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CONSTITUTIONAL ISSUES - Legal rights - Protection against arbitrary detention or imprisonment

Friday, August 23, 2019 @ 6:34 AM  

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Appeal by the accused from conviction for possession of a controlled substance for the purpose of trafficking. Police investigated the appellant for drug trafficking based on an informant’s tip but found no evidence of drug trafficking. During the investigation, police learned that the appellant’s driver’s licence was suspended. The appellant was subsequently arrested for driving with a suspended licence. Police then searched the vehicle and found cocaine, cell phones, and drug-related paraphernalia. The trial judge found that the officers had a valid purpose for the stop as the appellant was arrested for driving while suspended. In considering the lawfulness of the search, the trial judge was satisfied the officers had authority to stop and arrest the appellant for driving while suspended and therefore, there was no breach of ss. 8 or 9 of the Charter.

HELD: Appeal allowed. New trial ordered. The trial judge did not make the necessary findings and apply the proper test in considering whether the appellant’s arrest was lawful. The trial judge did not resolve the central issue of whether the police used powers that the Legislature granted for a road safety purpose as a ruse to search the appellant’s vehicle as part of a drug investigation. He erred in law in treating the existence of the power to arrest the appellant for suspended driving under the Highway Traffic Act as dispositive.

R. v. Mayor, [2019] O.J. No. 3555, Ontario Court of Appeal, M.H. Tulloch, K.M. van Rensburg and A.L. Harvison Young JJ.A., July 8, 2019. Digest No. TLD-August19019011