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

Friday, May 07, 2021 @ 6:05 AM  

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Application by the accused, charged with possession of cocaine for the purpose of trafficking and possession of oxycodone, to exclude evidence due to Canadian Charter of Rights and Freedoms (Charter) breaches. Police officers executed a traffic stop of a vehicle in which the accused was a passenger. An officer observed cannabis in the centre console. The driver was charged with several traffic and insurance violations. The accused gave a false name when he was questioned to determine his identity. The officers determined the accused’s identity after lifting his shirt and finding a tattoo on his torso. The accused was arrested for breaching the conditions of a release order. He was searched and 21 grams of crack cocaine, three oxycodone pills and $675 in cash were found on him.

HELD: Application dismissed. The power to search conferred on the police officers under s. 12(3) of the Cannabis Control Act did not include compelling the accused, as a passenger in a vehicle where cannabis was being transported, to identify himself unless he was apparently in contravention of the Act. Once the officers discovered the accused would not confirm his identity, they had reasonable suspicion to believe the accused was obstructing them in the execution of their duty by giving false information. The duration of the investigative detention was excessive but was a direct result of the accused’s wilful attempt to mislead the police. The detention was justified and not arbitrary or unreasonable. There was no breach of s. 8 of the Charter by the police questioning of the accused who was engaged in misleading them. Lifting the accused’s shirt was an unreasonable search. The seriousness of the breach was diminished by the fact the officers could have arrested the accused for obstruction and then searched the accused. The officers did not promptly and clearly advise the accused of the reasons for his detention, which was a minor violation of s. 10(a) of the Charter. The breaches of the accused’s rights occurred in circumstances where he deliberately made the investigation difficult. Admission of the evidence would not impair the reputation of the administration of justice as much as would its exclusion.

R. v. Khalfan, [2021] O.J. No. 1613, Ontario Court of Justice, R.A. Marion J., March 24, 2021. Digest No. TLD-May32021011