Monthly Archives: June 2017

The importance of doing it right (lawful), because you just never know…….

R. v. Pearson 2017 ONCA 389 – on January 14, 2008, a male was killed after being shot in the back with a shotgun. Pearson later became a suspect in the killing (and another, but not the subject of this post), but prior to this, a day after the killing, while driving his Honda Civic in Peel Region, Pearson was observed by an officer. The Honda passed the officer’s unmarked police vehicle. The officer noted that the windows were tinted so darkly that he could not see any occupant in the vehicle. The Honda passed the officer and then drove to the right into the driving lane. The officer pulled into the passing lane of this multi-lane road and drove beside the Honda, but again could not see into the vehicle. The officer stopped the driver of the Honda after the driver had turned onto another street.

The officer approached the Honda, the driver lowered the window on the driver’s door and spoke with the officer. The first point of interest to the officer was the smell of marihuana coming from the inside of the Honda. The officer also noted that the driver’s eyes had a red color, that the driver was slow in his actions to provide his licence, insurance and ownership, was unusually calm for a person being stopped by the police, and was slow to get out of the vehicle when the officer asked him to do sobriety tests behind the vehicle. When Pearson did the sobriety tests, the officer noticed that he did not turn properly as instructed and that he had a tremor. He concluded that Pearson was impaired by the consumption of marihuana. Pearson had stated that he did not consume any alcoholic beverage that evening and that he had consumed marihuana.

Because the driver was arrested for operating a motor vehicle while his ability to do so was impaired by a drug, the officer told other officers to search the vehicle for drugs. While that search was conducted, another officer located two shotgun shells in the accused’s knapsack in the trunk of the Honda and delivered them to the arresting officer.  Later in the murder investigations when Pearson was a suspect, the investigators knew that Pearson had been found with shotgun shells close in time to the dates of the killings. The Centre of Forensic Sciences said the shotgun shells seized from Pearson were similar to those used in the killings.

As part of their case, defence argued that the shotgun shells found in Pearson’s car during the traffic stop on January 15, 2008, should have been excluded because the search of Pearson’s car was not incidental to his arrest for impaired driving. Defence conceded that the traffic stop of Pearson’s car was lawful, but argued on appeal that the search incident to arrest went too far. Searching the trunk, and the knapsack found in the trunk, for evidence helpful to the impaired driving offence was unreasonable, and the search should have been confined to the area close to the driver’s seat, argued defence.

Both the Ontario Superior Court of Justice (in its 2011 decision) and the ONCA here ruled that the arrest of Pearson for impaired driving was lawful. The search was undertaken to look for marihuana and by a police officer who was not involved at all in the homicide investigations. Citing R. v. Caslake [1998] 1 S.C.R. 51, in which the Supreme Court of Canada made the point at paragraphs 15 and 34 that automobiles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemption from the usual common law principles, the ONCA agreed that with Pearson, the vehicle search was not a fishing expedition. Rather, it was purposeful. That purpose was to locate evidence that would be helpful to the impaired driving offence. The impaired driving accusation was that the impairment was the result of using a drug. Discovery of marihuana in the trunk of Pearson’s car and in his knapsack would have some probative value on the issue of whether his ability to drive was impaired by marihuana. There was a reasonable basis for the officer’s actions and a reasonable prospect of finding evidence of the offence for which the accused had been arrested.

Since the search of the vehicle was lawful and incident to arrest, the seized shotgun shells were lawfully seized and later able to be used in the murder trials.  So, though at the time of the traffic stop on that day in January the officer had no idea what would become of his lawful seizure and how it would assist the Crown’s case, the officer was lawful in his actions and as a result, evidence obtained was admitted at trial for the killings.

I wish this to serve as a reminder to the new recruits of my continual statements throughout your training on one of my many reasons why we must do things lawfully, and not get into a habit of thinking it is okay to walk in that “grey area” of the law or violate an individual’s rights for the sake of getting drugs or weapons off the street, because as in the case here, you just never know….the shotgun shells later became a piece of the larger puzzle and a piece that was admitted at trial because the officer in question at the time did things right (lawful).

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