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 a firearm without a licence contrary to s. 91(1) of the Criminal Code, possession of a loaded firearm without a licence contrary to s. 95(1)(a) of the Code and possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. The defence brought a Charter application to exclude evidence under s. 24(2) alleging the accused’s ss. 8 and 9 Charter rights had been breached. A voir dire was held with the agreement that the evidence called would be applied to the trial proper. The charges against the accused were laid as a result of a police surveillance operation after they received tips from three informants, whom they believed were reliable sources, that the accused was trafficking drugs, using a red car to do so, and was living at a specific address. During the surveillance at the residence, where a red Lexus was parked, the police saw a man, later identified as the cousin of the accused, leave the house carrying a bag. The police followed him when he drove away and noted that he made several stops of short duration that were consistent with drug trafficking. They arrested him and found cocaine, currency, several cell phones, marijuana and drug packaging material. The police then obtained a search warrant for the accused’s residence and found drugs and money in one bedroom, establishing drug trafficking. The parties agreed that the contents of the bedroom were in the possession and control of the accused’s cousin except for a backpack containing a scoresheet that belonged to the accused. After the police located and then followed the accused driving the Lexus, they noted that he appeared to use evasive tactics to determine if he was being followed. Based upon these observations and the other information, the police arrested the accused for trafficking. The search of his person revealed nothing. The Lexus was impounded and searched two hours later at the police station. In it, the police found 13 grams of cocaine in a closed compartment, a pistol under the driver’s seat and body armour, a baton and the wallet and identification of the accused’s cousin. The issues were: 1) whether the arrest was an arbitrary detention contrary to s. 9 of the Charter; 2) whether the search of the vehicle was an unreasonable search and seizure contrary to s. 8 of the Charter; and 3) whether the evidence established that the accused possessed the cocaine and the pistol found in the vehicle.
HELD: The Charter application was dismissed and the evidence obtained by the police was admitted. The accused was acquitted. The court found with respect to each issue that: 1) there had been no breach of s. 9. The warrantless arrest of the accused was made on reasonable grounds that included the confidential tips, the contents of which were confirmed during surveillance, the arrest of the accused’s cousin and the manner in which the accused drove his vehicle and these grounds were objectively justifiable; 2) there was no breach of s. 8 of the Charter. The search of the vehicle was incidental to arrest and the fact that it occurred two hours after it was not significant; and 3) the Crown had failed to prove beyond a reasonable doubt that the accused was knowingly in possession of either the cocaine or the pistol in the vehicle.