Focus On

Criminal Law - Constitutional issues - Canadian Charter of Rights and Freedoms - Legal rights - Protection against arbitrary detention or imprisonment - Protection against unreasonable search and seizure -

Thursday, July 07, 2016 @ 8:00 PM  


Appeal by the accused from convictions for possession of cocaine for the purpose of trafficking and breaching a recognizance and probation order. The appellant was questioned briefly by police on the street as a suspect in the unlawful possession of a handgun. The appellant denied having a handgun. The officer handcuffed the appellant and conducted a pat down search. The officer then placed the handcuffed appellant in a police cruiser to conduct further investigation for 30 minutes. Upon his return, the officer searched the appellant more thoroughly and found cocaine on him. The appellant was arrested and advised of his right to counsel. The appellant indicated he wanted to speak to counsel. At the station, he was strip searched before speaking to counsel. One officer stood on the appellant’s ankles in order to overcome his resistance to the strip search. Police found further cocaine on the appellant during the strip search. After the strip search, about 90 minutes after the appellant was first detained, police gave the appellant an opportunity to speak to his lawyer. While the trial judge found that the appellant’s rights under ss. 8, 9 and 10(b) were breached by police, he did not exclude the cocaine found. The appellant argued the trial judge erred in not excluding the evidence.

HELD: Appeal allowed. The appellant was acquitted. The evidence should have been excluded. While the appellant’s initial detention on the street was a lawful exercise of the police power, police infringed his s. 9 right by placing him in the cruiser for 30 minutes. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser and should have been advised that he had a right to speak to his lawyer. If the appellant wanted to speak to a lawyer, police should have afforded him that opportunity without delay. The appellant’s rights under s. 10(b) were breached. The initial pat down search of the appellant on the street was reasonable and justified as an incident of his investigative detention. The second more thorough search of the appellant was unlawful and unconstitutional. If there was any danger to the officer when he conducted the second search, it flowed directly from his unlawful detention of the appellant and not from anything the officer was doing in the lawful exercise of his duty. If the arrest was unlawful, the search incidental to the arrest was unlawful and contrary to s. 8. The manner in which the police strip searched the appellant violated his rights under s. 8 of the Charter. The trial judge improperly characterized the absence of institutional failings as a mitigating factor in the s. 24(2) analysis. The trial judge also erred in his failure to consider the impact on the appellant’s liberty, privacy, or security of the person. The trial judge failed entirely to consider the impact of the breaches on the appellant in assessing whether the admission of the evidence would bring the administration of justice into disrepute and allowed his view of the seriousness of the drug charges to effectively overwhelm the other factors relevant to the s. 24(2) inquiry. Society’s immediate interest in an adjudication of the merits of this particular case must yield to the more important long-term interests served by excluding the evidence in this case. There was nothing by way of extenuating circumstances that might offer some excuse for the police disregard of the appellant’s constitutional rights. None of the Charter breaches could be characterized as technical or minor. The strong causal connection between the denial of the appellant’s liberty, the unconstitutional search of his person, and the subsequent obtaining of the incriminating evidence spoke to the profound impact of the breaches on the appellant’s Charter-protected interests.