Monthly Archives: July 2013

Police Decision to Arrest Everyone Coming out of a Suspected Drug Trafficker’s Residence Violated the Charter

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.

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Filed under Arbitrary Arrest or Detention, Recent Case Law, Search and Seizure

Legal Articulation – SITA for Police Cadets

The fundamental legal articulation for a search incident to arrest (SITA) is often misunderstood.  While we do, incident to an arrest, search the person for officer safety (and very important to do), that is the “why” (one of them), not the “authority”.  The authority is derived from law.  The Supreme Court of Canada has reaffirmed our authority for this “common law” power.  In R. v. Caslake 1998 1 S.C.R. 51, at paragraphs 13 and 17 of the decision, the SCC ruled essentially that officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it.  The right to search arises from the fact of the arrest.  At paragraph 19, the SCC said that the three main purposes of a search incidental to arrest are: one, to ensure the safety of the police and the public; two, to protect evidence; three, to discover evidence.  Taken one step further, at paragraph 22, the SCC ruled that if the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested.  Hence the difference between SITA a motor vehicle for a driver arrested for breach of probation versus one arrested for operating while impaired.  In this example, the reasonable prospect will generally be lacking for the first, but there for the latter.

Also, at paragraph 53 of Cloutier v. Langlois 1990 1 S.C.R. 158, the SCC said in part, “…a search of the accused for weapons or other dangerous articles is necessary as an elementary precaution to preclude the possibility of their use against the police, the nearby public or the accused himself….Further, the process of arrest must ensure that evidence found on the accused and in his immediate surroundings is preserved. The effectiveness of the system depends in part on the ability of peace officers to collect evidence that can be used in establishing the guilt of a suspect beyond a reasonable doubt. The legitimacy of the justice system would be but a mere illusion if the person arrested were allowed to destroy evidence in his possession at the time of the arrest.”

The correct legal articulation for the, “Under what authority did you search my client” question is one of law, not “for officer safety” (different from investigative detention that was addressed in R. v. Mann 2004 S.C.J. No. 49); the, “Why did you search my client” question can be “for officer safety” (or two, to protect evidence; three, to discover evidence).  Word play at its best, but important to know the difference.

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SITA of a Vehicle Where Passenger Arrested for Breach of an Undertaking

R. v. Sesay 2013 MBCA 8 – the accused was stopped by police after he rolled through a stop sign. The accused told the officer the vehicle belonged to a friend.  Results of a computer check included cautions the accused was possibly armed and dangerous, was a known gang member and suspected drug dealer, and was violent or assaultive. The officer also did a check on the passenger which revealed he was subject to a bail undertaking that included conditions:

  • (a) that he was not to be in possession of an illegal substance;
  • (b) that he was to produce a copy of his undertaking upon police request;
  • (c) that he was not to possess a cell phone, blackberry, pager or other electronic communication device; and
  • (d) that he was to surrender to a search of his person, or any vehicle he was in, upon request of a police officer.

The officer asked the passenger to provide a copy of his undertaking, and when the passenger was unable to do so, he was arrested for failure to comply with his undertaking. An incidental search of the vehicle led to the seizure of 24 pieces of crack cocaine packaged in a manner consistent with street sales, and cell phones. Neither the accused nor the passenger claimed ownership of the drugs and phones. At trial, the accused objected to the introduction of the evidence seized during that search based on a breach of his Charter rights.  Following a voir dire, the trial judge ruled the evidence was admissible. The trial judge found the traffic stop was lawful and the search of the vehicle on the basis of officer safety incidental to the passenger’s arrest was reasonable and reasonably conducted. The accused called no evidence at trial and was convicted. He was sentenced to three and one half years’ imprisonment, less six months’ credit, to be served consecutively to an extant two-year sentence. The accused appealed.

The MBCA cited a summary from R. v. Majedi 2009 BCCA 276 (that in turn cited R. v. Caslake 1998 1 S.C.R. 51 and R. v. Nolet 2010 SCC 24):

  • Officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it;
  • The right to search does not arise out of a reduced expectation of privacy of the arrested person, but flows out of the need for the authorities to gain control of the situation and the need to obtain information;
  • A legally unauthorized search to make an inventory is not a valid search incidental to arrest;
  • The three main purposes of a search incidental to arrest are: one, to ensure the safety of the police and the public; two, to protect evidence; three, to discover evidence;
  • The categories of legitimate purposes are not closed: while the police have considerable leeway, a valid purpose is required that must be “truly incidental” to the arrest;
  • If the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested;
  • The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively.

The Appeal by the accused was dismissed. The search of the vehicle was undertaken for a valid reason and was performed reasonably. A reading of the police evidence revealed officer safety may not have been the primary reason for searching the vehicle after the arrest of the passenger, but it was a relevant factor. The officer operated under the premise of a caution the accused was a gang member, armed and dangerous and known for violent and aggressive behaviour. The circumstances objectively supported a decision to embark on a further search of the vehicle to look for prohibited weapons and ensure police security. In addition, following the arrest of the passenger for breach of undertaking, it was open to the officer to seek further evidence of a breach of the same undertaking.

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Filed under Recent Case Law, Search and Seizure

Obtaining Counsel of Choice via a 3rd Party

A recent decision out of the Ontario Superior Court of Justice (R. v. Treliving 2013 ONSC 3368) has prompted a reminder that the right to retain and instruct counsel includes the right to contact others to obtain counsel.  A person who requests to call someone, other than a lawyer in connection with instructing counsel, is asserting the desire to exercise their right to counsel.  A person who seeks to contact counsel by requesting to call a 3rd party in connection with exercising that right, is not waiving their right to counsel.  As noted in R. v. Brydges (1990) S.C.J. No. 8, in the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee’s efforts to do so.  This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel.  This is so whether the person has counsel’s number available or not.  It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

There  must be some communication to the police that the necessity of contacting a non-lawyer is to obtain from that third party, information about the means of identifying or contacting a private counsel.  Once that is done, if the police fail to assist the arrested party in obtaining that information, then they run the risk of a clear implementational violation of s. 10(b).

Many other courts have reached this decision (R. v. Tremblay (1987) S.C.J. No. 59, R. v. LaPlante (1987) S.J. No. 723, R. v. McNeilly (1988) Y.J. No. 71), to name but a few.

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Filed under Recent Case Law, Section 10 Charter, Worthy of a Review