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Controlled drugs and substances - Possession for the purpose of trafficking - Other substances

Thursday, August 18, 2016 @ 8:00 PM  

Appeal by the accused, Daley, from a conviction for possession of fentanyl for the purpose of trafficking. A pawn shop owner called police after the accused attempted to pawn jewelry the shop owner believed was identified in a police flyer. Police arrived and the accused was detained within the store for 40 minutes without being advised of her right to counsel. In response to a question from police, the accused pointed out her vehicle in the parking lot. Another police officer approached the passenger in the vehicle and asked her for identification. The officer observed jewelry in the passenger’s purse and arrested her. The officer seized two purses and searched the contents. The accused was arrested after a knife was seized from her purse. An incidental search of the accused resulted in seizure of seven fentanyl patches. The accused was arrested. The trial judge found that the breach of the accused’s right to counsel did not impugn the subsequent searches. The detention was not arbitrary, and the incidental searches were reasonable and lawful. The accused appealed the consequent conviction.

HELD: Appeal allowed. The trial judge proceeded under the mistaken belief the accused was required to demonstrate a causal connection between the breach of her right to counsel and the obtaining of the evidence. There was a clear, temporal and contextual connection between the breach, the discovery of the knife in her purse, and, ultimately, the discovery of the fentanyl. In addition, the lack of evidence regarding what occurred in the store, coupled with the failure by police to give the accused her right counsel over the course of 40 minutes rendered the detention arbitrary. The arrest of the accused’s passenger and searches of the purses were reasonable, as the presence of the jewelry in the purse was connected to the reason for the arrest. The breach of the accused’s ss. 9 and 10(b) rights favoured exclusion of the evidence. The breach of the accused’s right to counsel was patent, unexplained, and occurred in the absence of extenuating circumstances. The impact on the accused’s rights was substantial. Admission of the evidence would bring the administration of justice into dispute. The fentanyl was excluded and the conviction was quashed.