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COMPELLING APPEARANCE, DETENTION AND RELEASE - Arrest - Without a warrant

Tuesday, February 16, 2021 @ 9:28 AM  


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Appeal by the accused from conviction for weapons offences and possession of fentanyl. The appellant was involved in a single vehicle accident. Police attended at the accident scene. A police officer observed a small Ziploc bag containing a single yellow pill which the officer believed the pill to be Gabapentin which he had seen trafficked before with other street drugs. He immediately placed the appellant under arrest for possession of a controlled substance. It was not until the lab analysis confirmed the pill to be Gabapentin that the police officer learned it was not a drug listed as a controlled substance. As the first police officer began searching the appellant incident to arrest, the second police officer searched his vehicle. The search revealed a folding serrated knife, a can of bear spray, fentanyl and alprazolam. Upon arriving at the police car, the police officer noticed .22 calibre ammunition fall from inside the appellant’s pant leg. Believing he had missed some items in the initial search, the police officer searched the appellant prior to placing him in the police car. While searching the appellant, the police officer located a small double-barrelled pistol loaded with five live rounds. A fourth search was subsequently conducted at the police station but revealed no further drugs or firearms. The appellant filed a Charter application for the exclusion of evidence. The appellant argued the trial judge erred in finding the arrest and searches lawful and the evidence admissible.

HELD: Appeal dismissed. An officer, trained to detect criminal activity and patterns of behaviour which this officer had, would consider the constellation of facts in its entirety and conclude that he had reasonable and probable grounds to arrest the appellant. The police officer reasonably believed Gabapentin was covered by the Controlled Drugs and Substances Act. His error of law of not knowing that Gabapentin was not one of the hundreds of controlled drugs and substances listed in the Act did not invalidate the appellant’s arrest for being in possession of a controlled substance. It would be imposing an impossible standard to expect a police officer to possess an encyclopedic knowledge of the contents of the schedules of controlled substances. As the appellant’s arrest was lawful, the searches incidental to arrest were also lawful. The four searches undertaken following the appellant’s arrest were carried out in a reasonable manner given the situation as it unfolded.

R. v. Tim, [2020] A.J. No. 1426, Alberta Court of Appeal, J.D.B. McDonald, B.L. Veldhuis and T.W. Wakeling JJ.A., December 18, 2020. Digest No. TLD-February152021002