Criminal Law – Controlled Drugs and Substances Act – Conspiracy to Traffic – Cocaine
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Cocaine
Criminal Law – Criminal Organization
Criminal Law – Defences – Charter of Rights, Section 8, Section 10(b)
The accused was charged with: 1) conspiring together with other named individuals to traffic in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA); 2) trafficking in cocaine for the benefit of or at the direction of or in association with a criminal organization contrary to s. 467.1(2) of the Criminal Code; and 3) trafficking in cocaine contrary to s. 5(1) of the CDSA. The accused argued that his section 8 and 10(b) Charter rights were violated and a voir dire was held. An application was successfully made to authorize and intercept private communications of six named individuals, one of whom was the accused. Based on the interceptions, Constable (Cst.) M. had reasonable and probably grounds to believe that a group including the accused would travel to Calgary and purchase 10 ounces of cocaine and would then travel back to Moose Jaw in two vehicles, one owned and driven by the accused. Cst. M. requested officers from Swift Current, Cst. W and Cst. H., to stop and search the vehicles finding their own grounds to do so. The Swift Current officers determined that the accused had outstanding warrants for his arrest pursuant to The Traffic Safety Act, so they would use the warrant for their arrest of the accused. Cst. W. pulled the accused’s vehicle over and, after confirming his identity, arrested the accused. The accused was advised of his rights to counsel and he was given the police warning. Cst. W. then advised that he smelled marihuana coming from the vehicle and advised the accused that he was being detained pursuant to the CDSA. The accused was again given rights to counsel and he again indicated that he did not want to consult counsel. Five milk bottles with vacuum-sealed bags of cocaine totaling 152 grams were located in the trunk. The accused argued that his s. 8 rights were breached because the officers did not have grounds for the warrantless search. He also argued that his s. 10(b) rights were breached because the officers falsely stated the basis of detention and investigation and the accused was thereby deceived such that he did not appreciate the jeopardy he was in. In other words, the accused would have asked to consult with counsel at the beginning if he had been told he was arrested for trafficking in cocaine. In fact, the accused did ask to speak to counsel as soon as he was arrested for the trafficking.
HELD: After a review of case law, the court found that the issue was whether Cst. M. had reasonable and probable grounds to direct that the vehicle be stopped and searched. Cst. M. had reasonable grounds so the accused’s s. 8 Charter rights were not breached. The court found that the accused’s s. 10(b) rights were breached when the accused was misled. The breach was found not to affect the validity of the search of the vehicle, but it did prevent the admission of any statements made by the accused to police officers after his detention at the roadside.