R. v. Carriero, 2010 ONCJ 156

Information No. 09 – F4417 Citation: R. v. Carriero , 2010 ONCJ 156 ONTARIO COURT OF JUSTICE Central South Region (at Fort Erie, Ontario ) B E T W E E N: HER MAJESTY THE QUEEN - and - JOHN CARRIERO Before Justice J. Nadel Heard on April 9, 2010 Mr. T. Jamieson for John Carriero Mr. D. Anger for the Federal Crown ______________________________________________________________________ Charter Ruling NADEL, J.: Introduction [ 1 ] John Carriero, born October 16, 1988, is charged with unlawfully possessing cocaine for the purposes of trafficking.

On September 22, 2009 Niagara Regional Police Constable Kris Hamilton seized 16.42 grams of powdered cocaine from Carriero’s vehicle, along with “Zig Zag” rolling papers, a frond from a marijuana plant, a cell phone and a digital scale. The cocaine was hidden in a secret compartment of what appeared to be an unopened plastic Dr. Pepper pop bottle sitting in the centre-console drink-holder of the car. Carriero submits that he was initially subjected to an arbitrary detention and subsequently to an unreasonable search and seizure resulting in the discovery of the cocaine and other items.

He applies, under ss. 9, 8 and 24(2) of the Charter , to exclude these items from admission into evidence at this trial. The Facts [ 2 ] In the evening of September 21, 2009, P.C. Hamilton, with seven years of policing experience, began a tour of uniformed general-patrol duty in Fort Erie. At 2:50 a.m. on September 22 nd Hamilton was facing northbound on Bernard Road at its intersection with Dominion Road when he saw a car going southbound on Bernard turn left to continue eastbound on Dominion. As it did so, Hamilton saw that the car was a silver-coloured four-door Mazda being driven by a young white male.

[ 3 ] Hamilton followed the Mazda because he suspected that the vehicle might be stolen. His suspicion was based upon there having been 98 complaints of theft from cars in Fort Erie during the summer as well as four cars stolen during that period. In addition, the person driving the car was a young white male. Hamilton ran the Mazda’s licence plate and learned that it was registered to a woman born in June of 1968 and that the vehicle was not reported to be stolen. Nonetheless, because the vehicle was registered to a woman born in 1968 and was being driven by a young man, Hamilton stopped that car.

Hamilton did not testify to the driver committing any moving violation and in cross-examination he conceded that he did not stop the vehicle pursuant to the Highway Traffic Act . [ 4 ] Hamilton stopped the car on Dominion Road and asked the driver who owned the vehicle. Carriero told Hamilton it was his mother’s car. Hamilton requested that Carriero produce his driver’s licence along with proof of insurance and the ownership of the vehicle. While Carriero was getting his documents from the glove-box, Hamilton smelled a “pungent” odour of vegetative marijuana exuding from the vehicle.

In addition, he noticed a package of Zig Zag rolling papers in the driver’s “door-handle” (sic) of the car. [ 5 ] As a result of these observations, Hamilton told Carriero to step out of the car and he placed Carriero under arrest for “possession of a controlled substance.” He then asked Carriero where the marijuana was and Carriero told him that it was in the centre- console. Hamilton testified that he believes he found what he described as a recently harvested branch of marijuana in that console. [ 6 ] Hamilton saw a seemingly unopened bottle of Dr. Pepper in the drink-holder of the centre-console.

Having seen an ersatz bottle in a prior investigation Hamilton checked the item and found that it was a fake bottle. He unscrewed it and discovered two baggies of suspected cocaine in its hidden chamber. As a result, Hamilton re-arrested Carriero for possession of cocaine for the purposes of trafficking. He also seized Carriero’s digital scale and cell phone that continued to repeatedly ring during the investigation. Hamilton was uncertain about where he located some of these items. [ 7 ] P.C. Chris Vassallo, was travelling behind Hamilton’s vehicle when Hamilton initiated the stop of Carriero’s car at 2:58 a.m.

Vassallo approached the passenger side of the Mazda to observe and stand by. While the driver-side window was down Vassallo could not overhear any conversation between Hamilton and Carriero between 2:58 a.m. and 3:03 a.m. At 3:03 a.m. Vassallo heard Hamilton tell Carriero to step out of the car and Vassallo heard Hamilton arrest Carriero for “possession.” Vassallo did not hear Hamilton say anything other than “possession” although Vassallo assumed Hamilton was referring to drugs. Hamilton then hand-cuffed Carriero and found $290.00 in his pockets. At 3:05 a.m.

Vassallo gave Carriero his right to counsel, which Carriero wished to have implemented. Was Carriero’s Detention Arbitrary? [ 8 ] The parties agree Carriero was detained when Hamilton signalled him to pull over. The Federal Crown submits that Hamilton did not arbitrarily detain Carriero because Hamilton was justified in pulling Carriero over for the reasons that Hamilton gave as set out in paragraph [3], namely, to investigate whether the car he was driving was stolen.

The defence contends that this detention was arbitrary and a breach of s. 9 of the Charter . [ 9 ] “The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties.” ( R. v. Simpson, 1993 CanLII 3379 (ON CA) , [1993] O.J. No. 308 at [34]) Recognizing the delicate balance that must be struck between adequately protecting individual liberties and society’s interest in effective policing t he Supreme Court of Canada specifically declined to recognize a general police power of detention for investigative purposes: R. v.

Mann , 2004 SCC 52 (CanLII) , [2004] S.C.J. No. 49 at [1], [15] and [17]. Instead the Court legitimized a limited common law police power of investigative detention: Mann at [18]. [ 10 ] The first aspect of the exercise of a common law investigative detention power, namely that the police conduct in question falls within the general scope of duty imposed on the officer, is ostensibly met on the facts of this case as no defence challenge was raised to Hamilton’s professed rationale for stopping Carriero.

However, the defence challenges the existence of the second branch of the lawful exercise of the common law power of investigative detention on these facts. That second element is an inquiry into whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty: Mann at [24]. It is here that the balance is struck between the competing interests of the police duty and of the liberty interests at stake: Mann at [26].

Before the balance can be freed to tip in favour of a finding of a lawful investigative detention, the evidence must first demonstrate reasonable grounds for the detention; i.e., a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation: Mann at [27]. The officer’s belief must be honestly held.

Once these elements are present the totality of the circumstances must be weighed in the balance: Mann at [28] and [33]. [ 11 ] The framework against which one must analyze the lawfulness of an investigative detention is whether reasonable grounds to detain existed. The power to detain cannot be exercised on the basis of a hunch: Mann at [35]. “The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, …” Mann at [34] [ 12 ] In my view it is patently obvious that Officer Hamilton’s professed grounds for detaining Carriero were unreasonable. The 98 thefts from cars that he referred to are irrelevant to his belief that the Mazda might be stolen.

Moreover, no evidence was called about whether any of these thefts from cars were solved and, if so, who and how old the perpetrators were. The fact of four car thefts over a multi-month period in a municipality large enough to be designated a “town” offers no reasonable basis to infer any criminality associated with an apparently young male properly driving a vehicle registered to a woman old enough to be his mother. Further, no evidence was called about whether any of the four car thefts were solved and, if so, who and how old the perpetrators were.

Most significantly, Hamilton’s hunch that the Mazda might be stolen was completely undercut and eliminated by his computer search that confirmed the Mazda was not reported to be stolen. Viewed against the test set out in Mann , I find that Hamilton’s decision to detain Carriero was not authorized by law and hence arbitrary. That detention was a breach of Carriero’s right under s. 9 of the Charter not to

be arbitrarily detained. Was There a S. 8 Breach? [ 13 ] In answering this question I shall, at least initially, ignore the impact of the s. 9 breach on the propriety of Hamilton’s arrest of Carriero. Hamilton first arrested Carriero for possession of a controlled substance. He believed that controlled substance was marijuana based upon the pungent smell of vegetative marijuana emanating from the car taken together with the presence of a package of rolling papers in the driver’s door.

If those observations provided Hamilton with reasonable and probable grounds to effect that arrest then his search of the vehicle as an incident to that arrest – to look for further drugs or drug-related items – would be lawful and there would be no s. 8 breach: R. v. Caslake , 1998 CanLII 838 (SCC) , [1998] S.C.J. No. 3 . Carriero’s subsequent admission that the marijuana was in the centre-console can play no

part in the propriety of the arrest as that admission occurred after the arrest. [ 14 ] I agree with the submission of the Federal Crown that Hamilton had the grounds to arrest Carriero for possession of marijuana based upon his observations so that the search of the car, which turned up the cocaine, ostensibly complied with s. 8 of the Charter , subject to eventually factoring in the fact of the s. 9 breach . [16] The issue of whether these two observations are objectively sufficient to amount to reasonable and probable grounds can be assessed by reference to R. v.

Polashek , 1999 CanLII 3714 (ON CA) , [1999] O.J. No. 968 where the appellant argued that a police officer had no lawful basis for searching his person and his motor vehicle based on the smell of marijuana emanating from the vehicle because the presence of the odour of marijuana alone shows only that at some time someone smoked marijuana in that vehicle. [17] The facts in Polashek were that during a short conversation conducted after a traffic stop the officer detected a strong odour of marijuana coming from the vehicle. He told the driver that he smelled marijuana but the driver demurred.

The officer saw no smoke in the car and he could not say whether the strong odour was the smell of burned or vegetative marijuana.

Based on th e smell, the appellant's response to the officer’s comment, the area of Mississauga where he stopped the car, and the time of night, the officer believed that he had grounds for arresting the appellant for possession of narcotics. [18] On behalf of the Court of Appeal, Rosenberg J., (at paragraph [13],) ruled that an arrest based solely on the presence of the odour of marijuana could not provide reasonable and probable grounds to make an arrest on these facts given the officer’s admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana.

Rosenberg J. went on to point out that the sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer since by their nature smells are transitory and thus largely incapable of objective verification leading to a subjectively based assessment for an arrest that may easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation. [19] Nonetheless, at [14] Justice Rosenberg did not rule out the possibility that in other circumstances the presence of the smell of marijuana might provide the requisite reasonable and probable grounds for an arrest since the circumstances under which the olfactory observation is made will determine the matter.

Rosenberg J. opined that some officers through experience or training could convince a trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon. [20] Leaving the impact of the arbitrariness of Carriero’s detention aside , I am of the view that Hamilton’s two observations did provide him with reasonable and probable grounds to arrest Carriero for possession of marijuana. I arrive at that conclusion based upon the cumulative effect of the following facts and factors.

First, Hamilton was familiar with the smell of vegetative marijuana as a result of his prior investigative experience. He had been involved in investigating ten prior marijuana grow operations as well as being involved in dozens of other investigations where marijuana was present. As a result, I find that he was able to identify the odour of vegetative marijuana.

Second, the presence of the Zig Zag brand of rolling papers in a vehicle exuding a pungent odour of marijuana is a further circumstance that both supported Hamilton’s subjective belief that Carriero was in possession of marijuana, as well as being an objective piece of evidence and circumstance as required by Storrey . Third, the stem or frond of marijuana was seized on September 22, 2009 and bagged in a heavy-duty plastic bag. It was filed as an exhibit on this voir dire on April 9, 2010 about five and a half months after being seized. It still reeked.

It exuded a remarkably strong odour at almost arm’s-length, despite being inside a closed and thick plastic bag and despite having dried for a further five and a half months. The frond was still redolent. Given how pungent the marijuana remains today, I accept Hamilton’s evidence that he identified a smell of vegetative marijuana as coming from Carriero’s vehicle.

As a result, Hamilton had reasonable and probable grounds to arrest Carriero, notwithstanding that he developed those grounds as a result of arbitrarily detaining Carriero. [21] Accordingly, when the issue of whether there was a s. 8 breach is looked at solely on the basis of whether Hamilton had reasonable and probable grounds to arrest Carriero, the answer is that he did. From that limited perspective it follows that Hamilton was entitled to search the vehicle incident to his arrest of Carriero, which resulted in the discovery of more than half an ounce of powered cocaine.

However, the arrest may well be tainted as being the product of an arbitrary detention. How that factor plays out in a s. 24(2) analysis will depend upon the application of R. v. Grant , 2009 SCC 32 (CanLII) , [2009] S.C.J. No. 32, R. v. Harrison , 2009 SCC 34 (CanLII) , [2009] S.C.J. No. 34 and R. v. Simpson , 1993 CanLII 3379 (ON CA) , [1993] O.J. No. 308 (C.A.).

The S. 24(2) Analysis [22] Grant establishes a new exclusionary paradigm designed to clarify the criteria relevant to determining when, in “all the circumstances”, admission of evidence obtained by a Charter breach “would bring the administration of justice into disrepute” when that outcome is viewed in both the long-term sense of maintaining the integrity of, and public confidence in, the justice system and prospectively, so far as the breach in question is concerned: Grant at [66] to [68]. The analysis focuses on systemic concerns.

The exercise is not aimed at punishing the police or providing compensation to an accused: Grant at [70]. [23] The formula to be applied is established at [71] of Grant : 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.

The Seriousness of the Charter-Infringing State Conduct [24] Will admitting the evidence demonstrate a condonation of the police behaviour? Grant directs that the more severe or deliberate the breach the greater the need to dissociate from that conduct in order to preserve public confidence in the rule of law since the police are required to uphold the Charter . Impact on the Charter-Protected Interests of the Accused [25] To what extent did this breach undermine Carriero’s s. 9 right?

Here one looks at the interests engaged by the infringed right – in this case the right to move about freely – and examines the degree to which the violation impacted on that interest.

Society’s Interest in an Adjudication on the Merits [26] This third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. [27] While Grant stipulates that no overarching rule governs how the balance is to be struck, the Court effectively directs a judge to assess the particular facts in issue against the emergent patterns identified by them. So far as Carriero’s case is concerned the relevant pattern is the one the Court called “Non-bodily Physical Evidence”.

In addition, by analogy, the Court’s discussion of the pattern of results emerging from “Derivative Evidence” cases also has some application. Characterizing and Assessing the Criteria [28] In assessing and weighing the seriousness of the ​ Charter –infringing conduct of Officer Hamilton in arbitrarily stopping Carriero, I am directed, by prior binding authority and by persuasive commentary by the Supreme Court of Canada, to characterize this breach of s. 9 as “serious.” As R. v. Simpson , 1993 CanLII 3379 (ON CA) , [1993] O.J.

No. 308 (C.A.) at [31] makes clear, “[o]nce … road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those particular concerns cannot be relied on to legitimize the stop.” Regrettably, Officer Hamilton was acting on a guess which he ought to have known was an inadequate basis for pulling a driver over, especially when his computer check confirmed the vehicle was not stolen. [29] The s. 9 breach here is a more serious one than that described in Harrison .

In Harrison the officer initially had both an objective and a subjective basis for electing to stop the car – no front licence plate. Here, Hamilton never had any objective basis for his decision to stop Carriero. Thereafter, both fact patterns proceed on parallel paths. In Harrison the officer realized that the vehicle that he had targeted did not require a front plate so the basis for his decision to stop evaporated.

Here, Hamilton learned that his guess was groundless as the Mazda was not reported stolen but he, too, persisted in stopping his target. [30] Neither Karam J. at trial in Harrison nor I, here, make a finding that the s. 9 breach was the outcome of a deliberate plan to abuse Charter rights. Notwithstanding, Harrison describes the breaches there as “reckless” and as demonstrating insufficient regard for Charter rights. While there was both a s. 9 and 8 breach in Harrison and only a s. 8 breach here, the commentary by the Supreme Court of Canada is persuasive, if not binding.

I am constrained to apply the same characterization to this s. 9 breach, given the congruency of the fact patterns. Moreover, I am obliged to note the Court’s comment at [24] that the situation there (and hence here) was exacerbated by the fact that the grounds for the initial stop were entirely non-existent so that the breach was a major departure from Charter standards. [31] The Charter violation in Harrison was more serious than this case because the detaining officer gave misleading testimony. This was further behaviour from which the court was required to disassociate.

Something similar, albeit very much milder, occurred in this trial. Hamilton did attempt to defend his decision to stop Carriero despite having been informed that Carriero’s vehicle was not reported to be stolen by quibbling that it had not been reported stolen “yet”. That piece of testimony was a modest act of sophistry. Likewise, he stated that part of his rational for stopping Carriero was to see if he was licensed. That testimony was

an act of revisionism from which he properly and quickly resiled in cross-examination by conceding that he did not stop the vehicle pursuant to the Highway Traffic Act . [32] In Harrison six members of the Supreme Court of Canada summarized police conduct not markedly dissimilar to what is before me as representing a blatant disregard for Charter rights aggravated by misleading trial testimony. They described that conduct as being serious and not lightly to be condoned.

The trial testimony of Hamilton in Carriero’s case is, to my mind, much less concerning than that described in Harrison but the lack of grounds for detention was more marked so that, on balance, I feel bound to view this criterion in the same way that it was dealt with in Harrison . [33] The second factor to be weighed in the s. 24(2) analysis is the impact on the Charter -protected interests of Carriero from his perspective.

I am directed to assess how seriously the breach compromised his liberty interest protected by s. 9. [34] The Supreme Court in Harrison acknowledged that driving is a highly regulated activity and that drivers know they may be briefly stopped for highway safety reasons. As a result they characterized the liberty and privacy intrusion in Harrison as less severe than would be the case of an arbitrary detention of a pedestrian. Moreover, no insult to the dignity of the detainee occurred. ( Harrison at [30]) The same holds true in this case.

However, the Supreme Court did not easily or willingly accept the Ontario Court of Appeal’s conclusion that the effect of the s. 9 breach on Harrison was relatively minor. Rather, they described being stopped and being searched

without justification as having a “much more than trivial” impact on the interests guaranteed by ss. 8 and 9 since a driver is entitled to be left alone unless validly stopped.

Once again, there is no principled basis to distinguish Carriero’s detention from Harrison’s so that the conclusion drawn in Harrison , on this factor, (acknowledging that there was no independent s. 8 breach,) applies equally here, namely “that the deprivation of liberty … represented by the unconstitutional detention … was therefore a significant, although not egregious intrusion” on Carriero’s Charter -protected interest. ( Harrison at [32]) [35] The next criterion to be assessed is society’s interest in an adjudication of these allegations on the merits of the evidence.

Here, as in Harrison , the reliability of the evidence and its importance to the Crown’s case are considered. The evidence discovered is highly reliable and on its face conclusive of guilt of possession of cocaine, at least.

Still, judges are cautioned not to allow this factor to take on a disproportionate significance in the balance since “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high.” ( Harrison at [34]) Accordingly, this factor favours admission of the evidence. An Arbitrary Stop Leading to a Lawful Search [36] In this case physical evidence was discovered as a result of an unlawful detention.

By analogy, at least, the analysis and direction from Grant on the issue of derivative evidence needs to be adverted to, in my view. There, the Court pruned the prior jurisprudence from determining the result in a derivative evidence scenario. “Discoverability” no longer determines admissibility. Nonetheless, they retained the concept as a factor against which to weigh the impact of the breach on the protected interests of the accused.

They found that by focusing on discoverability a court is better able to assess the strength of the causal connection between the Charter -infringing breach and the uncovered evidence. In Carriero’s case, the causal connection is obvious. On the facts before me there was no likelihood whatsoever that the cocaine would have been obtained without the arbitrary detention.

As a result, despite the lawfulness of Carriero’s arrest when that fact is viewed in isolation, this further concern – that the cocaine would not have been discovered but for Hamilton’s breach of Carrierro’s s. 9 rights – needs to be weighed in the mix. Balancing the Factors [37] “The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision.

It is not simply a question of whether the majority of the relevant factors favour exclusion … The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all [of] the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration of justice that must be assessed.” ( Grant at [36]) [38] The cocaine is reliable evidence. It is crucial to the Crown’s case. It was hidden in a secret compartment of a counterfeit pop bottle that was designed to look like an innocuous and commonplace object. In addition, while Carriero is not charged with possession of marijuana, he was also in possession of a fresh-smelling branch of that controlled plant, together with rolling papers that could be used to smoke it. The car was arguably a drug-mobile.

The police seized a digital scale from the car and Carriero’s phone was continually ringing. It would not be difficult to argue that he was involved in possession of more than half of an ounce of cocaine for the purposes of trafficking. The evidence reliably points to the commission of a serious crime for which jail would be a likely disposition. I am certain that a significant proportion of Canadians would find that a failure to allow that evidence to be adduced would cause them to decry the justice system and to suggest that such a system mollycoddles criminals.

Those of that mind would conclude that a person should not be insulated from being held criminally responsible for a serious offence merely because of what, on its face, was a brief and seemingly insignificant arbitrary detention, especially when the officer could have resorted to lawful authority to achieve the same result. After all, checking to see if a car is stolen is tantamount to checking for ownership and insurance.

Those holding to that viewpoint would find excluding this evidence would be detrimental to the long-term repute of the administration of justice. [39] On the other hand, the Charter and the rights enshrined in it have been the supreme law of Canada for decades before Officer Hamilton was first sworn in as a policeman. He ought to have been taught and he ought to have known that he required reasonable grounds to detain Carriero. He had none. He had no lawful or sufficient justification for pulling Carriero over.

His voiced motive (to check to see if the car was stolen) strongly suggests that he targeted Carriero because of his age, which is just the sort of thing Doherty J. warned against in Simpson at [61]. Despite the plenary authority to conduct a check stop afforded to him by the Highway Traffic Act he failed to advert to or act under that authority. Had he done so honestly and not by way of pretext there would have been no s. 9 breach. While some might thereby argue “no harm - no foul” that response is authoritatively precluded by Simpson and by Harrison .

Further, the impact on Carriero’s right to be free of arbitrary detention is exacerbated by the subsequent and derivative discovery of the contraband he is accused of possessing. That subsequent discovery increases the weight to be accorded to the impact on Carriero’s Charter - protected interest. I give no weight to Hamilton’s sophistic testimony. In my view it was inconsequential and not enough to tip any balance. Equally, I ignore his claim that one of the reasons he stopped Carriero was to see if he was licensed.

He was simply giving voice to a realization that came far too late and in hindsight that the law allows for very visible policing to ensure road safety. I have no doubt that Officer Harrison will learn from that mistake, which was born of an ignorance that prevents a finding of an error made in good faith. [38] Moreover, I am troubled by another aspect of Hamilton’s testimony. Hamilton arrested Carriero for “possession of a controlled substance” or perhaps simply for “possession”. In either case, there was an arguable breach of Carriero’s right under s. 10(

a) to be informed promptly of the reasons for that arrest. More significantly, Hamilton failed to provide Carriero with the informational component of s. 10(

b) before questioning him. I appreciate that there are no formal s. 10 complaints contained in the Charter application brought on the accused’s behalf. Further, I appreciate that an accused person can waive or ignore Charter -non-compliance. Even so, I am of the view that I cannot ignore and must weigh this obvious failure to adhere to Charter standards that occurred prior to the search that led to the charge. It is another factor that I must weigh in the balance. [39] The quality of life that we enjoy in Canada is a product of our freedom under the rule of law. I am of the view that, as a rule,

Canadians do not fear their police. Rather, most of us are favourably disposed towards the police as an institution because of our expectation that they will adhere to high standards, (see Harrison at [42],) and for the most part they do. Those high standards include a good faith compliance with the Charter . As a result, having regard to all the circumstances, the admission of physical evidence seized from Carriero should be excluded. I find that it has been established that the admission of those items into evidence at these proceedings would bring the administration of justice into disrepute.

I come to that conclusion by using a prospective focus that looks to the long term good repute of the administration of justice. In my view, maintenance of the rule of law and the upholding of Charter rights, will be better served and promoted by excluding the physical items seized from admission into evidence at this trial. Hence, Carriero’s application is allowed. Pursuant to s. 24(2) of the Charter , the physical evidence seized by Officer Hamilton is excluded from this trial. Dated at Fort Erie, this 27 th day of April 2010 ______________________ J.S. Nadel, O.C.J.