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CONSTITUTIONAL ISSUES - Legal rights - Right to be informed of the specific offence

Tuesday, March 17, 2020 @ 9:14 AM  

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Appeal by the accused from conviction for possession of cocaine for the purpose of trafficking. The appellant was stopped for speeding. He was driving a rented vehicle. The officer inadvertently did not advise the appellant the reason he was stopped and noticed the appellant appeared to be very nervous. Police became suspicious about the claimed purpose of the appellant’s trip. A computer check revealed the appellant was convicted of a weapons offence in 2005. Police intelligence information suggested he was involved in illegal gang and drug activity in B.C. The officers felt they had reasonable grounds to believe the appellant was in possession of illegal drugs and decided to arrest him 30 minutes after the initial stop. Police then advised him that he had initially been stopped for speeding and immediately arrested him for possession of a controlled substance. Officers searched the vehicle and discovered three kilograms of cocaine.

At trial, the appellant argued his rights under ss. 8, 9 and 10(a) of the Canadian Charter of Rights and Freedoms (Charter) were violated and that the cocaine should be excluded. The trial judge determined only the s. 10(a) violation was made out. The trial judge accepted that this was simply a mistake on the officer’s part and refused to exclude the cocaine. The trial judge concluded that, at the time of the arrest, police had reasonable grounds to believe the appellant was committing the offence for which he was arrested and thus no s. 9 violation was established. As the arrest was lawful, the search of the vehicle was also lawful. The appellant argued the trial judge erred by failing to find that his rights under ss. 8 and 9 of the Charter were violated, and by failing to find that the s. 10(a) breach warranted exclusion of the evidence under s. 24(2).

HELD: Appeal dismissed. The trial judge did not err in determining that the appellant’s initial detention was lawful and that the purpose for the detention changed once the officers decided to arrest him for possession of a controlled substance. The officers’ belief that he had drugs in his possession was not objectively supported by the information upon which police had relied to form that belief. The combination of factors relied on suggested only a possibility, not a probability, that the appellant was transporting illegal drugs. The police database queries did not provide much that was compelling. The trial judge erred by finding that there were reasonable grounds for the appellant for the arrest for possession and in failing to find a violation of his rights under s. 9 of the Charter. The trial judge also erred by failing to find that the warrantless search of the vehicle conducted incidental to the arrest was unlawful and in violation of s. 8 of the Charter. Even though the appellant’s Charter rights were breached, the conduct of the police officers did not come close to being egregious warranting a stay of proceedings. The trial judge did not err in ranking the seriousness of the s. 10(a) breach at the low end of the scale. The ss. 8 and 9 breaches were not wilful, flagrant, or even negligent violations of the appellant’s rights. Even though the officers incorrectly believed the arrest was lawful, there was nothing in the evidence to suggest that the search was otherwise conducted in an unreasonable manner. While the impact of the breaches of the appellant’s Charter rights was significant, the evidence obtained in connection with the breaches was highly reliable and essential for the prosecution of a serious offence in which there was a significant public interest in an adjudication on the merits.

R. v. Chapman, [2020] S.J. No. 36, Saskatchewan Court of Appeal, G.R. Jackson, N.W. Caldwell and J.D. Kalmakoff JJ.A., February 4, 2020. Digest No. TLD-March162020002