Ontario Criminal


Arrest

LEGALITY
Officer failed to tell accused he was under arrest and used excessive force

Application by accused to exclude evidence because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was being tried for three drug offences, two counts of failing to comply with recognizance and charges of assaulting peace officer. Police officer saw vehicle making lane changes without signaling first and he stopped vehicle after he saw passenger, who was accused, not wearing seatbelt properly. When vehicle door was opened officer smelled unburnt marijuana coming from accused and accused resisted as officer tried to arrest him. Accused tried to run away but he was apprehended. Once accused was arrested marijuana was found in his jacket. Application allowed. Evidence was excluded. Accused was illegally detained and his subsequent arrest and warrantless search was unlawful and search violated accused’s rights under s. 8 of Charter. Arrest was unlawful because officer did not have reasonable grounds to arrest him. Officer also failed to tell accused that he was under arrest and he used excessive and unreasonable force to arrest accused, which made arrest unlawful. Accused, therefore, did not resist lawful arrest. Evidence was excluded for officer did not respect accused’s rights when he searched him and search was not performed for reasons of officer safety. To admit such evidence would bring administration of justice into disrepute.

R. v. Thompson (Dec. 11, 2012, Ont. C.J., Zuker J.) 104 W.C.B. (2d) 721.

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