R. v. Meyers Date:, 2012 BCPC 50

Citation: R. v. Meyers Date: 20120124 2012 BCPC 0050 File No: 79898-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD DEREK MEYERS ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE de COUTO Counsel for the Crown: K. Groves Counsel for the Accused: O. Snowden Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: December 10, 2010, June 27 and November 28, 2011 Date of Judgment: January 24, 2012 [ 1 ] THE COURT : With respect to this matter, a voir dire was declared at the commencement of the trial on December 10th, 2010 to determine the admissibility of evidence seized by the police as a result of a search of a motor vehicle driven by the accused after he was detained for investigation purposes. This is my ruling on that voir dire . [ 2 ] On February 21st, 2008, Constable Blair of the Ridge Meadows RCMP Detachment pulled over a black SUV for speeding.

As he approached the vehicle he noted a strong odour of fresh marihuana emanating from the driver's side window and as a result advised the driver, who was the accused, that he was being detained for a Controlled Drugs and Substances Act investigation and asked him to exit his vehicle. The accused complied and was then escorted to the marked police vehicle and placed in the rear seat. [ 3 ] Constable Blair returned to the SUV and conducted a search of it which resulted in the discovery of a quantity of marihuana and what are commonly known as "magic mushrooms" or psilocybin.

The accused was subsequently charged with two counts of possession for the purpose of trafficking. [ 4 ] The evidence was heard within a voir dire at the conclusion of which the following issues were raised:

1. Was the accused arbitrarily detained contrary to s. 9 of the Charter ? 2. Was the warrantless search of the motor vehicle conducted in breach of the accused's right under s. 8 of the Charter to be free from unreasonable search and seizure? 3. Was the accused denied his s. 10(

a) and (

b) rights to be informed of the reasons for his detention and of his right of access to counsel? [ 5 ] As a determination of these issues is dependent on the facts of the case, it is useful to review the evidence of the investigating officer relevant to these points. [ 6 ] Constable Blair testified that on the date in question he pulled the above noted vehicle over for speeding, and when he was by the driver's side window, he noted a strong smell of fresh marihuana coming from within the cab of the vehicle. [ 7 ] Constable Blair believed the accused driver was arrestable at the time for possession of a controlled substance based on the strong smell, and advised him he was detained for a "CDSA investigation" or a Controlled Drugs and Substances Act investigation.

He was unable to recall the exact words he said to the accused. [ 8 ] He escorted the accused to the back of the police vehicle and placed him inside, then returned to the SUV and proceeded to search it. [ 9 ] He found a cell phone in the cup holder of the front console between the driver and passenger seats which was ringing and answered it. He noted the time to be approximately 10:12 p.m. The caller wanted to meet him at a particular location.

The officer continued with the search, and in lifting the centre console, came across a plastic shopping bag which contained eight bags of mushrooms and nine bags of marihuana. [ 10 ] He then returned to his police vehicle and arrested the accused for possession for the purpose of trafficking. He asked the accused if he understood and the accused replied, "Yeah". The officer next read him his s. 10(

a) and (

b) rights from a police issued card, and when asked if he understood, the accused replied in the affirmative. When asked if he wished to contact counsel he said "Not right this second". [ 11 ] The Constable returned to the SUV and continued with his search but found nothing else, although he noted that the cell phone subsequently rang on five other separate occasions as he searched the vehicle. [ 12 ] At issue is whether the accused's Charter rights in these circumstances were violated as outlined above. [ 13 ] Ms.

Snowden argued on behalf of the accused that the search and subsequent seizure was in violation of her client's right under s. 8 of the Charter to be secure against unreasonable search and seizure on the basis that the officer exceeded his authority in engaging in the search following an "investigative detention"; that the detention itself was arbitrary; and that her client was denied his rights under s. 10(

a) and (

b) of the Charter following his detention. [ 14 ] Mr.

Groves for the Crown argued that the smell alone as described by Constable Blair was sufficient to provide the objective basis for the officer's subjective belief, and as a result the officer had the necessary grounds to arrest the accused. [ 15 ] He argued that accordingly, notwithstanding that the officer referred to it as a detention, the Court could conclude that the accused had in fact been arrested in these circumstances, and as a result the accused's detention was not arbitrary, and that the search was reasonable and lawful and not in violation of the accused's rights under ss. 8 or 9.

He submitted that the drugs should be admitted into evidence. [ 16 ] Counsel have referred to a number of cases in support of their respective positions. I have read them all but will refer to only some of them as many are fact specific in the application of the relevant principles as set out in the jurisprudence. [ 17 ] It seems to me that the starting point is a determination as to whether the accused was detained or arrested and whether the subsequent search was unreasonable. [ 18 ] With respect to the first point, Constable Blair's testimony is of great relevance.

As noted earlier, he testified that upon noting the strong smell of fresh marihuana, he detained the accused for investigative purposes and placed him in the rear of his police vehicle. [ 19 ] When asked why he did not advise the accused he was under arrest at the time, he replied that at that point "It was going through my head to identify or determine what the actual charge was going to be that he was under arrest for" and that his intention was to find out. [ 20 ] He was also asked if he had Chartered and warned the accused at the time he was detained and he replied that he had not.

When asked for a reason, he explained that he: … wasn't certain of what offences he was under arrest for at the time, so until I had determined what those offences were or offence was, my intention was to search the vehicle and find out what the offence was and then explain to him fully what the offence was. [transcript, p. 21] [ 21 ] He did, however, in cross-examination agree that he understood that an accused had the right to be advised of the reason for their detention, and to be apprised of their right to counsel immediately or without delay upon detention. [ 22 ] Constable Blair further stated during his cross-examination that on noting the strong odour, he visually scanned the inside of the vehicle but did not see anything that could be the source of the smell.

He also testified that he knew the difference between an arrest and a detention and at that time believed he had "reasonable grounds" to arrest the accused, but detained him instead as he "wanted to

investigate further".

As he explained, he "needed further evidence", but also agreed that there was no urgent circumstances thatprevented him from applying for a search warrant, stating that he did not remember considering the search warrant as he believed he hadthe power to search incidental to arrest. [23] It seems clear from these responses that Constable Blair was well aware of the distinction between detaining an accused personand arresting him, and chose to detain the accused. [24] The Supreme Court of Canada recognized the existence of the common law power of the police to detain an individual forinvestigative purposes, to search him incidental to such a detention, and also defined the scope of such a search in R. v.

Mann, 2004 SCC52 , [2004] S.C.J. No. 49, [2004] 3 S.C.R. 59. [25] In that case, two police officers observed the accused, who matched the description of the suspect in a reported break and enter,casually walking along the sidewalk and stopped him. He identified himself and complied with a pat-down search of his person forconcealed weapons. [26] During the search, one of the officers felt a soft object in his pocket, reached in, and found a small plastic bag containingmarihuana. The officer found a number of small plastic baggies in another pocket.

He was arrested and charged with possession ofmarihuana for the purpose of trafficking. [27] The trial judge found that the search of the accused's pocket violated his rights under s. 8 of the Charter and excluded theevidence. The Court of Appeal disagreed and ordered a new trial. [28] On appeal to the Supreme Court of Canada, Justice Iacobucci, writing for the majority, stated in para. 36 that the starting premiseof any search incidental to the limited power of investigative detention is necessarily a warrantless search, and thus presumed to beunreasonable unless they can be justified and found to be reasonable.

He wrote that the search is deemed to be reasonable if it isauthorized by law, the law itself is reasonable, and the manner in which the search was carried out was also reasonable. [29] The Crown bears the burden of establishing on a balance of probabilities that the warrantless search was authorized by areasonable law and carried out in a reasonable manner. [30] Iacobucci J. concluded by holding in para. 45 that: [45] … police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all thecircumstances that the individual is connected to a particular crime and that such a detention is necessary.

In addition, where a policeofficer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-downsearch of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In thisconnection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detainedindividual to answer questions posed by the police.

The investigative detention and protective search power are to be distinguished froman arrest and the incidental power to search on arrest, which do not arise in this case. [31] In Mann, supra, the Court held that the seizure of the marihuana was unlawful and excluded the evidence. [32] The principle stated above was applied by that Court in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32 and referred to by ourCourt of Appeal in R. v. Kaddoura, [2009] B.C.J.

No. 526, 2009 BCCA 113 one of the cases cited by the Crown and which was decidedon other grounds. [33] In that case, an officer pulled over a vehicle with a damaged left tail light which was a violation of a provision of the BritishColumbia Motor Vehicle Act Regulations. He had also been instructed by other officers engaged in an undercover operation relating to adrug purchase to pull the vehicle over for the purpose of identifying the occupants. The Court held that pulling the vehicle over for aviolation of the Motor Vehicle Act Regulations was not an arbitrary detention. However, Mr.

Justice Groberman, writing for themajority, also stated in para. 18: [18] It is clear that the authority of the police to stop a vehicle for traffic safety purposes does not entitle them to interrogate theoccupants or search the vehicle for the purposes of proving the commission of criminal offences.

The mere fact that the initial stop islegal will not insulate subsequent police conduct from Charter scrutiny. [34] These and other cases cited by counsel distinguish the powers of an officer to conduct a search between an individual who hasbeen detained for investigative detention and one who has been arrested. [35] In the former situation, the power to search is restricted to one where a police officer has reasonable grounds to believe that his orher safety or that of others is at risk.

It does not entitle him to search for evidence that is for the purposes of proving the commission ofcriminal offences. [36] In the case at bar, based on the officer's testimony, I am satisfied that he detained the accused for investigative purposes ratherthan arrest him.

As a result, based on the application of the principles stated above, I am also satisfied that while the detention as a resultof the officer observing the accused speeding was not arbitrary, his search of the vehicle for evidence to determine the commission of acriminal offence in the absence of exigent circumstances was unjustified and unlawful and in breach of the accused's right under s. 8 ofthe Charter. [37] The second argument raised by the defence is that the officer did not have the necessary grounds in any event to arrest theaccused as smell alone was insufficient in the circumstances to provide for the objective basis for Constable Blair's subjective belief. [38] The Crown argued otherwise, and as mentioned above, relied on a number of cases which held that in the circumstances beforethose courts, smell alone was found to be sufficient to constitute the objective grounds for arrest.

[39] In my view, those cases are fact specific and must be considered in their context. It is also noteworthy that in those cases thecircumstances involved an accused who had been arrested and not detained. As mentioned above, the powers to search are very differentbetween the two. [40] In R. v. Dubois, 2004 BCCA 589 , [2004] B.C.J. No. 2426 (B.C.C.A.), two female police officers on bicycle patrolsmelled the distinct odour of burning marihuana as they passed the accused's vehicle which was heading in the opposite direction.

Whenhe drove into a nearby parking lot, the two officers rode up to his vehicle and on approaching the vehicle they both smelled the strongodour of marihuana emanating from it.

There was also an open can of beer on the console between the driver and passenger seats. [41] As the female passenger exited the vehicle at the request of one of the officer's, Constable Pineo noted her to brush off what shesuspected were marihuana leaves or remnants from her white pants. [42] The other officer observed what she believed to be residual marihuana leaf throughout the interior of the vehicle. [43] Constable Pineo testified that her reasonable and probable grounds for conducting the subsequent search of the vehicle were thesmell emanating from the vehicle and the leafy materials on the pants of the passenger.

That led her to believe there was marihuana inthe vehicle, although there was nothing in plain view. [44] With respect to the lawfulness of this search, the Court of Appeal stated that "it cannot be said that the evidence of odour alone isinsufficient in all circumstances to found an objective belief that a crime has been committed or is about to be committed".

Clearly, in sostating, the corollary is that there may well be circumstances in which smell alone would be insufficient. [45] In Dubois, supra, Madam Justice Huddart found that Constable Pineo's testimony supported the trial judge's finding that she hada subjective belief that she had reasonable and probable grounds for an arrest. [46] In my view, the facts in Dubois, supra, are very different from the case at bar and is distinguishable on that basis. There weremore indicia present to the officer than was present to Constable Blair in this case. [47] I note that in R. v. Sewell, [2003] S.J.

No. 391, 2003 SKCA 52, the head note indicates that the Appeal Court concluded that thesmell of marihuana was sufficient in light of the officer's experience. [48] Upon reading the cases referred to by the Crown, it would seem that the Courts of this Province have also considered theofficer's experience in determining the objective reasonableness of an arrest. [49] In R. v. Juan, [2007] B.C.J. No. 1402, 2007 BCCA 351, a police officer arranged to purchase nine ounces of cocaine from a Mr.Tran. Mr.

Tran arrived at the location arranged for the transaction, driving a vehicle with the accused seated in the front passenger seat,and another passenger in the back seat. When Mr. Tran approached the officer's vehicle and showed her what was purported to becocaine, he was arrested. [50] Other officers attended upon the passengers and the accused was arrested and searched by Constable Sexton. He found a plasticbaggie containing nine grams of cocaine packaged in various ways in the accused's left front pants pocket. The accused was chargedjointly with Mr.

Tran with possession of cocaine for the purpose of trafficking. The trial judge held that the accused's arrest wasunlawful, the search was unreasonable, excluded the cocaine found in the course of the search of his person, and acquitted the accused. The Crown appealed. [51] In holding that the officer subjectively believed and had objective grounds to believe that the accused was involved in the illegaldrug transaction, the Court of Appeal considered Constable Sexton's experience as a police officer for over five years and who had beenin the drug

section for over two years. He had testified that in his experience "people who normally arrive at a cocaine transaction of thissize normally have some involvement in the file, either as the supplier or as somebody who is there to make sure that a drug rip doesn'thappen". He explained that by this he meant as being "security for the transaction, to make sure it goes smoothly". [52] Constable Siddiqui who had forcefully removed the accused from the vehicle testified that he had been with the RCMP for nearlyten years and spent six years in the drug section.

He testified that a passenger in a vehicle may, during a drug transaction, be inpossession of a firearm, may be present for "muscle", or may be a supplier. [53] Sergeant Murphy who was the non-commissioned officer in charge of the Burnaby RCMP Detachment Drug

Section at the timeof the arrest also testified. He had been with the RCMP for over 18 years and prior to that had been a drug investigator with the NorthVancouver Detachment. He described the advance planning for the operation and the events at the scene. [54] Mr. Justice Thackray stated the knowledge of the police officers is not to be ignored and referred to R. v. Rajaratnam, 2006ABCA 333 in which the Alberta Court of Appeal stated at para. 25: [25] ... a judge is entitled to consider a police officer's training and experience in determining objective reasonableness.

See R. v.Smith, 1998 ABCA 418, 219 A.R. 109 at para. 30; R. v. Sinclair, 2005 MBCA 41, 192 Man.R. (2d) 283 at para. 14. What may appear tobe innocent objects to the general public may have a very different meaning to an officer experienced in drug operations: R. v.

Kluczny,2005 ABQB 350, 385 A.R. 182 at para. 51. [Emphasis added by Thackray J.A.] [55] Taking the police officers' training and experience into account he found that they subjectively believed and had objectivegrounds to believe that the accused was involved in the illegal drug transaction and held that the search was incidental to a lawful arrestand the results of the search admissible. [56] Similarly, the arresting officers' previous experience was considered as providing the objective grounds in R. v. Burgess, [2009]

B.C.J. No. 449 (B.C. Prov. Ct.); R. v. Costain, [2010] B.C.J. No. 1268 (B.C. Prov. Ct.); and R. v. Ashby, 2011 BCSC 513. [57] In Burgess, supra, a police officer stopped a car for speeding and as he stood by the open driver's window he noted "a strongodour of fresh marihuana" coming from the interior of the vehicle. He was certain that he did not smell the harsher odour of smoking orsmoked marihuana. He also detected a strong, freshly deployed odour of cologne or some other aerosol spray.

The driver, as well as thepassenger who was in the vehicle at the time, were subsequently arrested for possession of marihuana. The arresting officer testified thathis grounds of arrest were: 1. The strong odour emanating from the vehicle which indicated to him that marihuana was present in the vehicle or on one orboth of the occupants. 2. The strong odour of cologne or aerosol spray as if it had just been sprayed.

He believed that it had likely been deployed in anattempt to mask the odour of marihuana which was an indication to him that both occupants would have been aware of the fact thatmarihuana was in the vehicle. [58] In addition, the Court described the arresting officer's experience. He had participated in hundreds of marihuana investigations. He had spent one-and-a-half years with the Burnaby Marihuana Enforcement Team during which time he worked on many marihuanagrow operation investigations. He had provided expert reports relating to "possession, consumption, and cultivation of marihuana" ontwo occasions.

He had considerable experience with the smell of bulk or fresh marihuana and the smell of smoked or burningmarihuana. [59] In Costain, supra, the investigating officer pulled up behind a car idling in a parking lot of a pub. She noted that it did not have arear licence plate and on a closer inspection noted a temporary operator's permit displayed in the back window but could not make outthe details. She decided to verify the insurance and registration on the vehicle were valid by speaking to the driver.

When sheapproached the open passenger side window she detected a very strong odour of raw marihuana emanating from inside the vehicle. [60] In finding that the officer had reasonable and probable grounds to arrest the occupants of the vehicle, the Court relied on theofficer's past experience and referred to the following passage from R. v. Polashek (1999), (ON CA), 134 C.C.C. (3d)187 in which Mr. Justice Rosenberg stated at para. 14: [14] … The circumstances under which the olfactory observation was made will determine the matter.

It may be that some officersthrough experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possessioncan be relied upon. [61] The officer in Costain, supra, had five-and-a-half years of service, and had been involved in previous vehicle stops wheresignificant amounts of raw marihuana had been found.

She described what the Court considered her "considerable experience" detectingthe odour of raw marihuana, in particular noting prior experiences where she successfully detected quantities of marihuana in previoustraffic stops where considerable marihuana was seized.

Her previous involvement in approximately 21 marihuana grow operationsincluding affiant searches, entry team participation, dismantling of those operations, and destroying fresh marihuana plants were alsoconsidered. [62] In Ashby, supra, as well, the circumstances and the investigating officer's experience differ greatly from those in the case at baras were the grounds articulated by the officer for the arrest of the accused. [63] In that case, the officer who had been an RCMP member for approximately two years at the time, observed a vehicle speeding at94 kilometres an hour in an 80 kilometre zone.

It was minus 21 degrees centigrade at the time and the highway was covered with snow. Notwithstanding this very cold weather, the driver's side window was down approximately one quarter of the way and the sun roof wasopen partway. [64] The officer stopped the vehicle and on approaching the driver's side noted a strong odour of vegetative green marihuana.

He alsonoted there were fast food wrappers on the floor and an odour of men's cologne in the vehicle, which was a rental vehicle. [65] As for his experience, the officer had been involved in the past in the dismantling of approximately ten indoor grow operationsand five outdoor grow operations. He had made several stops of vehicles in which he had smelled burnt marihuana or marihuana bud. When he searched these vehicles, he found marihuana in the vehicles.

He had also been able to distinguish between the smell of burntmarihuana, marihuana buds, and marihuana plants. [66] He provided the following as the reasonable and probable grounds to arrest the driver: 1. She was driving a rental vehicle, and drug couriers often use someone else's car to avoid detection and seizure of their owncar. It also allows them to deny knowledge of the drugs that may be found in the vehicle. 2. The smell of male cologne was important because in his experience it is often used to mask the smell of marihuana in avehicle. 3.

The fast food wrappers on the floor were important because in his experience people couriering marihuana do not wish to stopfor very long or to leave their car in order to eat. 4. Given that it was minus 21 degrees centigrade and the fact that the window and sun roof were open led him to believe that theaccused may be trying to vent the smell of marihuana from the vehicle. 5. The strong smell of vegetative marihuana. [67] Mr. Justice Powers concluded that the strong smell of vegetative marihuana was a strong indicator based on all of the above

noted observations which led the officer to believe he found the accused committing an offence, and held that he had the necessary reasonable subjective and objective grounds to arrest the accused. [ 68 ] It seems to me that, as illustrated above, all or many of these cases have considered the officer's experience and/or training together with that officer's observations made at the scene in determining the existence of the objective grounds for the subjective belief for arrest. [ 69 ] The past experience of the officers involved in each of the cases mentioned above was more than minimal or trifling.

Rather, they are quite significant and far more than that of Constable Blair. They were able to convince the trial judge that their experience or training was such that they possessed sufficient expertise that their opinion of present possession could be relied upon. [ 70 ] I am not persuaded that the same can be said of Constable Blair with his very limited exposure and experience. At the time, he had been an active police officer for only seven or eight months, had probably been involved in only five or six grow operations as well as in some seizures, but in all of which he played a minor role.

He does not appear to have had any experience in checking motor vehicles based on a strong smell of marihuana whether fresh, vegetative or burnt and in which marihuana was in fact subsequently found. [ 71 ] With such minimal experience, can it be said that he qualifies on the basis as stated above in Polashek , supra , that his experience or training is such that he possesses sufficient expertise that his opinion of present possession can be relied upon?

In my view, it falls short. [ 72 ] As a result, I am not prepared to conclude that the smell alone in the particular circumstances of this case in which the search of the vehicle was conducted solely on that basis without any other observations or considerations of the kind mentioned in the above cases was sufficient to provide Constable Blair with the necessary objective grounds for his subjective belief that the accused was arrestable for possession under the Controlled Drugs and Substances Act . [ 73 ] In view of my finding, I have also concluded that as a result, the search of the vehicle was in violation of the accused's right under s. 8 of the Charter to be free from unreasonable search and seizure. [ 74 ] I have earlier found that the accused was detained and not arrested.

In light of the fact that he was not advised of his rights under s. 10(

b) until after some five or more minutes had passed since he was placed in the rear of the police vehicle, and as Constable Blair admitted that there were no exigent circumstances that prevented him from advising the accused of his rights much sooner, and it appearing from the evidence that the only reason that he delayed advising the accused of his rights was to search and locate incriminating evidence before doing so to determine what the charge was going to be, I am also satisfied that his Charter right to be properly informed of those rights was violated. [ 75 ] As was stated by Chief Justice McLachlin and Madam Justice Charron in R. v. Grant , supra , the s. 10(

b) right to counsel arises immediately upon detention whether or not the detention is solely for investigative purposes. [ 76 ] Having concluded that the accused's Charter rights were infringed, the next issue is whether the evidence obtained in breach of those rights should be excluded under s. 24(2) of the Charter . [ 77 ] As pointed out by both counsel, the leading authority on this issue is set out by the Supreme Court of Canada in R. v.

Grant , supra , in which the Court identified three lines of enquiry that must be considered when a court assesses the effect of admission of the evidence on the repute of the administration of justice under s. 24(2) of the Charter . They are: 1. The seriousness of the Charter -infringing state conduct. 2. The impact of the breach on the Charter -protected interests of the accused. 3.

The societal interest in adjudication on the merits. [ 78 ] Once those enquiries are made, the Court must then decide whether on balance the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. [ 79 ] As to the first line of enquiry, the majority stated in para. 74 of Grant , supra , that at one end of the spectrum admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine the public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [ 80 ] They also held that extenuating circumstances such as the need to prevent the disappearance of evidence may attenuate the seriousness of police conduct that results in a Charter breach and that good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. [ 81 ] They stated, however, that ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. [ 82 ] The Court concluded that deliberate police conduct in violation of established Charter standards tended to support exclusion of the evidence, and further that in recognition of the need for courts to distance themselves from such behaviour evidence that the Charter - infringing conduct was part of a pattern of abuse tended to support exclusion. [ 83 ] In the case at bar, Constable Blair testified there were no urgent circumstances that necessitated him to conduct a search of the

vehicle in the manner that he did without first obtaining a search warrant. In fact, aware of the distinction between a detention and an arrest, it would seem that he did not direct his mind to any alternative acceptable course of action.

The search had nothing to do with officer safety but was for the sole purpose of discovering evidence. [ 84 ] It would also seem that the Constable ignored the protection guaranteed the accused to be immediately informed of his rights under the Charter until he found the evidence to support his actions notwithstanding the lack of any urgent circumstances precluding him from doing so. [ 85 ] In these circumstances, it is my view that there was a wilful or reckless disregard of the accused's Charter rights. [ 86 ] As a result of my analysis under the first line of enquiry, I am satisfied that the impact on the Charter -protected interests of the accused was significant. [ 87 ] Under the last line of enquiry, the majority in Grant , supra , stated in para. 84: [84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue.

Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus.

As pointed out in Burlingham , the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para. 51). And as Lamer J. observed in Collins , "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [ 88 ] Bearing this in mind and the long-term repute of the justice system, as well as taking into account the circumstances surrounding the discovery of the drugs, it is my conclusion that the admission of the evidence on balance would bring the administration of justice into disrepute and ought to be accordingly excluded. [ 89 ] That is my finding. [ 90 ] MR.

GROVES: In light of Your Honour's ruling, the Crown has no further evidence to call. [ 91 ] THE COURT : All right. That being the case for the Crown, does the defence intend to call any evidence? [ 92 ] MS . SNOWDEN: No, Your Honour. [ 93 ] THE COURT : Mr. Meyers, the Crown is not calling any further evidence and as you just heard at the end of my voir dire ruling I am excluding the evidence that was seized and you not having called any evidence, I find that there is no evidence to conclude beyond a reasonable doubt that both of these charges have been made out.

I accordingly dismiss the charges against you, finding you not guilty. [ 94 ] Having said that, with respect to all of the items seized, I am satisfied that they ought to be forfeited to the Crown. [ 95 ] Mr. Meyers, just a caution and a warning. Consider yourself very fortunate at this time. Do not repeat this mistake again. [ORAL REASONS FOR JUDGMENT CONCLUDED]