R. v. Fraser Date:, 2013 BCPC 59

Citation: R. v. Fraser Date: 20130319 2013 BCPC 0059 File No: 155939-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALEX PRINCSTON FRASER REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: Ms. J. Vivian Counsel for the Defendant: Mr. P. Pearson Place of Hearing: Victoria , B.C. Date of Hearing: January 22, 2013 Date of Judgment: March 19, 2013 INTRODUCTION

[ 1 ] The Defendant is charged with possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. [ 2 ] At his trial, the Defendant has invoked

section 8 of the Charter of Rights in order to call into question the constitutional validity of the search which took place incidental to his arrest and which admittedly led to the finding of a quantity of cocaine on his person. [ 3 ] The trial so far has been conducted largely within the context of a voir dire , in order for the Charter issue to be most effectively addressed.

By way of remedy for the alleged Charter breach the Defendant seeks evidentiary exclusion of the cocaine found during the search. [ 4 ] The Crown submits that the search was constitutionally valid and submits further that even if the court should conclude otherwise on that issue the evidence of the finding of the drugs should nonetheless be admitted into evidence upon a proper application of s. 24(2) of the Charter .

SUMMARY OF EVIDENCE [ 5 ] On January 5, 2012 during daylight hours three police officers were travelling together in an unmarked police vehicle in Victoria. The driver of the vehicle was Constable Lawson. His passengers were Constables Eddy and Hickaway. [ 6 ] Constable Lawson is a trained undercover operator with some specialized experience in the investigation of major crime and drug trafficking cases.

He testified that he is familiar with many of the known drugs users and dealers in the Victoria area and that he has given expert evidence in the courts of this province about various matters concerning drug usage and drug trafficking. [ 7 ] On January 5, 2012 the Defendant was a person already known to him.

He testified that he had arrested the Defendant twice before and found him in possession of drugs, allegedly for the purpose of trafficking in both instances. [ 8 ] When Constable Lawson first saw the Defendant on January 5, 2012 the Defendant was travelling alone in a green Honda motor vehicle, going southbound on Quadra Street. The three police officers were apparently going on a break at the time of this first sighting, travelling in the opposite direction on the same street.

Constable Lawson alerted the others in the police vehicle to the Defendant's presence in the area, and Constable Eddy mentioned that he had received an informant's tip that could be of importance. That comment caused Constable Lawson to turn the police vehicle around immediately and begin to follow the Defendant.

I will defer more detailed comment about the nature and significance of the informant's tip until later in these Reasons. [ 9 ] Constable Lawson conceded in his testimony that it was not possible to mount a full surveillance operation upon the Defendant with a contingent of only three police officers and one police car.

But Constable Lawson, who appears to have been making the decisions for the group, determined to closely observe the Defendant's movements for the time being and conduct an investigation as best could be done. [ 10 ] The police observed the Defendant to turn right on to Queens Avenue and come to a stop by the roadside. The police car made the same right turn but continued on past the Defendant.

Constable Lawson noted that the Defendant was alone in the Honda in its stationary position. [ 11 ] Constable Lawson, who had the benefit of a rear view mirror in his own vehicle for observation purposes, saw the Honda pull away from the curb on Queen's Avenue, but visual contact was then lost for a short period of time. [ 12 ] About 30 seconds later, Constable Lawson spotted the Honda once more, in motion near the intersection of Bay and Dowler Streets. At that point, according to Constable Lawson, there were two occupants in the vehicle.

The Defendant was still driving but there was now a passenger in the front seat. Although Constable Lawson could give no details about the passenger, and although his observation of the passenger was not confirmed by testimony from either of the other two officers in the police car, I am satisfied of the general accuracy of his observation. Unlike Constable Eddy, he made notes that day and, as I have already said, he had the advantage over Constable Eddy in that he was able to use the rear view mirror to assist in his observations.

The third officer, Constable Hickaway, did not testify in this proceeding. [ 13 ] Again, visual observation was broken momentarily. A minute later, however, Constable Lawson observed the Defendant driving on Bay Street at Fifth Street, once more alone in his vehicle. [ 14 ] Constable Lawson testified that it was at this point that he formed the opinion that the Defendant had just completed a drug transaction of some sort. He stated that he reached this conclusion based on his experience that drug transactions and dial-a-dope drug transactions in particular, usually involve brief meetings on the street.

The meetings are pre-arranged by the seller by cell phone and once the parties arrive at the specified location the vendor quickly enters the seller's vehicle for purposes of completing the transaction, before leaving just as quickly. [ 15 ] Both Constable Lawson and Constable Eddy agreed, of course, that motor vehicle drivers may quickly pick up and drop off persons at the roadside for any number of reasons that have nothing to do with drug trafficking.

In this case, however, Constable Lawson testified that he was assisted in reaching the conclusion that he had just observed a drug transaction by reference to his previous dealings with the Defendant and by his consideration of the tipster information which he had received from Constable Eddy. [ 16 ] Constable Lawson then radioed Constables Robinson and Musico, two other Victoria City police officers on patrol, and directed them to arrest the Defendant.

In order to assist the other officers in locating the Defendant Constable Lawson advised them of the movements which he had seen so far, and attempted to locate the Defendant once more.

[17] Constable Lawson testified that he next observed the Defendant's vehicle southbound on Fernwood Avenue, now in theFernwood district of Victoria. The vehicle turned right onto Balmoral Road where it came to a stop. A dishevelled male got into thepassenger seat. Constable Lawson identified the dishevelled male as Tom Plotnikoff, a person whom he described as a “druggie” andwhom he says he has arrested many times in the past. [18] Just as the passenger entered the Defendant's vehicle, Constables Robinson and Musico arrived on the scene.

The Defendantwas asked to step out of his vehicle and he was arrested for trafficking in an illegal substance. He was searched in cursory fashion at theroadside and provided with information about his Charter rights. Nothing of relevance was located in the search. I have no evidence ofwhat became of Mr. Plotnikoff nor of the nature of any dealings which he may have had with the police on this occasion. [19] The Defendant's vehicle was searched at roadside.

The police located a blackberry device and a cell phone in the cab of thevehicle. [20] After the roadside searches, the Defendant was transported to police headquarters for a more through personal search. The sumof $370 in cash, comprised mainly of $20 bills, was found in his pants pocket. A subsequent strip search, conducted upon theauthorization of the custody supervisor and performed under strict privacy conditions, revealed 21 grams of a substance later analyzed ascocaine. The cocaine was found in the Defendant's crotch area and was wrapped in a number of separately wrapped packages.

SUMMARY OF RELEVANT LAW [21] Counsel have kindly provided me with many authorities relevant to the resolution of the Charter issue in the present case. Ihave benefited from the opportunity to review all of those cases to refresh my knowledge on the subject. [22] It seems to me, however, that the general principles which I must consider are relatively well established. The case authoritieswhich have been provided do set forth those principles in admirable fashion, but I must confess that I have not found the individual factpatterns set forth in those cases to be particularly helpful in the present context.

Accordingly, in these Reasons I propose to refer to thecase law relatively briefly, a course of action on my part which I hope will not be taken as displaying ingratitude for the assistance whichcounsel have offered. [23]

Section 8 of the Charter provides protection from unreasonable search and seizure. A search will be considered reasonable if itis authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable: R. v. Collins, (SCC), [1987] 1 SCR 265 (SCC), at 278. [24] In the present case the strip search leading to the finding of the drugs was undoubtedly carried out in reasonable fashion. That isnot disputed. The question is whether the police had any legal authority to carry out the search.

The search was non-consensual and wasconducted in the absence of a search warrant. The argument for its justification lies in the proposition that it was incidental to an arrest. In such circumstances, the validity of the search is necessarily and inextricably bound up with the validity of the arrest itself. If theunderlying arrest is not valid the search cannot be considered reasonable. [25] The police in the present case had no arrest warrant.

The validity of their action in arresting the Defendant therefore falls to bedetermined in accordance with s. 495 of the Criminal Code, which provides that a peace officer may arrest without warrant a person whohas committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictableoffence. [26] The test for determining whether reasonable grounds for arrest have been made out was described in the familiar case of R. v.Storrey, (SCC), [1990] 1 SCR 241. At page 250 of that case, Mr. Justice Cory said: In

summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. These grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically, they are not requiredto establish a prima facie case for conviction before making the arrest. [27] The British Columbia Court of Appeal recently applied the Storrey decision once more in R. v. Jir, 2010 BCCA 497. The Courtof Appeal in Jir then went on (in paragraphs 27 and 28) to emphasize that the reasonable grounds standard is less than the civil standardof proof and is to be determined on the totality of the circumstances known to the police officer at the time. The Court of Appeal citedthe following passage from Mugesera v.

Canada (Minister of Citizenship and Immigration) , 2005 SCC 40, at paragraph 114: .... the `reasonable grounds to believe` standard requires something more than mere suspicion, but less than the standard applicable incivil matters of proof on the balance of probabilities. [28] The Court of Appeal also found assistance in the following practical approach, adopted by Hill, J. in R. v. Sanchez (1994), (ON SC), 93 CCC (3d) 357, at 367 (Ont Ct.

General Division): The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probabilityas to the existence of the facts and inferences asserted.

[29] In circumstances where the police rely, in whole or in part, upon information provided by confidential informants in arriving ata decision to arrest or search an individual, the assessment of the reasonableness of such reliance is to be determined by a number offactors set out in well-known authorities such as R. v. Debot, (SCC), 1989 SCJ No. 118, R. v. Garofoli, 1990¸ (SCC), 2 SCR 1421 and R. v. Charlton (1992), (BC CA), 15 BCAC 272.

Each of these cases states therelevant considerations slightly differently, but it is clear from all of the cases that in essence the court must look to the reasons why thepolice considered the informant himself or herself to be reliable, the extent to which the details provided by the informant could fairly bedescribed as compelling, and the extent to which the informant`s tip had been corroborated by the police before it was acted upon in thecase at hand.

It is commonly understood that these individual considerations must be viewed in a flexible way, such that weaknesses inany one area may be compensated by strengths in other areas.

APPLICATION OF LAW TO THE EVIDENCE [30] The grounds upon which the police arrested the Defendant in the present case can fairly be placed into the following threecategories: 1.) Constable Lawson`s previous experience with him; 2.) The informant`s tip; and 3.) The observations made on the day of the arrest itself. [31] I will consider each of those categories, recognizing again, however, that it is important to bear in mind the totality of theinformation available to the police rather than focusing unduly on the strength or weakness of individual items. [32] Constable Lawson`s knowledge of the Defendant`s involvement in criminal activity prior to January 5, 2012, on close analysis,is rather more limited than it first appears.

In his initial testimony, he said simply that he had arrested the Defendant twice previouslyfor possession of illegal substances for the purpose of trafficking. In cross-examination, however, the apparent strength of this evidencebegan to slip away. He conceded that the drug charge resulting from the first arrest, which was in or about 2007, proceeded to court butwas stayed before its conclusion, apparently on the basis that the arrest had been based on a case of mistaken identity on ConstableLawson's part. [33] The second incident was described in this court in very limited terms.

I know only that the matter is still the subject ofprosecution before the courts. [34] The net effect of the above evidence is that it appears that at the time that the police decided to arrest him on January 5, 2012,the Defendant had no previous convictions known to police. He had been arrested twice for possession of drugs of unknown description,in circumstances which may have led to an inference of trafficking, but that inference had never been tested in court.

In the one case, itapparently never will be tested in court. [35] The further evidence about the Defendant`s past criminal history, as provided to the court by both Constable Lawson andConstable Eddy, did not seem to me to rise much above the level of gossip. Both officers essentially testified that their own considerableexperience in street level drug trafficking led them to the conclusion that it is common knowledge that the Defendant is a player. I haveno doubt that this sort of generalized information quite properly allows the police to focus their inquiries on a day-to-day basis.

I ambound to say, however, that, standing by itself, it is of little if any value to a court faced with the task of assessing the reasonableness ofan arrest or search ex post facto. [36] When a tip is provided by an informant, the information must also be scrutinized to ensure that it is something more than meregossip or rumour. In my view the Ontario Superior Court of Justice in R. v. Mori, 2012 ONSC 3433, helpfully illustrated this point byasking itself whether the information was sufficient `to reasonably predict the crime of drug trafficking by the accused.

Theconsideration of specific issues such as the informant`s personal reliability, the determination as to whether the information given isbeing compelling or otherwise, and the consideration of whether corroboration of the information has occurred, may all be described asfocused inquiries intended to address this essential concept. [37] In the present case, the informant could not fairly be considered as a source whose reliability had been demonstrated to a highlevel.

The informant gave information relevant to this case to Constable Eddy on two occasions, once in early December 2011 and onceon an earlier occasion, perhaps in the month of November 2011. There is no evidence that he had provided information in connectionwith any other matter. [38] As I will explain in more detail in a moment, the tip which the informant provided in this case was of a general rather thanspecific nature. It referred to a method of drug trafficking by a group of people in the Fernwood area of Victoria.

During the course ofhis testimony, Constable Eddy was asked if the informant`s tip had led to successful police investigations against persons other than theaccused. His evidence is response is not very clear and it requires some attempt at analysis. [39] The police officer testified that as a result of the informant`s general tip he had seized some drugs from an individual at theFernwood Youth Centre.

In addition, he stated that he had used the informant’s information on one occasion to obtain a warrant whichresulted in the recovery of stolen property. [40] Constable Eddy testified that the tipster`s information had led to one conviction, but it is not clear whether that conviction wasconnected to either the seizure of drugs or the recovery of stolen property to which he referred. As a result it is not clear on how manyoccasions the tipster’s information ultimately bore fruit. [41] There is one further qualification. Constable Eddy amended his evidence to say that the conviction based on the tipster’s

information did not actually occur until the spring of 2012, after the events which concern us in the present case. Hence, it must be conceded that at the time the police arrested the Defendant on January 5, 2012 they could not fairly maintain that the informant`s tip had already led to conviction in any other case. [ 42 ] The evidence concerning the personal reliability of the informant may thus be described as confusing.

Whatever the true state of affairs may be, though, it would surely be stretching the point to say that the informant had a proven track record for reliability by the time his tip was used as a basis to arrest the Defendant on January 5, 2012. The most that can be said is that the informants’ reliability had not been a cause for concern. [ 43 ] In submissions to this court, both counsel quite rightly spent most of their time discussing the content of the tip provided by the informant.

In my view, that is indeed the central issue. [ 44 ] The informant had notified Constable Eddy that a group of people were engaged in trafficking cocaine in the Fernwood area of Victoria. The informant stated that the group was using the so-called dial-a-dope method of trafficking. The information contained details identifying various vehicles that were used in the operation, but Constable Eddy did not associate any of those vehicles to the Defendant.

The informant also identified various telephone numbers that were used by the drug traffickers, but again Constable Eddy did not make a connection between the Defendant and any of those numbers. Finally, the informant gave the names of specific persons involved in the trafficking, but he did not name the Defendant. [ 45 ] One of the most significant aspects of the information provided to Constable Eddy was the inflammatory reference to the drug traffickers as `The Niggers`.

Constable Eddy was unclear as to whether the traffickers referred to themselves by that name, or whether that was merely a derogatory term used by the informant. In any case, the use of the term implied to Constable Eddy that the `crew` of traffickers consisted of dark-skinned individuals. The Defendant fits that description. [ 46 ] The significance of the information provided by the informant, as it relates to the Defendant, quite obviously falters on a number of points.

Most importantly, the evidence is decidedly lacking on the essential question of how it was that the police linked the Defendant to the group described by the informant, assuming it was by something other than skin colour. This is of particular significance given the fact that the informant`s tip did indeed provide specific information implicating other individuals. [ 47 ] When asked to comment on how it was that they were able to associate the Defendant with the group described by the informant Constable Eddy became decidedly vague.

In essence, he said that he believed the crew to include the accused through police intelligence and from time files. Constable Lawson used much the same phrasing. He testified that he made the connection based on his general knowledge, gained from police work, of who associated with whom in the drug world in Victoria.

He emphasized that he could not be more specific without violating the principles of informant privilege. [ 48 ] In my view, the police evidence on this point suffers from the same weakness as the evidence which I have already mentioned concerning the Defendant`s alleged reputation and history as a drug dealer. I have no doubt that the information described by Constable Eddy and by Constable Lawson is invaluable to police officers in the difficult task which they face every day when determining which persons to target for investigation, and how to go about doing so.

But again it must be said that in the form which I have received it, this information, which is lacking in any real source, does not have the precision to allow for the sort of scrutiny in which the court is required to engage when assessing the reasonableness of an arrest. [ 49 ] It is instructive, I think, to consider the manner in which the tipster`s information given to Constable Eddy apparently became mangled immediately when it was provided to Constable Lawson in the police car on the morning of the Defendant`s arrest.

Constable Lawson testified that Constable Eddy`s advice to him was that he had source information that the Defendant was trafficking in the Fernwood area of Victoria. That

summary of the information which Constable Eddy actually possessed can only be described as involving significant overstatement. [ 50 ] I realize, of course, that is only the actual information provided by the informant, as described to the court by Constable Eddy, which is of relevance, and not the second-hand version described by Constable Lawson. My point, though, is to emphasize the ease with which this sort of gossipy, imprecise information can get distorted when communicated from person to person. [ 51 ] The next point to consider involves the police observations on the morning of the arrest itself.

I should preface these remarks by noting that there was nothing in the informant`s tip which suggested that a drug transaction of any sort would be happening on that specific day. In that respect, the information provided is properly described as general in nature.

Nonetheless, the evidence of the police observations on the morning of the arrest should be considered both as potentially corroborative of the informant`s tip and also as an independent source of information upon which to consider basing an arrest. [ 52 ] As I have already noted, I am satisfied that the police evidence allows for the finding that the Defendant stopped his vehicle to take an individual into his car and to briefly travel with that individual, somewhere in the vicinity of Bay and Dowler Streets in Victoria.

Constable Eddy testified that he would not describe that location as being in the Fernwood area of Victoria, where the tipster had suggested that the crew which he implicated were engaged in drug trafficking. Nor did the police see any sort of transaction between the Defendant and this other individual, whose identity and description remain unknown. [ 53 ] Constable Lawson nonetheless decided that his observations to that point were sufficient to provide the grounds for arrest.

While acknowledging that brief roadside pick-ups and drop-offs may be perfectly innocent, he interpreted the Defendant`s actions negatively in this instance, bearing in mind the background information which he possessed concerning the Defendant and the tipster information given to him by Constable Eddy. [ 54 ] The arrest itself did not actually occur until a few minutes later, however, and in my view it is important to assess all of the information available to the police up to the moment of arrest, rather than merely considering that which was available to them at the time that the decision to arrest was taken.

After all, it is the lawfulness of the arrest which is in issue, rather than the lawfulness of the decision to arrest .

[ 55 ] I have concluded that the Defendant`s actions in stopping to pick up Mr. Plotnikoff on Balmoral Road, although dubious, do not add much to the inquiry into whether the arrest was lawful. It is unquestionably true that by the time he picked up Mr. Plotnikoff the Defendant found himself in the Fernwood area of the city. Furthermore, the evidence that Mr. Plotnikoff is a disreputable `druggie` was not contested. But the strength of those factors is overborne by the fact that the police acted so hastily that the potential value of this late-arriving evidence was completely wasted.

Nobody apparently thought to wait and observe the nature of the transaction, if any, occurring between the Defendant and Mr. Plotnikoff. Nor do I have any evidence that the police thought to search Mr. Plotnikoff or even ask him the nature of his business with the Defendant that day. In the absence of any information of that sort, the potential probative force of Mr.

Plotnikoff`s arrival on the scene is blunted to a considerable extent. [ 56 ] Considering the totality of the information available to the police right up to the moment of the Defendant`s arrest, I have concluded that that arrest was not based on reasonable grounds. The combined effect of the known information about the Defendant`s background, the informant`s tip and the observations on the morning of the arrest in my view amounted to nothing more than suspicion.

It would have been entirely appropriate for the police to continue surveillance upon the Defendant, or even to stop and pursue the investigation by seeking to question him on Balmoral Road. It was, however, decidedly not appropriate or lawful in my view to arrest him without more evidence than they had available at the time that the arrest occurred in this case. [ 57 ] In view of my conclusion that the arrest of the Defendant was unlawful, it follows that the search incidental to the arrest was not authorized by law and therefore constituted a breach of

section 8 of the Charter . THE SECTION 24 (2) ISSUE As a result of the Supreme Court of Canada decision in R. v. Grant 2009 SCC 32 it is clear that once a Charter breach has been established the court must consider the following three factors in determining whether relief should be granted under s. 24(2) of the Charter : 1.) The seriousness of the Charter infringing state conduct; 2.) The impact of the breach on the Charter -protected interests of the accused; and 3.) Society’s interest in the adjudication of the case on its merits. [ 58 ] In R. v.

Tombs 2012 BCSC 1826 , at paragraphs 89 to 92 Brown, J. usefully summarized the principles underlying the three factors identified in Grant : 89 With respect to the first factor, seriousness of the breach, the greater level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct.

Wilful or reckless disregard for Charter rights will therefore tend to support exclusion. 90 Further, as the Chief Justice and Justice Charron noted in Grant at para. 75 : 75 Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. 91 As for the second factor, impact of the breach on the accused, it was observed at paras. 76 and 88 that the impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact is on the rights of the accused more likely it will be that exclusion is warranted. 92 The last factor, society’s interest in a decision on the merits involves the question of whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial. Although the seriousness of the offence remains a consideration, it has far less importance than under the R. v.

Stillman , citation deleted framework, because s. 24(2) focuses on the long-term implications for the repute of the administration of justice and not the publics short-term desire for a conviction. [ 59 ] With those principles in mind I turn to a consideration of the three factors identified in Grant and their application to the present case. [ 60 ] I view the seriousness of the breach in the present case as being of considerable significance.

With respect, I must specifically disagree with Crown Counsels submission that if the police acted without reasonable grounds in arresting the Defendant they at least were not far off the mark. On the contrary, it seems to me that Constable Lawson in particular was notably hasty and careless in assessing the information available to him. In a situation where there was no apparent urgency for police action, he appears to have proceeded to an alarming extent on the basis of generalized suspicion and rumour, as opposed to careful consideration of the available data.

I have already noted the rather cavalier fashion in which he summarized the scope of the informant’s information provided to him by Constable Eddy. And I must say that I was greatly surprised at his evidence that he believed that the single incident in which the Defendant picked up and dropped of a passenger was sufficient to give grounds for an arrest, even bearing in mind the background information which he had in his mind. It seems to me that it was only the occurrence of the second incident, involving Mr. Plotnikoff, that brings the objective grounds for belief to anywhere near the requisite standard.

In assessing the police approach to the evidence, it must be borne in mind that the occurrence of that second incident was purely gratuitous, since Constable Lawson had already made the

decision to arrest before that incident took place. [61] I would not go so far as to say that the police in this case acted in bad faith. But neither can their actions be excused as anexample of a good faith mistake. The truth lies somewhere in between.

I think that the words used by the Chief Justice and Charron, J. atparagraph 75 in Grant are particularly appropriate: ignorance of Charter standards must not be rewarded or encouraged and negligenceor wilful blindness cannot be equated with good faith. [62] There is no doubt that the serious impact of the violation upon the Charter-protected interests of the Defendant. As was knownto the police from the outset, the Defendant’s arrest would in all likelihood lead to the conduct of a strip search. And that of course isexactly what happened.

Even though the search was conducted with scrupulous regard for privacy in this case, it was nonetheless by itsnature a profound intrusion upon the Defendants personal integrity. [63] The public does indeed have an interest in ensuring that the truth-seeking function of the trial does not get sidetracked by undueconcern over the protection of the privacy interests of the Defendant. In the present case the charge is a serious one, though admittedlynot as serious as the case of R. v.

Harrison, 2009 SCC 34 , 2009 SCJ No. 34, in which the Supreme Court of Canadacountenanced the exclusion of the evidence. [64] I am fully cognizant that the exclusion of the results of the search in this case, even though that evidence is perfectly reliableand probative, would plainly have the effect of gutting the prosecution.

But at the same time I must bear in mind the general propositionthat cherished Charter rights are placed at serious risk if concerns about the result in a single case are given undue primacy overconcerns about the long-term repute of the justice system: Harrison, at paragraph 84. [65] I have concluded that in this case the nature of the police conduct and the serious intrusion into the Defendants privacy whichresulted from that conduct are such that, on balance, the long-term interest of the administration of justice would best be served byexcluding the evidence resulting from the search of the Defendants person, even though the effect of such exclusion will likely be tocause the prosecution to end unsuccessfully.

CONCLUSION [66] The evidence resulting from the search of the Defendants person will be excluded from consideration at this trial. __________________________ E.C. Blake, Provincial Court Judge