Ontario Criminal

Charter of Rights

Officer’s testimony was evasive and misleading


Officer’s testimony was evasive and misleading

Accused charged with possession of oxycodone and possession of oxycodone for purpose of trafficking. Accused applied to exclude evidence based on breaches of ss. 8 and 9 Charter rights. Officers saw accused and his brother outside of variety store and pulled up to curb to speak to them. Officers asked for identification and accused provided false name. Officer testified that accused was shifting and cantering his body away and there was bulge in his right sleeve. Officer testified that as accused pulled his arm back, bag of pills fell below his sleeve and became visible. Accused testified that he attempted to hide his tattoos from police to conceal his identity. Accused testified that as he tried to hide his tattoos, officer grabbed his left forearm, pushed up his sleeve, and pulled out bag of drugs. Application allowed, evidence excluded. Accused was clear and detailed witness, did not exaggerate his evidence, and was not shaken in cross-examination. Officer’s testimony on her interaction with accused was not credible. Officer hedged her testimony, was nervous, and was not fully frank. When officer observed accused being half-heartedly co-operative and evasive, she took matters into her own hands, took accused by his arm, and pushed up his sleeve. Officer conducted unauthorized and illegal search of accused. At no point did officers tell accused or his brother that they were free to go. While officers may have started out making general inquiries of two men, it quickly evolved into focused investigation into them. Marked cruiser blocked accused’s path. Fact that accused did not leave, even though he had provided officers with false name, supported his testimony that he did not feel free to do so. Reasonable person in accused’s circumstance would conclude that he had no choice but to comply with officers. When officers told accused that they were to check his identification, reasonable person would have assumed he was detained. When detention began, there were no reasonable grounds to suspect that accused was connected to particular crime and that detention was reasonably necessary in circumstances. Although accused gave officer false identity, that did not ex post facto turn arbitrary detention into investigative detention. Accused’s s. 9 Charter right was infringed. Breaches were both serious, as officers were not acting within limits of their authority. Officer’s actions in looking at accused’s arm were deliberate, and her testimony was evasive and misleading. There was strong need to dissociate court from officer’s conduct in order to preserve public confidence in and ensure state adherence to rule of law. Accused’s choice to expose part of his body or not was over-ridden by officer’s deliberate act. Given that breaches were serious and multiple, admission of evidence would bring administration of justice into disrepute.


R. v. Assiu (May 25, 2012, Ont. C.J., Nakatsuru J.) 101 W.C.B. (2d) 595 (10 pp.).


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