ITO established grounds that search of accused’s car would reveal evidence of drugs

Criminal Law - Charter of Rights and Freedoms - Unreasonable search and seizure [s. 8]

Police agent was used to purchase cocaine from suspect, Information to Obtain (ITO) was issued based on information that suspect was supposed to buy cocaine from accused. On one occasion suspect told police he would pick up cocaine from accused and that supplier was delayed because of health problems connected to having been shot by police, and accused had been shot by police. Data bank searches showed that accused was not facing current charges, that he had dated criminal record, and that accused had been arrested in 2012 for drug offences but ITO did not reveal that those charges had been stayed. Search warrant was issued, for accused’s vehicle, some 23 days after day on which suspect said he was buying cocaine from accused, and drugs and related trafficking paraphernalia were found. Trial judge found ITO was not valid, that there was s. 8 Charter of Rights and Freedoms breach, and that seriousness of breach and impact of breach upon respondent favoured exclusion. Majority of Court of Appeal dismissed Crown’s appeal and found that missing information about stay of 2012 charge was readily available to police and they failed to include it, thereby bolstering essentially reputational basis for warrant. Majority held that Charter breach was not merely matter of timing, rather it was failure to comply with mandatory statutory requirement, to establish reasonable grounds that evidence would be found in place sought to be searched. Minority of Court of Appeal, dissenting, found that ITO established reasonable and probable grounds to believe that search of accused’s car would reveal evidence of drug offences, as set out in search warrant. Minority held that trial judge erred in excluding evidence under s. 24(2) of Charter, as this was not warrantless search and police had very legitimate reason to delay executing search. Crown appealed. Appeal allowed. Appeal was allowed, and new trial ordered, substantially for reasons of minority of Court of Appeal, to extent that there was no breach of s. 8 of Charter.

R. v. James (2019), 2019 CarswellOnt 18596, 2019 CarswellOnt 18597, 2019 SCC 52, 2019 CSC 52, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Côté J., Brown J., Rowe J., Martin J., and Kasirer J. (S.C.C.); reversed (2019), 2019 CarswellOnt 5350, 2019 ONCA 288, G. Pardu J.A., I.V.B. Nordheimer J.A., and A. Harvison Young J.A. (Ont. C.A.).

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