Acquittal on Drug Charges due to Serious Charter Rights Violations

In a 2016 trial, a man successfully appealed his earlier conviction on drug charges as well as his ten-year sentence.  In 2014, an Ontario court found the man guilty of possession for the purpose of trafficking heroin (1.5 ounces), cocaine (7 grams) and crystal methamphetamine (2 ounces), as well as possession of hydromorphone.

In the original trial, the accused brought a s. 24(2) Charter application requesting exclusion of the drugs into evidence. He alleged that the general warrant was unlawful and his arrest breached the following Charter rights: he was subject to arbitrary detention and imprisonment under section 9; the manner in which the “bedpan vigil search” was conducted violated his section 8 rights; and his section 7 right to security of the person was also violated. 

In making his decision in 2014, the trial judge rejected the appellant’s argument that his Charter rights had been breached, but even if his rights were violated, the judge asserted that he would not have excluded the drugs from admission into evidence. However, in R. v. Poirier (2016), the Ontario Court of Appeal overturned this earlier decision on a finding that, during the course of the man’s detainment and arrest, police officers did, in fact, seriously violate several of the appellant’s Charter rights.

The circumstances of the arrest

After receiving information from five “reliable confidential informants” that the appellant concealed drugs in his rectum for the purpose of sale, police obtained a general search warrant.  The warrant authorized detention of the man “until he has a bowel movement, significant enough to satisfy the Officer’s [sic] monitoring…that no packages exists”  if, after his arrest, the appellant refuses to cooperate by voluntarily removing the packages and surrendering them to the police. 

The police subsequently arrested the man and after reading him the terms of the warrant, officers strip-searched the man and placed him in a “dry cell” where there was no usable toilet or running water.  If he needed to use a bathroom, the accused would have to inform a police officer who would then monitor his excretions.

The accused man was detained for 43 hours in total, before he was brought before a justice of the peace.  During his detention, the man underwent serious withdrawal symptoms due to his addiction, and there was no provision made to monitor his condition.

In the first 21 to 22 hours, he was handcuffed to the cell bars with his hands above his head.  Thereafter, he remained in handcuffs, but wore oven mitts over his hands and his hands were no longer attached to the bars.  The accused was handcuffed for a total of 30 hours until police were satisfied that there were no more drugs on his person, during which time he eliminated four packages of drugs. At this point, the handcuffs were removed and the man was moved out of the dry cell.  He was subsequently advised that he would be charged with possession of heroin, cocaine, crystal methamphetamine and Dilaudid, for the purpose of trafficking.

Arguments presented by defense counsel and the Crown

The accused man appealed his conviction on the drug possession and trafficking charges as well as his sentencing. In the appeal, defense counsel submitted the following arguments.

1. A general warrant does not include a “bedpan vigil search” as this type of action constitutes a detention, rather than a search.  In addition, a search that is conducted pursuant to a general warrant must involve only a detention that is of short duration, and a longer detention must be explicitly authorized by the Criminal Code.
2. The terms of the general warrant were flawed, as they purported authorization of non-compliance with section 503 of the Criminal Code, which requires an accused person to appear before a justice of the peace “without unreasonable delay and in any event within a period of 24 hours”.
3. The warrant was executed in an unreasonable manner and breached the appellant’s section 8 Charter rights.
4. Due to inadequate monitoring of the appellant’s medical condition, the detention “jeopardized his right to life and security of the person” under section 7 of the Charter.
5. Pursuant to section 24(2) of the Charter, the obtained drug evidence should have been excluded.

The Crown disagreed with all of the appellant’s arguments.  In particular, the Crown submitted that the general warrant did not authorize non-compliance with the Criminal Code, s. 503, as the first 24 hours were not an arbitrary detention that violated his s. 9 Charter rights because the bedpan vigil search “was authorized as a search incident to the common law power of arrest.” Further, it was argued that the manner of the search was reasonable as police were attempting to prevent the appellant from extracting the drugs from his rectum and consuming them.  The Crown also asserted that medical supervision of the appellant was not necessary because he had not consumed the drugs.  Finally, if the appellant’s Charter rights were deemed to have been violated, it was argued that only the evidence of drugs that was obtained after 24 hours of detention should be excluded.

The Ontario Court of Appeal discussion and findings

On Appeal, Justice Weiler asserted that a “bedpan vigil search” is a type of search that can be lawfully authorized in the context of a general warrant under the Criminal Code, s. 487.01.  Also, the fact that a bedpan vigil search takes some time and involves detention of an accused, does not mean it does not meet the criteria of a ‘search’.  However, in this particular case, the warrant was invalid because the language of the warrant authorized detaining the appellant indefinitely and without bringing him before a justice of the peace pursuant to s. 503 of the Criminal Code (which cannot be overridden by a general warrant). 

Justice Weiler also rejected the Crown’s argument that the search was lawful as a common-law search incident to the arrest.  In the process of making an arrest, a search must be carried out in a reasonable manner; however, the judge asserted that the way in which the search was executed was out of proportion with the alleged crime and circumstances. Specifically, it was lacking in regard for the appellant’s personal dignity and for his medical concerns.  On this basis, Justice Weiler held that the trial judge erred in deciding there was no violation of the appellant’s Charter rights.

Citing R. v. Grant (2009), Justice Weiler concluded that “the administration of justice would be brought into disrepute if the drugs were admitted into evidence”.  Accordingly, the drugs were excluded as evidence, the appeal was allowed, and the appellant was acquitted on all charges.

At the Law Firm of Ted Yoannou, our team is highly experienced and skilled in successfully defending clients accused on drug-related charges.  Our lawyers thoroughly investigate all the circumstances of an arrest to uncover and explore any aspects that can challenge the legality of the officers’ search and drug testing procedures with the goal of having the charges against our client dismissed.   Call Ted Yoannou today if you or a family member require legal assistance with respect to a criminal case.