Ontario Criminal

Charter of Rights

Search of vehicle valid incidental to lawful arrest

Application by accused to exclude evidence because police had no reasonable and probable grounds to arrest him or to search vehicle. Accused and his co-accused were charged with possession of cocaine for purpose of trafficking. Accused drove his sister’s car and co-accused was in passenger seat. Police detained them when vehicle stopped at red light and shortly after they were removed 24 grams of cocaine was found in vehicle. Co-accused was main target of police investigation and search warrant was issued to search two addresses frequented by him. Information to obtain filed in support of warrant asserted that police believed, based on information received from two confidential sources and from police surveillance observations, that co-accused was involved in drug trafficking and he possessed firearm. There was also evidence that provided police with reasonable and probable grounds to arrest accused and to search vehicle. It was based on this information that accused and co-accused were stopped and arrested. Application dismissed. Police had right to detain occupants of vehicle to ask them questions. On balance of probabilities there were reasonable and probable grounds for police to believe that accused was party to offence of drug trafficking and he could be arrested. Since accused was lawfully arrested, search of vehicle was valid incidental to that arrest as search was conducted to seize cocaine that was in plain view on co-accused’s seat and to search for other drugs that were found in crevice between driver’s seat and front console. Accused’s rights under Canadian Charter of Rights and Freedoms not to be unlawfully detained and searched were not violated. Even if there was violation evidence would not be excluded as its admission would not bring administration of justice into disrepute.

R. v. Bhanji (Jun. 21, 2013, Ont. S.C.J., Thorburn J., File No. 13-90000386-0000) 107 W.C.B. (2d) 354.

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