Mar 17, 2014

Summary of R v Vulic

R v Vulic, 2012 SKQB 221 (CanLII)
The officer received information from a source that a white male from Edmonton and driving a white Yukon vehicle with Alberta license plates was dealing in drugs. The officer located a white Yukon outside of a known bar with a trafficking connection and did a license plate and other searches to determine the accused had a prior history of narcotic charges. A male was later seen leaving the bar and entered the Yukon, proceeded to drive away and crossed the highway without stopping at a stop sign. Two officers approached the vehicle and noted the driver hunched forward in the front seat where one officer commented that the driver placed something under the dash or centre console. The accused was immediately requested to vacate the vehicle, the officer removed the accused's cellphone, wallet and a cigarette package. The accused stated he had a marijuana cigarette which was located in the cigarette package which resulted in the accused being arrested for possession of a controlled substance. The officers searched the vehicle and located 11.9 grams of cocaine. The officers then entered the accused's motel room and assigned another officer to watch the room while they obtained a search warrant to search the room. The search warrant did not allude to the officers' initial entry into the accused's motel room. Once the search warrant was obtained, the officers conducted a search of the motel room. The accused was charged with having possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act; the accused's possession of marijuana charge was adjourned to Provincial Court to be dealt with in due course. The defence brought an application alleging the accused was subject to an unreasonable search and seizure contrary to s. 8 of the Charter of Rights, was arbitrarily detained contrary to s. 9 and was denied his s. 10(a) informational right to counsel without delay.HELD: The cocaine evidence was not admissible at trial and the accused was found not guilty. 1) Although the officer's reasonable suspicion could arguably justify the accused being asked to step out of his vehicle, it did not justify handcuffing him behind his back and conducting a search of his personal possessions. The officer's claim that he was justified to handcuff and search the accused's person on the grounds of officer safety lacked an air of reality. A pat-down search does not extend to removing the person's wallet, cigarette package or cellphone. The accused's detention was unlawful and arbitrary and the search and seizure of the accused's wallet, cigarette package and cellphone was an unlawful search and seizure. Because the arrest was unlawful, the search of the vehicle incident to arrest was also unlawful. 2) The accused should have been provided with his right to counsel before he was asked if he had anything illegal on his person. The accused was denied his informational right to counsel in a timely manner. 3) Evidence that was unlawfully obtained could not be used to support the reasonable grounds for a search warrant of the accused's motel room. The onus was on the officer to fully disclose all relevant facts in an information to obtain a search warrant. The earlier entry into the motel room should have been disclosed to the Justice of the Peace.