Application by accused, who was arrested for illegal possession of firearm, to exclude evidence of firearm because his rights under Canadian Charter of Rights and Freedoms were violated. Accused and two friends, who were black, were walking in park when police officer asked to speak to them. Officer told them that he was investigating robbery of iPhone in nearby shopping centre and he told accused and his friends that they matched description that police had of robbers. That description was simply that robbers were three black males. Other officers attended and one of them was female officer named S who was central participant in this incident. Accused produced his iPhone but he resisted showing what was in other pocket. He was subdued and during struggle handgun fell out of his other pocket. Application allowed. Evidence of officers was problematic since they prepared their notes at station in presence of each other and they discussed what happened as they wrote their notes. This collusion undermined credibility and reliability of officers as witnesses to this incident. S could not remember where she made her notes and this detracted from her credibility and reliability. Her evidence was not accepted. S did not have proper basis to arrest accused and there were no reasonable grounds to suspect that accused was involved in robbery. Police description of robbers was meaningless. S only had hunch that accused had handgun and that was not enough either to search accused or to arrest him. Search of accused’s pocket and discovery of gun was unlawful search that violated accused’s rights under s. 8 of Charter. Police also did not have sufficient reason to engage in investigative detention of accused in relation to robbery. To condone unlawful search and improper investigative detention would bring administration of justice into disrepute. Seriousness of offence and reliability of evidence, while important, did not outweigh factors that pointed to exclusion.
R. v. Jinje (Mar. 27, 2015, Ont. S.C.J., Nordheimer J., File No. Toronto 14-40000338-0000) 120 W.C.B. (2d) 226.