R. v. Phengchanh

R. v. Phengchanh

The traffic stop was lawful but the search of the vehicle exceeded the limited protective search powers under investigative detention and thus violated s.8; the Charter breach was wilful/not shown to be in good faith, the intrusion was serious, and admitting the reliably obtained evidence would harm the long‑term repute of the administration of justice, so the evidence seized (narcotics, firearm, ammunition) is excluded under s.24(2).

Citation
2011 BCSC 484
Parties
Crown: Regina; Accused: Kay Phengchanh
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
15 April 2011
Procedural Posture
Criminal / Voir Dire (ruling on Admissibility)
Outcome
Defence application granted; evidence excluded
Legal Topics
Charter S.8 (unreasonable Search), Charter S.9 (detention), Charter S.24(2) (exclusion of Evidence), Search Incident to Detention, Investigative Detention, Traffic Stop, Officer Safety, Warrantless Vehicle Search, Pretextual Stop
Source Language
English
Criminal Law Constitutional Law Evidence Search and Seizure Motor Vehicle Law Charter S.8 (unreasonable Search) Charter S.9 (detention) Charter S.24(2) (exclusion of Evidence) +6 more

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Parties

Regina

Crown

Kay Phengchanh

Accused

Procedural Posture

Criminal / Voir Dire (ruling on Admissibility)

Legal Issues

  1. 1 Whether the search of the vehicle violated s.8 of the Charter
  2. 2 Whether the detention/search were lawful under s.9 of the Charter
  3. 3 Whether the search was a lawful protective pat-down incident to investigative detention or an investigative search for evidence

Ratio Decidendi

The traffic stop was lawful but the search of the vehicle exceeded the limited protective search powers under investigative detention and thus violated s.8; the Charter breach was wilful/not shown to be in good faith, the intrusion was serious, and admitting the reliably obtained evidence would harm the long‑term repute of the administration of justice, so the evidence seized (narcotics, firearm, ammunition) is excluded under s.24(2).

Court Disposition

Defence application granted; evidence excluded

Orders

  • Exclude from trial the items seized from the vehicle (heroin, .38 calibre Beretta pistol, magazines/ammunition) pursuant to s.24(2) of the Canadian Charter of Rights and Freedoms
  • Voir dire application granted