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CONSTITUTIONAL ISSUES - Procedural rights - Right to retain and instruct counsel without delay

Thursday, November 21, 2019 @ 8:49 AM  

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Application by the accused, charged with eight offences, to exclude evidence based on Charter breaches. The police, responding to a noise complaint, approached a group of people, including the accused, standing around a vehicle. The group admitted they had been drinking and smoking marijuana. The officers gathered the group’s identification and determined all were involved in guns, gangs and drug activities. No one took ownership of the illegally parked vehicle or indicated who had driven it. The officers directed the group to leave the area. They could not see through the tinted windows of the vehicle. One officer opened the unlocked passenger door, lifted the centre armrest and found a loaded firearm. The accused was the registered owner of the vehicle.

HELD: Application dismissed. The accused was not detained by the police during the encounter. The officers did not exercise any degree of physical control over the accused. There was no obligation on the accused to comply and respond to the officer’s limited questions. The accused was not psychologically detained. The police did not have the obligation to inform the accused of his right to counsel or his right to remain silent. There was no breach of sections 7, 9 or 10 of the Charter. The search of the vehicle infringed the accused’s right under s. 8 of the Charter. The search was not authorized by law. Admission of the evidence would not bring the administration of justice into disrepute. The police minimally undermined the accused’s right to privacy. There was a strong public interest in having the matter adjudicated on its merits.

R. v. Deria, [2019] O.J. No. 4948, Ontario Superior Court of Justice, R. Laliberte J., October 1, 2019. Digest No. TLD-November182019008