Application by accused to exclude evidence against him because his rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were violated. Evidence consisted of loaded gun. One evening accused left his girlfriend’s apartment and walked out of building, across parking lot, to her car. Before he got inside he opened trunk. Accused said he was looking for his child’s hat in trunk and he did not put anything in it. Two police officers testified that they saw him put into trunk what they concluded was handgun. Officers stopped accused after he left parking lot, while he talked on his cell phone, searched trunk and found gun. Accused was handcuffed before gun was found but he was not told he was under arrest. When gun was discovered accused was forced to ground and he was told he was under arrest. Accused was not told what charge was until he was at police station. Accused said neither he nor his girlfriend owned gun and car had been locked. Application allowed and evidence was excluded. There were serious concerns about officers’ reliability and credibility and aspects of their evidence did not accord with common sense. Regarding s. 8, Crown failed to prove that search was reasonable. Officers’ testimony did not prove that search was reasonable. There were valid grounds under Highway Traffic Act (Ont.) to stop accused, but not to search his car, because he was talking on his cell phone as he drove away. However, that was not why he was stopped. Accused’s detention and being handcuffed before gun was found was unlawful. Stop was arbitrary and s. 9 was breached. Evidence was not admitted for to do so would bring administration of justice into disrepute.
R. v. Sterling-Debney (Jul. 5, 2013, Ont. S.C.J., Durno J., File No. CR-12-2571-00) 108 W.C.B. (2d) 19.