R. v. Harper Date:, 2016 BCPC 254

Citation: R. v. Harper Date: 20160721 2016 BCPC 0254 File No: 208167-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. RENEE ARRAH HARPER RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: Francois Lepine Counsel for the Defendant: Georgia Docolas Place of Hearing: Surrey , B.C. Dates of Hearing: June 8, 9, 2016 Date of Judgment: July 21, 2016

Introduction [ 1 ] The accused, Renee Arrah Harper (“Ms. Harper”), along with Iain Matthew Fyfe (“Mr. Fyfe”), is charged with possession for the purpose of trafficking in cocaine and possession for the purpose of trafficking in heroin. The charges arise from a traffic stop in a roadblock during an alcohol “counter attack operation.” [ 2 ] The trial proceeded against Ms. Harper only, after a severance of Mr. Fyfe’s case when he was unable to secure legal counsel. [ 3 ] Ms.

Harper challenges the lawfulness of her initial arrest, subsequent detention, and search of the vehicle she was driving at the time of the stop. She takes the position that there were insufficient grounds for the arrest, giving rise to a breach of her s. 9 Charter right against arbitrary detention, as well as a failure to be advised of the right to legal counsel in a timely fashion under s. 10(b).

She further argues that the search that follows, arising from and incidental to that unlawful arrest, was a breach of her s. 8 Charter right to be secure against an unreasonable search and seizure. [ 4 ] The police officer’s practice, and the exercise of that practice on this occasion, upon his observation of illicit drugs in the vehicle, was to arrest all parties in the vehicle for possession, and to search the vehicle “from bumper to bumper.” As a result of that arrest and search, both heroin and cocaine and some drug use paraphernalia were found in the vehicle. [ 5 ] It is that consequential evidence Ms.

Harper is seeking to have excluded on the basis of the breaches of her s. 8, 9 and 10(

b) Charter rights and pursuant to s. 24(2). The Evidence in the Voir Dire [ 6 ] Constable Kornicki, a police officer with 7½ years’ experience, is in the traffic division located in Langley, B.C. On this occasion, he was operating a “Counter Attack” roadblock, stopping drivers to determine sobriety and to otherwise ensure compliance with the Motor Vehicle Act . [ 7 ] It was at around 1:15 a.m. when a grey Mazda approached and initially stopped approximately 15 metres away before being waived ahead by Constable Kornicki. He observed a female driver (Ms. Harper) and a male passenger (Mr. Fyfe).

The driver’s window was open and inquiries with respect to drinking were denied by the driver. Constable Kornicki says Ms. Harper avoided eye contact and did not face him directly, which he said can be consistent with an impaired person not wanting the smell of alcohol to be detected. She also stated that she had forgotten her driver’s licence. As a result, he instructed her to pull over and she complied. She lit a cigarette. He also observed that the passenger was holding a cell phone. [ 8 ] Ms.

Harper provided identification through a medical Care Card and passport, and although she appeared “shaky,” Constable Kornicki was satisfied with her identity through a comparison. He asked her who owned the vehicle and she said it was someone named “Chrystal.” [ 9 ] He then returned to his police car and “ran” both Ms. Harper’s driving status and the Mazda vehicle through his police database.

He was again satisfied that she had a valid driver’s licence and the vehicle was insured; he determined the vehicle to be rented and belonging to Van City Motors. [ 10 ] At this point, there was no apparent evidence of drinking and driving or other offence, and although the constable might have had authority to ticket Ms. Harper for failure to carry her driver’s licence, he did not indicate any intention to do so.

His return to the Mazda should have resulted in the parties being on their way. [ 11 ] However, upon his return to the Mazda, Constable Kornicki observed the phone he believed he saw earlier in the passenger’s hand, now in three pieces on the ground by the passenger’s feet. He found that unusual. [ 12 ] This caused him to shine his flashlight elsewhere in the vehicle. He then observed a small (approximately 1½ inch diameter) piece of tin foil with a single black spot in the centre, located somewhere within reach on the floor of the driver’s side.

He could not recall specifically where that tin foil was located and had no notes. He agreed it appeared to be discarded.

However, based on his experience with illicit drugs in general duty in Surrey and some coursework, Constable Kornicki believed that item to have been used for the consumption of heroin, with the further belief that remnants of the heroin were still available on that foil for later consumption. [ 13 ] As a result of that observation and that belief, Constable Kornicki then followed what he says is his usual practice and immediately arrested, without warrant, the driver for “possession,” presumably of heroin. It was 1:17 a.m. He placed her in handcuffs.

He again followed his usual practice and also arrested the passenger (and would have arrested anyone else in the vehicle) for “possession,” after which he later returned to the driver to provide her s. 10(

b) Charter rights. [ 14 ] After receiving some assistance from other police members, Constable Kornicki again followed his usual practice to, without warrant, search the vehicle from “bumper to bumper.” This particular search included the attendance of the “dog team.” [ 15 ] During this search, a bag at the passenger’s feet (Mr. Fyfe), which he identified as his own, was found to contain packages and capsules of what was believed to be heroin and cocaine (and which subsequent testing proved to be the case). That discovery resulted in the second arrest at roadside by Constable Kornicki of both Mr. Fyfe and Ms.

Harper, for “possession for the purpose of trafficking of heroin and cocaine.” Ms. Harper’s purse was also searched and items located in that purse were consistent with drug use. She was effectively released at 2:48 a.m. [ 16 ] In his evidence, Constable Kornicki stated that it was the discovery of the tin foil with the black spot as evidence of the presence of illicit drugs (heroin) in the vehicle, and his practice to arrest everyone in the vehicle, that led to the immediate arrest of the

driver and subsequent search of the vehicle. He acknowledged that he did not turn his mind to Ms. Harper’s knowledge of the presenceof drugs in the vehicle before arresting her. The Issues

(1) Does Constable Kornicki’s failure to turn his mind to Ms. Harper’s knowledge of the presence of drugs in the vehicle lead to theconclusion that there were no reasonable grounds to arrest her?

(2) If so, does that lead to an arbitrary detention pursuant to s. 9 and an unreasonable search pursuant to s. 8 of the Charter?

(3) If so, should the evidence arising from that search be excluded pursuant to s. 24(2) of the Charter? The Law Possession [17] There are two essential elements to the offence of any possession offence: control and knowledge (s. 2 of the Controlled Drugsand Substances Act and s. 4(3) of Criminal Code). The Charter [18] Sutherland, J. in the case of R. v. Francis and Gill, 2015 BCPC 150, summarized the relevant legal principles that applied in thatcase, but also apply to this case. Therefore, I quote directly from that decision and adopt those same principles:

Section 8 of the Charter provides citizens with a constitutional protection against “unreasonable search and seizure.”

Section 9 protects citizens from arbitrary detention. 3. A search made without a warrant is prima facie unreasonable under

section 8 of the Charter: R. v. Collins, (S.C.C.), [1987] 1 S.C.R. 265. 4. The onus is on the Crown to establish on a balance of probabilities that the warrantless search was authorized by law andconducted in a reasonable manner: Collins. 5. A search conducted incidental to arrest is authorized by law provided the arrest is lawful: R. v. Caslake, (S.C.C.),[1998] 1 S.C.R. 51; R. v. Stillman, (S.C.C.), [1997] 1 S.C.R. 607; R. v. Fearon, 2014 SCC 77 . 6. Consequently, the Crown bears the onus of establishing that the underlying arrest was lawful and not contrary to

section 9 of theCharter: Collins. 7. The onus is met if the Crown establishes that the officer had reasonable grounds to believe the accused has committed or is in theprocess of committing an indictable offence: Criminal Code s. 495(1)(a), s. 495(1)(b). 8. There are two components to what constitutes “reasonable grounds.” An arresting officer must subjectively have reasonablegrounds to base the arrest, but those grounds must, in addition, be justifiable from an objective point of view.

That is to say, a reasonableperson with the same experience, training, knowledge, and skills as the officer making the observations must be able to conclude thatthere were indeed reasonable grounds for the arrest: R. v. Storrey, (S.C.C.), [1990] S.C.J. No. 12; R. v. Luong, 2010BCCA 158 . 9. The “reasonable grounds” standard has been equated with “a credibly based probability,” or “reasonable probability.” It requiresmore than mere suspicion but less than the civil standard of proof on a balance of probabilities or a prima facie case: Hunter v. SouthamInc., [1984] 2 S.C.R. 241; R. v.

Debot, (S.C.C.), [1989] 2 S.C.R. 1140; Mugesera v. Canada (Minister of Citizenship &Immigration), 2005 SCC 40 , [2005] 2 S.C.R. 100.

10. A reasonable grounds determination involves a consideration of the “totality of the circumstances”: R. v. Jir, 2010 BCCA 497 11. The police are not entitled to arrest first and then determine whether the person arrested is connected to the offence underinvestigation: R. v. Whitaker, 2008 BCCA 174 , [2008] B.C.J. No. 725; R. v. Chaif-Gust, 2011 BCCA 528 . 12. A warrantless arrest of an accused that was not based on reasonable grounds is an unlawful arrest that may result in a violation of acitizen’s right to be free from arbitrary detention or imprisonment contrary to

section 9 of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. 13. A search conducted pursuant to an unlawful arrest is an unreasonable search within the meaning of

section 8 of the Charter:Caslake; Grant. 14. The standard justifying an Investigative Detention is met where a consideration of the totality of the objectively discernible factsgives an officer a reasonable suspicion that the person detained is criminally implicated in the activity under investigation: R. v. Simpson, (ON CA), 79 C.C.C. (3d) 482 at 501 (Ont. C.A.); R. v. Mann, 2004 SCC 52 . Reasonable Grounds for Arrest [19] Although all of the above legal principles apply in some measure to this case, the real issue is the reasonable grounds for arrestand may be stated as follows:

(1) Did Constable Kornicki subjectively believe that he had reasonable grounds to arrest Ms. Harper? (“subjective belief”)

(2) Are those grounds justifiable on an objective basis? (“objective basis”) Did Constable Kornicki have a Subjective Belief that He had Reasonable Grounds to Arrest Ms. Harper? [20] The Crown suggested I could, in effect, ignore Constable Kornicki’s testimonial evidence to the contrary and conclude that heactually considered Ms. Harper’s knowledge by virtue of his reference to the location of the tin foil’s proximity to Ms. Harper withinreach on the floor of the driver’s side. [21] I reject that suggestion.

I find that Constable Kornicki’s reference to the location of the tin foil went to control and was to, ineffect, say that he both found the drug in the vehicle she was driving and in a location close to her. I conclude that the proximity to Ms.Harper was not offered by Constable Kornicki to suggest that he believed at the time of arrest that she knew, or even may have known,that it was there.

That, of course, is because he never turned his mind to her knowledge. [22] According to Constable Kornicki’s evidence, his belief for the reasonable grounds to arrest was based on the finding of the tinfoil believed to contain heroin in the vehicle, and Ms. Harper being the driver of, or at least by her presence in, the vehicle. After that,Constable Kornicki’s practice effectively “took over.” [23] The question is not simply whether Constable Kornicki had an honest belief that he had reasonable grounds.

It would be thevery rare case where the arresting officer would testify that he did not believe that to be the case. But it also includes an examination ofthat subjective belief. [24] In R. v. Brownridge, [2000] B.C.J. No. 1549 (B.C.S.C.), a case involving the smell of marijuana during a vehicle stop, Mr.Justice Halfyard examined the strength of the police officer’s own evidence on the issue of his subjective belief regarding the possibleknowledge of the accused and concluded it amounted to no more than mere suspicion. In case he was wrong, however, Mr.

JusticeHalfyard went on to examine the objective basis for the subjective belief and also found that lacking. [25] Possession requires both control and knowledge. In this case, Constable Kornicki did not even turn his mind towards Ms.Harper’s knowledge, inferred or otherwise, in forming his grounds. Therefore, I find that the subjective belief for the reasonablegrounds to arrest is not met. [26] However, like Mr. Justice Halfyard, in the event I am wrong, I will turn to the objective basis.

Are the Grounds Justifiable on an Objective Basis? [ 27 ] The Crown focused on the relatively low standard required for reasonable grounds, and suggested that it is better to be lacking in subjective belief than on the objective basis. [ 28 ] The Crown says that I should look at all of the circumstances that were available to Constable Kornicki in finding there were reasonable grounds, including Ms. Harper’s knowledge. [ 29 ] However, with respect to Ms.

Harper’s knowledge, the examination of whether the grounds for arrest are justified from an objective point of view only start once those particular grounds are formed subjectively by Constable Kornicki ( Storrey and Luong , supra ). In this case, those grounds did not include a consideration of Ms. Harper’s knowledge. In essence, the Crown asks me to consider the objective basis for a subjective belief on grounds that did not exist at the time of arrest.

I conclude that I cannot do that. [ 30 ] Again, in the event I am wrong, and I can look to the whole of the evidence (beyond that relevant to the subjective belief) in order to determine if there were reasonable grounds for arrest, I will examine that evidence as presented by the Crown. Does the Totality of the Circumstances Support a Conclusion that there were Reasonable Grounds for the Arrest of Ms. Harper? [ 31 ] The Defence did not significantly challenge the subjective grounds of Constable Kornicki.

They accepted, as do I, that Constable Kornicki observed the tin foil with the black dot and that he reasonably believed it to be evidence of heroin in the vehicle. They also did not challenge that Ms. Harper was the driver and thereby had at least some control of the contents of the vehicle (although that is somewhat hard to reconcile with Constable Kornicki’s decision to also arrest the passenger). [ 32 ] The Defence simply argues that there were not reasonable grounds, viewed on an objective basis, for the arrest of Ms.

Harper on the charge of possession of heroin. [ 33 ] The facts of this case are unlike many of those that arise in the context of an arrest and subsequent search of a motor vehicle for illicit drugs. Many of those cases involve the recognition by the police of the odour of marijuana, the observation of drugs or drug paraphernalia that are in plain view, and sometimes both (i.e. R. v. Taylor , 2013 BCCA 382 ; R. v.

Burgis , 2009 BCPC 74 , both cited by the Crown). [ 34 ] In all of those types of cases, it may be that both control and knowledge can be inferred, but even then there is an obligation to consider those elements. Indeed in R. v. Jat , BCPC Surrey Registry 192231-2-C, relied on by the Defence, which was also a case of a police officer whose practice was to arrest all occupants and search the vehicle with the detected smell of marijuana, Judge Gillespie found that the smell of marijuana generally required a determination of who else in the vehicle could detect the smell in order to assess knowledge.

She found that the arrest and search were unlawful and excluded the evidence under s. 24(2). I found that decision very helpful to my own analysis. [ 35 ] In R. v. Chong , 2013 BCPC 121 , a case in which the police officer observed suspected drug paraphernalia at the footwell of the driver, together with possible evidence of drug dealing through a constantly ringing and unanswered cell phone, and evidence of nervousness by the driver, Judge Woods found the objective grounds lacking.

Of particular note, he also focused on the failure to provide succinct evidence of the location of the alleged drug paraphernalia in that footwell, going to the issue of knowledge. He also found there to be a breach of the driver’s Charter rights and excluded the evidence under s. 24(2). That decision was also helpful to my own analysis. [ 36 ] The facts of this case involve an observation by the police of a small, relatively non-distinct and seemingly discarded item.

As was pointed out by the Defence, it has the appearance of a gum wrapper. [ 37 ] More significantly, there is no evidence it was readily or in any way observable by the driver upon entrance and while situated in the driver’s seat. It may have been observable by Constable Kornicki shining his flashlight down from the driver’s side window to the reflective coating, but that does not support the inference, even on the lowest of standards, that the driver had or even may have had knowledge of that same item.

It is perhaps not surprising that Constable Kornicki did not make greater note of that location, since he did not even turn his mind to the knowledge of the driver. [ 38 ] Turning to the other circumstances as presented through the evidence, the so-called suspicious behaviours of the driver were minor and explainable as consistent with any police stop, such as the vehicle stopping some distance away initially, the failure to face the police officer, the general nervousness including the lighting of the cigarette.

Moreover, these observations were being measured in relation to the possibility of an impaired driver, not in support of drug possession. There would be nothing stopping Constable Kornicki from transferring these observations to his analysis of possible drug possession. At no time did he do so in his evidence.

It is more difficult for the court to transfer these observations to the objective basis for a suspicion of drug possession without that evidence, although I have done so in this examination. [ 39 ] Constable Kornicki’s observation of the passenger’s dismantling of the cell phone was described by him as “unusual,” but it was only after discovering the tin foil with heroin and the immediate arrest that he considered that a possible attempt to destroy evidence. [ 40 ] Other evidence that Constable Kornicki had at the time of arrest was that the vehicle did not belong to Ms. Harper and was a rental.

Therefore, there was some evidence of a reduced level of control over the vehicle and consequently the element of knowledge is logically also reduced. If the vehicle belongs to someone else, and in particular where the driver is not a primary operator, then anything found in that vehicle could well belong to or have been placed there by someone other than the current driver. Charter Rights – Conclusion

[ 41 ] In examining the reasonableness of the grounds, I have considered the particular observation of the tin foil with heroin, together with Ms. Harper’s presence as the driver of this rental vehicle, and any relatively minor suspicious conduct by Ms.

Harper (or the passenger), as part of the “totality of the circumstances” (Jir, supra ). [ 42 ] I have also applied the test whether the grounds “are justified from an objective point of view” and from the perspective of a “reasonable person with the same experience, training, knowledge, and skills as the officer who is making the observations,” in this case Constable Kornicki, who offered something of his training and experience with drugs as a general duty officer in Surrey ( Storrey and Luong , supra ). [ 43 ] Finally, I have applied to that test the “reasonable grounds” standard equated with “a credibly based probability” or “reasonable probability” ( Southam ; Debot; and Mugesera , supra ). [ 44 ] In the end, I find that the Crown has failed to establish the reasonable grounds to make an arrest without warrant.

The totality of the circumstances, viewed objectively from a reasonable person with the same experience, training and skills as Constable Kornicki, would not, on a credibly based probability standard, establish reasonable grounds for an arrest. There was, at most, a mere suspicion. Therefore, I find that the arrest was unlawful. [ 45 ] I further conclude that the detention that followed from that unlawful arrest was arbitrary pursuant to s. 9 of the Charter of Rights , and that the warrantless search that followed was also unreasonable and in breach of Ms.

Harper’s s. 8 Charter rights ( Grant ; Caslake; and Collins, supra ). What of Constable Kornicki’s Observations? [ 46 ] Constable Kornicki was not obligated to ignore what he observed. In my view, he had sufficient grounds for investigative detention and could have taken additional steps, including further inquiries about the control and possible knowledge, inferred or otherwise, of the driver ( Simpson and Mann , supra ). But he was not entitled to immediately arrest, and then search ( Whitaker and Chaif- Gust, supra ).

Should the Evidence Found in the Search be Excluded? [ 47 ] S. 24(2): Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 48 ] The Supreme Court of Canada in R. v.

Grant , [2009] S.C.C. 32 para. 71, sets out the approach that a court should take in regard to s. 24(2) applications when assessing whether the admission of the evidence will bring the administration of justice into disrepute: …the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter - protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. The Crown’s Position [ 49 ] The Crown conceded the s. 10(

b) Charter breach, when the police failed to inform Ms.

Harper of her right to counsel following her arrest and detention, which Constable Kornicki explained was because he was arresting the passenger and did not want to complicate matters by having another police officer nearby provide those rights. [ 50 ] Although no evidence flowed from that breach, that has some relevance to the ultimate s. 24(2) analysis. [ 51 ] Otherwise, the Crown again submitted that, in the event I found an unlawful arrest (and consequently a s. 9 arbitrary detention and s.8 unreasonable search), it is better to be lacking in regard to the subjective belief than on an objective basis.

He says the constable could have had a subjective belief, if he had only turned his mind to it, and that Constable Kornicki did not show any bad faith in his approach. He also pointed out that there is a reduced privacy interest in a car and that this was not a search of the person, nor was it conscriptive evidence.

He says there must be a causal connection between any Charter breach and the results of the search and suggests that because Constable Kornicki was going to search the vehicle from “bumper to bumper” anyway and also arrested the passenger, there may not be a causal connection and only a temporal one. [ 52 ] For all of those reasons, the Crown says the evidence should be admitted.

The Defence’s Position [ 53 ] The Defence submits that the evidence from this search should be excluded pursuant to s. 24(2). [ 54 ] They say these are egregious breaches of Ms. Harper’s Charter protections. [ 55 ] Specifically, they submit that Constable Kornicki had no understanding of his obligation to consider the essential elements of the offence and to exercise the substantial discretion given to him in his powers of arrest.

They say that it is not necessary to show bad faith by the officer, such as to intentionally ignore Charter rights, but that with 7½ years’ experience, this constable should be expected to understand his significant powers and obligations. [ 56 ] Although not relying on any breach of the passenger’s Charter protections, the Defence points out that Constable Kornicki also arrested the passenger without the consideration of any control over the item seen in the driver’s floor area, much less his knowledge that it was in the vehicle.

In turn, they point to the fact that the passenger took ownership of the bag at his feet and nothing indicated that bag had any connection to the driver (other than its presence in the vehicle), yet the police also then arrested Ms. Harper for possession for the purpose of trafficking. They say this shows a pattern of conduct, including the admitted s. 10(

b) Charter breach, that Constable Kornicki ignored all Charter protections, but specifically those related to Ms. Harper. [ 57 ] Finally, the Defence says that this was a substantial arbitrary detention and unlawful search at roadside, rather than a brief interaction with the police. Analysis (

a) Seriousness of the Charter -Infringing State Conduct : [ 58 ] I conclude that the exercise of Constable Kornicki’s usual practice on this occasion to arrest everyone in the car and to search it from “bumper-to-bumper,” is indeed an egregious failure to consider significant Charter rights. While this case involves the driver of the vehicle, whose control of the contents may in many (not all) cases be assumed, control is not possession. That is why knowledge, an essential element of the offence of possession, must also be considered before an arrest.

That element of knowledge was ignored entirely by Constable Kornicki and was also found to be lacking to establish grounds when the overall circumstances were considered. While I find that Constable Kornicki’s failure was the result of ignorance, and not bad faith, it is an ignorance without excuse and is a factor to consider in the assessment of the seriousness of the Charter -infringing state conduct ( Grant and Mann , supra ). [ 59 ] I have no trouble concluding his conduct on this occasion, and his practice generally, is serious. (

b) Impact of the Breach on the Accused Charter -Protected Rights : [ 60 ] This unlawful arrest, which included a handcuffing at the front of the vehicle, resulted in Ms. Harper’s arbitrary detention, and an admitted failure to provide her right to counsel in a timely manner under s. 10(b). In turn, this was followed by the attendance of additional police and a search of the vehicle and all of its contents, including the use of a dog team. Ms.

Harper was held up for over an hour and a half at roadside and her freedom of movement significantly curtailed. [ 61 ] Although the privacy interests of a vehicle search are perhaps less than those related to the person, they are substantial nonetheless. I also conclude that there was a causal connection between the Charter breach and the results of the search, in that the search was incidental to the arrest of Ms. Harper. The fact that the passenger was also arrested and a search incidental to that arrest might have occurred, does not cause a disconnection. [ 62 ] Once again, I find this impact on Ms.

Harper to be serious. (

c) Society’s Interest in the Adjudication of the Case on its Merits : [ 63 ] Since additional illicit drugs were located in an amount leading to the charges against both Ms. Harper and Mr. Fyfe of possession for the purpose of trafficking drugs, there is clearly a societal interest in seeing that the police are able to deal with such harmful conduct without undue interference. For that reason, the balancing of interests is delicate.

Exclusion of Evidence - Conclusion [ 64 ] In balancing all of those stated interests, I am mindful of the need to consider whether the admission or exclusion of the evidence will preserve confidence in the administration of justice or bring it into disrepute. [ 65 ] The serious nature of this Charter -infringing conduct to effectively ignore the need for reasonable grounds and to arrest everyone and search the vehicle, together with the fact that this was indeed the usual practice of Constable Kornicki (and not simply an action he took on this occasion), leads me to find in favour of the exclusion of the evidence.

For Constable Kornicki to cast his net so wide and indiscriminately, raises the risk that he catches even the most innocent of passengers and even drivers, and to not only cause this immediate loss of liberty, but to also, by virtue of the arrest alone (even without conviction), to forever affect the future of those caught in that net.

Moreover, in these circumstances he was not obligated to ignore what he saw and had additional powers of detention to continue his investigation. [ 66 ] I conclude that informed, right-minded citizens would agree that to do otherwise than exclude the evidence in these circumstances would bring the administration of justice into disrepute. Order

[ 67 ] Pursuant to s. 24(2), all evidence obtained in the course of the investigation and following the initial arrest of Ms. Harper is hereby held to be inadmissible against her. The Honourable Judge D. Sudeyko Provincial Court of British Columbia