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CONTROLLED DRUGS AND SUBSTANCES - Possession for the purpose of trafficking

Friday, July 05, 2019 @ 6:24 AM  

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Appeal by Gerson-Foster from his convictions for possession of cocaine for the purpose of trafficking and possession of the proceeds of an indictable offence. An officer was instructed to arrest the appellant on a surety warrant. During a pat down search incident to arrest and a subsequent strip search, cocaine and $3,495 in cash were found on the appellant. The Canadian Police Information Centre had not been updated to reflect the fact that the surety warrant was deemed to have been executed more than a month before the appellant’s arrest. The trial judge found the administrative judge did not properly address the warrant, which was therefore still in effect when the appellant was arrested. She found the strip search of the appellant was lawful and reasonable. She refused to exclude the evidence found in the searches.

HELD: Appeal allowed; the appellant was acquitted. The administrative judge acted properly in making the order she did rescinding the warrant. The trial judge erred in holding the warrant was still in effect when the appellant was arrested. The arrest was unlawful and contrary to s. 9 of the Charter. The searches were not legal and contrary to s. 8 of the Charter. The Charter breaches were extremely serious, and the impact of the breaches was considerable. The evidence should have been excluded.

R. v. Gerson-Foster, [2019] O.J. No. 2877, Ontario Court of Appeal, K.N. Feldman, D. Paciocco and B. Zarnett JJ.A., May 16, 2019. Digest No. TLD-July12019011