R. v. Jarrett, 2011 ONCJ 597

Citation: R. v. Jarrett , 2011 ONCJ 597 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — MARVIN JARRETT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) G. David For the Crown D. Maubach For the Defendant Heard: April 29, May 24 and June 30, 2011 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Marvin Jarrett, the defendant, was arrested on May 6, 2009. Following a search he was charged with possession of cocaine. His response to his arrest led to a further charge of assaulting two police officers with intent to resist his lawful arrest.

Words he is said to have uttered during a subsequent strip-search at the police station resulted in a third charge, that of uttering a threat to cause death. [ 2 ] The two arresting officers and a third present during the course of the strip search testified at the behest of the Crown. The defendant called no evidence.

He challenges the propriety of his initial detention, his search and the arrest that then followed on the basis that they offend his Charter-ensured rights not to be arbitrarily detained (s. 9), to be secure against unreasonable search or seizure (s. 8) and to be promptly informed of and provided with the opportunity to instruct counsel (s. 10(b)). The nature of these constitutional breaches and their nexus is such, says the defendant, that the seized drugs and his impugned utterances at the police station should be excluded pursuant to s. 24(2) of the Charter.

The assault charge, says the defendant, should be independently dismissed on the basis that there was no lawful foundation for his initial arrest. Finally, and again apart from any Charter relief, the defendant claims that the words said to compose the charge of threatening do not, in law, amount to that offence. [ 3 ] On consent of counsel, the trial was conducted by way of a single evidentiary proceeding that blended issues referable to both the Charter motion and the adjudication of the case on the merits.

The burden respecting all Charter claims falls to the defendant, on the civil standard of balance of probabilities. The ultimate burden – that of establishing beyond reasonable doubt each essential element of the offences charged – rests, as always, on the Crown.

B. EVIDENCE [ 4 ] At 8:20pm on May 6, 2009 the Toronto Police Service (TPS) received a complaint about “druggies” coming in and out of an apartment building at 170 Vanauley Walk. The report also advised that there were two males in the lobby and that no weapons were involved. There was no further information, including none related to the race or age of the two men, their clothing, what drugs were involved or any more specific conduct.

Vanauley Walk is a part of a Toronto public housing development with a reputation in police circles for violence and drug dealing. [ 5 ] Two uniformed TPS constables, Chris Beckwith and Michael Murray, were dispatched to the location at 9:52pm, about an hour and half after receipt of the 911 call, and arrived at Vanauley Walk some five to ten minutes after that. They parked their scout, walked through the area and saw two men smoking cigarettes and chatting while standing near a secondary or side entrance to the building at 170 Vanauley Walk. Murphy dealt with one of the men.

Beckwith approached the second, the defendant, who he recognized from some unspecified earlier occasion when other officers arrested the defendant for an unspecified offence at an unspecified location. Asked his name, the defendant promptly and calmly identified himself as Marvin Jarrett. Beckwith explained to the defendant that someone had called to report drug dealers and that he was investigating the defendant for possible drug offences. However, out of a general concern for officer safety, he asked the defendant if he would agree to a pat down search for weapons.

According to Beckwith, the defendant replied, “Go ahead”. Beckwith refrained from telling the defendant he was free to leave because he feared such information might frustrate his drug investigation. [ 6 ] As explained by the officers, and consistent with a settled understanding of the procedure, a pat down search is a brief, external, over-the-clothes search of a suspect for hard or bulging objects that may indicate the presence of a knife or firearm. The defendant was wearing jeans and two long t-shirts that extended below his buttocks. Beckwith stood behind the defendant and told him to spread his legs.

He ran his hands up and down the defendant’s spread legs and pocket areas. He also conducted a tactile check of the defendant’s waistband. Beckwith neither saw or felt anything suspicious during this search. Without asking for further consent or indicating his intention, he then lifted up the back of the defendant’s two long t-shirts. He saw a piece of a grey plastic bag protruding from the back of the defendant’s waistband. Beckwith did not inquire as to the grey plastic, nor did he ask the defendant’s permission to remove the small piece of plastic, nor did he pull it out of the back of the defendant’s pants.

Instead, he immediately told the defendant he was under arrest for possession of cocaine. He did so because, in his experience, it is “common practice” for drug users to keep their stash in the back of their pants. Murphy, the second officer, was meantime conducting a pat down search of the second man. Murphy, however, did not pull up any of the second man’s clothing as this, he explained, was beyond the scope of a pat down search. [ 7 ] The defendant struggled with the arresting officer upon hearing the words of arrest.

Murphy, who was only a few feet away, immediately joined his partner and the two of them succeeded in grounding and cuffing the defendant after “a little bit of a struggle”. Beckwith then advised the defendant of his rights to counsel. The defendant, who the police described as “still quite calm”, indicated he wanted to speak to counsel. No opportunity was provided until sometime well after his arrival at the police station. [ 8 ] The defendant was then escorted to the police vehicle.

Beckwith testified that when they reached the police car he advised the defendant that he was also under arrest for assault resist arrest. There is no documentation of such on-scene arrest in either officer’s notebook. Further, and once at the station, the defendant was initially booked only for a cocaine-related offence, not for assaulting the officers with intent to resist arrest. [ 9 ] Before leaving the scene Murphy searched the area in the vicinity of where the defendant was arrested. Despite the use of his flashlight, he did not locate any cocaine , any other drug or any other item of evidentiary interest .

Murphy also checked the backseat of the police scout to ensure it was clean of any contraband before the defendant was placed in that seat. Meantime Beckwith, in conducting a further search of the defendant incident to his arrest for possession of cocaine, looked down the back of the defendant’s pants and into his underwear. He did not see any grey plastic or anything else of investigatory interest. [ 10 ] All three left the Vanauley Walk area at 10:16pm. The defendant fidgeted in the backseat until they arrived at 14 Division where he was removed from the scout. Murphy then searched the backseat of the vehicle.

According to Beckwith, he saw Murphy locate a quantity of cocaine in a grey plastic bag stuck in the crack between the seat and back portions of the rear seat. According to Murphy, he completely removed the backseat from the vehicle and found both a small piece of cocaine and, separately, a torn fragment of a grey plastic baggie in the well under the seat. Beckwith, says Murphy, was escorting the defendant to the sallyport at the time he made this discovery. Beckwith allowed that he never saw any cocaine until the seized exhibit was being weighed at the police station.

The exhibit ultimately analyzed as cocaine. [ 11 ] The defendant was booked at 14 Division at 10:40pm. At the officers’ request, the defendant was led to a side room for a Level 3 strip-search. He was agitated and loudly complained that the cocaine had been planted by the police. Nothing of evidentiary value was found in the course of the strip-search. However, according to Beckwith, Murphy and a booking officer who also attended part of this search, the defendant at some point turned to Beckwith and said words like, “When this is done I’m going to fucking do you”.

Beckwith testified that he then advised the defendant of a further charge of threatening. However, no mention of such charge or of the alleged threat appears on the video recording of the defendant’s return to the booking area immediately following the Level 3 search. According to Beckwith, the further charge of threatening was not formally laid until after he spoke with a member of the detectives office. C. ANALYSIS (

a) Introduction [ 12 ] Street level encounters between police officers and their persons of interest frequently invoke Charter scrutiny. The rules governing the inevitable tension between individual rights and law enforcement in these situations may be clear in theory but the specific dynamics of each interface frequently presents practical challenges to their legal resolution. The police, for example, may approach and question anyone without infringing that person’s Charter rights. And that same person can refuse to answer an officer’s questions and,

absent a lawful basis for his or her detention or arrest, simply walk away. Such confrontations between those authorized to enforce thelaw and those suspected of its infringement rarely resolve this cleanly. Indeed, it sometimes appears as though nearly every street levelpolice-suspect interface affords a microscopic illustration of a constitutional Clash of Titans. [13] Here the defendant was doing no more than smoking a cigarette with an associate when armed and uniformed police approach. The defendant is asked to identify himself and properly does so.

The officer then tells the defendant he wants to search him forweapons. The defendant agrees to permit such search. At the officer’s request, the defendant spreads his legs as the officer, Beckwith,pats him down for weapons. “[A]pplying the proper legal principles to the particular facts of the case”, as directed by the Supreme Courtin R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, at para. 32, in my view “the line [is here] crossed between police conductthat respects liberty and the individual’s right to choose, and conduct that does not”.

Accordingly, the nature of the control exerted bythe officer at this point amounts to a detention in law. Beckwith runs his hands up and down the defendant’s legs and around his pocketsand waistband while searching for hard objects. He finds none. Then, and without first asking the defendant for his approval, he liftsthe back of the defendant’s two long t-shirts, spots a small piece of a grey plastic bag protruding from the waistband, and advises thedefendant that he is under arrest for possession of cocaine. The pat down search of the defendant and the lifting of his t-shirts are clearlysearches.

Whether they are “reasonable”, and thus respectful of the defendant’s s. 8 Charter rights, depends on whether they are withinthe proper exercise of a police ancillary power or, alternatively, whether the defendant consented to the scope of the search the officerconducted. I shall return to these concerns in due course. (

b) The Assault Resist Arrest Charge [14] The defendant’s arrest raises its own challenges, and ones that can be resolved with resort to the Charter. The lawfulness of anarrest without a warrant, as here, depends on the existence of both subjectively and objectively reasonable grounds for the arrest. Assummarized by a unanimous Supreme Court in R. v. Storrey (1990), (SCC), 53 C.C.C. (3d) 316: … the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base thearrest. Those grounds must, in addition, be justifiable from an objective point of view.

That is to say, a reasonable person placed in theposition of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. [Emphasisadded.] It is here difficult to locate the existence of the requisite grounds for a lawful arrest. Based on his prior drug enforcement experience, thearresting officer, Beckwith, testified that the location of the small piece of plastic bag grounded his personal belief in the defendant’scriminal conduct.

Accepting this at face value, I fail to see how, applying Storrey, supra, a “reasonable person” in Beckwith’s shoeswould, let alone “must”, “be able to conclude that there were reasonable and probable grounds for the arrest”. [15] The defendant was arrested for possession of cocaine. To begin, no cocaine was seized, located or even seen prior to thedefendant’s arrest. The defendant was doing nothing more pernicious than smoking a cigarette when observed by the police.

Hisinteraction with the police prior to his arrest, as described by them, was calm and co-operative; nor is there any evidence of furtive orotherwise suspicious conduct on his part. The call reporting “druggies” was at least an hour and a half old when the police first attended,far too remote or stale to even indirectly implicate two random men smoking cigarettes outside a building in a large public housingcomplex in a well frequented area.

Other than that they were both male, there was nothing in the citizen’s call – not even generaldescriptors of race, age or attire – in any way referable to the defendant or the second man. As to the small piece of grey plastic bagspotted by Beckwith in the defendant’s waistband: it may well have raised suspicions in the mind of a street-wise officer, but I cannot seehow that single observation, read in context, could amount to “reasonable and probable grounds” for the defendant’s arrest for theoffence charged.

In short, I find the defendant’s formal apprehension to have been unlawful for want of the objective prerequisites to avalid arrest. The defendant’s minimal resistance to that unlawful arrest, as described by the officers, was not so disproportionate to beunreasonable. Accordingly I find no basis for the charge, as particularized, of assaulting both named officers “with intent to resist thelawful arrest of himself”. Simply put: there was no “lawful arrest” to which the defendant resisted. In the result, the defendant is foundnot guilty of this charge. (

c) The Charter Issues (

i) Introduction [16] In view of my finding that the initial arrest of the defendant was unlawful, that arrest and the detention that followed were thusarbitrary and in violation of the defendant’s s. 9 rights. This holding does not, of course, resolve the question of whether the defendantwas detained prior to his arrest and, if so, whether, that detention and the so-called pat down search that followed complies withconstitutional dictates, either as an exercise of a police ancillary power or pursuant to any consent extended by the defendant to thatsearch.

In this regard, Crown counsel concedes that the defendant was detained from the moment Beckwith asked him for permission toconduct a search for weapons. As that search was conducted without prior judicial authorization, the burden of establishing itsreasonableness, and thus compliance with s. 8 of the Charter, rests with the Crown: R. v. Haas (2005), (ON CA), 200C.C.C. (3d) 81 (Ont.C.A.), at esp. paras. 24-27; R. v. Gundy (2008), 2008 ONCA 284 , 231 C.C.C. (3d) 26 (Ont. C.A.), at para.36.

That burden, says the Crown, is here met as the exercise of state control over the defendant was, in all the circumstances, a lawfulinvestigative detention and the accompanying search was an equally lawful incident of that detention. Accordingly, it is the Crown’sposition that the resolution of the defendant’s Charter claims is governed by R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59. [17] Assuming I find a breach of the defendant’s Charter rights, the Crown argues that no bad faith was exhibited by the police inthe execution of their duties and, accordingly, the remedy of exclusion ought not follow.

If, however, I determine that the defendant’sCharter rights have been infringed and that that the seized cocaine ought then to be excluded, the Crown fairly concedes that the nexusbetween the constitutional breaches and the threatening charge is sufficiently close that the evidence supporting this charge ought also tobe ruled inadmissible. (ii) The Alleged Breaches of Ss. 8 and 9 of the Charter [18]

Section 9 of the Charter guarantees everyone “the right not to be arbitrarily detained or imprisoned”. A lawful detention is not

arbitrary and the common law recognizes a police power to detain for investigative purposes. There are, however, limits to the executionof such power. As summarized by the Supreme Court in Mann, supra, at para. 45, “police officers may detain an individual forinvestigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particularcrime and that such a detention is necessary”. While lower than the standard mandated for a lawful arrest, objective as well as subjectiverequirements still obtain.

As to the former, the Court, at para. 34, explained that, investigative detentions are lawful – and thus notarbitrary – only if they are, … reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clearnexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures [sic] at the front-endof such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activityunder investigation. Further, as said by the Court of Appeal in R. v.

Simpson (1993), (ON CA), 12 O.R. (3d) 182, at 202, and affirmed bythe Supreme Court (see Mann, at paras. 30 and 35), the exercise of a power to detain cannot be condoned where premised on a policeofficer’s “hunch based on intuition gained by experience”. [19] As evidenced by Beckwith’s introductory comments and the nature of the exchange that followed, the defendant was clearlythe targeted object of the officer’s criminal suspicions. However, and here adopting the language of Mann, there is simply no “clearnexus between the individual to be detained and a recent or on-going criminal offence”.

Other than their gender and presence in thegeneral vicinity of a public housing development notorious for drug dealing, there is nothing that identifies the defendant or his colleaguewith those persons who were the subject of the 911 complaint. Nor is there any evidence of an “on-going criminal offence”. Perhapsmost importantly, particularly given the nomadic nature of the alleged criminality and, on the evidence, its common occurrence in thehousing project at issue, there is no element of recency that could reasonably connect the defendant to the offence that inspired the 911call.

Indeed, Crown counsel fairly allowed in argument that the close to two-hour delay in the police attendance at the scene “may befatal to the [prosecution’s] case”. I agree. Irrespective of Beckwith’s experience, there are insufficient objective grounds to conclude thatthe defendant was then or recently engaged in drug-related offences and, thus, no lawful basis to detain him. As very recently said by theCourt of Appeal in R. v. Mahmood, 2011 ONCA 693, at para. 114, a “sincerely held subjective belief is not a reasonable suspicion.

To bereasonable, a suspicion must be supported by factual elements about which evidence can be adduced and permit an independent judicialevaluation”. (See, also, R. v. Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456, at para. 75.) Accordingly, the defendant’sdetention was in breach of his s. 9 rights. [20] It follows that the complimentary frisk search of the defendant was similarly improper and thus in violation of his s. 8 right tobe secure against unreasonable search.

However, even if I am in error with respect to the propriety of the defendant’s detention, I amstill of the view that the subsequent search infringed his s. 8 rights, both because it failed to comply with the strictures governing suchsearches and because it extended beyond the compass of any consent to such search granted by the defendant. [21] In summarizing the power to search incidental to an investigative detention, the Mann court held, at para. 45, that … police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstancesthat the individual is connected to a particular crime and that such a detention is necessary.

In addition, where a police officer hasreasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search ofthe detained individual. In R. v. Plummer, 2011 ONCA 250, at para. 52, MacPherson, J.A., writing for the Court of Appeal, concluded: “I agree that a Mannsearch is anchored in safety concerns and is limited to weapons” (emphasis added). (See, also, R. v. Hull, 2011 ONSC 3139, at para. 31.) [22] It is, frankly, difficult to comprehend what legitimate “safety concerns” animated the frisk search of the defendant.

As recentlyexplained by the Court of Appeal in R. v. Kelsy, 2011 ONCA 605, at para. 48, Mann … demonstrates that the reasonable necessity test must be applied at all stages of the exercise of the police power. In Mann, it wasnecessary to measure the police conduct not only at the initial detention stage but as the investigation progressed.

At paras. 39 - 40 ofMann Iacobucci J. … held that a search incident to an investigative detention could not be based merely on a hunch or a vague concernabout officer safety: … the conduct giving rise to the interference must involve a justified use of a police power associated with a general duty to search inrelation to the protection of life and property. Put differently, the search must be reasonably necessary.

The relevant considerations hereinclude the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of thatduty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature andextent of the interference … The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident toan investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds thathis or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searchesendorses an incidental search in all circumstances … . The officer’s decision to search must also be reasonably necessary in light of thetotality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search bepremised upon hunches or mere intuition. [Emphasis added by Court of Appeal.

Internal citations omitted.] [23] Beckwith’s search of the defendant, I find, was not, in all the circumstances, “reasonably necessary”. It appears to have beenfounded on vague concerns for officer safety arising from the area’s reputation for violence. This concern was not supported by thenature of the complaint or any objective indicia of a present risk to officer safety. It also expressly ignored the information in the 911call, and relayed to the attending officers, reporting that there were no weapons. It also ignored the defendant’s calm and co-operativedemeanour in his dealings with the police.

On Beckwith’s analysis, any and every person in the vicinity of the housing project could besubjected to a pat down search on the vaguest of pretences if not merely the officer’s subjective impressions. This view is inconsistentwith the protections afforded by s. 8 and the legal requirement that every exercise of the power to search be approached individually and

founded on a totality-of-circumstances and reasonable-necessity assessment, even where the search is incident to a lawful investigativedetention. For this reason alone, the frisk search of the defendant is constitutionally unsustainable. [24] In any event, and as affirmed in Plummer, a pat down search coincident to an investigative detention is limited to weapons. Beckwith patted down the defendant’s pant legs, pocket areas and waistband. He discerned nothing suspicious.

He then lifted thedefendant’s two long t-shirts and looked at the very waistband he had already determined was free of any legitimate concern forweapons. In doing so, Beckwith was, I find, pursuing a criminal investigation into whether the defendant was in possession of drugs. What Beckwith was no longer doing, however, was searching for potential weapons. Indeed, his partner, PC Murphy, acknowledged theoverreach of such a search in his evidence.

I am of the same mind: the lifting of the defendant’s shirts fell outside the compass of thatweapons search that may, where reasonably necessary, be properly incidental to a lawful investigative detention. As a result, the searchof the defendant fell afoul of his s. 8 protections on this basis as well. [25] The Crown anchors its efforts to justify the police search in the lawfulness of the defendant’s investigative detention. I haverejected this rationale for the pat down search in the circumstances of this case.

However, in my view the defendant’s consent toBeckwith’s search for weapons provides, at least conceptually, an alternative basis for the constitutional propriety of this search. If, forexample, I (and Crown counsel) have erred in acknowledging the occurrence of a detention, the defendant’s consent to his search could,arguably, afford an independently lawful platform for the pat down investigation.

Alternatively, a detainee could extend his permissionto a search of his person (or, for that matter, possessions or property) beyond that authorized as lawfully incidental to an investigativedetention. [26] In either case, as directed by R. v. Wills (1992), (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.) at para, 69, theburden is on the Crown to establish on a balance of probabilities “that a person has consented to what would otherwise be anunauthorized search or seizure”.

Among the necessary conditions to a valid consent, as said in Wills, supra, is the requirement that “thegiver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent”. Here, the defendant, Ifind, clearly consented to a search of his person for weapons, as requested by Beckwith. What was neither sought nor agreed to was thedefendant’s consent to a search for drugs. As said by the Supreme Court in R. v.

Borden, (SCC), [1994] 3 S.C.R. 145(in which, not incidentally, the logic of Wills was expressly adopted), at para. 35, … a consent to [a search or seizure] can be limited to a taking for certain purposes only. This concept reveals a link between the scope ofa valid consent and the scope of the accused's knowledge in relation to the consequences of that consent. [Emphasis added.] Put bluntly, I find that the defendant’s consent, consistent with his appreciation of the jeopardy subsumed by it granting, was limited tothat very search for weapons that Beckwith requested.

There was no informed consent to a search for drugs and, accordingly, no lawfulbasis for such search either as an aspect of the doctrine of consent or as a waiver of s. 8 rights. (iii) The S. 24(2) Remedy of Exclusion [27] Grant, supra, and its sister cases now govern s. 24(2) exclusionary analysis.

Three avenues of inquiry are to be considered: (1)the seriousness of the Charter-infringing conduct; (2) the impact of the infringement on the Charter protected interests of the defendant;and (3) society’s interest in the adjudication of the case on its merits. “The judge”, as said in Grant, at para. 85, “must then determinewhether, on balance, the admission of the evidence would bring the administration of justice into disrepute”. 1. Seriousness of the Breach [28] The police conduct in the case at bar evidences a persistent disrespect for settled understandings of a suspect’s constitutionalrights.

PC Beckwith’s initial detention of the defendant breached his s. 9 right to be secure against arbitrary detention. Accordingly, thesearch that followed cannot be justified as an incident of that detention. Even if a pat down search was authorized by the defendant’sdetention, it’s execution here trespassed the boundaries permitted by such search, thus violating the defendant’s s. 8 privacy rights onthat basis alone.

Further, and independent of any consideration of the defendant’s detention, the exent of the search went beyond thescope of any consent granted by the defendant, thus independently exascerbating the police violation of his right to be secure against anunreasonable search. That unconstitutional search led, in rapid succession, to derivative evidence – Beckwith’s observations of aprojection from inside the defendant’s waistband – that, in quick turn, led to the defendant’s arrest.

Even apart from this constitutionallytoxic chain, the arrest of the defendant fell palpably short of statutory and common law requirements for a lawful arrest and, as a result,rendered such arrest and the detention that followed an independent breach of his s. 9 rights.

The further search of his person, both on-scene and, by way of strip-search, at the station, amount to derivative and compounding violations of his Charter s. 8 protections. [29] The standard of “reasonableness” that imbues the detention, arrest and search powers misapplied in this case are long-settledand constitutionally informed governors on the exercise of law enforcement authority. Indeed, Beckwith’s partner, Murphy, readilyacknowledged the impropriety of a weapons search incident to an investigative detention that went beyond a tactile frisk outside asuspect’s clothing.

Beckwith, on the other hand, appears to have had little if any appreciation of the relevant constitutional norms or theirproper application. In these circumstances, and contingent on an ultimate balancing of the factors that inform a s. 24(2) analysis, courtsmust separate themselves from such constitutional misconduct lest their silence be mistaken for condonation. As said in Grant, supra, atpara. 75, … ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with goodfaith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v.

Kokesch, (SCC), [1990]3 S.C.R. 3, at pp. 32 – 33, per Sopinka J.; R. v. Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631, at para. 59. Willful or flagrantdisregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociateitself from such conduct. … In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that theCharter-infringing conduct was part of a pattern of abuse tends to support exclusion.

The first factor, then, strongly favours exclusion, not only of the seized cocaine but, as conceded by the Crown, the defendant’simpugned utterances as well.

2. Impact on the Defendant’s Charter-Protected Interests [ 30 ] The inquiry here, as directed by Grant , at para. 76 , “calls for an evalution of the extent to which the breach actually undermined the interest protected by the rights infringed”. Here, t he defendant’s liberty and mobility were violated without lawful justification. The associated searches were repeated and invasive, extending to a strip-search. Such intrusions inevitably impact on protected interests of privacy and human dignity that, by virtue of their intimate nature, rank near the top of those secured by s. 8 of the Charter.

These breaches, I find, are significant trespasses on the defendant’s constitutional protections. 3. Society’s Interest in an Adjudication on the Merits [ 31 ] The assessment of this factor is driven by two primary considerations: the reliablity of the evidence and, second, the importance of the evidence to the Crown’s case. Here, the evidence at issue is crucial to the viability of the prosecution. Further, the seized cocaine is “real” evidence.

As to the words allegedly expressed by the defendant to Beckwith at the police station and s a id to amount to a threat: I have no difficulty finding that these words were utterred, that, in context and as readily understood, they indeed amount to a threat in law and, finally, that their verbal iteration constitutes the actus reus of the offence. Accordingly, all of the evidence subject to this s. 24(2) motion is non-conscriptive and reliable and, thus, militates, under this third head, in favour of admission rather than exclusion. 4.

Assessing the Balance [ 32 ] A proper s. 24(2) balancing requires more than a mere calculation of the number of factors that fall on each side of the inclusion-exclusion fulcrum. As Grant , at para. 84 , directs, “it is the long-term repute of the justice system that is s. 24(2)’s focus”. [ 33 ] The constitutional infringements in the case before me are multiple, serious and careless, at best, of settled legal precedent. They also profoundly, repeatedy and negatively affected a variety of the defendant’s Charter-protected interests.

In the end, I am of the view that the gravity and impact of the breaches outweigh society’s interest in an adjudication on the merits. Reasonable persons, I find, who are fully apprised of the presenting circumstances and who appreciate the values that inform the Charter would agree that admission of the evidence at issue would bring the administration of justice into disrepute. Accordingly, the evidence subject to this motion is excluded . D. CONCLUSION [ 34 ] For the reasons just set out, the evidence of the seized cocaine and the defendant’s allegedly threatening utterances are ordered excluded.

Combined with my determination of the “assault resist arrest” count, the inevitable result is that the defendant is found not guilty of all charges upon which he was arraigned. Released on November 18, 2011 __________________________ Justice Melvyn Green