R. v. D.S.
Ontario Court of Justice
Newmarket, Ontario
H.I. Chisvin J.
Oral judgment: July 31, 2007.
Counsel:
A. Ghosh: Counsel for the Crown.
R. Rusonik: Counsel for Denzil Sookram.
REASONS FOR RULING
1 H.I. CHISVIN J. (orally):– As a society we recognize the principles of freedom and democracy. We also recognize, as expressed in the Charter, that there are limitations upon our freedoms. We rely upon the police to enforce the laws and the rules of the community which establish the limits. In order to do this, we entrust the police with powers beyond those of the ordinary members of the community. However, there are limits to the extent to which the police can act, even given their extraordinary power.
2 There is nothing more unfortunate then, when the police take advantage of their special status and manipulate circumstances to do what they know they could not otherwise do. This unfortunate conduct is compounded when they come to court and try, under oath to justify their actions. This is exactly what occurred here.
Here then are the circumstances of this unfortunate situation.
3 Denzil Sookram was arraigned on two counts, possession of a restricted weapon contrary to Section 95(2) of the Criminal Code, and possession for the purpose of trafficking contrary to Section 5(2) of the Controlled Drug and Substance Act. He pled not guilty to both of these counts. At the outset Mr. Sookram conceded a number of facts which constitute Exhibit 1 in these proceedings. This agreed statement of fact is as follows:
1) Mr. Denzil Sookram admits to the essential elements of every offence stemming from his arrest on April 19th, 2007.
2) On April 19th, 2007, Mr. Sookram was operating a motor vehicle, licence plate A-Z-N-P-8-0-8.
3) Mr. Sookram was the driver and lone occupant when York Regional Police stopped the vehicle on Major MacKenzie Drive in Vaughan. This vehicle was leased in another person’s name.
4) He was ultimately arrested for possession of cannabis marihuana and removed from the vehicle.
5) Mr. Sookram had possession over all items found on his person and in the vehicle at the time of his arrest.
6) A search of Mr. Sookram’s incident to arrest revealed:
a) $5,420.00 (bound by elastic bands);
b) One of two cellular phones (second one was found in a motor vehicle).
7) An initial search of the vehicle revealed two firearms on the inside front driver’s side door, the vehicle was sealed, and a search warrant for the vehicle was obtained.
8) On April 20th, a search warrant was executed on the subject vehicle, revealing:
h) A .22 calibre long rifle (barrel cut/altered): Inside the front driver’s door.
i) A nine-millimetre pistol loaded: Inside the front driver’s side door.
j) .45 calibre pistol (loaded, serial number ground off): Inside the front passenger side door.
k) Ammunition:
i) Eight rounds of nine-millimetre bullets: found in nine-millimetre pistol;
ii) Seven rounds of .45 calibre bullets: found in .45 calibre pistol;
iii) 10 rounds of nine-millimetre bullets: found inside roof of vehicle in clear buoyage;
iv) One spent shell casing from .25 automatic: found in same buoyage as item number iii v) One discharged bullet: found in same buoyage as item number iii);
l) 70 grams crack cocaine (divided into small baggies): found inside the roof.
m) A drug scale: found behind carpet of driver’s front floor board.
n) Two black two-way radios: found in the trunk of the vehicle.
o) Second cell phone and a BlackBerry [TM] wireless device: found inside the vehicle.
9. Encompassed in the general admissions to the essential elements of all counts charged, Mr. Sookram admits:
a) That he possessed the crack cocaine seized for the purpose of trafficking, and
b) That the firearms seized were all operable as defined in the Criminal Code.
[The Court did not assign paragraph number 4.]
5 A further “Agreed Statement of Facts” was filed with the Court by counsel for Mr. Sookram and the Crown. These additional facts constitute Exhibit 2 of the proceedings and are as follows:
The Crown concedes Mr. Sookram has a history of allergic reactions to marihuana smoke.
The defence concedes it cannot call expert evidence that the presence of marihuana smoke necessary to cause an allergic reaction is less than a presence which would be detectable to the human nose.
In other words, the defence concedes it cannot call evidence that the presence of marihuana sufficient to be smelled would necessarily trigger an allergic reaction.
6 The significant issue before the court is a Charter application brought by Mr. Sookram. He alleges that his Section 8 and 9 Rights have been violated as a result of the conduct of the police in this proceeding. Mr. Sookram, on this application takes the position that he was improperly stopped, arbitrarily detained, and searched. The Crown’s position is that Mr. Sookram was stopped because he was weaving and speeding in and out of traffic. When he was stopped by the police officer they noted cell phones and a BlackBerry [TM] on the seat of Mr. Sookram’s vehicle, they also noted an odour of marihuana and that Mr. Sookram admitted to having smoked marihuana earlier that day. Thus, the Crown contends the stop, detention, and search were all lawful. Thus no evidence should be excluded. Needless to say Mr. Sookram claims that all of these allegations are untrue and as such any evidence obtained as a result of the stop and search of Mr. Sookram’s vehicle and his detention should be excluded.
THE EVIDENCE ON THE CHARTER APPLICATION BY THE APPLICANT
7 The agreed facts as contained in Exhibits 1 and 2 constituted part of the Charter application. In addition, the following evidence was tendered on behalf of Mr. Sookram.
8 Constable Singh, a member of the traffic unit of the Toronto Police Services was the first witness called on this application. He indicated on April 9th, 2007, 10 days prior to the matter before this court, he stopped Mr. Sookram in his vehicle. Mr. Sookram was the operator of that motor vehicle. It was the same vehicle that was stopped by York Regional Police on April 19th, 2007. Constable Singh indicated that while he had stopped Mr. Sookram for a Highway Traffic Act infraction, as part of that investigation he looked for other acts of criminality, specifically possibly drug offences. He stated that he had been trained to recognize the odour of marihuana and he had been looking for signs of that drug including the smell, as well as any other possible drug offence. He advised the court that he did not detect any odour of marihuana.
9 Constable Geris, also of the Toronto Police Services testified. He advised that he stopped Mr. Sookram on April 17th, 2007, two days before York Regional Police stopped Mr. Sookram. Again in the same vehicle. P.C. Geris was in plainclothes at Steeles Avenue and Jane Street, an area known for high drug and gun activity. Mr. Sookram was stopped driving his vehicle. As part of Constable Geris’ duties he looked to detect illicit drugs. He was aware of the odour of marihuana, both in it’s burnt and unburnt form. He has been exposed to both on numerous occasions he advised the court. Constable Geris testified that he had lots of time to search Mr. Sookram’s vehicle to determine if there was an odour of marihuana. He did not detect any odour of such substance.
10 Mr. Carlington Whyte testified. He had worked in a commercial unit next to where Mr. Sookram had worked in the past. They would regularly meet outside of their establishments at lunch and at breaks in the summer of 1988. Mr. Whyte stated that on one occasion he convinced Mr. Sookram to try marihuana. Mr. Sookram did and he reacted badly, sneezing, rubbing his nose, his eyes were red and bloodshot and he almost passed out. Mr. Sookram was in such a state that Mr. Whyte had to take him home.
11 Mr. Whyte reiterated that on another occasion, at his 25th birthday, Mr. Sookram came to his home. People were smoking marihuana at that time and Mr. Sookram reacted again.
12 Other witnesses were also called on behalf of the applicant indicating that he had had an allergic reaction to the smoke from marihuana. Indeed, the Crown concedes in the agreed statement of fact which constitutes Exhibit 2, that Mr. Sookram has a history of such allergic reactions to marihuana.
13 Shermaine Morrison is Mr. Sookram’s fiancée. She also testified as to Mr. Sookram’s allergic reaction to marihuana. This was an allergic reaction that she had been aware of for some considerable period of time. Ms. Morrison also advised the court that the BlackBerry [TM] found in the vehicle at the time of Mr. Sookram’s arrest was in fact her BlackBerry [TM]. She had lent it to Mr. Sookram as it was her belief that he did not have any other cell phone. She had lent it to him so she would be able to reach Mr. Sookram when she was at home. She was not aware that Mr. Sookram owned any cell phones, nor was she aware that he was involved in the sale of drugs.
14 Mr. Sookram testified on the application. He indicated that he did not have a criminal record. He admitted that when he was stopped by the police, on this occasion, he had a cell phone in the right pocket of his pants. That when he was arrested there was another cell phone and Ms. Morrison’s BlackBerry [TM] in the middle console of the vehicle he was operating. Mr. Sookram agreed that Ms. Morrison did not know about the cell phones as he used them to sell drugs.
15 Mr. Sookram advised the court that the BlackBerry [TM] belonged to Ms. Morrison and that he had it so that she could stay in regular contact with him. He indicated that he used the device as a phone only to speak with her. He explained that one of the cell phones found belonged to a friend, Gee, whom he had met earlier. The cell phone had died so Mr. Sookram had put it in the console. Mr. Sookram advised that the BlackBerry [TM] was also in the console as he had an argument with Ms. Morrison and he didn’t want to speak with her. Thus he turned it off and put it in the console.
16 On the day he was arrested Mr. Sookram indicated he was driving westbound on Major MacKenzie Drive heading for home. He had come across Major MacKenzie Drive from Yonge Street. There was traffic and he said that he could not drive fast as a result. He was travelling the speed limit and his speed changed as the speed limit changed. When he was near Jane Street he heard for the first time a siren behind him. He had been stopped at a red traffic light. When the light turned green he started and as a result of the sirens he pulled his vehicle over. He also saw a blink or a flash from a vehicle in front of him. He described the vehicle in front of him that stopped him as being a minivan. There was an unmarked vehicle behind him which Mr. Sookram observed in his rear view mirror. As well, he noted that a second vehicle pulled up behind that one and an officer exited from it.
17 Mr. Sookram notes two officers approaching his vehicle initially, one on either side. The one on the driver’s side approached and slouched down to speak to Mr. Sookram. Mr. Sookram was asked what the difficulty was. There was then a discussion with Mr. Sookram about an old lady calling in that Mr. Sookram had been speeding. Mr. Sookram was asked for his ownership, insurance and licence. Mr. Sookram handed over his ownership and he advised the officer that he would have to look for his insurance. The officer on the right side of the vehicle asked Mr. Sookram where he was going. Mr. Sookram advised that he was going home. The officer then stuck his head through the window and said, “I smell weed”. Mr. Sookram responded, “marihuana, what are you talking about?” Mr. Sookram then began to laugh and told the officer that he could not smell marihuana. The officer asked Mr. Sookram if he had just smoked because his eyes were red. Mr. Sookram denied that his eyes were red and indicated that he didn’t just smoke any marihuana. Mr. Sookram did say that he had just come out from “his boy’s garage”. The officer asked if he had smoked there. Mr. Sookram denied smoking anything at that garage.
18 The officer who had taken Mr. Sookram’s documents had gone back to his vehicle. By this time the officer who had taken his documents was returning to Mr. Sookram’s vehicle. When he returned to Mr. Sookram’s vehicle he spoke with another officer. Mr. Sookram was told to get out of his vehicle and the officer on the left opened the door for him. Mr. Sookram was then pulled back to the rear of his vehicle. Another police vehicle arrived on the scene, later determined to be Detective Wheeler’s vehicle. Mr. Sookram when at the back of his vehicle was told to empty his pockets, which he did on the trunk. Mr. Sookram took out his cell phone, money and his wallet and placed them all on the trunk.
19 One of the officers then called out from the car that there were more cell phones and money in the console of the vehicle. The officer who found these items came back to the rear of the vehicle and arrested Mr. Sookram, saying that he had three cell phones and a large amount of money so he was a drug dealer. Mr. Sookram was then handcuffed.
20 It should be noted that Mr. Sookram denied smoking marihuana at all and indicated to the court that he had not done so for a long time as he had an allergic reaction to the smell of it as well as to the smoke from it. He then related to the court the symptoms of his allergic response. It was similar to what other witnesses indicated.
21 In cross-examination Mr. Sookram conceded that he was a significant drug dealer, dealing to other dealers. Mr. Sookram conceded as well that he carried the firearms for protection and they were not registered, nor was he licensed to have them. He agreed that two of the guns in the vehicle were loaded when the police stopped him and that he would have used these guns for protection if the need arose. Mr. Sookram testified that he would use the car for storage of his guns and drugs.
22 As well, Mr. Sookram indicated that the car he was in when he was stopped was his vehicle and no one else would drive it. This was the situation notwithstanding it was registered in a different name. The purpose behind that was to avoid detection, Mr. Sookram had advised.
THE CROWN’S EVIDENCE ON THE CHARTER APPLICATION:
23 Crown counsel called evidence in response on this application. The evidence was given by four police officers, members of York Regional Police. The essence of the evidence of all of these officers was that they had received information from a confidential human source that a person in a vehicle like the one operated by Mr. Sookram was dealing drugs. A specific licence plate was provided which did correspond to Mr. Sookram’s vehicle. The source also advised that the vehicle was being operated by a dark skinned male and he was last observed to be in the Richmond Hill area, maybe in the possession of a handgun.
24 As a result of receiving this information officers were assigned to look for the vehicle and to establish surveillance on it. Within a relatively short time the vehicle was observed and the officers began to follow it. They testified that as a result of the manner in which the vehicle was being operated, weaving in and out of traffic, and speeding, they decided to pull it over and to investigate the driver. After pulling over the vehicle and initiating their investigation the officers noted a number of cell phones on the passenger seat of the vehicle. There was also an odour of marihuana emanating from the vehicle. And then when asked about it Mr. Sookram conceded, according to the officers, that he had smoked marihuana recently. This then lead to the officers arresting Mr. Sookram, searching the vehicle, and finding the guns and drugs.
SIGNIFICANT ASPECTS OF THE EVIDENCE OF EACH OFFICER:
25 Constable Dinsmore was attached to the Property Crime Unit on April 19th, 2007. He made notes with respect to this incident shortly after the events and he advised that no one assisted him in making his notes.
26 Constable Dinsmore told the court that the team with which he was working with that night was working in the Yonge and Major MacKenzie area of Richmond Hill. Constable Dinsmore was operating an unmarked vehicle that night. He was alone. He was in plainclothes. That at approximately 9:00 p.m. he was advised “over the air” by Detective Wheeler that there was a vehicle in the Richmond Hill area possibly dealing drugs. He was then provided with a specific licence plate number and description of the vehicle. Additionally, information was received that the vehicle was coming across Major MacKenzie Drive and Detective Wheeler instructed all officers, “to keep our eyes open for it”. Detective Wheeler’s plan was to identify the vehicle and conduct surveillance on it from a distance and to see what it was up to.
27 Constable Dinsmore indicated that shortly after that broadcast, “that is when I observed the vehicle on Major MacKenzie Drive”. When asked, “how shortly after”, Constable Dinsmore stated that it was approximately 30 minutes after the broadcast when he saw the vehicle. It was just west of Yonge Street on Major MacKenzie Drive at Trench Street. The vehicle was heading westbound. Major MacKenzie Drive is a four-lane roadway in this area, two lanes in each direction. He described traffic as being steady, not jammed but, there were a fair number of vehicles on the road. Constable Dinsmore was behind the vehicle, approximately 100 feet, with no obstructions between him and that vehicle and was able to observe a single occupant operating the vehicle. He began to “follow it to see what the vehicle was up to”.
28 Constable Dinsmore believed that he was the first officer to make contact with the vehicle and the other officers on his team were behind him.
29 As he followed the vehicle from a distance Constable Dinsmore noted that it began to weave in and out of traffic and it picked up “speed quite a bit”. He said, “I also paced the vehicle with my speedometer in my vehicle … the vehicle in question that we were talking about was well above the speed and continued to move in and out of lanes”. By using his speedometer Constable Dinsmore advised that the vehicle he was observing was travelling between 90 to 100 kilometres per hour. The speed limit in the area travelled ranged from 50 to 70 kilometres per hour.
30 The vehicle continued travelling well above the speed of the regular flow of traffic which, Constable Dinsmore advised was at the posted speed limit. The vehicle continued to weave in and out of lanes without signalling.
Constable Dinsmore was clear that from the point he first observed the vehicle at Trench Street it began to pick up speed and change lanes in traffic without signalling. This activity continued up until the vehicle was stopped. It was as a result of this activity that Constable Dinsmore “decided to – to initiate a traffic stop and identify the driver and see – just conduct an investigation to see why he was driving like this …”
31 The stop occurred at 9:46 p.m. at Major MacKenzie and McNaughton. Constable Dinsmore indicated that the vehicle had been stopped at a red traffic light. He activated the light package that was on his unmarked vehicle. Once the vehicle proceeded through the intersection it came to a stop on the right side of the roadway. Constable Dinsmore testified that as he was following the vehicle he would relay information to other officers over the radio as to the actions and movements of the vehicle. He advised the other officers when he pulled over the vehicle. He also advised the location of the stop and that he was leaving his vehicle to investigate the driver. It was his view that the other officers were a short distance behind him.
32 Constable Dinsmore approached the driver’s side of the vehicle. He noted that the windows on the vehicle were tinted and it made it difficult to see into the vehicle. As he approached the driver’s side, the window was down. He identified himself as a York Regional Police Officer to the driver, showing his warrant card and badge. He asked the driver for his licence, ownership and insurance, which was given to him. Constable Dinsmore stated that he was the only officer present at the time.
33 Constable Dinsmore asked the driver about the manner in which he was operating the vehicle and the driver responded that he was driving normally and seemed surprised that he was being asked about this, as he didn’t seem to realize he was doing anything wrong. The driver indicated that he was heading home. At this time Constable Dinsmore noted three or four cell phones on the passenger’s seat of the vehicle and that there was an odour of marihuana emanating from inside the vehicle. Constable Dinsmore explained the odour as not being real strong but “… there was an odour and either he had just recently smoked in the vehicle or within the last few hours he possibly smoked inside the vehicle”.
34 As Mr. Sookram was providing his licence two other officers approached and came up beside Constable Dinsmore. These officers were Detective Constable Ecklund and Constable Cresswell. They both approached the driver’s side of the vehicle within 30 to 40 seconds of Constable Dinsmore’s arrival at the driver’s side of the vehicle. Once the driver’s licence was produced Constable Dinsmore then returned to his vehicle to make inquiries of this individual who is the accused before the court. While back at his vehicle Constable Dinsmore could see that the other officers were conducting an investigation.
35 Constable Dinsmore did indicate that prior to going back to his vehicle he told the other officers that the driver had produced a licence, that the driver was going home, and that he had noticed an odour of marihuana inside the vehicle. As he was seated in his vehicle Constable Dinsmore observed Mr. Sookram being removed from his vehicle and taken to the rear of his car. Although he could not hear any conversation he saw Mr. Sookram being frisked and his pockets emptied. Constable Dinsmore noted that a large bundle of money was taken from one of the driver’s pockets and placed on the trunk.
36 Constable Dinsmore exited his vehicle and stood by to assist to make sure nothing happened. Constable Dinsmore indicated that he not involved in the search of Mr. Sookram, his arrest, or directly involved in the searching of the vehicle. He was the Exhibit Officer and thus responsible for recording and logging property. Constable Dinsmore was told that Mr. Sookram had been arrested for the possession of a controlled substance, that a large quantity of money had been taken from his pocket and that he was being taken to the police station. Constable Dinsmore learned that Detective Constable Ecklund had searched the driver’s seat and found two firearms inside the compartment door of the driver’s side of the vehicle. As a result of this, Detective Wheeler stopped the search pending the obtaining of the search warrant for the vehicle. Being the Exhibit Officer Constable Dinsmore had placed seals on the doors on the trunk of the vehicle and had it towed.
37 In cross-examination Constable Dinsmore advised that the only reason for stopping Mr. Sookram’s vehicle was as a result of the Highway Traffic Act infractions that he had observed. He was clear in his evidence that there was no indication of any symptoms of impairment. Notwithstanding that this was the only reason for the stop, Constable Dinsmore did not make any notation in his memo book with respect to the speed that Mr. Sookram had been travelling, which he indicated was almost twice the speed limit. He made no notation that the incident began at Trench Street, nor that the vehicle was weaving or that it was it was his estimate that he followed the vehicle for two or three kilometres. The only notation of any kind with respect to driving was an indication that the vehicle had been driving erratically. No further details were provided.
38 Over the two to three kilometres that Constable Dinsmore followed the vehicle he had advised that he was able to keep up with Mr. Sookram. Initially he stated he stayed in “my lane and continued at a speed to maintain observation of it”. He advised that he was 100 feet back from Mr. Sookram’s vehicle. Then Constable Dinsmore changed his evidence saying he did switch lanes, but he did not swerve in and out of traffic. He denied that he was repeatedly changing lanes. Yet he was able to keep up with the Sookram vehicle. Constable Dinsmore made no notation in his memo book about any conversations he had with Mr. Sookram and Mr. Sookram’s response about his speeding and swerving. The constable was simply able to recall that, as well as the speed of the motor vehicle and the extreme weaving in and out of traffic. Constable Dinsmore could not say whether or not the vehicle operated by Detective Constable Ecklund kept pace with his vehicle.
39 The constable also testified that he never advised dispatch that he was following the accused’s vehicle or that he had gotten out of his vehicle to investigate Mr. Sookram and was interacting with a civilian notwithstanding normal police procedure.
40 Constable Dinsmore testified that three cell phones and one BlackBerry [TM] were seized. He said he knew this because he was the Exhibit Officer and made notations of it. This is different than the information contained within the agreed statement of facts and the constable had no explanation for this difference.
41 Constable Dinsmore stated that once he and Detective Constable Ecklund and Constable Cresswell returned to the station they did discuss what occurred on the road as they were sitting waiting in their office. The topic of the discussion was:
just information that was required, I believe Detective Wheeler wrote the search warrant so provided him with the information and my observations as to the traffic stop and just information among the officers.
According to Constable Dinsmore the officers sat at their desks, which were all across from each other when they spoke with Detective Wheeler. When pushed he could not recall if Detective Constable Ecklund and Constable Cresswell were present when he was speaking with Detective Wheeler. Nor could he recall if his notes were made before or after the conversations with Detective Wheeler.
42 Constable Cresswell was also a member of the same unit and team. On the evening of this matter he was riding as a passenger in the vehicle driven by Detective Constable Ecklund. This was also an unmarked vehicle. It was his evidence that the team was in Toronto conducting surveillance on another matter. At 9:05 p.m. a transmission was received from Detective Wheeler with respect to a possible drug dealer in Richmond Hill. The type, colour and plate number of the vehicle was given by Detective Wheeler. They were advised a male whom they believed to be involved in drug trafficking and armed with a handgun was operating the vehicle.
43 As a result he and Detective Constable Ecklund headed back to Richmond Hill. They got off Highway 404 at Major MacKenzie Drive and proceeded west. A short time later they received information that the vehicle had been seen in the area of Trench Street and Major MacKenzie Drive. This information had been provided to them, by Detective Wheeler, over a secured transmission channel.
44 When the information was received, Constable Cresswell advised that they were in the area of Major MacKenzie Drive and Bayview Avenue. They continued westbound in an attempt to catch up to the target vehicle. He was aware by now that was further west on Major MacKenzie and closer to the target vehicle. They eventually caught up to the target vehicle just west of Bathurst Street. When they first observed the vehicle they were approximately one to two hundred meters from it. Constable Cresswell advised that he could clearly make out headlights on the roadway and that the one vehicle was “clearly changing lanes at what appeared to be a high rate of speed, higher than the general speed of traffic”. Constable Cresswell believed that this area had a posted speed of 70 kilometres per hour.
45 The officer did not know what speed the vehicle he was in was travelling at. All he could say was that they were attempting to catch up to the vehicle which was going faster than the traffic around it. When asked in examination in-chief to describe the effort they made to catch up to the vehicle, Constable Cresswell said, “we followed directly in a – unmarked police cruiser”. He provided no other description as to how the vehicle they were in was being operated.
46 Constable Cresswell described the traffic in the area as being light, and the target vehicle kept changing lanes to overtake other vehicles. However, by Keele Street, the area was more developed and the target vehicle was no longer passing other vehicles and the traffic was moving slowly.
47 By now, Constable Cresswell stated they were following Constable Dinsmore’s vehicle. He was unable to recall whether there were one or two cars between Constable Dinsmore’s vehicle and theirs. He did observe Constable Dinsmore make the traffic stop at McNaughton. However, he could not comment about the manner in which the two vehicles went through the intersection at McNaughton prior to the stop.
48 Constable Cresswell stated that it was 9:46 p.m. when the stop took place. They parked their vehicle on the shoulder to the right, as did Mr. Sookram. Both he and Detective Constable Ecklund got out of their vehicle and proceeded to Mr. Sookram’s. Constable Dinsmore was on the driver’s side speaking with Mr. Sookram. Constable Cresswell went up to Constable Dinsmore on the driver’s side, while Detective Constable Ecklund went to the passenger’s side. Constable Cresswell went there to assist for officer safety purposes. While Constable Dinsmore was speaking with the driver, Constable Cresswell was able to see several cell phones and a BlackBerry [TM] on the front passenger seat. He later defined several to mean more than two. He detected a smell of burnt marihuana coming from the vehicle and said it was not “freshly smoked … it wasn’t – you know – in the last 10 minutes or 15 minutes”.
49 Detective Constable Ecklund then inquired about the marihuana being smoked inside the vehicle. Mr. Sookram responded that he had smoked with his friends in Toronto earlier in that day. Constable Cresswell said that this was not a verbatim quote but close. Detective Constable Ecklund arrested Mr. Sookram. Constable Cresswell stood by for officer safety purposes. Constable Cresswell said the safety concern arose as Detective Wheeler had advised them that the target might have a handgun.
50 Constable Cresswell then testified that during the arrest Mr. Sookram was taken to the back of his vehicle and searched. Constable Cresswell was involved in this, searching the right side of Mr. Sookram while Detective Constable Ecklund searched the left side. Constable Cresswell found a large bundle of money in Mr. Sookram’s pocket. Mr. Sookram was then handcuffed. Detective Constable Ecklund then went to the driver’s side of the vehicle and made it known that he had located a handgun.
51 In cross-examination Constable Cresswell stated Dinsmore was at the driver’s side window and that he was standing behind the driver’s window. Yet he was able from that position to smell the odour of marihuana. Constable Cresswell agreed that his notebook did not contain a note about Constable Dinsmore being at the driver’s door. Rather, his notebook reflected that he approached the driver, identified himself as a York Regional Police Officer and said nothing about Constable Dinsmore being there. Constable Cresswell also agreed that, when it was pointed out to him, that his notebook contained no notation about being at Bayview Avenue when they learned of the target vehicle’s location, nor that a second transmission was received from Detective Wheeler.
52 Constable Cresswell agreed that he was the passenger of the vehicle being driven by Detective Constable Ecklund. That they were monitoring the secure channel being used for communication with respect to the team on this evening and that he could have taken notes if he had decided to.
53 In cross-examination when asked what the speed was of the vehicle he was travelling in between Major MacKenzie Drive and Bayview Avenue Constable Cresswell indicated he was unable to give the exact speed. When he was asked about the sense of the speed he was travelling at he stated, “We were travelling at a speed used to catch up with the vehicle”. Then he said it was a speed higher than the flow of traffic, but was unsure how much higher. He was also unsure if his vehicle changed lanes as they travelled from Bayview on Major MacKenzie Drive.
54 Constable Cresswell was asked to give the distance from Bayview Avenue to Jane Street. He was unable to give that distance but broke up the total distance as follows: from Bayview to Yonge Street across Major MacKenzie was approximately one kilometre, another kilometre to Bathurst Street, a kilometre and a half to two kilometres from Bathurst Street to Dufferin Street. It was his view from Dufferin Street to Jane Street was maybe three kilometres.
55 Constable Cresswell was asked to describe the manner in which Constable Dinsmore was driving. He stated he could not make a fair observation of Constable Dinsmore’s driving. “I can’t say if I was paying specific attention to Detective Constable Dinsmore’s vehicle”. This was the situation notwithstanding that Constable Dinsmore’s vehicle was ahead of his and behind Mr. Sookram’s vehicle.
56 Constable Cresswell was also asked if one of the vehicles would have stopped Mr. Sookram without the other vehicles being present. In other words, would a lone officer have taken down Mr. Sookram’s vehicle? Constable Cresswell would not say yes or no. He did agree that he didn’t think it would be the proper procedure to stop the vehicle and the best practice would be to have numerous officers present.
57 In cross-examination Constable Cresswell agreed that at the station there was a discussion of the events before he made up his notes. When asked why the discussion, Constable Cresswell changed from his initial position, and said they were all in the office, in an office that had no walls and that Detective Constable Wheeler was getting information for a warrant, but it was not “an open discussion”. The officer continued that he did not personally have a discussion with the other officers and when asked if he had been listening to the discussion he said, “I will say that Detective Wheeler was asking or may have been asking other people for information for a search warrant. I don’t recall hearing specific – specific thing”.
58 Detective Constable Ecklund also participated in the events. He said that when he made his notes he did not consult with anyone in their preparation.
59 On this date he was partnered with Police Constable Cresswell. They were in an unmarked vehicle. Detective Constable Ecklund was the driver. They had been conducting an investigation in Toronto when they received a radio call on their secure channel from Detective Wheeler. Detective Wheeler described the vehicle, its licence number and that a person driving the vehicle was involved in drug trafficking and might be in possession of a handgun. This information came in at 9:05 p.m. They were directed to return to Richmond Hill. They travelled north on Highway 404 getting off at Major MacKenzie Drive and heading westbound.
60 When they reached Bayview Detective Wheeler again communicated over the secure channel. He indicated that he had the vehicle and it was travelling westbound on Major MacKenzie at Trench Street. The plan had been to pick up the vehicle and observe it. Detective Wheeler told them to continue across Major MacKenzie Drive and to attempt to pick up the vehicle. Thus they continued westbound on Major MacKenzie Drive. The traffic was light.
61 When they reached Bathurst Street, Constable Dinsmore had indicated over the secure channel that he had “locked” the vehicle. Detective Constable Ecklund then said “We then pulled up basically, behind him and continued along Major MacKenzie west of Bathurst Street”. Detective Constable Ecklund was clear in his evidence that he was at Bathurst Street when Constable Dinsmore advised he had the target vehicle.
62 After he heard the communication he said that he travelled at 50 to 60 kilometres an hour because he did not want to pass Constable Dinsmore or the target vehicle. Constable Dinsmore was in front of him and the target vehicle up ahead of that. When he came up behind Constable Dinsmore they were just west of Bathurst Street, Dinsmore being 10 to 15 yards in front. They were both in the fast lane, left hand lane away from the curb. Detective Constable Ecklund observed Mr. Sookram’s vehicle travelling at a high rate of speed, passing cars numerous times, travelling in and out of lanes, not using his turn signal. Detective Constable Ecklund did not check his speedometer, nor was he aware of the posted speed limit in the area. Rather, he described the speed of the flow of traffic as being normal, and that Mr. Sookram’s vehicle was passing the other vehicles “… like those vehicles were standing still and he was just going by”.
63 The vehicle travelled like this for four to seven minutes he said. During that time Detective Constable Ecklund said he stayed behind Constable Dinsmore and he would have been travelling no more than 50 to 55 kilometres an hour.
64 After the five to seven minute period, Constable Dinsmore then did a traffic stop of Mr. Sookram. Constable Dinsmore had advised over the secure channel that he was going to do this. This occurred at McNaughton Road. Detective Constable Ecklund advised that he was directly behind Constable Dinsmore’s vehicle and that they parked behind him. He got out of the vehicle and Detective Constable Dinsmore began to speak with the driver. Detective Constable Ecklund said he went over to Constable Dinsmore who was now heading back to his vehicle having Mr. Sookram’s licence with him. Constable Dinsmore indicated that there was an odour of marihuana in the vehicle.
65 Detective Constable Ecklund then advised he went to the passenger side of Mr. Sookram’s vehicle as Constable Cresswell was at the driver’s side. When he got to the passenger side, Detective Constable Ecklund noted numerous cell phones and then opened the passenger door and stuck his head inside. He noted an odour of marihuana and spoke with the driver. The driver was asked if he had been smoking marihuana tonight. This is the question as was asked verbatim according to the officer. The verbatim response was, “I smoked earlier today with some buddies at the garage”.
66 As a result of this response, the odour, the numerous cell phones, and the information from Detective Wheeler that Mr. Sookram was a drug dealer, Detective Constable Ecklund went around to the driver’s side of the vehicle and arrested Mr. Sookram for possession of a controlled substance. The arrest took place at 9:50 p.m. Mr. Sookram was then taken to the rear of the vehicle and searched and he was arrested. Incident to this arrest Detective Constable Ecklund went to the driver’s side of the vehicle and began to search it. He lifted open the control panel on the driver’s door and inside he found a handgun. Another handgun was located near the steering wheel of the motor vehicle. Detective Constable Ecklund then in consultation with Detective Wheeler decided to stop the search and await the arrival of a search warrant. As a result the vehicle was searched.
67 In cross-examination Detective Constable Ecklund stated he made no attempt to gauge the speed of Mr. Sookram’s vehicle. He held to the position that Mr. Sookram was passing vehicles which were travelling at a normal rate of speed. When asked his speed Detective Constable Ecklund indicated that he could not advise the exact speed that he was travelling at but it was a speed sufficient to catch up to Mr. Sookram and Constable Dinsmore. However, he said it was not a speed that was excessive. He described an excessive speed as being 110 kilometres or greater.
68 Detective Constable Ecklund denies the suggestion that he never caught up to Mr. Sookram’s vehicle until just before McNaughton. He later disagreed that Mr. Sookram was pulled over at this location simply because that was the first point where he had caught up to Constable Dinsmore. Once caught up to Constable Dinsmore he said he was travelling at no more than 50 kilometres an hour.
69 The last witness on behalf of the Crown in response to this application was Detective Wheeler. He was the one who obtained the information from a confidential human source that there was a drug dealer in Richmond Hill selling cocaine, crack cocaine and marihuana. The source provided a description of a vehicle, a plate number and a limited physical description, of an adult male with brown skin. The information was given in the course of two phone calls. On April 19th as a result of the information received Detective Wheeler redeployed his team from Toronto to Richmond Hill to look for the vehicle and to conduct surveillance and gather information on it. Detective Wheeler had advised his team of the information that he had received as well as the fact that the vehicle was anticipated to be in the Richmond Hill area, and there was possibly a handgun involved.
70 Having been in Toronto, Detective Wheeler headed north on Highway 404 and got off at Major MacKenzie Drive. Detective Wheeler advised that he first observed the vehicle at 9:40 p.m. in the area of Trench Street and Major MacKenzie Drive. He notified the team that he had made the observations of this vehicle. He noted nothing about the manner in which the vehicle was being operated. After a short distance, he turned the vehicle over to another member of the team.
71 The next time he saw the vehicle was after it had been stopped on Major MacKenzie at McNaughton. When he stopped at the scene Detective Wheeler spoke with Detective Constable Ecklund. He was advised about Mr. Sookram’s driving, that he had a large quantity of money on his person, and that he had been smoking marihuana, and that there was an odour of marihuana in the vehicle, as well as three cell phones being observed. Detective Constable Ecklund had Mr. Sookram at the rear of the vehicle and after searching him he placed him under arrest. Detective Wheeler was present at the time of the arrest and assisted in handcuffing Mr. Sookram. Detective Constable Ecklund then went to search the vehicle and was shown the handguns that had been located. As a result Detective Wheeler had the vehicle’s doors closed, sealed and the vehicle was impounded. A search warrant was obtained for it.
72 In cross-examination Detective Wheeler agreed that he had other officers available to make notes as the matter progressed. He was the one responsible for assigning someone to make notes, however he did not do it.
73 As well, he indicated that he had given up his surveillance of the vehicle on Major MacKenzie prior to reaching Bathurst Street, and that he had observed nothing untoward with the vehicle or in the manner in which it was being operated.
74 This then concludes the summary of the evidence presented in the course of the application by the Crown.
APPLICATION OF THE EVIDENCE TO THE CHARTER:
75 The question that needs to be answered in this proceeding is whether there was a lawful detention of Mr. Sookram. Put differently, was there a lawful reason to stop Mr. Sookram? This is the first question that needs to be answered for if there was no lawful reason to stop Mr. Sookram, then there would have been no detention, no detection of an odour of marihuana, assuming that I accept that there was such an odour, and no statements by Mr. Sookram, again assuming that I accept that he made statements about smoking marihuana.
76 If I accept the evidence of the officers that Mr. Sookram was engaged in numerous violations of the Highway Traffic Act as a result of the manner in which he was operating his vehicle, then the initial detention by way of the stop was lawful and the rest of the evidence would flow logically from there. If I reject this evidence, or at least the evidence with respect to the Highway Traffic Act violations, then frankly there was no lawful basis upon which Mr. Sookram could have been stopped, detained and searched. This then is the starting point for my analysis is, whether or not I accept the evidence as presented by the Crown.
77 At the outset I note the following. Constable Dinsmore in his evidence made it very clear that the only reason for stopping Mr. Sookram was as a result of violations of the Highway Traffic Act. That is, the excessive speed and the manner in which he was weaving in and out of traffic. There was no other basis upon which to stop him. The officer did not even have a suspicion that Mr. Sookram could have been an impaired driver. It is also important to note that these officers were not on general patrol when they came across Mr. Sookram. Rather, they had received certain information which resulted in them looking specifically for Mr. Sookram. As the Crown conceded in submissions, they did not have sufficient information to obtain a search warrant. The plan then was to do surveillance and observe Mr. Sookram and gather intelligence. They were, in my view, looking for an excuse to stop Mr. Sookram and that is exactly what they did, created an excuse.
78 In order to assess the officer’s evidence in this case, their testimony can be held up against an irrefutable scientific principle. That is the principle of time, distance and speed. These are basic laws of physics that use basic formulations. To determine speed, one divides distance by time. To determine time, one divides distance by speed and to determine distance one multiplies speed by time. Thus, by using these formulas, and Exhibits 3 and 4, it is possible to reach certain conclusions objectively and when doing so they are contrary to, and affect the credibility of the officers who testified.
79 The distance from Trench Street to McNaughton across Major MacKenzie Drive is approximately 6.5 kilometres. If a person operates their vehicle at an average speed of 60 kilometres an hour it would take just over six minutes to cover that distance. This of course is an average speed with no stops being included or variation of speed allowing for traffic. If the person travelled from Trench Street to McNaughton at 90 kilometres per hour, as Police Constable Dinsmore stated, then it would have taken only four minutes to travel that distance. Thus it is obvious that, contrary to Constable Dinsmore’s evidence, Mr. Sookram could not have travelled that distance at a speed of 90 kilometres an hour. One must keep in mind that while the calculation expresses an average speed, Constable Dinsmore was very clear in his evidence that Mr. Sookram did not have to stop at any red lights across Major MacKenzie Drive except for the one at McNaughton, where he stopped just before he was pulled over. As well, there was no evidence that Mr. Sookram was caught up in traffic. In fact, the opposite was the whole point of Constable Dinsmore’s evidence. The constable was clear that Mr. Sookram was weaving in and out of traffic to get ahead of other vehicles.
80 Constable Dinsmore spots Mr. Sookram at 9:30 p.m. Mr. Sookram was stopped at 9:46 p.m., 16 minutes later. If Mr. Sookram travelled at the speed suggested by Constable Dinsmore, he would have travelled a total distance of 24 kilometres, assuming no stops for traffic. This would have been 17 kilometres past McNaughton.
81 I note as well that if I were to accept Constable Dinsmore’s evidence with respect to the manner and speed in which Mr. Sookram was operating his vehicle, then the constable would have had to have operated his vehicle in a similar manner and at a similar speed to keep up with Mr. Sookram. Constable Dinsmore of course denied that he did this and no other officer could recall or would make any observations of Constable Dinsmore’s driving. Thus, I do not accept Constable Dinsmore’s evidence with respect to the speed and the manner in which Mr. Sookram was operating his vehicle.
82 It is also important to consider the whole point of the exercise that the officers were undertaking this evening with respect to Mr. Sookram. The idea as they said was to do surveillance on Mr. Sookram and gather intelligence. If this was the situation, realistically there was no way they would drive as Mr. Sookram did, as it would have defeated the very purpose of their interaction with Mr. Sookram on this night.
83 There is of course the evidence of Detective Wheeler to consider here as well. His evidence was that he picked up Mr. Sookram at Trench Street and that he followed Mr. Sookram until Bathurst Street and made no observations of any problems with the manner in which Mr. Sookram was operating his vehicle, contrary to what Constable Dinsmore said.
84 Thus knowing the time of the first observation of Mr. Sookram’s vehicle and when it was stopped, and using the objective test of time, speed and distance calculation, Constable Dinsmore’s evidence is totally unreasonable.
85 Constable Cresswell and Detective Ecklund both stated they were at Bayview Avenue when they heard that Mr. Sookram was at Trench Street. By the time they got to Bathurst Street they had virtually caught up to Mr. Sookram they indicated. The distance from Trench Street to Bathurst Street is approximately one kilometre. The distance from Bayview Avenue to Bathurst Street across Major MacKenzie is approximately four kilometres. If Mr. Sookram travelled from Trench Street to Bathurst Street on Major MacKenzie at 60 kilometres an hour it would have taken him approximately one minute. For Constables Cresswell and Ecklund to get from Bayview to Bathurst Street in one minute they would have had to travel across Major MacKenzie at a speed of 240 kilometres an hour. This is simply ridiculous.
86 The distance from Bayview to McNaughton is approximately 9.25 kilometres. To get there in 16 minutes a vehicle would have to travel at approximately 35 kilometres per hour. Once again this is an average speed. It does not account for stops for traffic. Bearing in mind these traffic considerations, it makes it more reasonable that Mr. Sookram was travelling with traffic and that Detective Constable Ecklund and Constable Cresswell was trying to catch up to Mr. Sookram in order that they could take him down.
87 Once again what these objective calculations show is that it was impossible for Detective Constable Ecklund and Cresswell to have travelled at the speeds and in the time period they suggested. At the same time these calculations make Mr. Sookram’s evidence more credible with respect to this issue. Thus, I find I cannot accept Ecklund and Cresswell’s evidence on this issue at all.
88 It is the impossibility of the evidence of Dinsmore, Ecklund and Cresswell that destroys the credibility of these officers. The inability to accept this evidence makes it impossible to accept the officers other evidence. The credibility of the officers is also affected by the variances as between their evidence. Constable Dinsmore said he first spotted Mr. Sookram at 9:30 p.m. at Trench Street. Officers Cresswell, Ecklund and Wheeler all indicated that it was Detective Wheeler who first spotted Mr. Sookram and it was at 9:35 p.m. and not 9:30 p.m. As well, the officers all had a total lack of recall or claimed not to have observed the manner in which other officers were operating their vehicles. For example, Constable Cresswell is unable to recall or comment on the matter in which Dinsmore was operating his vehicle. Nor could he recall, or comment how Officer Ecklund was operating the vehicle he was in. Detective Constable Ecklund in his evidence said that he followed Dinsmore from Bathurst to McNaughton, yet he could make no comment as to the manner in which Dinsmore, who was in front of him, was operating his vehicle. This is pure nonsense. It is my view that both of these officers were being less than straightforward with the court on these issues. They could comment, in my view, but they chose not to because commenting would lead to the conclusion that there was no Highway Traffic Act infractions occurring and that there was no reason to stop Mr. Sookram.
89 As well, the officers’ credibility in my view is highly suspect given the quality of the notes they took with respect to this investigation. It was shocking that during the course of the surveillance of Mr. Sookram there was no central note taker recording conversations and information across the secure channel that was being used. This is so, notwithstanding there were at least two officers in different vehicles that were in a position as passengers to make notes as the matter was proceeding. Detective Wheeler was aware that this was a procedure used and yet he chose not to use it. It is also amazing, in my view, that not one officer made a notation of any of the information given initially by Detective Wheeler as to the vehicle they were looking for. This was so, and notwithstanding, they were all in Toronto and had to drive to Richmond Hill to look for the vehicle.
90 Constable Dinsmore has no notation in his notebook that Mr. Sookram was travelling at twice the speed limit. This is crucial information and goes to the very foundation for the stopping and detaining of Mr. Sookram. Surely, this should have been included in the notes of Constable Dinsmore given that it is the very basis upon which all subsequent conduct and discovery of evidence would have to have been based. Similarly Detective Constable Ecklund lacked detail in his notebook of significant features of this detention and investigation.
91 The notebooks themselves lacked significant and important information that should have been present, and therefore drastically affects credibility of these officers.
92 Given these frailties, it is not possible in my view, to accept the officers’ evidence that there was an odour of marihuana coming from Mr. Sookram’s vehicle. The officers described it differently. Constable Cresswell was supposedly able to smell it while he was standing by Constable Dinsmore who was at the driver’s door. The other officers described the odour as one of marihuana having been smoked a few minutes earlier to sometime earlier in the day. Detective Constable Ecklund invited himself into Mr. Sookram’s vehicle on the passenger’s side prior to any arrest or suspicion to see if he could smell marihuana. What basis did he have to do this? None that I can see. Finally, on this issue all of the officers asked had denied that they had ever turned their mind to the possibility that suggests that, an odour of marihuana in evidence is very difficult to refute in court. I do not accept that none of these officers ever turned their mind to that possibility.
93 Simply put then, I do not accept any of the officers’ evidence with respect to the odour or smell of marihuana. In fact, it is my conclusion there was no odour. I accept the witnesses as presented by Mr. Sookram on this issue. That he is allergic to the odour or smell of marihuana, that he reacts to it in a very significant and obvious way. Not one of these witnesses had their credibility significantly challenged in cross-examination. No reason was presented nor can I find a reason to disbelieve them. As such I accept their evidence on this issue. Indeed, the Crown in the first line of Exhibit 2, the second agreed statement of fact, concedes that Mr. Sookram has a history of allergic reactions to marihuana smoke.
94 Having reached this conclusion I also find the statement attributed to Mr. Sookram, that he had smoked marihuana earlier in that day was never made.
95 In the end I accept the evidence of Mr. Sookram and his witnesses who testified on his behalf. I conclude that the evidence shows that he is allergic to the odour or smell of marihuana and that on the night of April 19th, 2007, he was operating his motor vehicle, travelling with the flow of traffic, and doing nothing to draw attention to himself. Given his admissions that the vehicle was his, that he knew of the guns and drugs in it, and indeed that he stored drugs and guns in his vehicle, and that he had a significant amount of money with him, there is no logical reason why he would want to draw attention to himself. What is logical from the evidence is that Mr. Sookram was stopped only when all of the officers were on scene and in a position to work together. It would be almost to the point of ridiculous to accept that, outside of perhaps an extreme exigent circumstance that, a lone officer, in an unmarked vehicle, in plainclothes, would stop and investigate a suspected drug dealer, who was possibly carrying a handgun. That would not be best procedure. As Constable Cresswell said in his evidence, best practice would be to have numerous officers present. I find that this was indeed what took place here. When all of the officers were together they stopped Mr. Sookram. They then conjured up reasons for the stop and for the search.
96 I find there was no legal basis upon which Mr. Sookram should have been detained and given that it was an unlawful detention, and a search arose as a result of that unlawful detention, the search was also unlawful. As a result Mr. Sookram’s Section 8 and 9 Charter Rights had been violated.
SECTION 24(2) ANALYSIS:
97 Obviously, having reached this conclusion, Mr. Sookram seeks the items seized, the guns and drugs to be excluded. The Crown, not surprisingly suggests that when I apply the appropriate test in law under Section 24(2), not withstanding these Charter violations, the items should be admitted into evidence.
98 Having reviewed the cases provided by Crown, there is no question, that as a starting point for excluding evidence of this type. R. v. Collins (1987) 33 C.C.C. (3d) 1 (S.C.C.) sets out the test to be used. That case sets out three factors to be considered:
1) The effect of admitting the evidence on the fairness of the trial;
2) The seriousness of the Charter violation; and,
3) The effect of excluding in evidence on the administration of justice.
99 The first factor, trial fairness, deals with conscriptive evidence generally. Here, the guns and drugs are real evidence, they came to light not as a result of Mr. Sookram being compelled against himself. Rather, the evidence came to light as a result of an unlawful detention and an unlawful search of Mr. Sookram’s vehicle in violation of his Section 8 and 9 Charter Rights. In this matter, trial fairness is affected when the officers attempt to justify what they knew they could not do by creating Highway Traffic Act violations and thus creating an excuse to stop Mr. Sookram. To admit such evidence would adversely affect the trial fairness process.
100 The second factor relates to the seriousness of Charter violations. The conduct of the police here can only be described as bad faith. They conveniently set out to find a way to stop Mr. Sookram, knowing that they had no legitimate reason to do so. As a result, after stopping him, they created a reason for the stop and proceeded to create reasons to arrest Mr. Sookram. There was no Highway Traffic Act infraction, there was no odour or smell of marihuana. These were flagrant and intrusive Charter breaches. The police tried to justify otherwise inappropriate conduct.
101 The third factor, would the exclusion of this evidence harm the reputation of the administration of justice? There is no question that this evidence is important to the Crown’s case, indeed it is the essence of the Crown’s case. Just as Laskin in R. v. Grant, [1993] 3 S.C.R. 223, 84 C.C.C. (3d) 173, 24 C.R. (4th) 1, at paragraph 65 said:
however, important and reliable evidence necessary to sustain a serious charge may none the less be excluded if its admission would exact too heavy a toll on the long term integrity of the justice system.
In the case before him he saw that such considerations were not present. In Grant the court found that the police did not grossly overstep their bounds, they used no force and they acted in good faith. Justice Laskin continued at paragraph 65:
there was no evidence to suggest that the constitutional breaches were wilful or flagrant or they reflected institutional indifference to individuals rights.
102 In the matter before me, the conduct of the police could only be described as showing flagrant disregard for Mr. Sookram’s rights. Their actions were done in extremely bad faith, creating a scenario of events which they knew did not otherwise exist. So unlike in Grant, and many of the other cases as presented by the Crown, where the police were found to have acted in good faith, the opposite is true here. The police acted in bad faith and flagrantly. As such to allow these items into evidence, that is the guns and the drugs, would bring the administration of justice into disrepute.
103 Having concluded allowing the evidence of the guns and drugs to be admitted would bring the administration of justice into disrepute, I must determine the appropriate remedy. Determining the appropriate remedy also requires a recognition of the public interest in this matter.
104 In determining the remedies available I go back to the Supreme Court of Canada decision in R. v. 974649 Ontario Inc. [2001] 3 S.C.R. 575. In setting out the powers of the court to determine remedies Chief Justice McLachlin stated at paragraphs 35 and 36:
This concern leads to the third possible approach to defining ‘power to grant the remedy sought’. This approach answers the question of whether a court or tribunal has the power to issue the remedy sought by focussing on its function and structure. On this view, it is not necessary that the court or tribunal have the power to grant the precise remedy sought or even a remedy of the same ‘type’. Although these factors may weigh heavily in the analysis, they are not determinative. The paramount question remains whether the court or tribunal, by virtue of its function and structure, is an appropriate forum for ordering the Charter remedy in issue. If so, it can reasonably inferred, in the absence of any contrary indication, that the legislature intended the court or tribunal to have this remedy at its disposal when confronted with Charter violation that arise in the course of its proceedings. This approach, as I shall discuss in greater (sic) detail, is implicit in Mills and affirmed in Weber [1995] 2 S.C.R. 929, and Mooring, [1996] 1 S.C.R. 75.
Parliament and the provincial legislatures premise legislation on the fact that courts and tribunals operate within a legal system governed by the constitutional rights and premises. It rests on the theory that where a Parliament or a legislature confers on a court or tribunal a function that engages Charter issues, and furnishes it with procedures and processes capable of fairly and justly resolving these incidental Charter issues, then it must be presumed that the legislature intended the court or tribunal to exercise this power.
105 In Regina and Largie (1981) 63 C.C.C. (2d) 508 the Ontario Court of Appeal held that, where it is clear that funds were obtained as a result if illegal conduct by the individual it would be inappropriate to return the funds as one should not profit from illegal activity, as it would, in any case, be an offence under what is now Section 354(1) of the Criminal Code.
106 Given that the evidence of the guns and drugs should be excluded, and the Crown has no other evidence, the continued remedy is as follows. Bearing in mind the decisions that I’ve just quoted and balancing societal interests, which are to be considered under the Charter application, with Mr. Sookram’s interests as well, the evidence of the guns and drugs seized will be excluded. However, the money seized from Mr. Sookram, who is an admitted drug dealer, will be forfeited to the Crown. Mr. Sookram also admits to possessing firearms and they were to be used in illegal activity. As a result before Mr. Sookram leaves the courtroom he will sign a Section 109 order for life.
107 Those then, in my view, are the appropriate remedies balancing both Mr. Sookram’s and societal interest that would be available to me under Section 24 of the Charter.
108 As a result, Mr. Sookram will be found not guilty. The finding will be made only upon Mr. Sookram signing the Section 109 order.