Ontario Criminal


Warrantless search of car justified since it was incident to accused’s arrest

Appeal by accused from his conviction for possession of marijuana for purpose of trafficking. On Oct. 25, 2008, at 10:20 p.m. accused was stopped for speeding and in course of obtaining his documentation police officer noticed that accused appeared to be inordinately nervous. Police officer performed computer search on accused and discovered that he was on bail and that he was subject to a 10 p.m. and 5 a.m. curfew. There was employment exception for curfew. Accused was flagged for violence and he was escape risk. Police officer also discovered that accused drove rental car. Another officer attended and first officer told him there were grounds to arrest accused for breach of recognizance. When accused was told he was under arrest for breach of his bail conditions he refused to get out of car and he had to be forcibly removed. Accused was discovered to be in possession of cellphone. Based on accused’s criminal history officers decided to conduct safety search in area of car around driver’s seat. First officer searched vehicle and noticed strong smell of raw marijuana and he also discovered second cell phone and large amount of cash in jacket. Accused was then arrested for possession of marijuana and trunk was searched and 18 pounds of packaged marijuana in duffle bag was found inside. He was then charged with possession for purpose of trafficking. At trial accused applied to exclude contraband as evidence because it was obtained in violation of s. 8 of Canadian Charter of Rights and Freedoms. Application was dismissed, evidence was admitted and it formed basis for conviction. Appeal dismissed. First officer was not required to investigate and to rule out all possible explanations for accused being out past his curfew before he arrested him. He had reasonable and probable grounds to arrest accused for breach of recognizance and these grounds were justifiable from objective point of view. Warrantless search of front of car was justified since it was incident to accused’s arrest for breach of bail. This search was reasonable and it was valid because it was conducted for legitimate purpose, which was officer safety. Judge was entitled to accept first officer’s evidence about marijuana smell. Since arrest for marijuana possession was valid first officer was entitled to search rest of car and it was lawful search incident to arrest. Marijuana was discovered in circumstances in which accused’s Charter rights were not infringed.

R. v. Valentine (Feb. 26, 2014, Ont. C.A., M. Rosenberg J.A., Paul Rouleau J.A., and Gloria Epstein J.A., File No. CA C54329) 112 W.C.B. (2d) 210.

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