthere appeared to be an underlying assumption that the use of conscriptive evidence always, or almost always, rendered the trial unfair. There is now a more discretionary approach to the 24 (2) analysis that is to be applied in respect of all charter breaches.

The focus nowis on the public confidence in the administration of justice. [43] The fact that there has been a breach of a constitutionally protected right means that damage has already been done to theadministration of justice. Accordingly, Section 24 (2) starts from that proposition and seeks to ensure that evidence obtained throughthat breach does not do further damage to the repute of the justice system. (See R. v. Grant). [44] Trial Courts are required to take an objective look at the circumstances surrounding the breach and the overall repute of thejustice system prospectively.

In short, I must ask myself whether a reasonable person, informed of all the relevant circumstances andabout the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justiceinto disrepute. The court has stated that the focus is societal.

That is to say, not aimed at punishing the state or providing compensationto the accused but rather one that is aimed at systemic concerns associated with maintaining the integrity of the administration of justice. [45] To achieve this end, trial courts are required to first consider the seriousness of the Charter infringed state conduct followedby assessing the impact of the Charter protected interest of the accused. Finally, the trial judge must consider societies interest inadjudicating on the merits.

That is, whether the truth seeking function of the criminal trial process would be better served by admissionof the evidence or by its exclusion. [46] With the foregoing in mind, I would reiterate that the authority to interfere with an individual’s liberty and privacy right,separate and apart from legitimate Highway Traffic Act concerns, must be based upon reasonable grounds to believe that an offence hasbeen committed or evidence related to an offence might reasonably be expected to be available and necessary to secure. [47] With the law being so well settled and the police being expected to have a principled understanding of this area of the law,it is troubling to say the least that officer Hutchinson would have manoeuvred his vehicle and pulled up in the manner indicated andembarked upon what was essentially an interrogation rather than a casual inquiry. [48] The search that followed was equally as troubling insofar as the evidence of the two officers was not consistent and causedme to conclude that the ability to observe an open bottle of whiskey in the back seat and/or the digital scale was not so readily apparent. [49] In all the circumstances, I am satisfied that the infringing state conduct was sufficiently serious enough for concern andcannot in the circumstances be justified.

Moreover, Mr. MacKenzie was a passenger in this motor vehicle. He could reasonably expector foresee that, as a passenger in a vehicle that was from all accounts obeying the rules of the road, he might be inconvenienced by aroutine traffic stop or inquiry while on his way home that evening.

However, he could hardly have anticipated that in the absence ofsome other or unusual conduct by the driver of his car or himself, would he be summarily detained and questioned about something hehad nothing to do with and forced to remain seated in the vehicle while the police rummage through the driver’s personal effects andeventually the car. [50] In R. v.

Mellenthin (SCC), [1992] 3 SCR 615 the court said that a general inspection by an officer who standsnext to a vehicle, even with the aid of a flashlight, is reasonable for officer safety, but should go no further than to allow him to gain anappreciation for the number of occupants in the vehicle, where they were positioned and what if anything is located in plain view.

Evenupon the proper questioning of the driver of a motor vehicle pursuant to a lawful stop under the Highway Traffic Act, the police are notempowered with authority to ask passengers in detained vehicles for identification. [51] While this part of the evidence was not fully developed, I was nevertheless left with the impression from the whole of theevidence that the intent of Officer Hutchinson was “… to see if they were possibly involved” with the explosions that occurred in anearby subdivision.

There was a psychological detention in the first instance arising from the manner of police engagement and theeventual interference with Mr. MacKenzie’s reasonable expectation of privacy. While it may not have been physically intrusive, it wasintrusive nevertheless. [52] In the end, I am dealing with approximately two ounces of marijuana contained in two separate sandwich bags that was

found under the front passenger seat of the accused who was travelling in his own motor vehicle although driven by a third party. I have no knowledge in regard to the strength of the crown’s case in respect of knowledge or control.

Ultimately, that may be a relevant consideration in regard to the truth seeking function of the Court in assessing whether justice would be better served by allowing for the admission of this evidence rather than its exclusion. [ 53 ] In addition, I am dealing with an amount of marijuana that could fall on either side of the spectrum vis a vis personal possession or possession for the purpose of trafficking depending on the evidence that would ultimately be led during the trial. Again, I have no evidence to assist me further in that regard.

Arguably, the Crown’s case based on that allegation ought to be taken at its highest at this juncture but experience tells me this too would be contentious at trial. The reliability of the evidence is not in issue.

Certificates of Analyst were filed confirming that the content of the bags that were seized under the seat was in fact a controlled substance. [ 54 ] When all things are considered it seems to me that with the law being so well settled in regard to what the role and duty of the police ought to be in circumstances such as this and with the findings that I have made and having regard to the amount of marijuana seized and the circumstances that led to its eventual seizure, all of which has caused me concern, I am of the opinion that the repute of the administration of justice is better served by exclusion of this evidence rather than its admission. [ 55 ] Accordingly, the application is allowed.

The evidence obtained shall be excluded from the trial. Released: July 23, 2011 G. A. Campbell, Windsor