May 01, 2018
Duval Hesler, Bouchard, Schrager
Appeal from a judgment of the Court of Quebec convicting the appellant of having possessed, for the purpose of trafficking, substances included in Schedules I and II of the Controlled Drugs and Substances Act (S.C. 1996, c. 19) and of breach of conditions. Dismissed with dissenting reasons.
Through the window of a laundromat, the police spotted the appellant, who was sitting on a chair, facing the window, and, it appeared, manipulating something. Being under the impression that he had drugs in his hand, the police officers parked their vehicle and entered the laundromat. The police officers observed the remainder of a marijuana cigarette on the windowsill and seized it. They then arrested the appellant for simple possession. Because the appellant was uncooperative and somewhat aggressive, the police officers decided to place him in handcuffs. The possibility that the appellant was in breach of a condition was raised, so they had to bring the appellant to the patrol vehicle to run a check. Subsequently, one of the police officers patted the appellant down, which resulted in the discovery of a bag containing various drugs. After the search, the appellant was arrested for possession for the purpose of trafficking.
The odour the police officers noticed in the laundromat was an indication that marijuana had previously been present, but it was not sufficient to establish possession. By combining this element is with several others, however, the police were justified in believing that the appellant was in possession of marijuana when they placed him under arrest.
Section 4(3)(a)(ii) of the Criminal Code (Cr. C.) (S.R.C. 1985, c. C-46) states that a person has anything in possession when he “has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”. Here, the police officer could reasonably conclude that the appellant had the marijuana cigarette in the laundromat for his own use. As a result, the judge did not err in finding that the police officers were justified in arresting him without a warrant under s. 495(1)(b) Cr. C. because he was committing an offence punishable on summary conviction.
Moreover, one of the officers knew that possession was a violation of the appellant’s bail conditions and that he had been apprehended after a foot chase. In the circumstances, it was in the public interest not to issue him a summons. In this respect, it would be unreasonable to claim that a police officer is always able to properly evaluate all the relevant factors to ensure compliance with s. 495(2) Cr. C. simultaneously with an arrest. Indeed, the police officer needed a few minutes to return to his car to check on the warrants or the appellant’s conditions of release. In this case, the police were statutorily authorized to search the appellant to ensure their safety and that of the detainee and to preserve evidence. Finally, the judge properly directed herself in law when she found that the search was not unreasonable.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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