Case Study: Charges Withdrawn – Drug Trafficking
Early on a February evening police officers were notified that a home invasion and a potential kidnapping had taken place. They were looking out for two black males, and the colour and make of their car was given. An officer spotted a car fitting the description with two black males in it parked and with another officer present approached the vehicle.
Mr. P., who was in the vehicle, insisted that he was parked to wait for his girlfriend.
The two occupants were asked to leave the vehicle for questioning and for their vehicle to be searched. During the search, an officer found a plastic bag of white powder, which was tested using a drug field-kit. The kit indicated the powder was cocaine, roughly 21g, and the two men were arrested.
Mr. P. had lived in Canada since the early 2010s but was not a full citizen. A criminal conviction could result in his deportation. He had a personal and professional life for himself here, including family members, and did not want to be forced to leave. Our goal was to avoid a criminal conviction at all costs; if it could be done by plea deal or withdrawal of charges that was ideal, but if things needed to go to a trial we would be prepared to defend him there.
From the initial consultation with Mr. P., Phil Stiles recognized that the police may have violated several Charter rights during their interaction with Mr. P. Under s24(2) of the Charter, if any Charter rights are violated during the obtaining of evidence, that evidence is deemed inadmissible and cannot be used in court.
S8 of the Charter protects your right against an unreasonable search or seizure. It prevents police from arbitrarily searching you and your property without the proper authorization or justification. Mr. P. insisted that he was removed from his vehicle and handcuffed before the police searched it, and so the only evidence of an offence (the cocaine) was not present when the search began. The grounds to search the vehicle were shaky at best and would make for a strong Charter challenge.
S15 of the Charter prohibits discrimination on several grounds, including race. The only descriptors the police had when looking for those involved in the home invasion and kidnapping was that there were two black males and a specific colour and make of a vehicle. These details were incredibly broad and would be unlikely to hold up at trial as a reasonable ground to detain individuals for searches. It was possible the search was racially motivated, which could be sufficient to have the evidence deemed inadmissible.
Phil planned to start with a Crown Pre-Trial, which can sometimes be all it takes to negotiate a withdrawal or deal. At the pre-trial, the Charter violations would be raised to prompt the Crown to withdraw the charges or accept a deal.
Before a Crown Pre-Trial could be scheduled we requested additional information from the police regarding the analysis of the cocaine. The response was that the charges were being dropped and so no additional information needed to be sent. Mr. P. was thrilled at the unexpected turn of events and Phil was glad to deliver the good news.