May 22, 2020

Summary of R v Hussein

R v Hussein, 2020 SKPC 8 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Cocaine
Constitutional Law – Charter of Rights, Section 8, Section 9

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 having in his possession proceeds exceeding $5,000 from the commission of an indictable offence contrary to ss. 354(1) and 355(b) of the Criminal Code. Police laid charges after a constable, a member of the Prince Albert Integrated Street Enforcement Team (ISET), received a tip from a confidential source that an unknown black male was selling crack from a residence occupied by an. L.D. The constable had participated in a search of a previous residence occupied by L.D. that yielded crack cocaine and drug paraphernalia. After checking CPIC and learning that L.D. was subject to release conditions including a residence clause that specified her current address, the constable assembled a search team. He then prepared the information to obtain a search warrant (ITO) and presented it to a justice of the peace who issued it. The ITO stated that a confidential informant, whose identity was not revealed and who was not willing to testify, had provided the tip. The search team went to L.D.’s apartment and found the accused inside. On the basis that the accused matched the description of “black male” given in the tip, the police handcuffed him and patted him down, discovering $250, an Alberta driver’s licence and a bag of crack cocaine in his pockets. The accused and L.D., who was present, were arrested for possession for the purpose of trafficking, read their rights and warnings and taken to the police station. The police then searched the residence and found only a cell phone. The Crown’s case rested the items seized from the search of the accused and two dated text messages on the cell phone, neither of which had been sent or received in Saskatchewan or that could be attributed to the accused. The defence brought a Charter application, alleging that the accused’s ss. 8 and 9 Charter rights had been infringed. It contended that: 1) the search warrant was issued without reasonable grounds, thereby violating the accused’s s. 8 right to be secure from unreasonable search and seizure; 2) if the accused’s arrest was made without reasonable grounds, his s. 9 Charter right had been violated; and 3) the evidence obtained in violation of the Charter should be excluded.
HELD: The court found that the accused’s ss. 8 and s. 9 Charter rights had been violated. It conducted a Grant analysis and found that it would not admit the evidence because it would bring the administration of justice into disrepute. It found with respect to each issue that: 1) the search of the accused was not authorized by law and violated s. 8 of the Charter. The ITO did not disclose reasonable evidence that might reasonably be believed and the warrant was invalid on its face, being issued without reasonable grounds. The court expressed concern that the ITO was based on the tip of one informant who was unwilling to testify and that the tip was vague; 2) the arrest of the accused was unlawful. The search of the accused was only lawful if it was incidental to a lawful arrest. In this case, the information in the ITO was insufficient to ground a search of the residence or to justify an arrest of anyone inside the residence; and 3) under the Grant analysis, it was of great concern that the breaches were serious and systemic: the police acted in haste without sufficient investigation; the justice of the peace issued a warrant in the absence of credible, compelling, reliable and corroborated information; and ISET’s standard practice in similar circumstances was to arrest everyone they found in a residence without considering whether such arrests were necessary or justified.