Monthly Archives: October 2015

A police officer’s ability to detect the smell of seven grams of dried marihuana…

R. v. Newell 2015 ONCJ 564 – in early March of 2013, a police officer with approximately two and a half years experience was on patrol when he noticed a brightly coloured car with tinted windows. He decided to effect a traffic stop in order to determine whether the tinted windows complied with the requirements of the Highway Traffic Act. After the vehicle stopped, the officer approached the driver’s side, realized that he could see the driver through the window and concluded that the tinted windows were legal. At that point, the driver, the defendant, Jeffrey Newell, opened the door of his vehicle.

As it was winter, Mr. Newell had a heavy winter coat with him, although there was some dispute as to whether he was wearing it or just had it lying on the back seat. Inside a pocket of this coat was a plastic bag and inside the plastic bag was approximately seven grams of dried marihuana. According to the officer, the odour of this marihuana was strong enough to penetrate both the plastic bag and the pocket of the coat because as soon as Mr. Newell opened the door of his vehicle, the smell was noticeable. During his examination-in-chief, the officer testified that he could “immediately” detect a “strong odour” of marihuana when Mr. Newell opened the door and that it was “getting stronger and stronger” as he spoke to him. He described the odour as “pretty distinctive, like smelling a skunk”. In cross-examination, however, he described the initial odour as “very faint” but that it became stronger when he put his head down nearer to the vehicle. The officer described the smell as “fresh” like the smell of a plant or a flower. The marihuana that was eventually seized was dried.

The officer testified that he was familiar with the smell of marihuana because he had smelled it during his training at police college. Also, he used to work at the front desk of the police station and people sometimes turned marihuana in to him so that it could be destroyed. On one prior occasion, he had arrested somebody for possession of marihuana. Based on the smell, the officer directed Mr. Newell to exit the vehicle and then placed him under arrest for possession of a controlled substance. He then searched Mr. Newell and located the bag of marihuana. No other contraband was found on Mr. Newell’s person or in the vehicle. Another officer was driving by and stopped to offer assistance to the arresting officer, who told him that he had a person in custody for a Controlled Drugs and Substances Act offence. The other officer stood by as the arresting officer searched Mr. Newell’s vehicle. He did not recall smelling anything.

Mr. Newell testified that at the time of his arrest, he was on his way to a friend’s house when he was stopped by the officer. He had just had the windows of his car tinted so he could not roll them down. Because of this, when the officer approached the vehicle, Mr. Newell opened the door. He provided his driver’s licence to the officer and there was a discussion about the fact that the licence, which was temporary, had no photograph. They also discussed the fact that the windows could not be opened and that Mr. Newell had an interlock device in the vehicle. According to Mr. Newell, the officer asked him if he or anybody else had smoked marihuana in the vehicle. Mr. Newell replied that nobody had done so. The officer asked him if he was sure about this and he replied that he was. The officer then said that he was going to search the vehicle and directed Mr. Newell to step out of it. At this point, Mr. Newell picked up his coat, which had been on the seat, put it on, and exited the vehicle. The officer then told him that he was under arrest because of the smell of marihuana. Mr. Newell denied that there was any marihuana smell. The officer handcuffed Mr. Newell and searched him. He located the marihuana that was in the coat pocket and removed it. According to Mr. Newell, it was the other officer, and not the arresting officer, who searched his car.

The sole basis for the arrest was the smell of marihuana the officer testified to noticing. According to the arresting officer, the odour of these seven grams of dried marihuana permeated the plastic bag containing the marihuana as well as the pocket of the winter coat where the bag was located. Not only did this smell permeate the bag and the pocket, it did so to the degree that it was noticeable to a person standing outside of the vehicle. Not only was it noticeable, according to the officer (at least during his examination-in-chief), the smell was “very strong”, like the odour of a skunk. The trial Judge, Honourable Justice P. Andras Schreck:

I do not believe [the officer’s] testimony on this issue. It defies credulity that a relatively small amount of dried plant matter would create such a strong smell that it would permeate both the plastic bag and the coat to the extent that it would be apparent to somebody standing outside of the vehicle. Quite apart from the implausibility of [the officer’s] evidence, I note as well that he was inconsistent in his description of the odour. He initially testified that he could “immediately” detect a “strong odour” of this marihuana when Mr. Newell opened the door and that it was “getting stronger and stronger” as he spoke to him. So strong, in fact, that he likened it to the smell of a skunk. In cross-examination, however, he described the initial odour as “very faint” but that it became stronger when he put his head down nearer to the vehicle.

Even if the trial Judge had believed the officer’s testimony, on the facts of this case, the court would not have concluded that the smell of marihuana constituted reasonable grounds for an arrest. Courts must be cautious about concluding that arrests based on smells are justified, as was made clear by Rosenberg J.A. in R. v. Polashek (1999), 45 O.R. (3d) 434 (C.A.), at para. 13:

The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace.

Crown counsel relied on several cases in support of her submission that the smell alone justified the arrest in this case; however, the trial judge said in each of the cases relied on by the Crown, the arresting officers also relied on other evidence in addition to the smell, such as an admission by the accused that he had recently smoked marihuana or visual observations of other evidence, such as smoke and “roaches” or a large amount of cash. As well, in one of the cases, the arresting officer’s prior experience with marihuana was described as “considerable”. In the present case, the arresting officer’s experience with marihuana was limited to one prior arrest, what he had learned in police college and an unspecified number of instances where people had delivered marihuana to him when he worked at the front desk of the police station. Even if the trial Judge had accepted that the officer smelled marihuana, which was not the case here, the Judge was not satisfied that he could have identified the smell and its source with sufficient certainty to justify an arrest.

The Judge ruled that the officer had no grounds to arrest Mr. Newell and that by doing so, he violated Mr. Newell’s s. 9 Charter rights. The subsequent warrantless search of Mr. Newell’s person was unjustified and therefore unreasonable, in violation of his s. 8 Charter rights. Following the Grant analysis, the Judge concluded that the long-term repute of the administration of justice would be best served by the exclusion of the evidence. The court could not condone the police conducting unjustified searches of individuals and then attempting to justify them after the fact with misleading evidence. As a result, the Crown had failed to prove this charge.

Leave a comment

Filed under Arbitrary Arrest or Detention, Search and Seizure

Where police do not administer the ASD forthwith after the demand (because no ASD available in cruiser) then s. 9 and 10(b) violated by accused’s detention…

R. v. An 2015 SKPC 145 – two officers were working together on patrol duties in a marked police car during the early morning hours of October 4, 2013. There were not enough Approved Screening Devices (ASD) to equip each police vehicle with one; as a result, the officers’ vehicle was not equipped with an ASD. At 3:16 a.m. The officers were dispatched to a pool hall/licenced premises. The initial dispatch reported a domestic disturbance was in progress. A taxi driver lodged a complaint concerning a male and female who had been in his taxi. Both were said to be intoxicated and arguing. The report indicated that the male was attempting to put the female into a vehicle. An update indicated that the male was attempting to pull the female from a vehicle. A further update indicated the male and female got into a white BMW vehicle which was leaving the area. The officers arrived at the area at 3:21 a.m. and stopped the white BMW. The female passenger was either sleeping or passed out in the front passenger seat. The officers first embarked on the domestic disturbance complaint, but at 3:34 a.m., an officer made a formal demand for Mr. An to provide a sample of his breath into the approved screening device (ASD).

At 3:37 a.m., an officer got on the police radio and requested that other nearby police units deliver an ASD to their location. Another officer arrived on scene with an ASD eight minutes later and provided it to the detaining officers at 3:45 a.m. There were no issues with the calibration or workings of the ASD. Mr. An had eight opportunities to blow into the ASD over the course of five minutes between 3:46 a.m. and 3:51 a.m. None of Mr. An’s eight breath attempts produced a sample which was analyzed by the ASD. Subsequently, Mr. An was placed under arrest for refusing to provide a sample of his breath at 3:51 a.m.

There were 4 issues discussed in this trial, but this post will address whether or not the police administered the ASD test to Mr. An forthwith? In this case, the ASD test was administered to Mr. An at 3:46 a.m., twelve minutes after the ASD demand at 3:34 a.m. At 3:37 a.m., one of the officers got on the police radio and requested that other nearby police units deliver an ASD to their location. The ASD arrived on scene eight minutes later and Mr. An’s first sample into the ASD occurred at 3:46 a.m.

The evidence also revealed that despite the fact that the officers: (1) were engaged in early morning general patrol duties which often involve the investigation of drinking and driving offences, (2) were well aware that they were not equipped with an ASD, (3) at 3:15 a.m. they were dispatched to investigate a complaint involving a possible domestic disturbance and an intoxicated driver, and (4) at 3:22 a.m. were actively investigating Mr. An respecting a possible drinking and driving offence and (5) did not look into the availability of an ASD unit prior to 3:37 a.m. It was also of concern to the Court that for no good reason three minutes went by after the officer made the ASD demand of Mr. An (3:34 a.m.) before the officer got on the police radio (3:37 a.m.) and requested that other nearby police units deliver an ASD to their location. The trial judge was left with the impression that the two officers took what was described as a rather casual, laid-back approach to obtaining an ASD unit, as opposed to recognizing the requirement of immediacy.

The trial judge was of the view that the police officers did not heed the constitutionally mandated requirement of near immediacy for the roadside testing. A more casual approach was taken. No thought was given to taking Mr. An to the police station for testing. Moreover, three minutes passed after the ASD demand was made and the radio call went out for an ASD. The officer “hoped” that an ASD would be there within 15 minutes or something like that. Referring to R. v. Hatzel 2011 SKPC 59, the trial judge cited:

Police officers ought to be aware that time is of the essence in obtaining roadside breath samples. In the present case, the bulk of the delay was due to awaiting the arrival of the ASD. Should officers choose not to carry an ASD in their vehicles, they do so at the peril of unlawfully detaining accused people and potentially having critical evidence excluded by the Courts. There is a limit on how long police can wait for the availability of the ASD. Given the reason for the delay, the police conduct showed a reckless disregard for the accused’s Charter rights. This breach is a serious one and not merely a technical one.

The trial judge ruled that given the time of day (after 3:00 a.m.), the fact the patrol officers were not equipped with an ASD, the three minute delay in calling for an ASD, the eight minute delay in an ASD arriving on scene and the one minute delay in starting the ASD, police did not administer the ASD test to Mr. An forthwith. As a result of this determination, the ASD demand was not lawful. There was no obligation on Mr. An to comply with an unlawful ASD demand; the detention of Mr. An was arbitrary and violated section 9 of the Charter.

As the ASD demand was not lawful, Mr. An’s rights under section 10(b) of the Charter were not suspended during the period of his detention. Rather, the trial judge found that Mr. An’s rights pursuant to section 10(b) of the Charter were breached during his detention at roadside. During this critical time, Mr. An should have been advised of his s. 10(b) rights. The trial judge also found that Mr. An’s s. 10(b) rights could have been implemented before his attempts to blow into the ASD starting at 3:46 a.m. The evidence also revealed that during his initial detention from 3:22 to 3:34 a.m., Mr. An used his cell phone and made a call to his workplace. Mr. An indicated that he also wanted to use his cell phone to contact his sister, who is a lawyer. Unfortunately during the 24 minutes he was detained at roadside prior to blowing into the ASD (3:22 to 3:46), Mr. An was not permitted to attempt to contact his sister. Given Mr. An’s predicament, he would have undoubtedly benefitted from legal advice, said the judge.

In short, the trial judge found that the officers did not administer the ASD on the accused “forthwith” as required by s. 254(2)(b) of the Criminal Code. The ASD demand was not lawful. The accused was therefore arbitrarily detained. He was also unlawfully denied his Charter right to counsel. Based on a Grant analysis, the Charter breaches lead to the exclusion of the evidence relating to the failure to provide a breath sample (s. 254(5)). In addition, even if the ASD demand was found lawful or the evidence was not excluded, the Crown failed to prove the mens rea of the s. 254(5) offence (not discussed in this post), i.e. the intention to produce the failure, because it did not prove that the ASD and the mouthpiece were in proper working order. As a result of these determinations, the accused was found not guilty of the offence before the Court.

Leave a comment

Filed under Arbitrary Arrest or Detention, Impaired Driving, Section 10 Charter

Pat-downs of the driver prior to administering the ASD test…

Yet again, another case at the Provincial Court level in Alberta has ruled that the officer’s pat-down of the accused prior to administering the ASD test violated the accused’s Charter section 8 right to be secure against unreasonable search or seizure and breath test evidence was excluded (R. v. Osoba [2015] A.J. No. 1122).

It seems most of my posts as of late have been related to this topic, but since the principles discussed here have been around since R. v. Mann, [2004] 3 S.C.R. 59, eleven years later courts seem increasingly frustrated and are indicating that officer’s ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness can not be equated with good faith.  In Mann, the SCC said:

“The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to investigative detention. Such search power does not exist as a matter of course. The officer must believe, on reasonable grounds that his or her safety or the safety of others is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances. The officer’s decision to search must also be reasonable and necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.”

The facts in this latest case (Osoba) are all too familiar, so I will give the condensed version: the officer made an ASD demand from memory and directed the accused to the police cruiser. Based on his training, the officer conducted a pat-down of the accused to determine if the accused possessed any weapons or knives, as he stated, for everyone’s safety. After finding no weapons, the accused was placed into the back of the cruiser, where the ASD demand was read to the accused, resulting in a “fail”. The officer testified that such result meant that the accused’s blood alcohol content exceeded 80 milligrams percent, and as such, his ability to operate a motor vehicle was impaired by alcohol; the accused was subsequently arrested and later provided samples of breath.

The evidence as to such a pat-down search was as follows: (a) the officer’s academy training in 2005 was to conduct a quick pat-down of a suspect before allowing him into the police car, whether detained or arrested, to determine that there are no weapons or knives and for safety purposes. This was his standard practice, on arrest or detention; however, it varies in other situations; (b) the accused was polite and friendly throughout the investigation; (c) the pat-down consisted of patting the front and back of the accused from below his shoulders to his beltline, and the pat-down search revealed nothing of concern; (d) the officer has witnessed other officers conduct pat-down searches in similar circumstances; (e) the officer’s understanding is that, legally, he can conduct a quick pat-down search before putting an accused in his car, to ensure that the accused has no weapons and for safety purposes.

Not since Mann in 2004 have we had that authority unless we have reasonable grounds that our safety or the safety of others is at risk; we cannot do it as a matter of practice. This was further addressed in R. v. Aucoin, [2012] 3 S.C.R. 408 and again in 2014 with R. v. MacDonald 2014 SCC 3, [2014] S.C.J. No. 3.  Lately, we’ve had the cases of Wondu and Schwab (earlier posts on the blog), and R. v. Malcolm [2015] A.J. No. 640 that have been directly on point in this regard. We have clear direction from the Supreme Court of Canada many years ago in Mann to the effect that such searches violate the rights of individuals who are subjected to them, except in certain limited situations. As officers, we must keep up-to-date on our lawful authorities in this regard and others or these decisions will continue to be won by competent defence counsel. That’s not an insult on our profession; it’s a requirement according to the courts. 

Leave a comment

Filed under Impaired Driving, Safety Search

“Psychological detention” and the need to get it right

Many years have passed since psychological detention was addressed in R. v. Therens, [1985] 1 S.C.R. 613 and R. v. Thomsen, [1988] 1 S.C.R. 640, with further assistance and clarification in more recent years, R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. While most of us seem quite comfortable with understanding physical detention, some of us still seem to struggle with the notion of psychological detention.

In R. v. Wong 2015 ONCA 657, the appellant, a 26-year-old university graduate, reported the theft of her car to York Regional Police. A police officer was dispatched to her apartment to obtain the information. The officer knocked on the apartment door, was invited in, and entered; the apartment was small, about 600 to 700 square feet. On entering the apartment, the officer noticed a faint smell of marihuana smoke. He asked whether there was a place they could talk, and the appellant led him to an island in the kitchen. The officer saw some “Zigzag” cigarette papers and a digital scale on the counter. He knew these might be drug-related. He thought it odd that the appellant would invite him into her home when there was obvious evidence of marihuana use. As the discussion progressed, the officer asked for her insurance documents. When she said they had been in her car, he asked if she had any old invoices. She went to the den, a few feet away. The officer followed to help her look. He saw on the top of the desk, in plain view, two tin boxes with drug markings, rolling papers and metal screen filters that he knew were commonly used to smoke marihuana. The appellant retrieved some papers from a drawer in a filing cabinet under the desk.

The officer testified that at this point he decided to “call” the appellant on the drug paraphernalia. He said to her:

I need to talk to you about something. I’m starting to see a lot of stuff around your apartment pertaining to marihuana and drug use. So, what’s going on here?

He testified that he told her she was not required to speak to him:

I also cautioned her that she didn’t have to tell me anything, but I know that there is drugs and drug paraphernalia in the apartment. She was, in essence, in possession of these items and the paraphernalia, and that I could arrest her, but right now I just need to know what’s going on here. So, I left it at that.

The officer testified he told her this to inform her that he was now investigating it as a drug call. When he told her this, she became fearful. The appellant told him that the items belonged to her boyfriend and that she was not involved with drugs. The officer testified he was prepared to believe this explanation, particularly because she had invited him into the apartment with evidence of drug use in plain view. He asked the appellant about the “Zigzag” papers on the kitchen table, to which she replied, “… what is that?” He then asked her about the scale, which she said was for baking. He pressed her, asking, “If that’s for baking, can you show me where your chocolate chips, your flour, your slivered almonds, your raisins, where’s all your baking stuff, your baking soda, baking powder, etc.?” He found it “curious” when she replied, “I’m out. I used it all.” He then asked about the paraphernalia on the desk. He picked up one of the boxes, sniffed it, and said, “I smell marihuana… What’s up with this?” She repeated that it was her boyfriend’s and that she did not know what it was. He testified he then said:

Well, okay, I can go with that. What else is here that’s not yours, that’s your boyfriend’s?

In response to this, the appellant pointed to a drawer under the desk and said, “He keeps stuff in there, it’s his stuff.” She opened the drawer, saying, “This is all his, I don’t know about this stuff.” The officer saw three bags of what he assumed was marihuana. He also saw some identity cards and passports. He reached in, seized the bags, and put them on the kitchen counter. The officer testified that he again “cautioned” the appellant that she didn’t need to speak to him, but it was turning into a drug investigation. She could possibly be charged, he said, but he was proceeding in good faith that she was not involved and her cooperation was appreciated. He testified that at this point he had grounds to arrest the appellant, but chose to continue to investigate. After calling for back-up, the officer asked the appellant, “What else is here that is not yours?” She led him to the bedroom and pointed to a black duffle bag on the floor beside the bed. In response to his question about what it was, she said, “I have no idea, but I’m really scared. I just want to tell you that’s his too and it’s not mine.” She told him that her boyfriend had left it in the apartment six months earlier. The officer opened the bag and saw about fifteen packages containing a powder that he assumed was a narcotic.

The officer acknowledged that he did not give the appellant a formal caution at any time. He said something to the effect of, “I believe you’re not a bad person, so if you cooperate with me I’m sure you’ll be fine, but if you lie to me and I find out, you’ll be in trouble.” Two detectives arrived on the scene shortly thereafter and the appellant was placed under arrest (this was approximately 2 hours after the initial arrival of the officer). An application for a search warrant was made on the information provided by the officer. As a result of the warrant, police seized additional drugs, drug paraphernalia, a firearm, ammunition, and various pieces of identification.

The trial judge concluded that, on a balance of probabilities, the appellant had not been detained at any point before she revealed the contents of the drawer and identified the duffle bag. Therefore, her right to counsel was not violated. The trial judge also found that in addition, no search of the dwelling had occurred at that point, as the appellant voluntarily showed the officer property belonging to another person, in which she disclaimed any privacy interest. As a result, she was not subjected to an unreasonable search in fact or in law.

The ONCA agreed that the appellant was not physically detained. She had no legal obligation to speak to the officer or to comply with his directions. The issue, however, was whether there was a significant psychological restraint at the hands of the state. That depended on whether a reasonable person in her situation would have concluded that she no longer had the freedom to choose whether or not to cooperate with the police (Suberu at para. 22). In Grant, the court stated that “psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.”

The court in Grant identified a non-exhaustive list of circumstances to determine whether a reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, at para. 44:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

Applying those factors in this case, the ONCA ruled as follows:

The circumstances giving rise to the encounter: The encounter began as a consensual one, initiated by the appellant. It soon shifted, however, into a drug-related investigation centred on her apartment. This would cause a reasonable person to believe that the officer was no longer addressing her as the victim of a car theft, but rather as a potential suspect in his drug investigation.

The nature of the police conduct: The officer’s conduct became increasingly authoritative. He demanded an explanation for the presence of the drug paraphernalia: “So what’s going on here?” He challenged her explanation: if the scale was for baking, where were her supplies? He told her that she was in possession of the drug paraphernalia and that he could arrest her. As in Grant, the officer took control of the appellant and sought to obtain information from her.

The characteristics and circumstances of the appellant: The appellant was an apparently naïve young woman. She was alone, in her small apartment, with a uniformed police officer who was undertaking a drug investigation. She told the officer she was frightened, as she undoubtedly was. As in Grant, the encounter, as it developed, was inherently intimidating.

The ONCA ruled that the appellant was detained when, in furtherance of his drug investigation, the officer told her that he could arrest her based on the possession of drug paraphernalia and asked her for an explanation. A reasonable person in the appellant’s position, on being told that she could be arrested, would conclude that she was not free to go. As a result, her s. 10(b) right to counsel was breached as the Charter requires a police officer to inform a detained person of their right to counsel “without delay”. Although the officer did inform her of her right to silence, a right closely related to the right to counsel, he encouraged the appellant to incriminate herself by demonstrating knowledge of the presence and location of the contraband, without advising her of her right to speak to a lawyer. This went to the very heart of the principle underlying s. 10(b) in that the appellant had a right to remain silent unless and until she made an informed decision to waive that right and to provide the requested information to the police.

Did this warrant exclusion of the evidence? The ONCA felt the officer’s evidence displayed a misunderstanding of the concept of detention and of his s. 10(b) obligations. While he did not deliberately set out to violate the appellant’s Charter rights, his failure to appreciate his duties led to that result. The officer knew or should have known that the appellant was in jeopardy and that if he found drugs as a result of his investigation she could have been found guilty of possession. Had the appellant been able to consult with counsel, she could have been informed of the consequences of speaking to the officer and of permitting the search to continue. In addition, while the officer appreciated that he had grounds to arrest the appellant based on the evidence of marihuana use, notwithstanding her disclaimer of any association with it, he continued to enlist her cooperation through promises that if she did so, she would be “fine”. He knew, or ought to have known, that these promises were meaningless. The officer said he could not recall having been trained on the appropriate caution to be given in cases of detention. He agreed that if he encountered a situation of detention that very afternoon he would “pretty much have to wing it.” “The officer failed to respect the appellant’s rights because he did not understand them.”

In determining the impact of the breach on the appellant’s rights, it was appropriate to consider the “discoverability” of the evidence — that is, whether the evidence was discoverable independent of the breach? The officer acknowledged that before the drugs were discovered, he believed that there may have been recreational use of marihuana in the apartment. He acknowledged that recreational use of marihuana was commonplace in his experience and considered that he had discretion about the appropriate response. Depending on the circumstances, a warning might be given or charges might be laid. He did not, apparently, give any consideration to obtaining a warrant until after the three bags of marihuana were discovered in the desk.

The evidence seized included a semi-automatic handgun with ammunition, 11 kilograms of MDMA, significant quantities of marihuana and cocaine and documents evidencing credit card fraud. The evidence was plainly reliable and essential to the Crown’s case. The police conduct in this case, while not deliberate, was unacceptable said the ONCA. The officer did not know what the law was. He did not understand the circumstances giving rise to detention and he did not appreciate either his responsibilities or the appellant’s rights. The appellant’s rights were trammelled in his search for evidence. The administration of justice would be brought into disrepute by the admission of the evidence, and, was excluded. As there was no possibility of conviction without the evidence obtained as a result of the Charter breaches, the court ordered direct acquittals on all counts.

Leave a comment

Filed under Section 10 Charter