A Provincial Court Judge out of Amherst, Nova Scotia, in R. v. Gibson 2013 NSPC 56, has ruled that the police decision to arrest everyone coming out of the residence belonging to a drug trafficking suspect which they had under surveillance violated the Charter and the accused’s arrest was unlawful. The Judge used an analogy in the film Casablanca, where the famous line “round up the ususal suspects” was uttered by Captain Renault of the Gendarmeries when he advised another officer that Major Strasser had been shot. The Judge said, here the police, in conducting surveillance of a residence, used similar logic when the lead investigator determined that while they were engaged in surveillance of the co-accused, they would arrest anyone coming out of the residence where the co-accused was located. Subsequent to that, the accused exited the home, was arrested and found with cannabis marihuana.
In reaching his decision, the Judge made reference to several factors in deciding that the accused’s rights under Section 8 and 9 of the Charter had been violated, namely that the facts of this case were not compelling, nor credible and that there was a lack of corroborating evidence that would give the arresting officer the reasonable grounds required to make an arrest under Section 495 of the Criminal Code.
Following an unreported number of days conducting surveillance on the residence, police arrested one male after a short duration visit, which the arresting officer testified, was consistent with drug trafficking. This male was found with nine methamphetamine pills upon his person, and immediately denied purchasing them from the co-accused. The officer also testified to having information from qualified sources that the co-accused was selling drugs, a point which the Judge took issue with in that it ponders the question as to whether “qualified” sources equated to “credible” sources. Following on the heels of the arrested male leaving the co-accused’s residence, the co-accused, the accused, and another male left the residence. The arresting officer testified that there was a determination prior to that point to arrest any individual who might leave the co-accused’s residence, based on the following facts: (1) surveillance had been conducted that day; (2) surveillance had been conducted on other days; and (3) the pills that had been found on the individual that had just shortly left the residence. All three individuals entered into a taxi upon exiting the residence and were subsequently arrested following a high-risk take-down. Upon the arrest of the accused, the supervising officer testified that her purse was open and he could see that it contained a large bag of marihuana. The marihuana was contained in a plastic clear bag which he indicated he could see through. Further, the purse was open.
In evaluating whether a warrantless search was justified (i.e. there were reasonable grounds), the Court asked: (1) whether there was compelling information predicting the commission of a criminal offence; (2) whether the information, if it arose from a source outside the police, originated from a credible source; and (3) whether the information was corroborated by police investigation prior to making the decision to conduct the search. These factors do not form three separate tests, but guide the analysis of whether in the totality of circumstances the reasonableness of the warrantless search was established.
Here, following the voir dire, the Judge ruled there were no grounds to arrest the accused and the officer had no articulable reason to detain any of these individuals and therefore the arrest and subsequent search of the accused was arbitrary and unreasonable. The search therefore infringed the accused’s rights under Sections 8 and 9 of the Charter. Having considered all of the above and balancing the three prongs found under the Grant test for the admission of evidence in the face of Charter breaches, the Judge found that to admit the marihuana seized from the accused in these circumstances would in fact call the administration of justice into disrepute. As a consequence, the Judge did not allow the evidence submitted by the Crown to be admitted into evidence.