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Monday, May 27, 2019 @ 9:46 AM  

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Appeal by the Crown from the respondent’s acquittal on a charge of possession of cocaine for the purpose of trafficking. The respondent’s rental vehicle was stopped for speeding. The respondent had just lit a cigarette, appeared nervous and had several air fresheners and a radar detection device in the vehicle. The officer told the respondent he was free to go, then came back to the vehicle and inquired if he could ask a few more questions. The officer told the respondent he was being detained for a drug investigation. The respondent became panicky and asked if he could leave if he let the officer look inside his duffle bag. The officer arrested the respondent and gave him his right to counsel. The officer conducted a search of the vehicle incident to the arrest and found cocaine and bundles of cash totaling $22,000. The trial judge found the respondent’s Charter rights were breached and that his arrest was unlawful. He excluded the evidence seized by the police.

HELD: Appeal allowed; new trial ordered. The trial judge did not properly apply the legal test in determining the lawfulness of the respondent’s arrest. Focusing on the brevity of the respondent’s comments to the exclusion of how he said them, the content of what was said and whether the respondent’s utterance was reasonably connected to the officer’s comment that he was being detained for a drug investigation, caused the trial judge to view the utterance in isolation from everything that transpired beforehand. It was reasonable for the officer to have inferred the respondent did not want him to search his truck. The trial judge failed to give any weight to the officer’s training and experience and appeared to have held his relative lack of experience against him. He took a piecemeal approach to what the respondent said and failed to examine the officer’s evidence contextually and cumulatively. The evidence supported the conclusion the detention occurred when the officer actually told the respondent he was being detained for a drug investigation and not beforehand. There was no s. 9 Charter violation when the respondent remained at the scene to answer a few questions. There was no reasonable basis for the officer to have delayed five minutes in giving the respondent his right to counsel. The seriousness of the s. 10(b) breach was at the lower end of the spectrum as was the impact of the breach on the respondent’s rights. The administration of justice would not be tarnished by the admission of the evidence.

R. v. Todd, [2019] S.J. No. 150, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R.K. Ottenbreit and L.M. Schwann JJ.A., April 18, 2019. Digest No. TLD-May272019001