Traffic Stops and the Illegal Search and Seizure by the Police under Section 8 of the Charter of Rights. Calgary Criminal Defence Lawyers

Published On: Jul 07,2020

 

Traffic Stops and the Illegal Search and Seizure by the Police under Section 8 of the Charter of Rights.
Traffic Stops and the Illegal Search and Seizure by the Police under Section 8 of the Charter of Rights.

In Regina v. Santana, 2020 ONCA 365, The Court of Appeal considered allegations involving charges  of possession of fentanyl for the purposes of trafficking. A conviction as entered and the trial judge imposed a sentence of eight (8) years with credit for presentence custody, resulting in a net sentence of 4 years, 320 days.  The accused was under investigation by the police for large scale drug trafficking.  When police had learned of his whereabouts,  they contacted the local police and asked them to stop the appellant, who was a passenger in a vehicle on the basis that the appellant was wanted on outstanding warrants and the vehicle headlights were out. The police stopped the vehicle for the Highway Traffic Act infraction. The defendant was arrested on the warrant and the officer conducted a pat-down search. The testimony offered by the police indicated that the defendant had nothing to do with any suspected drug trafficking. The defendant’s belongings from the vehicle were gathered and the local police officer testified he had no reason to hold the driver once the HTA matter was addressed. A result of the search, he found 495 Fentanyl pills in the appellant’s jacket. A secondary search search of the vehicle incident to the drug trafficking arrest yielded cellphones with communications consistent with drug trafficking. Finally, a search of the appellant’s hotel room lead to the discovery of thousands of Fentanyl pills.


The defendant appealed his conviction and sentence arguing that the warrantless search of the vehicle in which the appellant was a passenger when arrested, the seizure of his jacket found in the vehicle, and the search of the jacket constituted an unreasonable search and seizure under s.8 of the Charter.  He posited that the search of the vehicle, the seizure of the jacket, and the subsequent search of the jacket were not authorized by a warrant. This is because here was no connection between legitimate law enforcement interests engaged upon the appellant’s arrest and the officer’s search for, and seizure of, property from the Jeep, which he believed belonged to the appellant. The officer was not looking for evidence relating to the reason for the arrest and had no reason to believe any officer or member of the public was in danger from anything in the vehicle. The officer wrongly believed he was entitled to seize the appellant’s property because the appellant was under arrest and was being taken back to the police station.  The made the following findings:

[32]      There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle: e.g. see R. v. Russell, 2018 BCCA 330; R. v. Cuff, 2018 ONCA 276. Those circumstances did not exist here.

[33]      The Thunder Bay police had no intention of taking control of the vehicle when Officer Bliss went looking for the appellant’s belongings and seized the jacket. To the knowledge of Officer Bliss and Officer Milionis, the woman driving the vehicle would be on her way, wherever she was going, once the Highway Traffic Act matter had been addressed. The police had no authority to prevent the driver from leaving with the vehicle after the Highway Traffic Act matter was completed. Equally, the police had no power to itemize the contents of the Jeep or, more specifically, to look for, and take possession of, the appellant’s personal property in the Jeep. If Officer Bliss was concerned about the appellant losing track of his property, or being cold while in custody, Officer Bliss could have offered to collect the appellant’s belongings from the Jeep for him. 


By unlawfully searching the vehicle and taking possession of the jacket, the officer created a justification for the search of the pockets of the jacket before it was placed in the police cruiser. The officer did not act lawfully when he visually examined the interior of the Jeep, seized the jacket, and searched it. His actions constituted an unreasonable search and seizure in violation of s.8 of the Charter. The breach of the appellant’s s.8 rights led directly to the discovery of the pills in the jacket pocket. That discovery led immediately to the arrest of the appellant and the driver on drug trafficking charges. Without the pills, that arrest would not have occurred. The arrest, in turn, led to further searches which yielded cellphones that ultimately led to evidence consistent with drug trafficking. Without the illegal seizure of the pills, there would have been no arrest on drug trafficking charges, and no search of the cellphones. Lastly, the discovery of the pills in the jacket played a prominent role in the police obtaining a search warrant for the appellant’s hotel room, which yielded thousands of pills.


In making these findings, the Court of Appeal distinguished other cases wherein the actions of the police, based on differing facts, were justified in seizing items from the car and conducting an inventory of the same:

[32]      There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle: e.g. see R. v. Russell2018 BCCA 330R. v. Cuff2018 ONCA 276. Those circumstances did not exist here.


The court concluded that the determination of whether the evidence seized from the Jeep, the jacket, and the hotel room, should be excluded under s.24(2) could not be done on appeal. On this record, the court could not, with any confidence, make the findings necessary to “put sufficient meat on the evidentiary bones” so as to properly perform a s.24(2) analysis. The court could not say what part, if any, of the evidence should be excluded under s.24(2) as a consequence of the s. 8 breach. A new trial was ordered.


If you have been charged with a criminal offence, contact Mr. J.S. Patel, Criminal Defence Lawyer at 403-585-1960 to schedule a consultation.  Our offices are currently conducting virtual consultations in light of the social distancing measures in place within Canada.