R. v. Whitney Date:, 2013 BCPC 178

Citation: R. v. Whitney Date: 20130320 2013 BCPC 0178 File No: 158429 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMIE LEE WHITNEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CUTLER Counsel for the Crown: Thomas J. Corsi Counsel for the Defendant: Christopher A. Massey Place of Hearing: Victoria , B.C. Date of Hearing: February 12, 2013 & March 7, 2013 Date of Judgment: March 20, 2013 [ 1 ] The accused is before the court pursuant to a two count Information alleging trafficking in heroin and possession of

methamphetamine contrary to the Controlled Drugs and Substances Act. [ 2 ] The case for the Crown is founded on a detention and search of the accused which uncovered drugs and drug paraphernalia located in a pouch found in a pocket of the jacket worn by the accused. [ 3 ] The accused seeks exclusion of this evidence pursuant to section 24 (2) of the Charter of Rights and Freedoms.

The accused maintains that the drugs were located only after the accused’s Charter rights, specifically those guaranteed by sections 8 , 9 , and 10(a) , were violated. [ 4 ] A voir dire was held to address the accused’s Charter application and determine whether the items found in the accused pocket are admissible in the trial of the accused. Upon the conclusion of the evidence in the voir dire and after hearing arguments from counsel, I reserved judgment to consider the accused’s Charter application. These are my reasons.

The Evidence [ 5 ] The sole witness called during the voir dire was the police officer who interacted with the accused and ultimately located the drugs in the accused’s pocket. The facts are not in dispute. [ 6 ] At approximately 9:45 AM, on November 9, 2012, the officer was in uniform on routine patrol in his police cruiser with his partner. The officers were in an area of downtown Victoria notorious for criminal activity, particularly illicit drug use and drug trafficking. The officer while stopped at a red light observed two individuals on a sidewalk, approximately 150-200 feet from the officer.

The two individuals were having a conversation while standing approximately one to two feet apart. [ 7 ] The officer proceeded to pull the police cruiser to the curb approximately 20 feet from where the two individuals were conversing. One of the individuals, the accused, had a backpack and was observed to place his hands in his pockets of his hooded jacket. He and the individual he was conversing with then departed in opposite directions at a normal pace.

It is worth noting that the temperature at the time was approximately 5°C. [ 8 ] When the officer pulled his police cruiser to the curb he was advised by his partner that the individual conversing with the accused was currently subject to a court order not to attend this area. Once stopped at the curb, the officer exited his vehicle and commanded the accused to “Stop". The accused did not stop initially, however, upon a second command by the officer to" Stop", the accused stopped and turned around to face the officer. It was at this point in time that the officer recognized the accused.

The officer had dealt with the accused in the past and knew the accused as someone who is violent and involved in criminal activity, including trafficking in stolen property and drugs. Due to safety concerns of the officer, the officer requested that the accused remove his hands from his pockets. The accused did remove his right hand from his pocket but he did not remove his left hand. The officer again requested the accused remove his hand from his pocket and the accused did not comply.

According to the officer, the accused’s failure to comply caused the officer further concerns for his safety and the officer immediately grabbed the accused’s arms and handcuff the accused behind his back. During this initial interaction, the officer's partner was approximately 50 feet away, preoccupied with the individual seen earlier conversing with the accused. [ 9 ] Once the accused was handcuffed, the officer was aware of "a bulge" in each of the accused’s pockets. The officer placed his hand in the accused’s right hand pocket and removed a cell phone.

The cell phone was placed back in the same pocket at which time the officer then placed his hand in the accused’s left hand pocket and removed a bulky case, apparently 7 inches in length and round shaped. According to the officer's evidence, the officer then unzipped the case to determine if there was a weapon in the case. Inside the case the officer found numerous hypodermic needles containing white powder which the officer believed to be heroin. The officer also found a pipe in the pouch.

At this time the officer seized the items and placed the accused under arrest and read the accused his Charter rights. [ 10 ] The o fficer indicated in his evidence that prior to the search of the accused’s pockets he had not seen any weapons and the accused had not been aggressive or hostile. The officer's evidence was that due to his knowledge of the accused and the accused’s hand remaining in his pocket, the officer was concerned with the possibility of a weapon in the accused’s possession, and was concerned for his safety.

It was this concern for officer safety that led the officer to handcuff and search the accused. The officer conceded in his evidence that he had no reasonable grounds to arrest the accused prior to discovering the drugs in the pouch. At no time prior to the arrest did the officer advise the accused he was being detained, the reason for same or the nature of the investigation. [ 11 ] As indicated, the accused is now before the court as a result of the drugs found in his pocket by the officer.

Counsel for the accused submits that the drugs ought not to be admitted at this trial as the discovery of the drugs was a result of a series of Charter violations committed by the officer, and the admission of the drugs in this trial would bring the administration of justice into disrepute. Accordingly, the court must consider whether the accused’s Charter rights were violated, and if so should the drugs found on the accused be admitted in the trial of this matter.

Alleged Charter Violations [ 12 ] Counsel for the accused submits that the conduct of the officer in detaining and searching the accused violated a number of the accused’s Charter rights. These include:

i) the right not to be arbitrarily detained as guaranteed by

section 9 of the Charter; ii) the right to be secure against unreasonable search and seizure as guaranteed by

section 8 of the Charter; and iii) the right to be informed promptly of the reason for a detention as guaranteed by

section 10(

a) of the Charter. [ 13 ] I will address each of the alleged Charter breaches in the context of the evidence before the court and the jurisprudence relating to same.

i) arbitrary detention [ 14 ] There is no issue that the accused was detained as he had been singled out by the officer and given a firm command to “Stop". It is conceded by the Crown that the accused was detained by the officer when the accused responded to the officer's command to "Stop".

[15] The critical issue with respect to this alleged Charter breach is whether the officer had reasonable grounds to detain the accused.In reviewing the applicable principles as established by the jurisprudence, I find that the officer did not have lawful grounds to detain theaccused. [16] It is obvious on the evidence that the detention of the accused was not carried out with a view to protect or assist the accused.On the contrary, the officer was clear in his evidence that he suspected the accused was engaged in drug trafficking and he decided heshould detain the accused to investigate same.

Accordingly, the detention was an adversarial confrontational process intended to employthe criminal law against the accused (R. v. Simpson, (ON CA), 1993 CarswellOnt 83 (Ont. C.A.). The lawfulness ofthe detention must be assessed in this light. [17] It is a trite constitutional principle that a citizen in Canada has the right not to be subjected to police restraint unless same isauthorized by law. There is no codified law supporting the officer’s actions in this case.

The Crown adopts the position that the officer’sauthority to detain the accused was based on the common law and accepted jurisprudence in this country that an officer may detain anindividual where the officer has reasonable grounds to suspect that the individual is implicated in criminal activity. The seminal caseaddressing this principle is R. v.

Mann, 2004 SCC 52, where the Supreme Court of Canada set out the authority of an officer to detainpersons in such situations and stated “the detention must be viewed as reasonably necessary on an objective view of the totality of thecircumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoingcriminal offense” (para. 34).

There must be a constellation of objectively discernible facts which provide the officer reasonable cause tosuspect the individual is implicated in criminal activity. [18] The Crown submits there existed objectively discernible facts in this case which provided the officer with lawful grounds todetain the accused.

In this regard the Crown enumerates the following factors: 1) the accused was observed in an area renowned for drugtrafficking; 2) the accused was observed standing on a sidewalk in close proximity to another person who he was conversing with; 3) theaccused placed his hands in his pockets when the officer pulled his vehicle up to the curb; and 4) the accused and the individual he wasconversing with walked away in opposite directions when the officer pulled his vehicle up to the curb. [19] I'm unable to conclude that these factors and the observations made by the officer are sufficient to establish a reasonablesuspicion that the accused was involved in criminal activity at the time of his detention.

The officer was required to have a constellationof objectively discernible facts implicating the accused in a particular offense. The factors relied upon by the officer, consideredindependently as well as in their totality, are neutral and insufficient to provide a suspicion that the accused was involved in any criminalactivity. Indeed the factors enumerated by the Crown are equally consistent with lawful conduct engaged in by citizens on a daily basisin this area.

I will address each of these factors separately before assessing the factors in their totality. [20] While it is not in issue that the area where the accused was detained and searched is notorious for drug trafficking, it is criticalto recognize, as the evidence also established, that there is also a great deal of activity conducted every day in this area which is entirelylawful and engaged in by law abiding citizens on a continuous basis.

The evidence indicated that located in the immediate vicinity of thesidewalk where the accused was detained is a church, a music conservatory, numerous restaurants, and other businesses including awelfare office. The detention and search of the accused took place on a Friday morning in broad daylight on a regular business day inwhich there is always a high volume of pedestrian traffic conducting entirely lawful activities.

The officer conceded in cross-examinationthat there are countless legitimate reasons for citizens to be in this area. [21] The officer was candid in his testimony that at no time did he see any physical contact between the accused and the accused'scompanion, nor was anything seen to be in their hands or pass between them.

The fact that two individuals may be standing andconversing with one another at a distance of approximately one to two feet is a common occurrence one would expect to observe on anysidewalk in the downtown core. [22] The fact the accused was observed to place his hands in the pockets of his jacket is of little assistance in raising a suspicion assuch

an act is consistent with normal human behavior, particularly when someone is attempting to remain warm in 5°C temperature. [23] The observations of the officer that the accused and the individual he was seen conversing with departed in opposite directionsis of little assistance in determining their activity as such conduct may simply indicate that the accused and this individual had concludedthere interaction and were proceeding on their respective ways.

Conversely, it would be difficult to conclude, nor do I believe the officerwould have concluded, the individuals were not engaged in a drug transaction had the two individuals departed in the same direction. [24] When one views the entire series of events observed by the officer leading up to the initial detention of the accused, includingthe factors enumerated by the Crown, the behavior of the accused was equally consistent with lawful activity of law-abiding citizensvisiting this locale on any given day at this time.

The observations made by the officer and relied upon to form his grounds are equallyconsistent with two companions bidding each other farewell after worship at the local church, eating at one of the numerous eaterieslocated in the immediate area, or after attending at any of the various legitimate businesses located in this area. [25] The Crown places great emphasis on the fact this location is an area with a high crime rate, particularly drug trafficking, andthat the officer was aware of this.

The Crown maintains that due to the sad reality in this troubled area, activity which may otherwiseappear innocuous in another area of the city and would not in itself permit the officer authority to detain a pedestrian, acquires greatersignificance in this high crime area, sufficient to allow the totality of the circumstances to meet the threshold to permit the officer todetain the accused. The law recognizes that the location may be a significant factor contributing to an officer’s suspicion.

However theobservations made by the officer in this particular case are entirely neutral and consistent with everyday lawful activity both in andoutside this troubled area. [26] In reviewing the evidence I find there was no articulable cause justifying the detention of the accused in this case. The officerhad insufficient grounds to suspect that there was any ongoing criminal activity or that the accused was implicated in same.

Accordingly,I find that the officer had no reasonable grounds to detain the accused and the detention was unlawful, and violated the accused’s rightnot to be arbitrarily detained. ii) unreasonable search

[ 27 ] Where, as in this case, a search is conducted without a warrant, Crown has the burden of establishing on the balance of probabilities that the search was reasonable. A search is reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out was reasonable. [ 28 ] The officer concedes, as does the Crown, that at the time of the search of the accused’s pockets, the officer did not have grounds to arrest the accused and the search was incidental to the investigative detention.

It is trite that in such cases a search may not be employed for the purpose of discovering evidence of a crime. R. v. Mann , supra , recognized that there may be instances when an officer engaged in detaining an individual is permitted to conduct a pat-down search of the individual; particularly where there are reasonable grounds to believe that there may be a risk to the safety of the officer or others during the detention. R. v. Mann is clear that the power of an officer to search a detained individual does not exist as a matter of course.

The officer must believe on reasonable grounds that there exists a risk to the safety of the officer or others. [ 29 ] In this case, given the officer's knowledge of the accused’s violent history and the refusal of the accused to remove his hand from his pocket, one can understand the officer’s concern for his safety and his decision to search the accused. However, the decision to search the accused and the manner in which the search was conducted are problematic for two reasons.

As discussed, the initial detention was unlawful and accordingly undermines the lawfulness of the search that followed, and, in any event, even if the detention was lawful the officer was only entitled to conduct a pat-down search of the accused to determine whether there were items which may cause concern for the officer’s safety. [ 30 ] The court’s concern respecting the lawfulness of the detention has already been addressed. It is necessary in considering the lawfulness of the search to simply indicate that a search subsequent to an unlawful detention or arrest will be tainted.

The difficulties with the search in this case are further compounded by the nature of the search. As indicated the court is satisfied that given the officer's knowledge of the accused’s violent disposition, once detained the officer had grounds to conduct a search incidental to the detention. However the law only permits for a pat-down search in such situations. Such a search, consisting of a routine frisk, is a relatively non- intrusive procedure, and allows the officer to quickly alleviate any concerns of items in the possession of the detainee which may be used as a weapon.

The search should be respectful of the detainee’s privacy to the extent necessary under the circumstances. The purpose of pat-down searches is to allow the officer to determine whether there are any items detected on the accused and to assess whether the items detected during the pat-down could reasonably be used as a weapon.

If the officer is able to feel an item which is consistent with a potential weapon, it is then, and only then, that the officer may further investigate the item by searching a pocket or area underneath the clothing and invade areas where the detainee has a heightened expectation of privacy. [ 31 ] In this particular case, although the officer observed a bulge in the accused’s pocket, there was nothing further which would permit the officer to conclude this bulge was a weapon. A pat-down search would have been the appropriate first step towards investigating the bulge.

It must not be overlooked that at the time the officer placed his hand into the accused’s pocket, the accused’s hands were handcuffed behind the accused’s back and the concern for officer safety had diminished considerably. [ 32 ] It is difficult to comprehend why the officer, having concerns for his safety in this situation, believed that after detaining the accused and placing the accused in handcuffs he had the authority to immediately search the accused’s pockets. The proper course, as mandated by R. v.

Mann and subsequent jurisprudence, was for the officer to conduct a pat-down search if he continued to have security concerns. Placing the accused in handcuffs and immediately searching the accused’s pockets amounted to a de facto arrest. As indicated, in my view there were insufficient grounds for detention, and certainly no grounds for an arrest. The actions of the officer were unlawful and violated the accused Charter rights. This court has repeatedly found similar police conduct to be unlawful and in violation of a detainee’s Charter rights (R. v. Broughton, 2006 BCPC 186 , and R. v.

Motevaselan, 2004 BCPC 362 ). [ 33 ] Of further concern is the officer’s decision to unzip the case and explore its contents once it had been removed from the accused’s pocket. Even if the officer was justified in entering the accused’s pocket and removing the object, once the officer had possession of the case, he had no need to search the case. He could have proceeded with the detention which would have, by its nature, been brief in duration, while simply holding the case or placing it with the accused’s backpack which had been removed from the accused. The accused was handcuffed behind his back at this point.

Under the circumstances, the officer had no need to unzip and explore the contents of the case for the purposes of officer safety. [ 34 ] The entry into the accused’s pockets and the search of the case retrieved from the pocket in these circumstances was unlawful and violated the accused’s right against unreasonable search and seizure. iii) informed of the reason for the detention [ 35 ]

Section 10(

a) of the Charter guarantees a citizen the right to be informed promptly of the reasons for being detained by a police officer. Accordingly, the officer in this case ought to have advised the accused of the reason for his detention promptly upon the officer commanding the accused to “Stop”, and certainly no later than the command that the accused remove his hands from his pockets. A reasonable person in the accused situation would have concluded that his right to freely choose how to act had been removed by the officer’s initial commands (R. v. Grant, 2009 SCC 32 ).

The accused was not advised of the reason for being detained until after he had been handcuffed, searched, and arrested. [ 36 ] It remains unclear to me why the officer did not advise the accused of the reason for the detention at the time the accused was commanded to "Stop", or, failing that, when he commanded the accused to remove his hands from his pockets. This would have taken no more than a few seconds and would have provided the accused with the reason for the detention promptly, and may in fact have provided for a much more civil interaction between the officer and the accused.

At the very least, it would have informed the accused of the reason for the officer’s command, and allowed the accused to properly assess his options and how he wished to respond to the officer’s engagement. [ 37 ] It must be remembered that the accused had no duty to remove his hands from his pockets upon being requested by the officer to do so, particularly as at that time the officer had not explained to the accused the reason for the detention. The accused had a constitutional right to keep his hands in his pockets. It has long been recognized that where the officer lacks grounds to detain or arrest a

citizen, a citizen is free to walk away from the officer. Similarly the citizen is not compelled to provide information to an officer or obey any commands (R. v. Guthrie [1982] A.J. No 29 (Alta. C.A.) . The accused was entitled to be informed why the officer was making these commands. [ 38 ] The accused should have been advised of the reason for the detention in order to allow him a fair opportunity to make an informed decision on how he wished to respond to the officer’s commands. Accordingly, I find that the officer violated the accused’s right to be informed promptly of the reasons for the detention. [ 39 ] In

summary, I have concluded that the officer committed numerous Charter violations when interacting with the accused, including breaching the accused’s right not to be arbitrarily detained as guaranteed by

section 9 of the Charter, breaching the accused’s right not to be subjected to an unreasonable search guaranteed by

section 8 of the Charter; and breaching the accused’s right to be informed promptly upon detention of the reason for same, contrary to

section 10(

a) of the Charter.

Section 24 (2) analysis [ 40 ] Having concluded that the officer violated the accused Charter rights, the court must now address whether the evidence found in the accused’s pocket subsequent to the Charter violations ought to be admitted as evidence at the trial of the accused. [ 41 ] After reviewing the jurisprudence addressing section 24 (2) and all the circumstances of this case, I must conclude that admitting the evidence in this case would bring the administration of justice into disrepute and accordingly the evidence cannot be admitted in this trial. [ 42 ] The Supreme Court of Canada in R. v.

Grant , supra , identified three areas of inquiry for the court’s focus in performing the analysis pursuant to section 24 (2) . These are:

i) the seriousness of the conduct infringing the rights; ii) the impact on the Charter protected interests of the accused; and iii) society’s interest in an adjudication of the charges on the merits. [ 43 ] One must be mindful that there is no mathematical formula to be applied by the court when conducting its analysis of the factors engaged in its section 24 (2) analysis.

The overarching approach requires that the court consider the totality of the circumstances with a view to maintaining the long-term integrity of the justice system and the public's confidence in same. [ 44 ] It is important to note at the outset of this analysis that it was the breaches of the accused’s Charter rights which allowed the officer to discover the contraband which is now the subject of the criminal charges for which the accused is being prosecuted.

i) seriousness of the conduct infringing the right [ 45 ] The Supreme Court of Canada in R. v Harrison, 2009 SCC 34 , set out the applicable considerations for the court when assessing the seriousness of the Charter violation: "At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself?

This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter compliant.

On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern. (para 22) [ 46 ] In reviewing the various Charter violations I have found to have occurred in this matter, I find the arbitrary detention and the unlawful search of the accused to be significant breaches in that the officer’s conduct, although perhaps bona fide , showed a woeful ignorance, if not complete disregard, for accepted police practices in these situations.

The law with respect to these practices, as it existed in Canada when the officer approached the accused, had been confirmed by courts across this country and the highest court in this country. There were no grounds for the initial detention of the accused, and there existed no authority to search the accused as if he had been placed under arrest. These breaches were serious both in regard to how a citizen was treated and the complete disregard for the settled law in these areas which has established a clear process for the police to follow when detaining an individual.

The officer should have known what his authority was and how he was to perform same. [ 47 ] With respect to the breach of the accused’s right to be informed promptly of the reasons for his detention, I do not view it as serious as the other breaches due to the rapidly evolving nature of the police officer’s investigation and his requirement to make immediate decisions with respect to officer safety. ii) impact on the Charter protected interests of the accused [ 48 ] The more serious the impact is on the rights of the accused the more likely it is the impugned evidence will be excluded (R. v. Harrison, supra).

The detention of a pedestrian on a public sidewalk without grounds, handcuffing the pedestrian, followed by an unlawful search of the pedestrian’s pockets in full public view is a serious affront to the accused’s expected, indeed guaranteed, liberty and privacy interests.

It is particularly troubling that an officer could detain, handcuff, and search the pockets of a citizen on a public thoroughfare on such thin grounds for suspicion of an offence as existed here. [ 49 ] It is worth noting that I am not satisfied that the impugned evidence would have inevitably been discovered had the officer acted properly in conducting his search of the accused and complied with established Charter standards.

Had the officer conducted a pat- down search initially, as was required, it is possible that upon feeling the bulge he would have had legitimate safety concerns justifying placing his hands in the accused’s pockets to alleviate his concerns. However the officer was not asked about this possibility, and the evidence indicates that the bulge was a soft rounded case containing some hard objects including syringes and a pipe. How these objects would have felt upon a pat-down of the accused is not clear.

Moreover, as indicated earlier in these reasons when addressing the lawfulness of the search, once the case had been removed from the pocket of the accused, there was no need for the officer to explore its

contents.

Any concern for officer safety would have been alleviated given the accused was handcuffed behind his back and the case wasno longer accessible to the accused. iii) society’s interest in an adjudication on the merits [50] The jurisprudence indicates that the court should consider the seriousness of the offense and the public's desire for the matter tobe heard on its merits, As well, the Supreme Court of Canada has indicated that the court’s assessment of this third area of the analysisshould include factors such as the reliability of the evidence and its importance to the Crown's case. [51] There can be no doubt that the evidence discovered in the accused pocket as a result of the Charter breaches is highly reliableand is critical evidence to the Crown's case.

There is also no doubt that the possession of heroin for the purpose of trafficking is a seriouscharge and the public has a heightened interest in having the court conduct a trial and perform its truth seeking function in order thatthere be a determination of the prosecution on the merits.

In this regard, the section 24 (2) analysis would favour admission of theevidence to permit a proper adjudication of the allegations. [52] After considering the three areas of inquiry established by the jurisprudence, I have concluded that the admission of theevidence would bring the administration of justice into disrepute. [53] There is a forceful argument to be advanced that, due to the serious nature of the allegations, it is in the public interest that theillicit drugs found on the accused be admitted at the trial as the evidence is critical to the Crown's case and the court's ability to conductthe trial to determine the merits of these serious allegations.

However the benefits of admitting the impugned evidence are outweighedconsiderably by the need for the court and the administration of justice to disassociate itself from the police conduct in this matter.Although the officer would appear to have acted in good faith during the investigation, the court must be concerned that the officer’sassessment and his conduct were contrary to well-settled principles and procedures established by the jurisprudence in Canada.

Goodfaith cannot be advanced to preserve the integrity of the evidence obtained where the officer’s conduct constitutes an unreasonable error,or ignorance of his scope of authority as established by the law (R. v.

Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631, at para. 59). [54] As indicated, while the officer may not have intended to deliberately violate the accused’s Charter rights, the police conductshowed a woeful ignorance of the authority and responsibility of an officer with respect to interacting with a citizen on a public sidewalk.There was no legal uncertainty for the officer on November 9, 2012 when the detention and search occurred.

The officer’s authority todetain an individual and search upon such detention was established by the Supreme Court of Canada a number of years ago and hasbeen recognized and accepted by law enforcement agencies and the courts across this country since that time. The officer had anobligation to both be aware of the extent of his authority and exercise same lawfully.

It is fundamentally important that these well-established Charter standards be observed by police agencies and their members. [55] It is most disconcerting that a pedestrian could be detained by an officer, on what amounted to be no more than a hunch, andwithin seconds find himself handcuffed behind his back and an officer's hands in his pockets while at no time being advised of thereasons for the police action. [56] I am mindful that the allegations against the accused in this matter are serious.

However, even in situations where a very seriousoffense such as possession of a loaded handgun or drugs (found in the accused jacket pocket) is alleged, the court has excluded theevidence due to similar Charter violations as occurred in this case (R. v. Reddy. 2010 BCCA 11 and R. v.

Ritch, 2009 BCSC 1400). [57] To allow the admission of evidence obtained by such improper and unlawful police conduct would not only associate the courtwith such activity but would have the effect of undermining the extensive litigation and jurisprudence in this area which has clarifiedpolice officers’ powers in such instances, and established basic principles by which our democratic society functions.

The cases comingbefore the courts not only assist the parties engaged therein by providing resolution of their particular dispute, but and perhaps of greaterimportance for the community at large, the decisions of the courts provide a guide if not direction to individuals and agencies on theproper and legal manner by which our daily activities ought to be conducted. In this regard, the police like every other entity in oursociety, are expected to follow the directions of the court.

Indeed it may be argued that due to the extraordinary powers vested in policeofficers and their inherent involvement in legal matters, police officers have a greater responsibility to ensure they abide by the laws ofthis country, both codified and established by the jurisprudence. Excluding the evidence is not intended as, nor is it, a means to punishthe police. The purpose of this exercise is to protect the reputation and integrity of the administration of justice.

The court must focus onthe long-term implications for the repute of the administration of justice and, in my view, must dissociate itself from police conduct ofthis nature. To do otherwise runs the real risk of undermining the rule of law.

The public will perceive that rights set out in theconstitution, and repeatedly recognized by the courts, are of little avail to citizens. [58] The officer’s actions which resulted in the accused being detained and searched on a Friday morning in downtown Victoriawere not consistent with the concept of a free and democratic society contemplated by the framers of our Constitution, and are contraryto police conduct citizens expect and are entitled to demand in our communities. To paraphrase from R. v.

Harrison, supra, the price paidby society for an acquittal in these circumstances is outweighed by the importance of ensuring Charter standards are maintained and thepolice perform their duties and responsibilities in a manner consistent with established standards. [59] In my view, admission of evidence obtained pursuant to the unlawful police conduct in this case would bring the administrationof justice into disrepute. Accordingly, the impugned evidence will not be admitted in the trial of this matter. ____________________ R. Cutler Provincial Court Judge