Accused charged with possession of narcotics for purpose of trafficking. Accused applied to exclude evidence based on breaches of ss. 8 and 9 Charter rights. First officer testified that they saw two men walking in suspicious manner. First officer testified that they approached vehicle and he saw male kneeling down beside open car door with cash in his hand, and accused standing beside him. First officer testified that as soon as cruiser stopped, second officer instantly jumped out and yelled out to men that they were under arrest. First officer testified that after pat-down search, he found series of narcotics in accused’s bag. Second officer testified that they were driving by vehicle when they saw three men by driver’s door in close proximity. Second officer testified that he became suspicious that drug deal was underway, so they turned cruiser around and drove up behind vehicle. Second officer testified that he immediately got out of his car and placed all three men under arrest. Second officer testified that in one to two seconds after they pulled up beside vehicle, before he placed men under arrest, he saw man sitting in car with $50 dollar bill, pill bottle, and baggie with drugs in his hands, another man kneeling down beside car in front of black scale, holding $50 dollar bill in his hand, and accused standing nearby, holding backpack. Accused testified that his friend was supposed to be driving him home, but told him that he had to stop off on way to drop off tools for his friend. Accused testified that as they approached vehicle, his friend handed bag to him, then bent down to tie his shoe, and suddenly two police officers were upon them and they were arrested. Accused testified that there was no scale present, that no money changed hands, and that bag containing drugs that he was left holding belonged to his friend, even though his two cell phones were found inside. Application allowed, evidence excluded. Accused’s evidence was not credible. Accused was at scene to participate in drug transaction, which substantially undermined his credibility. Officers’ observations were highly unreliable. Officers gave highly inconsistent accounts about where and how they were alerted to event. Money officers claimed to have seen had disappeared. Even if scale was on ground outside vehicle, it was very unlikely that officer had been able to observe it in two seconds that elapsed between when cruiser pulled up beside vehicle and when arrest was effected. Given that three men were huddled within few feet of each other, it was implausible that in very brief timeframe officer had managed to view man several feet away holding pill bottle and bag with drugs. Evidence gaps were significant and troubling and went well beyond normal discrepancies one expected to find. Officers operated essentially on hunch. Instead of setting up post nearby and watching for grounds, officer charged in prematurely. Police did not have, on any objective basis, reasonable and probable grounds to arrest accused. Accused’s arrest was unlawful and search incidental to arrest violated s. 8 of Charter. Officers knowingly arrested accused based solely on suspicious circumstances, and their handling of evidence was remarkably sloppy. Breach was serious. Impact of breach on accused’s Charter-protected rights supported exclusion of evidence. Given that accused was grabbed, pushed against vehicle, searched, and handcuffed in highly public area, this was significant intrusion on his Charter rights. Drugs that were seized were reliable and objective evidence, which favoured their admission. Given serious nature of breach and its impact on accused’s protected Charter rights, admission of evidence would have brought administration of justice into disrepute.
R. v. Palmer (Oct. 7, 2014, Ont. S.C.J., Baltman J., File No. CRIMJ(F)2329/12) 116 W.C.B. (2d) 349.