Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking
Constitutional Law – Charter of Rights, Section 7, Section 8, Section 9, Section 24(2)
The accused was charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, and unlawfully possessing cash not exceeding $5,000, proceeds of property obtained by the commission of an indictable offence, contrary to s. 154(1) of the Criminal Code. Counsel for the accused filed a Charter application, alleging that the accused’s rights under ss. 7, 8 and 9 of the Charter were infringed and requesting that all evidence obtained be excluded from trial pursuant to s. 24(2) of the Charter. A voir dire was held. A number of police officers testified. The background to the laying of charges was that, as a result of a tip received from a confidential source that drugs were being trafficked from a house, the Saskatoon police began a surveillance operation of it. They knew the names of five individuals who were involved in the trafficking. The lead officer saw two of the individuals leave the house and, after following them in their car, arrested them. They were searched and found to be in possession of both cocaine and large amounts of cash. The officer then obtained a search warrant for the residence. At the site itself another officer noticed a vehicle at the back of the house, which then drove away. He communicated this to the lead officer and was told by him to stop the vehicle and arrest the occupants. The officer stopped the vehicle, which was driven by the accused. He asked the accused for his licence and registration. The accused advised that he had rented the car as he was in Saskatoon to do work for his business. There were two passengers in the vehicle and the officer called the lead officer to tell him their identities. When the lead officer heard that one of the passengers was the owner of the house under surveillance, he told the investigating officer to arrest him. The officer then searched the vehicle in which he found a tin containing $1,800. Once again, the lead officer told him to arrest the accused and the other passenger. At the station, the accused and the second passenger were searched and $775 was found in the former’s pocket and $1,340 and cocaine in plastic bags (57.7 grams) on the latter’s person. Another police officer testified as an expert that based upon all of the evidence and the exhibits seized, he believed that the accused was an active participant in an organized “dial-a-dope” operation. The defence initially argued that the opinion evidence of this officer should not be admitted at the voir dire as expert opinion evidence because it had not met all the criteria set out by the Supreme Court in R. v. Mohan. The evidence should not be given any weight because some of the factual bases for his opinion had not been established in evidence at the voir dire. The defence submitted that the accused’s Charter rights had been violated because the search was warrantless and not made pursuant to a lawful arrest. The only objective evidence that existed was the testimony of the officer, who said that he had seen the vehicle at the residence. There was no basis for stopping the vehicle and, regardless of the lead officer’s belief that it had been at the house in question, that was insufficient to constitute valid grounds for arrest. Therefore, the evidence of the cash found on the accused and in the can in the vehicle should be excluded as it was obtained pursuant to an unreasonable search and seizure.
HELD: The court admitted the evidence. It allowed the opinion evidence regarding “dial-a-dope” operations because the court accepted that the training, experience and research of the officer qualified him to give the opinion and because the court had decided to admit the evidence from the search. The evidence was not so prejudicial that it outweighed the probative value. The court found that there had been no breach of ss. 7, 8 or 9 of the Charter respecting the arrest and/or detention for the accused and that the opinion of the officer was admissible evidence as an expert opinion. Regarding the alleged breach of s. 9, the court found that in all of the circumstances, the lead officer’s subjective belief that the accused and his passengers were involved in the drug trafficking operation was objectively supported when he learned that one of them was the owner of the residence. There were reasonable grounds for stopping the vehicle and arresting the occupants. The search was justified as an attempt to find evidence of criminal activity because of the context and by virtue of the arrest of the owner of the residence and thus s. 8 was not breached. Under the Grant analysis, the court would have admitted the evidence even if it had found breaches.