Criminal Law – Controlled Drugs and Substances Act – Possession for the Purposes of Trafficking - Cocaine
Constitutional Law – Charter of Rights, Section 8
The accused were each charged with possession for the purpose of trafficking, breach of undertaking for failing to abide by a condition prohibiting the possession of a cellphone, breach of undertaking for failing to abide by a condition prohibiting the possession of non-prescription drugs and breach of undertaking for failing to abide by a condition prohibiting the accused from being in a motor vehicle except with the registered owner. They brought a Charter application alleging that their s. 8 Charter rights had been violated. A voir dire was held. An RCMP officer on patrol on the Trans-Canada Highway stopped the vehicle that the accused Feshashion was driving at 1:30 a.m. because it had exceeded the speed limit. Feshasion appeared nervous, barely opened his window to speak with the officer, and would not make eye contact. The officer informed Feshasion why he had been stopped and asked for his licence and registration. The officer suspected that the vehicle might be carrying drugs because he saw a radar detector in it and it smelled of air freshener. After running checks on police databases, he learned that Feshasion was not the owner of the vehicle and was facing a charge of possession for purpose of trafficking and that he was bound by the condition of being in a vehicle only if the registered owner was present. The officer asked Feshasion whether the registered owner was in the vehicle and he indicated his passenger, the accused Ogbaghergis. The officer obtained his licence and then checked the licence plate and discovered that Ogbaghergis was not the registered owner, was facing the same charges as Feshasion and was bound by the same conditions of release. The officer then arrested Feshasion and Ogbaghergis for breaching their undertakings. After talking with another passenger who seemed nervous, the officer arrested all three for possession for the purpose of trafficking under the Controlled Drugs and Substances Act (CDSA). He read them the police warning and their right to counsel and each of them requested to speak to a lawyer. The officer found cell phones on each of the accused. The officer then searched the vehicle incident to the arrests on the CSDA offence. He found seven cellphones and a bag of cocaine under the driver’s seat. Feshasion argued that the vehicle search was unreasonable because it followed an unlawful arrest or that the search was not truly incident to the arrest. Ogbaghergis submitted the officer’s request for his name and the subsequent search of the police databases violated his s. 8 rights.
HELD: The Charter application was dismissed. The court found that the arrest was lawful. The circumstances in this case gave rise to a subjective and objective belief held on reasonable and probable grounds, not that the accused had committed an offence under the CDSA, but that they had both committed the Criminal Code offence of violating their conditions of release. The search was reasonable because it related to the accused’s undertaking not to possess cellphones. The officer request for Ogbaghergis’ name was to establish whether he was the registered owner of the vehicle. Because of the time of night, the remote location and the officer’s safety, it was reasonable for the officer to search for information on the police databases.