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Powers of search and seizure - Search - Scope of power - Search warrants - Scope - Validity

Thursday, August 18, 2016 @ 8:00 PM  

Appeal by the accused, Poirier, from a conviction for possession for the purpose of trafficking. Five confidential informants advised police that the accused was an addict and drug dealer who concealed his drug supply in his rectum. Police obtained a general search warrant authorizing the accused’s detention until he either voluntarily removed the drugs from his rectum or had a bowel movement. The accused was arrested, placed in lockup, advised of the warrant’s terms, strip-searched, and placed in a cell without running water or a usable toilet. The placement in a dry cell was known as a bedpan vigil search. The accused was detained for 43 hours, experiencing severe withdrawal symptoms from his addiction. For the first 21 hours, he was handcuffed to the cell bars above his head. For nine hours, he was handcuffed with oven mitts over his hands, duct taped together. Within 24 hours, the accused eliminated three packages of drugs from his rectum containing heroin, cocaine and crystal methamphetamine. A fourth package was eliminated after 30 hours. The accused was brought before a justice of the peace the following morning. In entering a conviction, the trial judge found no Charter breach and concluded that had a breach occurred, the evidence would have nonetheless been ruled admissible. The accused appealed.

HELD: Appeal allowed. Although a bedpan vigil search was a search capable of authorization pursuant to a general warrant, the warrant in this case was invalid due to language purporting to authorize an indefinite detention without an appearance before a justice of the peace. The warrant thus violated the mandatory wording of s. 503 of the Criminal Code. The search could not be upheld as a valid common law search incidental to arrest. The manner in which the search was carried out was not proportionate to the crime alleged and failed to have sufficient regard for the accused’s personal dignity or medical concerns arising from his addiction. The trial judge thus erred in failing to find a breach of the accused’s rights protected by ss. 7, 8 and 9 of the Charter. Applying the relevant factors pursuant to s. 24(2) of the Charter, the administration of justice would be brought into disrepute if the drugs were admitted into evidence. The evidence was excluded, the convictions were set aside, and an acquittal was ordered on all charges.