Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking
Constitutional Law – Charter of Rights
The accused was charged with one count of possession of cocaine and one count of possession of fentanyl, each for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, and with possession of cash not exceeding $5,000, contrary to s. 354(1) of the Criminal Code. The defence filed a notice of Charter argument, alleging that the accused’s ss. 8, 10(a) and 10(b) rights had been infringed and that the evidence obtained should be excluded from the trial. A voir dire was held. RCMP officers in an unmarked vehicle observed the accused meeting with a person they believed to be a drug dealer outside her residence. They followed the accused in his truck thereafter and noticed that he drove as if to check to see if he was being followed. The officers arranged for another officer in a police cruiser to stop the truck because they believed the driver had just purchased drugs. After the stop, the officer who had been following the accused, testified that he arrested the accused for possession immediately because he thought that the drugs might be swallowed or destroyed. He handcuffed the accused and asked him where the drugs were. The accused responded that they were in his pocket. The officer found a bag with multiple samples of apparent crack cocaine and $500. The accused was then re-arrested for possession for the purpose of trafficking. The accused was placed in the police cruiser and given his right to counsel. The other officers searched the truck and found two cell phones, a pill bottle that was later discovered to contain fentanyl tablets, and crack cocaine and cocaine packaged in baggies. The accused was taken to the detachment and strip searched. Afterward he contacted a lawyer. The arresting officer then conducted a videotaped interview of the accused, during which the accused contacted the lawyer again. Following that, the accused made several admissions, including that he had been trafficking to make some extra cash. The Crown called an expert witness at the voir dire who testified to the value of the drugs and gave the opinion that they were of sufficient quantity to signify that their possession was for the purpose of trafficking. The issues raised by the defence were: 1) was the arrest of the accused a violation of his s. 8 rights; 2) were the questions at the roadside stop a breach of the accused’s s. 10(b) rights; 3) was the strip search of the accused a violation of his s. 8 right; 4) was the videotaped interview a breach of the accused’s s. 10(b) rights; and 5) if there was a breach of ss. 8 or 10(b) what was the appropriate remedy.
HELD: The application to exclude the evidence was dismissed. The court held with respect to each issue that: 1) the officer had subjective grounds to believe that the accused had committed an indictable offence based on objective factors and found that the stop of the accused’s vehicle and his subsequent arrest was lawful. Therefore the search incident to arrest was not a breach of s. 8; 2) the officer breached the accused’s s. 10(b) rights when he questioned the accused prior to giving him the standard warnings and right to counsel; 3) the strip search was conducted for a legitimate purpose and done in accordance with the guidelines set out in R. v. Golden and the accused’s s. 8 right had not been violated; 4) there had been no breach of the accused’s s. 10(b) right when he made the admissions during the interview. The original breach occurred after the accused was arrested and there was no temporal or causal link between the admissions made later in the interview and the breach; and 5) the breach of the accused’s s. 10(b) rights fell at the lower end of the spectrum of severity because the officer had not acted in bad faith. The impact of the breach was serious but the accused would have been searched incident to his arrest regardless because of the risk that he might ingest the drugs. Admitting the evidence would not bring the administration of justice into disrepute.