Ontario Criminal

Charter of Rights

Reasons for wanting to stop vehicle were racially motivated and not legitimately connected to highway safety concerns

Police officer claimed that she observed Mercedes vehicle driving erratically. Accused driver, 23-year-old black male, was approached by officers after parking in lot and exiting vehicle. Accused was arrested for careless driving and failing to identify himself and handcuffed to cruiser. During search of vehicle, loaded firearm was found in purse in backseat passenger foot well. Accused was charged with weapons offences. Accused’s sister testified that she owned purse and had been in relationship with drug dealer who carried gun and had borrowed purse. Accused brought application to exclude evidence based on breaches of, inter alia, s. 9 of Charter of Rights and Freedoms. Application granted. Officer’s reason for wanting to stop vehicle was that driver was young black male in area known for gangs, drugs and guns and vehicle was Mercedes. Crown acknowledged no dual purpose to arrest, investigation and search. Highway Traffic Act stop was ruse or pretext to investigate suspected, non-specific criminal activity. Officer stated that when she saw vehicle, she immediately thought it was stolen or involved in illegal activity. Police treated incident as dangerous, explosive situation and not traffic stop. Reasons for wanting to stop vehicle were racially motivated and not legitimately connected to highway safety concerns. No articulable cause for stop. Stop violated s. 9 and accused’s arrest for careless driving unlawful. Arrest for failing to identify also unlawful as accused not given reasonable opportunity to provide identification. In flagrant and unique circumstances, admission of firearm would bring administration of justice into disrepute.

R. v. Smith (Jun. 11, 2015, Ont. S.C.J., J. Wilson J., File No. 12-30000101-0000) 123 W.C.B. (2d) 234.

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