R v Fuller, 2023 MBPC 44

CITATION: R v Fuller , 2023 MBPC 44 THE PROVINCIAL COURT OF MANITOBA SELKIRK COURT CENTRE BETWEEN His Majesty the King ) ) C. English and C. Cavallo for the Crown - and - ) ) William Fuller ) ) A. Hodge for the Accused Accused ) ) Reasons for Decision ) Delivered: September 22, 2023 C.A. DEVINE, P.J. DECISION ON VOIR DIRE INTRODUCTION [ 1 ] Mr. Fuller is charged with possession of methamphetamine for the purpose of trafficking, arising out of an unusual set of circumstances that occurred on January 9, 2023 in Selkirk, Manitoba. Mr.

Fuller was arrested on warrants, taken into police custody, and then hours later while in police custody and while being watched by an officer in a small bathroom, evacuated a balloon containing 23.96 grams of methamphetamine. The means by which the police obtained the drugs are at issue. Mr. Fuller has brought an application alleging breaches of his rights protected by Charter sections 8, 9, 10(

a) and 10(b), and seeking the remedy of exclusion of evidence of the drugs under Charter section 24(2). A voir dire was held with Crown witnesses testifying. The accused did not call evidence. The evidence from the voir dire will be applied to the trial. [ 2 ] I have allowed the defence application. There were multiple breaches of the accused’s rights, and, given the seriousness of the breaches and their impact on the accused, I am satisfied the administration of justice would be brought into disrepute if the court did not distance itself from the police actions. [ 3 ] My reasons follow.

THE EVIDENCE AND FINDINGS OF FACT [ 4 ] Three police officers testified in this voir dire . The first officer, Constable Dean, testified that after her shift ended at 3:00 a.m., she drove her police vehicle to a gas station in town to refuel. The driver of another vehicle at the gas station approached her and asked for her help. He said he had picked up a hitchhiker on Highway 9 on the way to Selkirk and this was the end of the road for him, but his hitchhiker was refusing to leave the vehicle. The hitchhiker was Mr. Fuller. He got out of the vehicle and approached Constable Dean.

She told him what the complainant had said, asked his name, which he provided by showing her his identification, then she ran his name with police dispatch, learning he had three outstanding warrants: possession of a weapon and carry a concealed weapon, escape lawful custody, and a parole warrant (although she did not recall what the warrants were for, this information was provided by subsequent witnesses and is not at issue). She advised Mr. Fuller he was under arrest on the strength of the warrants, and called for back-up. Mr.

Fuller was cooperative throughout. [ 5 ] Constable Lorenz was one of the officers called for back-up. He spoke with the complainant and with Mr. Fuller. He testified that there was nothing unusual or suspicious about the call and arrest. He observed that Mr. Fuller was very intoxicated: swaying and staggering, with a strong smell of liquor on his breath and red, glossy eyes. He provided the formal Notice of Arrest on the warrants to Mr. Fuller and provided his

section 10(

b) informational right to counsel. Mr. Fuller was cooperative and taken to the police detachment for further processing on the charges. He was placed in a monitored cell at the detachment. During the three and one-half hours that Mr. Fuller was in his custody, Constable Lorenz had no concerns or suspicions about him. [ 6 ] The final Crown witness, Constable Lazaruk, had a very different perception of what was occurring.

He started the morning shift at 7:00 a.m. and was briefed by the night shift. [ 7 ] Constable Lazaruk’s police notes did not commence until more than three hours after his shift began, at 10:12 a.m.; he testified that nothing of note occurred before that time. [ 8 ] However, he also testified that Constable Lorenz’s crew advised him that the scenario at the gas station and the arrest of Mr. Fuller was suspicious. He testified that there were suspicions that Mr. Fuller had orchestrated his arrest by police in order to be arrested

on the parole warrant and be returned to Stony Mountain Institution (Stony Mountain), because he was carrying drugs inside his body for the purpose of trafficking them. None of this was in his police notes. [ 9 ] Constable Lazaruk testified that he had been involved in two cases in the previous few months involving parolees (one who was a parolee, and one who he thinks was a parolee) who had secreted drugs in their persons purportedly to smuggle into Stony Mountain, who then had gone into medical distress while in police custody on account of the drugs.

One of them died, and there is currently an internal police investigation involving Constable Lazaruk and the other police officers involved. He testified that he had been involved in three such cases, including this case. He also testified initially that he was aware of four to six instances of parolees orchestrating their arrests to get into Stony Mountain to traffic drugs, but no further information was provided about that. [ 10 ] I find as a fact, that Mr. Fuller did not orchestrate his arrest on the parole warrant to facilitate a return to the institution for the purpose of dealing drugs.

Both Constable Dean and Constable Lorenz were asked if they or anyone from the night shift had any concerns or suspicions about the complaint. Neither Constables Dean nor Lorenz had any concerns about the legitimacy of the complaint from the driver at the gas station and did not suspect that it was a hoax or otherwise an attempt to orchestrate Mr. Fuller being arrested by the police. [ 11 ] Nor did Constable Lorenz pass on any concerns about Mr.

Fuller to the morning shift, because he had no concerns. [ 12 ] Nor did Constable Lazaruk have anything in his notes about who told him this information. [ 13 ] I accept Constable Dean’s testimony that the complainant approached her as she was fuelling her vehicle – rather than Constable Lazaruk’s testimony that she was flagged down by the complainant. [ 14 ] Neither Constable Dean, nor Constables Lorenz and his partner Constable Helm had any similar suspicions. They did not interview the driver/complainant. As far as they were concerned, arresting Mr.

Fuller on the warrants was the end of the matter. [ 15 ] Constable Lorenz testified that he expected that Mr. Fuller, once processed at the detachment, would be returned to Stony Mountain. He testified that he had been involved with parole warrants on a couple of occasions before that and the usual practise was to take the person to the detachment until all warrants and other paper work was received, and then to return them to Stony Mountain. [ 16 ] That is not what happened in Mr. Fuller’s case.

After what he called his “first hunch” that this was a drug trafficking scenario, that is, the “suspicious circumstances of the arrest”, Constable Lazaruk testified to the second “red flag”: that the cell guard advised him that the accused had not used the washroom in five hours. This “red flag” carries little weight, given that there was no evidence about the last time Mr.

Fuller had gone to the washroom before his arrest, how much liquid, if any, he had consumed, and how many hours he had been sleeping between approximately 4:00 a.m. and 9:00 a.m., given the likely fact that he was intoxicated, which Constable Lorenz testified to, and Constable Lazaruk accepted as a fact.

If he was like most humans, he was likely sleeping the entirety of that time, and therefore not going to the washroom. [ 17 ] At around 9:00 a.m., Constable Lazaruk contacted defence counsel regarding “the remand process”, which he described as the process by which an accused “ waives their right to appear for release before a judge”. He advised the lawyer, Dean Nygaard, that Mr. Fuller would be transported to the Winnipeg Remand Centre once he was finished at the police detachment. He then took Mr. Fuller out of the cell to the “lawyer room” where he spoke with Mr. Nygaard.

This was Constable Lazaruk’s first contact with Mr. Fuller. Mr. Fuller was advised by Mr. Nygaard that he would be taken to the WRC. He became agitated and visibly upset upon learning he would be taken to the WRC rather than back to Stony Mountain. For Constable Lazaruk, this was another “red flag”. [ 18 ] Constable Lazaruk testified that with the recent increase in this type of file, he had a suspicion that there was a likelihood that Mr.

Fuller was attempting to smuggle drugs into Stony Mountain. [ 19 ] He took his suspicions to the supervisor sergeant and was advised to “err on the side of caution” and take Mr. Fuller to be “medically cleared” for continued police custody – that is, to ensure he would not die in police cells. [ 20 ] The sergeant did not testify. [ 21 ] Constable Lazaruk told Mr. Fuller that there was a suspicion he was smuggling drugs in his body and advised him that he was being taken to the hospital to be medically cleared. Mr. Fuller said nothing.

He was cooperative. [ 22 ] Before they left for the hospital, Constable Lazaruk asked Mr. Fuller if he wanted to go to the bathroom and Mr. Fuller declined. [ 23 ] They arrived at the hospital at 10:00 a.m. Once registered at the front desk, Mr. Fuller walked towards a washroom. Constable Lazaruk told him that if he wanted to use the washroom at the hospital, one of the officers would be in the washroom with him. [ 24 ] Mr.

Fuller was very upset, yelling and telling them he had post-traumatic stress disorder (PTSD) from being raped as a child, and did not want to go to the bathroom with people watching him. [ 25 ] But he went to the bathroom with Constable Lazaruk watching him. [ 26 ] It was a single toilet bathroom, approximately 10 feet by 10 feet. His partner stood outside the closed, but not latched, door and Constable Lazaruk was inside with Mr. Fuller. He stayed near the door and was partially turned away from Mr. Fuller but still able to watch him and monitor any potential for him to flush away evidence.

His notes state he “watched the SOC”. Mr. Fuller pulled down his pants such that his buttocks and genitals would have been exposed, and went to the bathroom. He defecated and wiped and then stood up and away from the toilet as directed.

[ 27 ] Mr. Fuller had evacuated a foreign object along with the bodily waste he expelled. It was seized by police, examined and tested. It was a multi-layered package containing the aforementioned methamphetamine. [ 28 ] At that point, Constable Lazaruk arrested Mr. Fuller for possession for the purpose of trafficking drugs. He then read the formal Notice of Arrest, Right to Counsel and Warning from the back of his police notebook. He asked Mr. Fuller if he wanted to call a lawyer and Mr. Fuller asked to speak to Mr. Nygaard again.

He was advised that a private call could not be facilitated at the hospital because there was not a public phone or secure room in which to have a private call. Constable Lazaruk contacted Mr. Nygaard who advised he was on-call only for the remand process, but not to speak to people exercising their right to counsel. The on-call Legal Aid duty counsel was contacted, Tony Kavanagh, and Mr. Fuller used the officer’s phone, with the officer holding it to speak with Mr. Kavanagh. Mr. Fuller was upset that it was not a private call. [ 29 ] A nurse wanted to give him an x-ray.

He refused. [ 30 ] The police returned him to the detachment and took him to the “lawyer room” where he spoke on a private telephone call to lawyer Jason Malloy. [ 31 ] Constable Lazaruk characterized the trip to the hospital and observation of the accused defecating as being out of concern for Mr. Fuller’s medical well-being. [ 32 ] I find as a fact that it was not. The officer had a suspicion that Mr. Fuller was attempting to smuggle drugs into Stony Mountain. He characterized several things in a manner which supported his suspicion. Everything was seen through that lens. He characterized Mr.

Fuller’s initial contact with the police as a concoction to get arrested. He wrote in his police notes that Mr. Fuller “turned himself in” on a parole warrant, even though that is not what occurred, nor what the other officers had told him. [ 33 ] He did not commence writing his notes until 10:12 a.m., after the drugs were seized. He did not write his first report until 1:28 p.m. [ 34 ] I accept that Constable Lazaruk decided that taking Mr. Fuller to the hospital to have the drugs discovered was as a result of his elevated concern that if Mr.

Fuller did have drugs in his body and went into medical distress, he did not want that to be at the police station, but rather in the hospital. However, Mr. Fuller was not in medical distress. He was exhibiting no unusual behaviour. [ 35 ] And, most importantly, the basis of the “suspicion” that Mr. Fuller had drugs in his body was extremely thin and in some cases entirely erroneous. Mr. Fuller had not turned himself in on a parole warrant. He had not concocted an interaction with the police to facilitate his own arrest.

There are several other, more likely reasons he did not go to the bathroom in the middle of the night at the detachment, as already indicated. There are several reasons a federal prisoner would prefer to be returned to their own institution rather than through the crowded, intake units at the Remand Centre in Winnipeg. It does not even appear to be practise to take parole violators to the Remand Centre rather than back to their prison, according to the testimony of Constable Lorenz. [ 36 ] Constable Lazaruk had no interaction with Mr. Fuller until he had already decided, at 9:00 a.m., that Mr.

Fuller would be taken to the Remand Centre, rather than back to Stony Mountain. He told Mr. Nygaard to communicate that with Mr. Fuller. Although Constable Lazaruk testified that Mr. Fuller’s upset reaction to the news he would be taken to the Remand Centre rather than Stony Mountain was another red flag, the chronology makes it clear that Constable Lazaruk’s mind about the nature of the situation was already made up. CHARTER BREACHES [ 37 ] All the Charter breaches flowed from what defence called the “mystery suspicion” that Mr.

Fuller was attempting to smuggle drugs into Stony Mountain. [ 38 ] The initial arrest on the warrants was legal. Mr. Fuller was provided his Charter rights and had an opportunity to speak with legal counsel Mr. Nygaard. None of that is at issue. [ 39 ] But his jeopardy changed at some point, probably either at 9:00 a.m. when Constable Lazaruk called Mr. Nygaard for the “remand process” and advised him that Mr. Fuller would be taken to the Remand Centre rather than Stony Mountain, or at the point when he spoke to the supervising sergeant about his suspicions and was told to have Mr.

Fuller medically cleared at the hospital. At that point, Mr. Fuller was either being detained for a drug investigation or he was defacto under arrest for a drug offence. [ 40 ] There were insufficient grounds for either a detention or arrest for drug trafficking. I have already outlined the insufficient facts supporting Constable Lazaruk’s suspicions. Moreover, at no point until the drugs were searched for and seized did Constable Lazaruk consider that he had sufficient grounds to provide Mr. Fuller a notice of his detention or arrest. [ 41 ] Mr.

Fuller was arbitrarily detained and imprisoned for a drug investigation, because the police, even by Constable Lazaruk’s admission, did not have sufficient information to reach the legal standard necessary to detain him, that is, reasonable suspicion. This is a violation of his right to be free from arbitrary detention and imprisonment. This detention and imprisonment at the police detachment appears to be for the purpose of a drug investigation, for which there were insufficient grounds to hold him.

The Supreme Court summarized the standard that must be met for a legal detention by police, in R v Mann , 2004 SCC 52 at paragraph 45 : [P]olice officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

[42] It is axiomatic that if there were insufficient grounds to detain Mr. Fuller, there were certainly insufficient grounds to arresthim. Although he was not actually arrested until after the search and seizure of the drugs, he was de facto under arrest. The SupremeCourt of Canada summarized the legal standard for arrest of a person on a criminal offence in R v Storrey, (SCC),[1990] 1 SCR 241 at paragraph 17: [T]he Criminal Code requires that an arresting officer must subjectively have reasonable and probably grounds on which to base thearrest.

Those grounds must, in addition, be justifiable from an objective point of view. [43] There were not reasonable and probable grounds to arrest Mr. Fuller at any point prior to the seizure of the drugs. [44] The search for and seizure of the drugs is circumscribed by the Charter protections in Charter

section 8, the right to be freefrom unreasonable search and seizure. The animating purpose of the Charter right is protection of the privacy interests of people vis-à-vis the state. [45] Because this was a warrantless search, the onus is on the Crown to satisfy the Court that it was nonetheless a reasonablesearch. [46] To the extent that the Crown is arguing this was not a search, because Mr. Fuller eventually had to go to the bathroom, I rejectthat argument, which is not supported by the jurisprudence. The legal position of Mr.

Fuller was not different than that of a detaineesubject to a post-arrest strip search or “bedpan vigil”. In R v Poirier, 2016 ONCA 582, Justice Weiler stated trenchantly, “A bedpan vigilsearch is a search” (at para 11). In that case, the police had obtained a warrant for the search. (The warrant was invalid for otherreasons.) Justice Weiler stated further (at para 38): The fact that a bedpan vigil search takes time and involves detention does not make it any less a search. In R. v.

Greffe, (SCC), [1990] 1 S.C.R. 755 (S.C.C.), Lamer J. for the majority held, at p. 796, that he was not persuaded that there was any immediatenecessity to conduct a rectal search of the appellant; he observed that if there were reasonable and probable grounds to believe theaccused was a drug courier, “then surely the detention of the accused in order to facilitate the recovery of the drugs through the normalcourse of nature would have been reasonable.” Similarly, having regard to all the circumstances here, the police had reasonable groundsto believe that the appellant was a drug dealer who carried the drugs in his rectum, and to conduct a passive bedpan vigil search for them. [47] It was a search. [48] Unlike the situation in either Poirier or Greffe noted in the quote above, there was neither a warrant, nor reasonable andprobable grounds to believe the accused was a drug courier.

Therefore, this was not like the situation in Greffe, where “surely thedetention of the accused in order to facilitate the recovery of the drugs through the normal course of nature would have been reasonable”(at para 50). [49] A warrantless search can be considered legal or reasonable if the Crown can prove that: 1) It was authorized by law; 2) the law is reasonable; and 3) The manner in which the search was carried out was reasonable (R v Collins, (SCC), [1987] 1 SCR 265). In this case, the search was not authorized by law. There were insufficient grounds for Mr. Fuller’s arrest.

Without an arrest, therecannot be a valid search incident to arrest. There are no other grounds on which the search took place.

It fails at the first stage ofinquiry. [50] In Cloutier v Langlois, (SCC), [1990] 1 SCR 158, the three parallel requirements for a warrantless searchincident to arrest to be valid were set out (see paras 60-62): 1) The police have the power to conduct a search at common law; 2) The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of a weapon or evidence; and 3) The search must not be conducted in an abusive fashion. [51] This was a type of bedpan vigil search, which the courts have considered analogous to a category two strip search (R v Monney, (SCC), [1999] 1 SCR 652, noted in Poirier at para 44) because it represents a significant invasion of privacy and canbe humiliating, degrading, traumatic and embarrassing, although not as invasive as a rectal search or medical procedure or strip search(see R v Golden, 2001 SCC 83 at paras 83 and 90; Monney at para 47).

Indeed, in this case, Mr.

Fuller was very upset about the policedemanding to be in the bathroom with him to watch him defecate; he talked about his childhood abuse. (In that regard, see Golden atparagraph 90, which recognizes that strip searches are particularly traumatic for individuals previously subject to abuse.) [52] It is for this reason that the Supreme Court has established an additional and higher degree of justification for strip searches, inorder to support the higher degree of interference with individual freedom and dignity: In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches areonly constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discoveringweapons in the detainee’s possession or evidence related to the reason for the arrest.

In addition, the police must establish reasonable and

probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter . ( Golden at para 99 .) [ 53 ] Although the superior courts have not established the same test for bedpan searches, it may be that the standard is similarly elevated given the degree of interference with privacy and dignity.

That issue does not have to be decided in this case, because there were no reasonable and probable grounds for arrest, and no actual arrest. The search was not conducted incident to arrest. [ 54 ] This was an illegal search because it was not authorized by law. This represents a violation of Charter

section 8. [ 55 ]

Section 10(

a) of the Charter states: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor (Emphasis added.) [ 56 ] Mr. Fuller was not informed at all of the reason for his detention and arrest until after the search and seizure of the drugs. [ 57 ] Similarly, he was not provided with his right to counsel about being detained for a drug investigation, going to the hospital to further that investigation, nor that he was under arrest on a drug trafficking charge.

Section 10(

b) of the Charter states that everyone has the right on arrest or detention: (

b) to retain and instruct counsel without delay and to be informed of that right (Emphasis added.) [ 58 ] The duty to inform a detained person of his right to counsel rises immediately upon arrest or detention ( see R v Suberu , 2009 SCC 33 ). [ 59 ] Although there are circumstances where a delay is justified, there was no reason to delay telling Mr. Fuller that he had a right to call to a lawyer in this case, and to implement that right. The police were detaining him for a drug investigation, or had de facto arrested him for a drug investigation by 9:00 a.m. when Constable Lazaruk advised the lawyer Mr.

Nygaard that Mr. Fuller would not be taken to Stony Mountain, but rather to the Remand Centre. He had already made up his mind that Mr. Fuller was smuggling drugs. Even if I accepted that Constable Lazaruk had not come to the belief that Mr. Fuller was attempting to smuggle drugs until he got the additional “red flag” of Mr. Fuller being upset on learning the news he would not be going to Stony Mountain, that was just after 9:00 a.m., and an hour before the decision was made to take him to the hospital to locate and remove the suspected drugs from his body. There was simply no reason to not advise him of his

section 10(

b) rights. [ 60 ] He was not advised of the reason for his detention or arrest, nor was he provided with either his informational or implementational right to counsel. Both sections 10(

a) and 10(

b) were violated. [ 61 ] There are multiple breaches in this case of Charter sections 8, 9, 10(

a) and 10(b), in circumstances similar to several cases filed by defence where persons were detained for the purpose of expelling drugs or other evidence from their rectums. In those cases, Charter breaches were found and the evidence was excluded: Poirier ; R v Multani , 2017 BCPC 210 ; R v Adler , 2020 ONCA 246 ; R v Clarke , 2016 ONSC 1510 . [ 62 ] That brings us to the issue of the remedy for these several breaches. The defence is seeking that the drugs seized should be excluded from evidence.

The Crown argues that even if there were breaches, the evidence of the drugs should nonetheless be admitted into evidence, to avoid a loss of confidence in the administration of justice. Section 24(2) [ 63 ] Section 24(2) of the Charter allows for exclusion of evidence as a remedy for breaches of a citizen’s rights by the state, to maintain confidence in the repute of the administration of justice.

The remedy recognizes that the violations of Charter rights have already damaged the administration of justice; the exclusion of evidence is designed to ensure that no further damage is done to the administration of justice. In that way, the remedy is prospective. The remedy is societal.

It is not designed to punish police or compensate accused persons, but rather is concerned with the system of justice. [ 64 ] Accordingly, I must consider the impact of admitting the evidence on society’s confidence in the justice system, having regard to: 1) The seriousness of the Charter violations; 2) The impact of the breach on Mr. Fuller’s interests; and 3) Society’s interest in the adjudication of the case on its merits.

[65] The Charter violations were very serious and admitting the drugs at this stage would send the message that the justice systemcondones the conduct. This was not a situation where the police came close to properly detaining, arresting, and providing Mr. Fuller hisright to be informed of his detention and arrest for drug trafficking and his right to counsel for that charge or the steps the police took infurthering their investigation.

He did not receive any of these constitutionally-entrenched Charter rights, until after the police weresuccessful in obtaining the suspected evidence in a demeaning manner. [66] Constable Lazaruk was not acting in bad faith. But, he was not acting according to law. “Hunches” and “red flags” are notlegal standards and “erring on the side of caution” is nonetheless an error. [67] And it cannot be equated with acting in “good faith”, which might otherwise reduce the need for the court to disassociate itselffrom the police conduct.

Chief Justice McLachlin and Justice Charron addressed this point in R v Grant, 2009 SCC 32 at paragraph 75: However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated withgood faith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59 (S.C.C.), at p. 87, per Dickson C.J.; R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3 (S.C.C.), at pp. 32-33, per Sopihka J.; R. v.

Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 (S.C.C.), at para. 59.Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require thatthe court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tendsto support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, manyothers may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.

In recognition ofthe need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of apattern of abuse tends to support exclusion. [68] This passage addresses a second concern, which is that Mr. Fuller’s case may be part of a pattern of similar Charter breachesby Constable Lazaruk, where parole violators are suspected of drug smuggling into the federal institution and should therefore besearched for drugs.

The law does not support the position that any search can be justified after the fact by what is found, bolstered by theconcern for the suspect’s health and safety. [69] The first branch of the test leans in favour of exclusion of the evidence. [70] The impact on Mr. Fuller’s Charter-protected interests were also very serious. Mr. Fuller was never given a formal Notice ofDetention for a drug investigation or Notice of Arrest on a drug charge. His

section 10 constitutionally-protected right to be informed ofthe reasons for his detention, his right to silence and the right not to provide self-incriminating evidence were significantly impacted. Theevidence gathered by the police was taken incident to an illegal arrest, an arbitrary detention and without being informed of the reasonfor his detention and his right to counsel. As was the case in R v Taylor, 2014 SCC 50, this “significantly compromised his autonomy,dignity, and bodily integrity” (at para 41).

His interests in being informed that he was being detained or under arrest for drug trafficking,and that police suspected he had drugs in his body and were taking him to the hospital to have them located and extracted from him werecompletely disregarded. At the point that the police decided they were going to either conduct a bedpan search or facilitate a medically-assisted search at the hospital, it was essential that Mr.

Fuller be informed of that so that he could obtain legal information and adviceabout what jeopardy he was facing and what legal options he might have. [71] Instead, he was subject to an embarrassing, demeaning, and possibly traumatic search where he had to defecate while beingwatched by a police officer in the bathroom with him. The search was illegal. The nature of the search makes the seriousness of theimpact on Mr. Fuller much more egregious. [72] Both these factors heavily favour exclusion of the evidence.

In a case where the seriousness of the breach or breaches and theimpact on the individual favour exclusion of the evidence, it is rare that the third factor can outweigh the decision to exclude theevidence.

In R v Le, 2019 SCC 34, paragraph 142 states, that “[w]here the first and second inquiries, taken together, make a strong caseof exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility.” [73] This was extended further in R v Lafrance, 2022 SCC 32 at paragraph 90, which states: While the first two lines of inquiry typically work in tandem, it is not necessary that both of them support exclusion in order for a court todetermine that admission would bring the administration of justice into disrepute . . . “It is the sum, and not the average, of those firsttwo lines of inquiry that determines the pull towards exclusion” ([Le], para. 141). [74] In this case based only on a hunch, a man who was arrested on warrants having nothing to do with drug trafficking, wassubjected to a demeaning, embarrassing search for drugs in his body.

The search took place without the benefit of any rights advisinghim of what he was charged with and his right to not provide self-incriminating evidence.

And the search took place without him beinggiven the right and benefit of legal advice. [75] The court must dissociate itself from these egregious and impactful Charter violations. [76] The Crown argued strongly that the evidence relating to the drugs should be admitted at the third stage, citing the seriousnessof drug trafficking as one of the 20 offences that carry with it a maximum life sentence, and that trafficking over 23 grams ofmethamphetamine in a federal prison represents 230 hits and is worth over $10,000 in that milieu.

The Crown also noted that there werethree drug overdoses in Stony Mountain in 2021. The Crown also argued that without this evidence, it would cease to have a case. [77] I agree that trafficking in drugs in our jails and prisons is a serious problem and that society has a high interest in adjudicating acase such as this on its merits, however, that cannot tip the scales past the seriousness of the multiple Charter violations and the impactof the violations on Mr. Fuller’s interests. The admission of evidence that is so illegally obtained, in violation of integral Charter rights

and interests, along with the significant impact of these violations, would impair public confidence in the administration of justice. [ 78 ] Thus, the evidence relating to the seized drugs is excluded. Original signed by Judge Devine C.A. DEVINE, P.J.