Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Methamphetamine
The accused was charged with having possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. The defence filed a Charter application alleging that the accused’s rights under ss. 8, 9 and 10(a) had been breached and sought the exclusion of the evidence under s. 24(2). A voir dire was held. The charge arose as a result of a police officer receiving notice that someone was trying to get into a house in the neighbourhood where he was patrolling in his vehicle. He observed the accused and her companion walking down the street after receiving the dispatch. Before the officer attended at the site or acquired any further information about the complaint or any suspect, he formed the suspicion that the accused and her friend were involved in the complaint and stopped them but did not tell them they were under arrest or detained for an investigation. When asked by the officer what they were doing, they explained that they were going home. The officer asked their names so he could check CPIC. The check revealed that there was a warrant for the arrest of the accused for failing to appear in court to answer a summary conviction for joyriding, and the officer arrested her for the offences of taking a vehicle without consent and for failing to appear. He read her rights and warnings and took her to the police station. She was searched and placed in a cell. The officer also searched her purse for weapons or needles for safety purposes. In the purse the officer found a sunglasses case. When he opened it, he found a pipe used to smoke crystal meth. Then he found a digital scale and opened it too. In it he found small empty baggies. He also found a flashlight inside another bag in the purse and opened it. It contained a number of baggies containing methamphetamine. The issues were: 1) whether there was a detention; 2) if so, were ss. 9 and 10(a) violated; 3) whether there was violation of s. 8; and 4) if so, should the evidence be excluded.
HELD: The court ruling on the voir dire was that the evidence obtained from the search was excluded. The court found with respect to each issue that: 1) the officer detained the accused without informing her of the reason within the meaning of ss. 9 and 10(a) of the Charter. She believed that she had no choice but to comply with the officer’s questioning; 2) the detention was arbitrary. The officer was not investigating the complaint when he stopped the accused. He testified that he believed her to be a criminal. The accused was Aboriginal and lived in a poor section of town. The court found that the officer was on a fishing expedition; 3) the search was not incident to a valid arrest. Searching the accused’s purse was not related to the original complaint and there was no imminent threat to the police at the time of the search to justify it on the grounds of safety. The accused’s s. 8 Charter right had been breached; and 4) pursuant to the Grant analysis, the court found that the breaches were serious. The impact of the breach of the accused’s rights outweighed the interests of society and excluded the evidence.