36744  Wu Shang En v. Her Majesty the Queen

(Ont.)

Charter — Criminal law — Controlled drugs and substances

This case arises out of a police investigation into the production and distribution of methamphetamine. The investigation involved surveillance conducted by a team of police officers, led by Detective Constable Sparkes, an officer experienced and trained in investigating drug-related criminal activity. At the end of two months of surveillance, Constable Sparkes believed that the applicant, Mr. Shang En Wu, was in possession of controlled substances. At Constable Sparkes’ direction, Mr. Wu was arrested and charged with various drug-related offences. During a search incident to Mr. Wu’s arrest, the police found evidence of methamphetamine possession and production. The police prepared an Information to Obtain (ITO) search warrants with respect to two condominium units connected to Mr. Wu. The warrants were issued and the police searched the two units, finding extensive evidence of methamphetamine production. At trial, Constable Sparkes testified to his subjective belief that he had grounds to arrest Mr. Wu. The trial judge was not persuaded, however, that those grounds were objectively reasonable. She concluded therefore that the arrest and the search incident to it violated Mr. Wu’s rights under ss. 8 and 9 of the Charter. Consequently, the trial judge excised all reference to the evidence found in the course of Mr. Wu’s arrest from the ITO. In the trial judge’s view, the loss of the evidence derived from the search combined with other problems in the ITO, weakened the grounds for the search warrants to such an extent that the ITO could not support the warrants. She excluded the evidence found in both condominium searches pursuant to s. 24(2) of the Charter, leaving the Crown without the evidence necessary to support the charges. The Court of Appeal allowed the Crown’s appeal, set aside the acquittals and ordered a new trial.