Case Law Discussion

[jolinar of malkshor]

The trial judge ruled the police attended the house to communicate with the occupants. not to obtain incriminating evidence against the occupant. Accordingly, Fowler's Charter rights were not breached and the certificate of analysis was admitted. He was convicted of the over 80mg% charge and impaired driving charge was stayed.

Fowler appealed to the New Brunswick Supreme Court, which overturned his conviction. The appeal court judge found that one of the police purposes for knocking at the door was to obtain evidence Fowler was impaired. They therefore exceeded their authority under implied invitation to knock and violated his Charter rights in the process. The breathalyzer results should have been excluded under S.24(2) and a new trial was ordered.

The Crown appealed to the New Brunswick Court of Appeal.

Do you think the Appeal Court upheld the conviction or sided with the New Brunswick Supreme Court?

[Azure]

Ah, sorta makes sense now.

I figured the breath test would be excluded.

[jolinar of malkshor]

The New Brunswick Supreme Court ruled that in this case the Appeal court judge exceeded her authority when she determined that one of the police purposes was to obtain evidence against the accused.

The Crown's appeal was allowed and Fowler's conviction restored.

R. v. Fowler 2006 NCBA 90

Originally Posted by jolinar of malkshor

The New Brunswick Supreme Court ruled that in this case the Appeal court judge exceeded her authority when she determined that one of the police purposes was to obtain evidence against the accused.

The Crown's appeal was allowed and Fowler's conviction restored.

R. v. Fowler 2006 NCBA 90

Justice!!!

FYI... Impaired driving is composed of 2 charges... impaired driving based on indictia of impairment AND impaired driving over .08. One will only be found guilty of one or the other, not both... thus, the stay.

[jolinar of malkshor]

Originally Posted by Bent Wookie

Justice!!!

FYI... Impaired driving is composed of 2 charges... impaired driving based on indictia of impairment AND impaired driving over .08. One will only be found guilty of one or the other, not both... thus, the stay.

Actually, you can be found guilty of both....but you cannot be convicted of both. If found guilty of both then one of the charges will be stayed.

Originally Posted by jolinar of malkshor

Actually, you can be found guilty of both....but you cannot be convicted of both. If found guilty of both then one of the charges will be stayed.

Semantics.

[Mightyfire89]

nm.

Great topic for discussion.

[Trojan97]

Originally Posted by Savvy27

I can't fairly consider this case until I am positive there are no christmas trees in the courtroom.

[Azure]

Well...nothing new....

Originally Posted by Azure

Well...nothing new....

Pick a new case.

[jolinar of malkshor]

Originally Posted by Azure

Well...nothing new....

I will do one tomorrow when I am at work.

[jolinar of malkshor]

The respondent arrived at Pearson International Airport on March 13, 1993 at approximately 4:00 p.m. Sometime prior to his arrival, the respondent had ingested 84 pellets, each containing approximately five grams of heroin that had been wrapped in condoms. When he presented himself to customs officials, the primary customs inspector marked his documentation with a code indicating “doubt” and subsequently referred him to a secondary customs area for further questioning. At the time of trial, the primary customs inspector could not recall the reason for the referral, but agreed that the marked code did not relate to smuggling narcotic.

The respondent arrived at the secondary customs counter at 4:30 p.m. where he was interviewed by Inspector Roberts. Having questioned the respondent and inspected his travel documents and luggage, Inspector Roberts became suspicious concerning certain details of the respondent’s travel arrangements. The respondent had paid $688.00 by cheque for an airline ticket issued on the date of departure which indicated that the ticket was purchased in haste. The respondent stated that he was employed as a taxi driver, and that he had been out of the country visiting a sick cousin in Switzerland. Inspector Roberts thought it was suspicious that a person in a relatively low-paying job would be able to afford to fly to Switzerland, let alone to do so simply to visit a distant relative. Also suspicious to Inspector Roberts was the fact that the respondent’s passport showed his place of birth as Ghana, given Inspector Roberts’ informal knowledge of Switzerland as a “transit routing” country for narcotics and Ghana as a source country. He asked the respondent if he had been to Ghana during his period of travel outside of the country and the respondent replied that he had not.

Inspector Roberts also testified that other aspects of the respondent’s behaviour aroused his suspicions. The respondent appeared nervous during the interview, had not declared a bottle of alcohol in his possession, and had no checked baggage, although Inspector Roberts did admit that the last two factors alone do not raise a reasonable suspicion that a traveller is a drug courier. At this point, Inspector Roberts asked the respondent if he had a criminal record, and the respondent replied that he did not. Inspector Roberts subsequently obtained permission from his superior officer to conduct a computer check on the respondent, the results of which disclosed that the respondent had been charged with incest but had not as yet been tried. When Inspector Roberts returned to continue questioning the respondent, the respondent volunteered that he had been charged with assault, and also admitted that he had been to Ghana to visit his mother, despite his earlier denial of having been there.

It was at this point that Inspector Roberts decided he had sufficient grounds to detain the respondent as a suspected drug courier, and informed him of his right to counsel. Having first obtained permission from his superior officer. The respondent was detained in the secondary customs area.

At 6:24 p.m., Customs Enforcement Officers Martin and Carrillo of Interdiction and Intelligence took custody of the respondent, placed him under detention, and informed him of his right to counsel. Officer Martin testified that he had formed the opinion that the respondent was a “good prospect as a drug swallower”, and that he “suspected” that the respondent had swallowed drugs. He based this opinion not only on the same information relied upon by Inspector Roberts, but also on his suspicion that the respondent may have been using two passports, given that the passport he presented at Customs did not contain a stamp from Ghana although the respondent admitted to travelling to Ghana during his time out of the country.

Officers Martin and Carrillo then took the respondent to what is known as the “drug loo facility”. The facility, which is used to process suspected drug swallowers, contains an apparatus similar to a toilet which permits customs officers to process faecal matter and isolate any narcotics and associated material which passes through a suspect’s digestive system during the period of detention.

At 6:45 p.m., Officers Martin and Carrillo sought the respondent’s consent to a urine test. The respondent declined to provide consent, and at this time the officers informed the respondent that he would remain in detention until either a negative urine test or clear bowel movement satisfied the officers that the respondent had not ingested narcotics. At 8:30 p.m., the respondent requested permission to contact his lawyer. He then had a telephone conversation with his lawyer which lasted from 8:34 p.m. until 8:50 p.m. Following the telephone call, the respondent agreed to provide a urine sample and signed the consent form. The sample was collected at 9:18 p.m., and testing confirmed the presence of heroin. At this point, Officers Martin and Carrillo arrested the respondent, who then confessed to ingesting approximately 84 pellets of heroin. Following a second telephone call to his lawyer at 9:25 p.m., the respondent began to excrete the pellets. By 1:50 a.m., when the respondent had passed 83 of the pellets, he was transferred into the custody of the RCMP.

None of the various customs officers who dealt with the respondent following his arrival at Pearson International Airport was aware of the written protocol contained in the Customs Enforcement Manual which provides that because of the dangerous health risk, travellers suspected of ingesting narcotics are to be detained in the presence of qualified medical personnel. Instead, the officers followed the conflicting port policy whereby a detained traveller is not taken to a medical facility unless the traveller makes such a request or appears to be in physical distress. There was also expert testimony to the effect that hospitalization would have been the prudent course of action in the circumstances.

The respondent was convicted of importing narcotics. The respondent appealed the conviction on the grounds that section 7 and 8 of his Charter Rights were violated.

Where his rights violated? If so did the appeal court over turn the conviction?

[jolinar of malkshor]

Just a reminder what sections 7 & 8 of the Charter are.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

[jolinar of malkshor]

Nobody wanted to comment on this case? I thought it was kind of interesting. Any how.

The Court of Appeal, in a majority decision, held that his rights under s. 8 of the Canadian Charter of Rights and Freedoms had been infringed, and that the evidence concerning the narcotics should be excluded pursuant to s. 24(2) of the Charter. It allowed his appeal and entered an acquittal.

The central question as formulated by Rosenberg J.A. (Court of Apeal Judge) was “whether customs officers have the power to detain a person suspected of having swallowed drugs until the suspicions have been confirmed or the traveller has satisfied the officers that he or she is not carrying drugs”. Rosenberg J.A. concluded that s. 98 of the Customs Act did not authorize the detention and search to which the respondent was subjected by the customs officers. The officers had at most reasonable grounds to suspect that the respondent was attempting to smuggle narcotics into Canada; they did not have reasonable grounds to believe that an offence had been committed. Mere suspicion, no matter how reasonable, is not sufficient to justify for the purposes of s. 8 the detention and search which took place.

He first determined that there was no legal basis for detaining the respondent from 4:30 p.m. until his arrest at 9:18 p.m. After reviewing the requirements for a warrantless arrest established in Storrey, supra, and R. v. Feeney, [1997] 2 S.C.R. 13, he concluded that Inspector Roberts did not have the necessary reasonable and probable grounds upon which to base the arrest, having formed instead only a reasonable suspicion that the respondent had ingested narcotics. Rosenberg J.A. therefore concluded that the customs officers were not authorized by s. 98 of the Customs Act to detain the respondent. Section 98 provides customs officers with the authority to conduct a search alone, with the power to detain a traveller arising only by necessary implication pursuant to s. 31(2) of the Interpretation Act, R.S.C., 1985, c. I-21. In other words, a customs officer may detain a traveller for the length of time necessary to conduct a search, but the condition precedent of such a detention is that the search itself be a valid exercise of authority under s. 98. The strip search of the respondent, therefore, was not authorized by s. 98, which permits a search only when a customs officer has a reasonable suspicion that a traveller has contraband “on or about his person”. Citing decisions of this Court concerning the seriousness of violations of bodily integrity, Rosenberg J.A. concluded that the phrase “on or about his person” was not sufficiently broad in scope so as to include contraband which is ingested and therefore located “within” the person.

Rosenberg J.A. then addressed the respondent’s submission that the seizure of the urine sample prior to the respondent’s arrest violated his rights under ss. 7 and 8 of the Charter. He found that the respondent did not voluntarily consent to the taking of a urine sample as he was led to believe that his detention would continue until evidence of either his guilt or innocence was established by a urine test or a bowel movement. R. v. Stillman, [1997] 1 S.C.R. 607 states that a suspect’s refusal to consent to the collection of bodily samples while in custody becomes meaningless if, because of his detention, he cannot prevent those samples from being taken, Rosenberg J.A. held that the taking of the urine sample violated the respondent’s rights under s. 8 and may also have constituted a violation under s. 7. Since the customs officers would not have possessed reasonable and probable grounds to believe that the respondent had committed an offence except for the results of the unlawful urine test, the arrest of the respondent at 9:18 p.m. was also unlawful.

I think the officers had sufficent grounds to detain this guy and wait till he either **** out the heroin or admitted that he swallowed it. The guy lied once saying that he never went to Guana and then later admitted to it. That alone should be enough.

[jolinar of malkshor]

In R. v. Clayton & Farmer, 2007 SCC 32 a man across the street from the club called police at about 1:22 am, gave his name and said he saw about 10 casually dressed black males, foru with handguns, congregating. The caller described four vehicles by colour and model (a tan Lexus, a black Jeep Cherokee, a black GMC Blazer and a white Acura Legend) associated with the group. When asked to check, he confirmed there was still a crowd in the parking area but that one of the vehicles had left. The gun call was dispatched and police responded.

The first officers on scene saw a group of men outside the club but no weapons. Two officers positioned at the parking lot’s rear exit at 1:26 am, intending to stop and search any exiting vehicle and its occupants. At 1:27 am, they pulled their car in front of the first vehicle to leave – a black Jaguar – even though it wasn’t described by the caller. Farmer was driving and passenger Clayton wore driving gloves, even though the night was warm. Police said they were investigating a gun call and asked the two men, both black, to step out of the vehicle.

Clayton complied but appeared nervous and was evasive when questioned. He struggled and then fled toward the club after being touched by an officer directing him to the back of the car. Police pursued and apprehended him as he tried to enter the club. A bouncer identified Clayton as one of the males having a gun and he was handcuffed. Officers found a loaded handgun in his pocket.

Farmer exited with some reluctance and only after three requests. A search at the vehicle turned up a loaded handgun tucked in the back of his pants. Both men were charged with numerous firearms offences.

So what do you think? Where they convicted? Legal search and seizure?

[Azure]

No warrent for any of the guns? CCW?

What exactly is a 'gun call?' Never heard of that.

I would assume that they were convicted....especially if they didn't have a warrent for any of the firearms.

[jolinar of malkshor]

Decision will be posted tomorrow.

[jolinar of malkshor]

The evidence was ruled admissible and both men were convicted at trial in the Ontario Superior Court of Justice. The initial brief detention to screen cars leaving the area was permissible at common law, the judge held – however, the officers intended to search the men from the moment they stopped them, even though they had no reasonable and individualized suspicion they were involved in a crime. Continuing the detention by removing them from the car for the search violated their right to be secure from arbitrary detention and unreasonable search. Despite this, excluding the guns would bring the administration of justice into greater disrepute than admitting them, the judge ruled.

Farmer and Clayton appealed. Ontario Court of Appeal Justice Doherty, writing the unanimous judgment, found their Charter rights had been seriously infringed. There was no statutory authority for the roadblock or any reasonable individualized suspicion that could justify an investigative detention, as described by the Supreme Court of Canada in R. v. Mann. Since the roadblock wasn’t used for highway safety, any authority for it would have to find mooring in the ancillary police power doctrine (Waterfield test).

The court was also very critical of police training. The officers failed to consider the relevant factors in assessing the ancillary power doctrine and didn’t balance the demands of their duties against interfering with individual liberties. They also didn’t appreciate the scope of their search powers. Police ignorance of the limits of their ancillary powers was institutional and related to their training.

The handguns were ruled inadmissible, the appeal allowed, the convictions quashed and acquittals were entered on all charges.

The crown appealed this decision. Was it up held?

I was actually quite suprised that the trial judge convicted. The searches seemed a little arbitrary for my liking.

[Iowa_Flames_Fan]

Originally Posted by jolinar of malkshor

Rosenberg J.A. then addressed the respondent’s submission that the seizure of the urine sample prior to the respondent’s arrest violated his rights under ss. 7 and 8 of the Charter. He found that the respondent did not voluntarily consent to the taking of a urine sample as he was led to believe that his detention would continue until evidence of either his guilt or innocence was established by a urine test or a bowel movement. R. v. Stillman, [1997] 1 S.C.R. 607 states that a suspect’s refusal to consent to the collection of bodily samples while in custody becomes meaningless if, because of his detention, he cannot prevent those samples from being taken.

I think the officers had sufficent grounds to detain this guy and wait till he either **** out the heroin or admitted that he swallowed it. The guy lied once saying that he never went to Guana and then later admitted to it. That alone should be enough.

I hear what you're saying, but the bolded part is to me the most persuasive counter-argument. I realize that in this case the guy was guilty, but the court has to make the decision on the basis of how reasonable that assumption was, and on whether the suspect's rights were protected, regardless of the actual outcome of the investigation.

Consider this: If he had been innocent, the story would be "Ghanan man Forced to take Dump while Customs Officers Watch." It would be a horrific violation of his rights.

Why don't they do an X-Ray? That's a lot less gross.

[jolinar of malkshor]

Originally Posted by Iowa_Flames_Fan

I hear what you're saying, but the bolded part is to me the most persuasive counter-argument. I realize that in this case the guy was guilty, but the court has to make the decision on the basis of how reasonable that assumption was, and on whether the suspect's rights were protected, regardless of the actual outcome of the investigation.

Consider this: If he had been innocent, the story would be "Ghanan man Forced to take Dump while Customs Officers Watch." It would be a horrific violation of his rights.

Why don't they do an X-Ray? That's a lot less gross.

I would suggest that an x-ray is much more invasive and intrusive than making someone take a dump.