Accused sought exclusion of evidence of drugs and other items found on grounds of Charter ss. 8 and 9 breaches. Accused was under surveillance being person of interest and drove very suspiciously taking roundabout routes and was observed to exchange box with another driver and then drive away fast. Police arrested other driver and found box contained cocaine and ordered takedown of accused. Accused was arrested and search of his car revealed keys to apartment which was not principal residence of accused. Officers used information from key fob to contact property manager to ascertain to which units keys belonged. Officers ordered immediate search of apartment without warrant in order to freeze or secure premises, clear it of any occupants and not to search for evidence. Officer pulled back shower curtain to see if anyone was hiding behind it and was hit by strong smell of cocaine and saw suspicious wrapping. Officer saw closed briefcase behind bathroom door, but took no steps to open it. Collective police evidence was that they were inside unit for less than five minutes and that they entered with key. Subsequent search pursuant to search warrant revealed multiple kilos of cocaine. Evidence admitted. Court found no s. 9 breach as officers had reasonable grounds to make arrest after suspicious driving behaviour of accused and evidence found in other vehicle. There was no Charter breach in accessing key fob information as that was done pursuant to legitimate police investigation. There was Charter breach for warrantless entry of apartment but officer clearly took reasonable steps to only preserve evidence and clear out occupants. All those factors suggested that Charter infringing conduct was modest at best, and weighed towards inclusion of evidence found in unit. Court also noted evidence was substantial and real which also favoured admission and that accused was in custody in time of search of apartment that was not his principal residence.
R. v. Saciragic (Dec. 11, 2013, Ont. S.C.J., Croll J., File No. CR-12-90000719) 110 W.C.B. (2d) 525.