Mar 31, 2017

Summary of R v Marckoski

R v Marckoski, 2016 SKPC 163 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession and Trafficking in Narcotics
Criminal Law – Defences – Charter of Rights, Section 10(b)

The accused was charged with possessing methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA), and possession of marihuana, contrary to s. 4(1) of the CDSA. The accused argued that his s. 10(b) Charter rights were violated and that the remedy should be exclusion of any statements made subsequent to the breach. The accused was a passenger in a vehicle that was stopped. He was arrested as a result of outstanding warrants. A search incident to arrest revealed a folding knife and BB gun. He was arrested on weapons charges and the accused was read his rights to counsel. The accused indicated that he wanted to call a lawyer. The accused was asked if he wanted to call a lawyer at the detachment and he said no, that he would call a lawyer before court. The vehicle was searched and cannabis marihuana was found in the centre console while smaller plastic bags with three to four crystals in each were found under the front passenger seat where an officer said the accused had put his bandanna. The accused was woken up in cells and arrested for the trafficking charge. The accused was given his rights to counsel again, and he said that he did not want to call a lawyer. The accused asked about the whereabouts of the driver of the vehicle and told the officer that she should not be in cells because everything was his. The officer testified that he did not ask for the information from the accused, that the accused was not impaired by drug or alcohol, and that he did not make any threats or promises to the accused. The officer agreed that he did not give the accused a Prosper-type waiver. The officer did not make notes about the accused’s statement until a few days later.
HELD: The court found that there was a breach of the accused’s right to counsel because the accused had indicated a desire to contact a lawyer and then said he would before court. The court held that the accused should have been given a Prosper warning. According to the court, the remedy would be to exclude any further evidence, but there was no further evidence obtained after the breach. The officer was found to follow proper procedure by giving the accused his rights to counsel when he was subsequently charged with offences under the CDSA. The accused said “no” when asked if he wanted to contact a lawyer. The court concluded that there was obviously no reason for the officer to conclude that the accused wanted to or was thinking about or had questions with respect to contacting a lawyer given his new charges. The accused’s s. 10(b) rights were clearly not breached when he was advised of the charges under the CDSA. The officers implementational duty was not triggered because the accused said that he did not want to contact a lawyer. The Charter application was dismissed.