Monthly Archives: January 2014

A Review – ASD, Reasonable Suspicion, Waiting for a Tow Truck

A couple of recent impaired driving cases have prompted a review of some of the basics for the new and junior members in the field.  I will not go into alot of background or details of each case, but rather the necessary points to be taken from the cases.  Impaired driving offences are very complex, so this review will only touch on some of the issues and is by no means exhaustive.

R. v. Wetzel 2013 SKCA 143 – police issued a breath sample demand. The officers waited with the accused for 35 minutes for a tow truck to arrive and an additional 12 minutes until the vehicle was towed. The breath samples were not taken until between one and one-half and two hours following the demand. The results indicated an illegal blood-alcohol level. The accused was charged accordingly.  SKCA upheld that the samples were not taken as soon as practicable and acquitted the accused.  The SKCA said that it is clear that a delay caused by waiting for a tow truck does not necessarily create a situation where the sample is not taken as soon as practicable: R. v. Berrecloth, 2012 SKQB 175; R. v. Dion, 2010 SKPC 76; R. v. Litzenberger, 2009 BCPC 69; R. v. Plonka, 2008 BCSC 881; R. v. Ritson, 2008 BCPC 26; R. v. Godin, 2007 ABPC 162; R. v. Otto, 2000 CarswellOnt 1864 (Ont. Sup. Ct. J.); R. v. Hafermehl (1993), 50 M.V.R. (2d) 78 (Alta. C.A.).  In cases where the officer has reasonable grounds to believe that the parked vehicle poses a safety hazard, obstruction to traffic, etc, towing the vehicle may be justified, but a blanket policy of towing every vehicle for a suspected impaired driving charge or an officer’s personal preference to do so is not lawful and not reasonable according to the SKCA and could result in breath tests not being taken as soon as practicable.

R. v. O’Shea 2013 ONCJ 710 – one officer stopped the accused for speeding and prior to the police stop, when the accused stopped at a traffic light, the car did not stop right away and went one car length beyond the intersection.  The accused had to look through her wallet three times before locating her driver’s licence and the officer asked her how many drinks she had “tonight.” She said she had two glasses of wine.  At that time, the officer formed a reasonable suspicion that she had alcohol in her body and decided to have her submit to a roadside screening test. He testified that his reasonable suspicion was based on the speeding at the intersection and the admission of the consumption of alcohol. The officer stated the accused had no motor skill problems, no slurred speech, and no odour of alcohol on her breath.

Not having a testing device with him, the officer requested one over the police radio. Two officers arrived moments later and at this point in time, the officer turned the investigation over to these two officers because he was acting as a road supervisor and his services were needed elsewhere.  The officer that read the demand was a junior member (6 months service) and on the day of the alleged offence, he told the qualified breath technician that his grounds for making the demand were that the suspect was operating a motor vehicle at a high rate of speed and an odour of alcohol was detected.  This was also stated in a pre-printed form given to the breath technician.

R. v. Padavattan (2007) O.J.  No. 2003:

“The clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed the reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, an officer who makes the demand may require the subject to accompany him for the purpose of the test. However, where these requirements are satisfied, there is nothing in the language of s. 254(2), that expressly or by implication precludes the ASD test being administered by another officer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test.”

The ONCJ said that in law, the reasonable suspicion did not have to be formed by the officer reading the demand from his own observations.  As in R. v. Nahorniak (2010), 256 C.C.C. (3d) 147 (Sask. C.A.):

These cases illustrate that reasonable suspicion can be achieved either by the officer’s personal knowledge and observation or the communicated observations of others or a combination of both. This is so even where the officer making the demand cannot precisely articulate the information conveyed to him but there is nevertheless other testimony or evidence of what was conveyed.

It is not necessary for an officer to independently investigate and verify grounds of reasonable suspicion conveyed to him as long as he subjectively believes them. For Knowles specifically, it was enough that he knew the grounds and believed them at the time he made the demand and his belief was objectively and subjectively reasonable. In this case, Knowles testified he relied on McStay’s grounds but also relied on his own observations to form his reasonable suspicion. Knowles stated three reasons to suspect Nahorniak had alcohol in his body. He assumed that McStay had proper grounds and made the demand because McStay asked him to. He relied on what McStay told him. Finally, he independently smelled alcohol coming from Nahorniak. Although it would have been preferable for Knowles to articulate the grounds McStay told him, his failure to do so was not fatal because McStay was able to articulate the details of what was conveyed.

When cross-examined, the officer that read the demand agreed that his notes were not detailed. He agreed that it was possible that he was directed to make the screening device demand. It was also possible he said that the suspicion that the defendant had alcohol in her body may have been passed onto him. He did not recall speaking to the defendant before making the screening device demand. He said he was directed by his coach officer to make the screening device demand. He also testified that the defendant had no slurred speech, her eyes were not red or bloodshot, and that he could detect no odour of alcohol on her breath.

The ONCJ ruled that a finding of guilt can only be founded upon evidence which a court can rely upon, and the evidence of the officer was internally contradictory and very unreliable and therefore found that the Charter breach was serious, thus finding the accused not guilty of the matter before the court.

Lesson to be gained:  reasonable suspicion for the ASD can be achieved either by the officer’s personal knowledge and observation or the communicated observations of others or a combination of both as long as that officer subjectively believes this information.  Make sure to take alot of detailed notes and be consistent with your grounds at the time of the offence and with your testimony in court.  If your grounds came from another officer and you subjectively believed this, say so.  “Source” where the information came from that you formed your reasonable grounds to suspect for the ASD and ensure your facts are consistent with what was relayed to you by fellow officers at the time and your testimony in court.  We cannot make the demand only because we are directed to do so; we must form any opinion on whether there is a legal basis to make a demand for a sample, pursuant to section 254(2) of the Criminal Code.

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Standard Condition on Officer Release Undertaking Restricting Travel Outside of the Province Considered

R. v. Thompson 2013 NSPC 124 – a Nova Scotia Provincial Court Judge heard an application under s. 515.1 of the Code (variation of Undertaking) to vary a Form 11.1 undertaking which required, among other things, that the accused remain within the Province of Nova Scotia.  The accused’s job required him to travel outside the province of Nova Scotia.  Officers have been called to task over recent years by simply “checking off” a release condition because it is an option for them to do, without thinking or articulating that the condition is necessary (e.g. the standard “Keep the Peace and be of Good Behaviour” clause, or a curfew clause that is not justifiable in the case).

The authority of the police to release persons arrested with or without warrant, upon terms of Form 11.1 undertakings, is set out in sub-ss. 499(2) (when the arrest is made with a warrant) and 503(2.1) (covering arrests without warrant) of the Code. The two provisions are identical, and state as follows:

… [T]he peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify the peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; or

(h) to comply with any other condition specified in the undertaking that the peace officer or officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.

The NSPC considered R. v. Morales [1992] S.C.J. No. 98 at paras. 35-40, which said that bail is structured to get the accused to return to court as required, prevent the commission of further offences, and prevent the commission of offences against the administration of justice; public safety and evidence preservation are implicit in this.  The NSPC said that in order for bail to be reasonable, it makes sense that the conditions of bail must be reasonable. A condition imposed upon the liberty interests of a person admitted to bail that is not connected reasonably to one of the constitutional purposes of the bail system is, in effect, not constitutionally compliant.

It followed, according to the court, that the automatic inclusion in Form 11.1 bail of a condition that the accused remain within the territorial jurisdiction of the province is not lawful, as it has the effect of making mandatory a condition that is clearly optional under paras. 499(2)(a) and 503(2.1)(a) of the Code.  As per the NSPC:

The imposition of such a condition would be constitutionally compliant only if the officer processing the release were to have sufficient grounds to believe that the accused would pose a flight risk. In none of the Form 11.1 bail-variation applications that I have heard has that been the case, which leads me to have concern that this condition is being imposed in many cases improperly.

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Threshold Officer “Safety Search” – first appeal of it’s kind to the SCC

R. v. MacDonald 2014 SCC 3 – in 2009, the accused (MacDonald) was employed in the oil and gas industry. His employment required him to spend time in both Calgary and Halifax. On the evening of December 28, 2009, MacDonald entertained a co-worker and his co-worker’s friend at his Halifax condominium. Some alcohol was consumed during the evening as MacDonald and his colleague, who was about to replace him in Halifax, discussed work.

Later in the evening, the caretaker of MacDonald’s building received a noise complaint regarding loud music reverberating from MacDonald’s condo.  The caretaker went to the condo, heard the loud music and knocked on the door. He received no response. Just as he was about to leave, he saw MacDonald’s guests leaving the condo and saying good night. At this point, the caretaker asked MacDonald to turn down his music. MacDonald, swearing at him, refused to do so.

The caretaker contacted the Halifax Regional Police and asked them to deal with the complaint about the noise issue. A constable went to the building and, together with the caretaker, approached MacDonald’s condo. The constable knocked on his door and asked him to turn his music down or off. MacDonald swore at her and slammed the door shut.  The constable contacted her sergeant, who arrived at the building approximately a half hour later. The sergeant, the constable, and the caretaker went to the condo and the sergeant tried to get MacDonald to answer the door by knocking on it and kicking it, and also shouted that he was from the Halifax Regional Police.

About five minutes later, MacDonald opened the door, but only about 16 inches, enough for the officers to see the right side of his body and face. The sergeant noticed something “black and shiny” in MacDonald’s right hand that was in a shadow and was partially hidden by his right leg. He believed it might be a knife. He twice asked MacDonald what was behind his leg, gesturing toward his right hand. MacDonald did not respond.

Wanting to get a better look at what MacDonald had in his hand, the sergeant pushed the door open a few inches further. The resulting light enabled him to identify it as a handgun. He yelled “gun!” and quickly forced his way into the condo. After a brief struggle, he was able to disarm MacDonald.  The gun that MacDonald was holding when he opened the door was found to be a 9mm Beretta, a restricted firearm. It was registered to him. The gun was loaded.

MacDonald was charged with numerous offences, three of which are relevant here: handling a firearm in a careless manner or without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Code; unlawfully having in his possession a weapon for a purpose dangerous to the public peace, contrary to s. 88(1); and possessing, in a place, a loaded restricted firearm without being the holder of an authorization or a licence under which he may possess the said firearm in that place, contrary to s. 95(1) of the Code.

At trial in Nova Scotia Provincial Court, a voir dire was held to determine whether MacDonald’s right to be secure against an unreasonable search guaranteed by s. 8 of the Charter had been violated when the sergeant pushed the door to the condo open a few inches further to ascertain what he was holding. Judge Digby found that there is an exception that permits an officer to enter a home to ensure his or her safety, particularly where, as here, the intrusion is minor. He concluded that “there is no Charter breach and the burden is on the accused to prove on a balance of probabilities that there is a Charter breach”.  After weighing all the circumstances, Judge Digby found MacDonald guilty of the charges under ss. 86(1), 88(1), and s. 95(1) of the Code.  Judge Digby sentenced MacDonald to three years’ imprisonment (two years in a federal penitentiary for the s. 86(1) charge, three years concurrent for the 88(1) charge, and three years concurrent for the 95(1) charge).

The Nova Scotia Court of Appeal upheld the convictions under ss. 86 and 88, but overturned the one under s. 95. On the latter conviction, the NSCA acknowledged that pursuant to s. 17 of the Firearms Act, S.C. 1995, c. 39, MacDonald’s licence did not extend to his Halifax residence. However, the court found that MacDonald should be acquitted on the basis of an honest but mistaken belief that it did extend to the condo.  The NSCA also reduced MacDonald’s sentence to 32 days in custody, a two-year term of probation, a prohibition on possession of weapons for five years, and forfeiture of the firearm.

The appeal to the Supreme Court of Canada focused on three issues.  The main issue that I will discuss (I will briefly mention the other two) focused on whether MacDonald’s right under s. 8 of the Charter to be free from unreasonable search and seizure was violated and, if so, what was the appropriate remedy?  At first glance, it would appear that this case was decided in favour of the police actions in this case, but as you will see from the decision, it is not necessarily a “win” for us in the police world.

Four of the seven SCC justices said that the officer’s action of pushing the door open further constituted a “search” for purposes of s. 8 of the Charter. The action went beyond the implied licence to knock on the door (as cited in R. v. Evans [1996] 1 S.C.R. 8) and constituted an invasion of M’s reasonable expectation of privacy in his home.  However, although the officer’s action constituted a search for s. 8 purposes, that search was reasonable because both stages of the Waterfield test were satisfied. The first stage was satisfied because the warrantless search fell within the scope of the common law police duty to protect life and safety and the second, because the search constituted a justifiable exercise of powers associated with the duty.

R. v. Waterfield [1963] 3 All E.R. 659 (C.A.) requires the court to consider:

(1) whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law; and

(2) if this threshold test is met, whether such conduct involved an unjustifiable use of powers associated with the duty.

The 4 justices said to determine whether a safety search was reasonably necessary, and therefore justifiable, a number of factors must be weighed to balance the police duty against the liberty interest in question. These factors include: the importance of the duty to the public good; the necessity of the infringement for the performance of the duty; and the extent of the infringement. The duty to protect life and safety is of the utmost importance to the public good, but an infringement on individual liberty may be necessary when, for example, the officer has reasonable grounds to believe that the individual is armed and dangerous. That infringement will be justified only to the extent that it is necessary for the officer to search for weapons. In other words, and as this Court recognized in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the powers of the police are limited. Courts must consider not only the extent of the infringement, but how it was carried out. Restraints on safety searches are particularly important in homes, where such searches can often give the police access to a considerable amount of very sensitive personal information.

In this case, these 4 justices said that the officer had reasonable grounds to believe that there was an imminent threat to public and police safety and that the search was necessary to eliminate that threat. The manner in which he carried out the search was also reasonable. The trial judge found that the officer pushed the door open no more than was necessary to find out what M had behind his leg. The officer twice asked M what he had in his hand but received no answer. In these circumstances, it is hard to imagine a less invasive way of determining whether M was concealing a weapon and thereby eliminating any threat. It followed that M’s rights under s. 8 of the Charter were not violated.

As for a s. 95 Criminal Code conviction, these 4 justices said that the Nova Scotia Court of Appeal erred in requiring the Crown to prove that M knew that his possession and acquisition licence and authorization to transport the firearm did not extend to his Halifax home. That requirement was inconsistent with the rule, codified in s. 19 of the Code, that ignorance of the law is no excuse. Section 95 is a mens rea offence, but does not include knowledge of unauthorized possession. Rather, knowledge of possession, together with intention to possess in a particular place, is enough.  In this case, M’s subjective belief that he could possess the firearm in his Halifax home was a mistake of law and that mistake was no defence. Therefore, M’s s. 95 conviction must be restored and the matter remitted to the Nova Scotia Court of Appeal both for sentencing and for assessing the constitutional validity of the mandatory minimum sentence under s. 95.

So, at first glance, it would appear that the case was decided in favour of the police action in this case (rightfully so).  However, what is interesting to note was the “language” used by these 4 justices in reaching the majority decision, a language that was noticed by the other 3 justices in this case.  The minority agreed to the decision of the majority and would dispose of the case as the majority proposed, except for the language used.  I will elaborate on the latter.

The minority (3 justices) said that every day, throughout this country, police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others. In return, they are entitled to know that when potentially dangerous situations arise, the law permits them to conduct minimally intrusive safety searches to alleviate the risks they face. That is the fundamental bargain we, as a society, have struck with the police, and it is a fundamental commitment upon which the police are entitled to rely.

The commitment of which we speak was acknowledged by the SCC in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. Mann recognized a limited police power to search without a warrant solely for protective purposes where a police officer has reasonable grounds to suspect a threat to his or her safety or the safety of others. The majority in this case purported to apply Mann. Respectfully, however, it did not. Instead, it rendered Mann redundant, depriving police officers of the limited search powers they need to protect themselves and the public in fluid and often-unpredictable situations of potential danger.

The minority said that in the instant case, while they agreed with the majority on all three issues in this case, including MacDonald’s claim under s. 8 of the Canadian Charter of Rights and Freedoms, they part company with their colleagues on the proper interpretation of Mann. Their colleagues asserted, relying on Mann, that officers are only empowered to conduct “safety searches” where they have reasonable grounds to believe an individual is armed and dangerous (paras. 39 and 44). With respect, they did not agree with that conclusion. In their view, Mann decided that officers may conduct safety searches when they have reasonable grounds to suspect an individual is armed and dangerous.

The minority said that the case law revealed that the rationale justifying the police power to perform protective searches is the protection of public or officer safety. It seemed to them that such a power is a necessary corollary of the duties imposed on the police, two of which include: the duty to preserve the peace and to protect life and property. Police officers cannot be asked to intervene in dangerous or fluid situations and, at the same time, be denied the authority to take protective measures when they reasonably suspect their own safety is at risk, especially when there is a suspicion weapons are present.  As the minority put it, R. v. Chehil 2013 SCC 49, reasonable suspicion again was the language used by the SCC.  Further, the minority said, most significantly in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, as Abella J. explained, the two accused were detained because the police had a “reasonable suspicion” they were in possession of firearms and “as a result, the lives of the police officers and of the public were at risk” (para. 46). Those very safety concerns, without more, justified searches of the accused incidental to their detention (para. 48). In other words, the officers were entitled to conduct a minimally intrusive search for safety purposes because they had reason to suspect that the accused were armed and dangerous.

Beyond Clayton, the SCC has on at least three distinct occasions expressed that Mann authorized a protective search incidental to investigative detention on the basis of reasonable suspicion. First, Binnie J., writing for himself and the Chief Justice in R. v. Kang-Brown 2008 SCC 18, [2008] 1 S.C.R. 456, referred to “the Court’s decision in Mann to lower the bar from reasonable and probable cause to reasonable suspicion in the context of a warrantless search” (para. 62 (emphasis added)). In R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 44, n. 3, the majority expressly declined to endorse the minority’s assertion that Mann required a reasonable and probable grounds standard for pat-down searches. And, lastly, only a few months ago, in an opinion joined by every member of today’s majority, the minority said that Mann authorized “limited searches accompanying investigative detentions” on the basis of “reasonable suspicion” (Chehil, at para. 22, n. 1).

The minority said that this case could have been, and ought to have been, resolved by extending the logic of Mann. First, the sergeant, while lawfully engaged in his duties, had a reasonable suspicion that MacDonald was armed and dangerous. Second, in response to that reasonable suspicion, the sergeant’s conduct, pushing MacDonald’s door open a few more inches, was “no more intrusive of liberty interests than [was] reasonably necessary to address the risk” (Aucoin, at para. 36, quoting Clayton, at para. 31). Accordingly, the search was reasonable for purposes of s. 8.  The minority stressed that in cases such as the one at hand, the “Mann standard” for protective searches, as properly understood, does not empower an officer to engage in random searches based on a whim or a hunch. Rather, the officer’s suspicion that the individual is armed and dangerous must be reasonable having regard to the totality of the circumstances.

To be sure, on the facts as found by the trial judge, the minority said that the sergeant’s suspicion that MacDonald was armed and dangerous was reasonable. The context of the encounter with him indicated a degree of hostility toward the building staff and police. To begin, MacDonald dismissed the building caretaker’s attempts to turn down the music in what the trial judge diplomatically characterized as an “undiplomatic manner”. He showed “some evidence of intoxication”. When the constable attended on the scene, MacDonald “proceeded to shut the door requiring the constable to remove her foot from the threshold, telling the constable to fuck off or words to that effect” (p. 6). The trial judge accepted that the sergeant saw a “black and shiny” object in MacDonald’s hand. Significantly, “[i]t was concealed behind [his] right leg”. Moreover, the sergeant thought “it might be a knife” (p. 249). In these circumstances, the sergeant had reason to suspect that MacDonald, who had been acting in a hostile and aggressive fashion, was armed and dangerous, but he surely did not have reasonable grounds to believe that he was armed and dangerous.

The minority said that due to the language of the majority in this case,

Today, our colleagues impose a standard requiring that an officer have reasonable grounds to believe an individual is armed and dangerous before a “safety search” is authorized, effectively overturning the search power recognized in Mann and a decade of subsequent jurisprudence in the process.  We should be clear about the consequences of the majority’s decision: officers are deprived of the ability to conduct protective searches except in circumstances where they already have grounds to arrest. As of today, officers are empowered to detain individuals they suspect are armed and dangerous for investigatory purposes, but they have no power to conduct pat-down searches to ensure their safety or the safety of the public as they conduct these investigations. In our view, a police officer in the field, faced with a realistic risk of imminent harm, should be able to act immediately and take reasonable steps, in the form of a minimally intrusive safety search, to alleviate the risk.


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Drug charges dismissed because of continuity gap after drugs seized.

R. v. Tran 2013 ABPC 312 – a Provincial Court Judge in Alberta has acquitted two accused for possession of cannabis marihuana for the purpose of trafficking because of a void in the continuity of over 9 kilograms of cannabis marihuana.  An officer made the traffic stop of the Honda Civic at 8:10 PM September 22, 2011.  He then opened the trunk of the vehicle and effectively searched and seized the bags which he believed contained cannabis marihuana. He turned continuity of the motor vehicle and bags over to a second officer at 8:50 PM, approximately 40 minutes later.  In his evidence, the second officer stated that he turned continuity of the bags over to a Detective, the exhibit handler at 9:00 PM, 10 minutes later.

As exhibit handler, he opened the bags and extracted all the Ziploc bags, took samples from each bag, including the white plastic bag, for the purpose of sending samples to the analyst to ascertain the substance. He did not confirm the evidence of the second officer that he received continuity of the bags at the scene when the bags were in the trunk of the motor vehicle. He stated in evidence that he did not receive the bags until 10:57 PM in the property room.  The detective testified that he was involved in surveillance on the vehicle where the drugs were seized from, but that he did not take custody of the exhibits on scene, but back in the property room.  The detective also could not recall from whom he took continuity of the drugs.

The judge said from this evidence, the court could only surmise that the Detective did not take custody of the seized bags at the scene from the trunk of the motor vehicle. The Detective did not take custody of the seized items until he was at the property room where he says he was provided with the seized items at 10:57 p.m. from an unknown person. This left a void of continuity between 9:00 p.m. and 10:57 p.m., almost two hours between the second officer and the Detective. The judge ruled the court does not know which officer is correct in their evidence or neither. The court only knew there is no evidence where the seized items were between 9:00 p.m. and 10:57 p.m., who they were with, or how they got from the trunk of the motor vehicle to the property room, if they did. More importantly, because there is no continuity between those times, the court had no evidence the substances examined by the Detective in the property room and sent off for analysis were the same substances seized from the trunk of the motor vehicle.

The judge ruled that the court was satisfied each accused placed a bag into a Honda Civic motor vehicle trunk that was subsequently stopped and those bags were seized from the trunk of that vehicle. When seized police officers smelled an odour of fresh marihuana emanating from the bags. The two duffle bags when opened contained large garbage bags that held numerous Ziploc sealed bags that appeared to contain cannabis marihuana when viewed by the police officers.  However, there was no evidence the notice of certificates given to counsel for the accused pursuant to Section 51(3) of the CDSA related to the certificates entered in evidence to prove the substance was cannabis marihuana because police lost continuity of the seized bags between the time of seizure from the trunk of the vehicle and the time it was prepared for sending to an analyst to certify if the substance was in fact cannabis marihuana.  In light of the void in the continuity of the seized substances, the judge ruled the court must acquit both accused, as there is no evidence they were in possession of cannabis marihuana.

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