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PROCEDURE - Pleas - Setting aside guilty plea

Thursday, June 06, 2019 @ 8:40 AM  


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Appeal by the accused from convictions for possession of cocaine for the purpose of trafficking and possession of oxycodone. The police conducted surveillance on another person for involvement in the trade of illegal firearms. The police determined that the appellant bought an illegal firearm from this suspect and when the appellant drove away from the suspect’s house, the police pulled him over and arrested him for unlawful possession of a firearm. Police carried out searches of the appellant’s person and the vehicle incident to arrest. They found no firearms, but the search of a jacket and satchel found inside the vehicle yielded drugs and related paraphernalia. At trial, the defence applied to have the drugs excluded on the basis that police obtained them in violation of the appellant’s ss. 8 and 9 Charter rights. The trial judge found that police breached the appellant’s s. 9 right because they lacked reasonable and probable grounds to arrest him for unlawful possession of a firearm, as well as his s. 8 right because they lacked the authority to search him and the vehicle he was driving incident to arrest. The trial judge concluded, however, that admitting the drugs into evidence would not bring the administration of justice into disrepute. The trial judge found police had reasonable grounds to suspect the appellant of unlawful possession of a firearm and could have investigatively detained him and that police had the power to conduct a safety search incident to investigative detention. The trial judge clearly took the view that the fact that the drugs could have been obtained in a constitutionally permissible manner appreciably mitigated the seriousness and the impact of the Charter breaches. After the drugs were admitted into evidence, the appellant pleaded guilty.

HELD: Appeal allowed. The appellant was acquitted. The guilty pleas were set aside. The appellant’s trial counsel advised him that the appellant could still appeal the trial judge’s s. 24(2) ruling after he pleaded guilty. This misapprehension about the ability to appeal was clearly a legally relevant consequence which vitiated the guilty plea. The trial judge’s s. 24(2) analysis was undermined by the erroneous finding that the police could have lawfully conducted a safety search of the vehicle incident to an investigative detention and found the drugs without any Charter breach. The evidence did not support a finding that police believed that safety was at stake, necessitating a search of the vehicle and its contents to remove the threat. It was not reasonable to believe, in the circumstances that existed, that there was an imminent threat to safety and that a search was necessary to eliminate the threat. The finding that police could have discovered the drugs in the vehicle lawfully by conducting a safety search incident to investigative detention was the dominant theme in the trial judge’s s 24(2) analysis. It drove the assessment of the seriousness of the breaches, the impact of the breaches on the appellant’s Charter-protected interests and the public interest in adjudicating the offences on their merits. The officer’s unreasonable quickness in reaching the conclusion that the appellant was engaged in an illegal firearms transaction, which resulted in breaches of ss. 8 and 9 of the Charter, was the kind of conduct the court should be concerned about to preserve confidence in the rule of law. The Charter infringing conduct significantly intruded on the appellant’s liberty interests and his privacy interests protected by ss. 8 and 9. There was a significant public interest in adjudicating this case on its merits, but it was important not to let that trump the seriousness of the officer’s breaches and their impact on the appellant’s Charter-protected interests. This was a case where the court should dissociate itself from the serious Charter breaches by excluding the evidence. Anything less would bring the administration of justice into disrepute.

R. v. Del Corro, [2019] A.J. No. 489, Alberta Court of Appeal, S.J. Greckol, J. Strekaf and R. Khullar JJ.A., April 26, 2019. Digest No. TLD-June32019012