R. v. Hardenstine

R. v. Hardenstine

The court found the stop and arrest lawful: the officer had objective and subjective grounds for arrest based on failure to stop for police and, alternatively, the odour of freshly burnt marihuana combined with surrounding facts; the subsequent search of the vehicle was lawful as incidental to arrest and yielded drugs and other evidence; however the police breached s.10(b) by failing to give the required Prosper supplementary warning after the accused ceased attempts to contact counsel and indicated he no longer wished to call further lawyers; the statement elicited (identification of the bag) was obtained in breach of s.10(b) and, applying the Grant factors, must be excluded under...

Citation
2010 BCSC 899
Parties
Crown: Regina; Accused: Andrew Robert Hardenstine
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
8 March 2010
Procedural Posture
Criminal Possession for Purpose of Trafficking (controlled Drugs and Substances Act) / Voir Dire on Charter Issues With Oral Reasons and Ruling; Pre Trial Evidentiary Ruling
Outcome
Finding: arrest and search lawful; s.10(b) breach for failure to give Prosper warning; inculpatory statement excluded under s.24(2); physical evidence from search admitted
Legal Topics
Charter S.8 Search and Seizure, Charter S.10(b) Right to Counsel and Prosper Warning, Charter S.24(2) Exclusion of Evidence, Arrest Powers S.495 Criminal Code, Arrest for Flight S.249.1 Criminal Code, Odour of Marihuana as Basis for Investigation
Source Language
English
Criminal Law Constitutional Law Evidence Law Search and Seizure Law Charter S.8 Search and Seizure Charter S.10(b) Right to Counsel and Prosper Warning Charter S.24(2) Exclusion of Evidence Arrest Powers S.495 Criminal Code +2 more

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Parties

Regina

Crown

Andrew Robert Hardenstine

Accused

Procedural Posture

Criminal Possession for Purpose of Trafficking (controlled Drugs and Substances Act) / Voir Dire on Charter Issues With Oral Reasons and Ruling; Pre Trial Evidentiary Ruling

Legal Issues

  1. 1 Whether police conduct violated s.8 of the Charter by unlawful search of vehicle
  2. 2 Whether arrest was lawful: for flight from police under s.249.1 or on basis of smell of marihuana
  3. 3 Whether police violated s.10(b) by failing to give Prosper warning after accused ceased attempting to contact counsel

Ratio Decidendi

The court found the stop and arrest lawful: the officer had objective and subjective grounds for arrest based on failure to stop for police and, alternatively, the odour of freshly burnt marihuana combined with surrounding facts; the subsequent search of the vehicle was lawful as incidental to arrest and yielded drugs and other evidence; however the police breached s.10(b) by failing to give the required Prosper supplementary warning after the accused ceased attempts to contact counsel and indicated he no longer wished to call further lawyers; the statement elicited (identification of the bag) was obtained in breach of s.10(b) and, applying the Grant factors, must be excluded under...

Court Disposition

Finding: arrest and search lawful; s.10(b) breach for failure to give Prosper warning; inculpatory statement excluded under s.24(2); physical evidence from search admitted

Orders

  • Exclude the accused's statement identifying the bag and its contents obtained after the failure to give the Prosper warning pursuant to s.24(2) of the Charter
  • Admit physical evidence seized from the vehicle (drugs, drug paraphernalia, cell phones, ammunition) as lawful search incidental to arrest