Mar 6, 2020

Summary of R v Smith

R v Smith, 2019 SKCA 126 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Methamphetamine
Criminal Law – Defences – Charter, Section 8, Section 24(2)
Criminal Law – Evidence – Search Warrant – Criminal Code, Section 487.01(1)
Criminal Law – Search and Seizure – Search Incidental to Arrest

The Crown appealed the acquittal of the respondent on a charge of possession of methamphetamine for the purpose of trafficking, pursuant to s. 5(2) of the Controlled Drugs and Substances Act. There was a warrant (arrest warrant) for the respondent’s arrest relating to charges of possession of stolen property and obstruction. The police obtained a general warrant (general warrant) authorizing them to remove any mobile device found on the respondent to examine it forensically. When police approached the respondent, she and her two male companions fled. She was caught, as was one of her companions, her brother. The officer believed that she was impaired by drugs. A black camera case with four baggies of methamphetamine, totalling 2.7 ounces, was found in the purse. Cst. D. indicated that he searched the purse for two reasons: to locate potential weapons that could harm him or anyone else and to locate the respondent’s cellphone under the general warrant. In a voir dire, the trial judge found that the search of the pursue was unreasonable and contrary to s. 8 of the Charter. The purse was not with the respondent when police searched it, so there was no concern for officer or public safety. Also, it was unlikely that evidence relating to possession of stolen property and obstruction (the offences in the arrest warrant) would be located in the purse. The general warrant was found only to allow a search of the cellphone if it came into the authorities’ lawful possession. The trial judge excluded the drug evidence. The Crown argued that the trial judge erred by: 1) finding the police did not have lawful authority to search the respondent’s purse incident to her arrest; 2) concluding the general warrant did not authorize the police to search the purse for a cellphone; and 3) excluding the methamphetamine.
HELD: The appeal was dismissed. The grounds of appeal were determined as follows: 1) the trial judge did err by relying on the criteria for a safety search under MacDonald when delineating the scope of the safety objective of a search incident to arrest. The judge had held the police to a higher standard than was required under the applicable law. The appeal court found the question to be determined was whether the search of the purse was truly incident to arrest in that it was conducted for a valid law enforcement purpose related to the arrest. The search was not to obtain or preserve evidence relating to the reasons for the respondent’s arrest. The appeal court concluded the jurisprudence did not support the proposition that the police may, for general safety reasons, always conduct an intrusive search for weapons incident to arrest. A search incident to arrest must be undertaken for a valid objective that is truly incidental to the arrest in question. There was no evidence that the police thought the respondent had a weapon in her purse. Further, she was already handcuffed and separated from her purse before it was searched, so it would have been impossible for her to use a weapon from it. The officer indicated that he also searched the purse to locate the respondent’s cell phone pursuant to the general warrant. The common law power of search incident to arrest has not been expanded to allow a blanket search of the personal property of a detainee on the basis that a search must be conducted for inventory purposes. The appeal court found that the primary purpose of the search was to retrieve a cell phone, not safety concerns. The trial judge did not err; 2) the Crown argued that the general warrant authorized the police to covertly seek out and remove any mobile device the respondent may have had in her possession at the time of her arrest. The appeal court found that the wording of the general warrant supported the trial judge’s interpretation of the limits of the authority conferred under the general warrant. The authority to search the respondent’s person or her purse for a phone did not appear in the general warrant. Also, the search of a purse is not the type of search that falls under s. 487.01. The appeal court also held that s. 487.01(5.1) did not add anything to the Crown’s argument; and 3) the appeal court found that the breach was not a minor, technical oversight in the course of an otherwise lawful search. Just because the searching officer was searching based on an honest mistaken belief did not mean the officer was acting in good faith. The trial judge did not err concerning the seriousness of the breach. The officer went through everything in the purse. The appeal court agreed with the trial judge that the respondent had a high expectation of privacy in her purse, and the impact of the breach was serious. The trial judge found that the seriousness of the breach, coupled with the impact of the breach, outweighed societal interests in having the case tried on its merits. There was no error made.