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CONSTITUTIONAL ISSUES - Remedies for denial of rights - Exclusion of evidence

Tuesday, January 21, 2020 @ 5:49 AM  


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Appeal by the Crown from the respondent’s acquittal on a charge of possession of methamphetamine for the purpose of trafficking. Police arrested the respondent pursuant to an outstanding warrant for possession of stolen property and obstruction. Police also obtained a general warrant authorizing them to covertly remove any mobile device found on the respondent and to forensically examine it. The respondent had a purse with her at the time of her arrest. Police handcuffed her and took her purse from her. Police searched the purse at the site of the arrest and located a black camera case that contained four baggies of methamphetamine. The officer stated he searched the purse to locate potential weapons that could harm him or anyone else and to locate the respondent’s cellphone pursuant to the General Warrant. The trial judge rejected the Crown’s argument that the search was lawfully conducted incident to arrest. The trial judge observed the respondent was separated from her purse at the time the police searched it, and there was no reasonable basis to be concerned about officer or public safety. He found a search could not be justified based on a vague concern for safety and the officers were not likely to find in the purse any evidence relating to the offences of possession of stolen property and obstruction which were the offences set out in the Arrest Warrant. As to the General Warrant, the trial judge found it authorized the police to search the respondent’s cellphone only if it came into their lawful possession but did not authorize the police to search the purse for the cellphone. He concluded the state misconduct was serious, given his finding that the searching officer’s belief that the General Warrant authorized the search was based on a complete misunderstanding of the plain limits on search and seizure imposed in the warrant. The trial judge concluded that admitting the methamphetamine into evidence would bring the administration of justice into disrepute.

HELD: Appeal dismissed. A search incident to arrest must be conducted for a valid objective that was truly incidental to the arrest in question. There was no suggestion that the police believed the respondent had a weapon in her purse. It was hard to conclude the police reasonably believed the possibility the purse contained a weapon posed a safety risk to officers or to the public, given that they had detained her, handcuffed her and separated her from her purse. By separating the respondent from her purse, the police had reasonably and effectively averted any threat to safety the purse presented, thereby eliminating the legal basis to search it under the common law power of search incident to arrest and under the common law safety search power. The common law power of search incident to arrest had not been expanded to allow a blanket search of the personal property of a detainee on the basis it will inevitably be searched for inventory purposes. The officer’s subjective belief that the purpose of officer and public safety would be served by the search was not objectively reasonable in the circumstances. The General Warrant was not a warrant of arrest nor did it expressly authorize the search of the respondent or her personal property. The General Warrant contained no implicit authorization to search her personal property for the phone. The breach was not a minor violation of the Charter. While the evidence did not establish a brazen or flagrant disregard for the respondent’s Charter rights, it did not rule them out either. The seriousness of the breach weighed in favour of excluding the methamphetamine from the evidence. The respondent had a high expectation of privacy in her purse. There was no error in the trial judge’s assessment of the impact of the breach on the respondent’s Charter rights as being serious. There was no basis to interfere with his decision to exclude the evidence.

R. v. Smith, [2019] S.J. No. 471, Saskatchewan Court of Appeal, G.R. Jackson, N.W. Caldwell and R. Leurer JJ.A., November 22, 2019. Digest No. TLD-January202020004