New & Notable: What's that bulge in your pocket...the final word from the SCC

The bottom line

Aucoin was stopped by Cst. Burke for motor vehicle legislation infractions.  The officer felt it necessary to have Aucoin sit in the rear of the cruiser while the ticket was issued.  Before securing Aucoin in the rear of the cruiser, Cst. Burke did a pat down search and detected a package, which Aucoin said was ecstasy, in Aucoin’s pocket.  Aucoin was arrested and found to be in possession of a large quantity of cocaine and pills. 

In a previous post, Dallas discussed the Nova Scotia Court of Appeal ruling in Aucoin: 2011 NSCA 64. The Supreme Court of Canada heard the appeal from that ruling. The majority, authored by Moldaver J, held that is was not reasonably necessary for the officer to place him in the police cruiser and accordingly, that searching for security reasons before placing him there could not be justified and was a violation of s. 8 of the Charter.  However, the majority went on to hold that the evidence was admissible pursuant to s. 24(2) of the Charter: 2012 SCC 66

 

Read More

New & Notable: A call to use step 6 of Garofoli

Jason Rocha was investigated in 2008 by the Toronto Police Service for drug and weapon offences. In pursuit of their investigation, the police sought search warrants for Rocha’s restaurant and residence. This issuance of these warrants was almost exclusively based on information provided by a single confidential informant (CI). At trial, the defence challenged whether the warrants should have issued and sought  the exclusion of evidence due to a breach of section 8 of the Charter.

The decision of the Ontario Court of Appeal released on October 24, 2012 highlights the very real difficulties facing trial courts called upon to review the merits of an information to obtain a search warrant where it is based on information from a CI: 2012 ONCA 707.

The concurring decision by Juriansz J places a bold challenge at the feet of Crown counsel to make best use of the vastly underutilised tool available to them:  step 6 from Garofoli.

Read More

New & Notable: Finding privacy in the wrong places

Richard Cole was a teacher. Ironically, one of his duties was that he was responsible for “policing use by students of their networked laptops” [para 14]. In a similar way, school board technicians could access his computer. While performing routine maintenance activities one day a technician found nude and partially nude photographs of an underage female student [para 18].

 

The central issue before the Supreme Court was whether Cole had a reasonable expectation of privacy in the laptop. The Court found that he had. The warrantless search of it by the police was therefore a violation of section 8. The evidence, however, ought not to be excluded: 2012 SCC 53.

Read More

New & Notable: Respecting and protecting 911

Michael Purcell was charged with various drug offences including production and possession for the purpose of trafficking.  At trial Purcell brought an application to have evidence discovered by a police search of his home excluded due to a breach of section 8.

 

The search was conducted in response to a 911 call. Murray J dismissed the application: 2012 CarswellOnt 7187 (SCJ).

 

On December 26, 2009 a 911 call was placed from Purcell's residence. It was 2:04 am; the dispatcher could hear a male and female voice arguing in the background. There was yelling and swearing.

 

Read More

Current & Curious: Cell technology is simple compared to this stuff...

Courts continue to grapple with the apparently difficult issue of searching cellular phones incident to arrest. In one of the most recent rulings, Boswell J seems to forge a somewhat new and much more restrictive approach to the issue: R v Liew,2012 ONSC 1826. A curious ruling given the recent comments of the Court of Appeal in R v Manley, 2011 ONCA 128.

A nice summary of Liew and commentary can be found on Westlaw Canada's CriminalSource's newest newsletter: Police Powers Newsletter 2012-01.

In brief, Liew was arrested on grounds that he was importing cocaine. A search incident to arrest revealed a Sony Erikson cell phone. The officer decided search the phone incident to arrest. The stated purpose for this search was to find "immediate phone calls and immediate texts" [para 15]. The officer did find some recent phone calls. The search of the phone lasted approximately 7 minutes [para 17].

Read More

New & Notable: Seriously though, why would you have an AK-47 knock off in your trunk?

Rajinder Dhillon owned a BMW. On August 15, 2006 he was at a parking lot where there was alleged to be a fight. He arrived there in his BMW. In the trunk of his BMW was a Norico assault rifle (an AK-47 knock-off). The police responded to the alleged fight. Cst Doucette was one of the officers. He investigated the matter and concluded that there had been no fight. He noticed, however, the location of the BMW as unusual. Dhillon stepped forward as the owner of that vehicle. After a brief exchange Cst Doucette asked to look in the trunk. Dhillon opened the trunk. Cst Doucette found the rifle. Read more...

New & Notable: You don't need a balaclava to shovel snow in Kitchener...

Pierre Robert used to be a member of the Bloods gang. He had a 9mm handgun. He didn’t have a license to possess the handgun nor, of course, for the prohibited 15 round cartridge magazine found with the gun. He lived in his mom's basement. He kept his gun there, above the bar located in the basement, wrapped in a balaclava. The police found that gun. Robert was charged. He sought to exclude the evidence of that discovery from his trial. He did not succeed: 2012 ONSC 2672.   

 

 

When Robert was 15, his brother, Daniel, and his father were convicted of attempted murder of Robert’s mother, Ms Aylott. In 2010, the brother, Daniel, was released on parole and required to reside at a halfway house. When he didn’t report to the facility one night a Canada wide warrant was issued... read more...

New & Notable: Finders Keepers...

Bob Stevens had a semi-automatic firearm.  The police found out about it.  They obtained a search warrant to search his residence for the firearm.  When they attended his house to execute the warrant in a "stealth search" Stevens was observed to throw something in a white sock out his window into a neighbour's yard.  The police retrieved the sock and found a firearm inside.  Stevens was charged.  At trial Stevens was convicted and appealed; the Court of Appeal dismissed his appeal: 2012 ONCA 307.

Read more...

New & Notable: Finders Keepers...

Bob Stevens had a semi-automatic firearm.  The police found out about it.  They obtained a search warrant to search his residence for the firearm.  When they attended his house to execute the warrant in a "stealth search" Stevens was observed to throw something in a white sock out his window into a neighbour's yard.  The police retrieved the sock and found a firearm inside.  Stevens was charged.  At trial Stevens was convicted and appealed; the Court of Appeal dismissed his appeal: 2012 ONCA 307.

 

At trial Stevens sought to exclude the gun by attacking the warrant.  Bhabha J declined to consider the validity of the warrant, instead, finding that Stevens had abandoned the firearm.  Bhabha J did note, however, that there were deficiencies in the warrant and did - despite finding no expectation of privacy due to abandonment - conduct an analysis under 24(2).
Read More