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CONTROLLED DRUGS AND SUBSTANCES - Possession for the purpose of selling, trafficking, distributing or exporting

Friday, March 05, 2021 @ 6:16 AM  

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Appeal by Pileggi from his conviction for possession of cocaine for the purpose of trafficking. Based on confidential sources, the police believed the appellant was selling oxycodone from his home. Nine officers forcibly entered the appellant’s home to execute a search warrant. During the execution of the warrant, the police handcuffed the appellant and found a kilogram of cocaine in the appellant’s basement. The appellant was cautioned and indicated he wished to speak with counsel. An officer agreed to call the appellant’s father to obtain the name of a lawyer but failed to do so. Officers asked the appellant a few questions before he spoke with duty counsel, which occurred over three hours after he indicated he wished to speak with counsel. The trial judge dismissed the appellant’s application to exclude the evidence found during the search. She found there were no breaches of ss. 8, 9 or 10(b) of the Canadian Charter of Rights and Freedoms (Charter).

HELD: Appeal dismissed. The trial judge did not err in finding the way the police executed the search warrant did not violate the appellant’s s. 8 Charter rights and that the officers’ decision to handcuff the appellant did not violate his s. 9 Charter rights. The police were justified in forcibly entering the house to prevent the destruction of evidence and for safety reasons. The trial judge erred in finding the appellant’s s. 10(b) Charter rights were not violated. The police violated their duty to hold off by attempting to elicit evidence from the appellant before he could retain counsel. The failure of the police to facilitate contact with the appellant’s counsel of choice, combined with the three-hour delay in putting the appellant in touch with duty counsel, violated his s. 10(b) rights. The evidence was obtained in a manner that infringed the appellant’s s. 10(b) rights. The administration of justice would not be brought into disrepute by the admission of the evidence.

R. v. Pileggi, [2021] O.J. No. 32, Ontario Court of Appeal, D.H. Doherty, K.M. van Rensburg and G.T. Trotter JJ.A., January 7, 2021. Digest No. TLD-March12021009