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CONSTITUTIONAL ISSUES - Procedural rights - Protection against arbitrary detention or imprisonment

Monday, April 12, 2021 @ 9:24 AM  

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Application by the accused, charged with possession of cocaine for the purpose of trafficking, possession of proceeds of crime over $5,000 and resisting a peace officer, to exclude evidence due to Charter breaches. Police received a Crime Stoppers tip that indicated the accused and another person were selling drugs. Police surveillance observed the accused at the residence identified in the tip and driving a Volkswagen Tiguan. The property manager for the building gave the police a key fob to enter the common areas and parkade. After obtaining a search warrant for the vehicle and the apartment, the police effected a traffic stop of the Tiguan. When the accused rolled down his window, an officer grabbed him around the head and began punching the accused in the face. He then arrested the accused on the drug charge. After being cautioned, the accused indicated he wished to speak with counsel. An officer turned off his body camera during the accused’s transport to the police station. Two officers questioned the accused about his home and its occupants during the drive. While the accused was being transported, another officer searched the Tiguan. He did a cursory search of a cell phone found in the vehicle, although he knew that the search warrant did not authorize the search of any cell phones. The accused was given the opportunity to speak with counsel one hour after his arrest, once the police initiated the search of apartment.

HELD: Application allowed. The accused’s arrest did not violate his s. 9 Canadian Charter of Rights and Freedoms (Charter) rights. The accused’s s. 7 rights were breached by the excessive and unreasonable force used by the police to effect his arrest. The accused’s ability to make full answer and defence was not adversely impacted by the officer’s action in turning off his body camera. The accused’s s. 10(a) rights were violated when the officers used force rather than explaining to the accused why he had been pulled over. The accused’s s. 10(b) rights were violated when he was not informed of his rights for seven minutes, when he was deliberately prevented from contacting counsel after his arrival at the police station and when the officers failed to hold off questioning the accused until he had the opportunity to speak with counsel. The warrantless search of the accused’s cell phone was a breach of his s. 8 Charter rights. The police observations made from within the apartment building were in violation of the accused’s s. 8 rights as the property manager’s consent was not informed. Once those observations were excised, there was nothing in the ITO that supported a reasonable belief the accused kept drugs or drug-related items in the apartment. The search of the apartment was warrantless and prima facie unreasonable and constituted a violation of the accused’s s. 8 Charter rights. The evidence obtained in the search of the home and vehicle was tainted by the violation of the accused’s Charter rights. Society’s interest in having the offences prosecuted was outweighed by the need for the court to disassociate itself from serious and repeated instances of disrespect of the Charter. The administration of justice was best served by the exclusion of all evidence seized from the apartment and the vehicle.

R. v. Saunders, [2021] A.J. No. 324, Alberta Provincial Court, A.A. Fradsham Prov. Ct. J., March 5, 2021. Digest No. TLD-April122021001