R. v. Do

R. v. Do

Court held the officer had objective reasonable suspicion to detain the accused for investigation (investigative detention lawful) but the arrest, at the precise time it was effected, violated s.9 because it was primarily motivated by a criminal investigation of a suspected marihuana grow operation rather than...

Source-derived case information.

Citation
2012 BCSC 22
Parties
Crown: Regina; Accused: Van Toan Do
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
12 January 2012
Procedural Posture
Criminal (controlled Drugs and Substances Act, Criminal Code) / Voir Dire on Charter Issues (s.8 and S.9); Trial Pending
Outcome
Voir dire findings: investigative detention lawful; arrest violated s.9; search of person violated s.8; accused has no standing to challenge residence search under s.8; s.24(2) admissibility deferred for further submissions.
Legal Topics
Section 8 Charter Unreasonable Search, Section 9 Charter Arbitrary Detention, Section 24(2) Exclusion of Evidence, Exigent Circumstances, Investigative Detention, Incident to Arrest, Fire Services Act Assistance
Source Language
english
Criminal Law Constitutional Law Search and Seizure Police Powers Section 8 Charter Unreasonable Search Section 9 Charter Arbitrary Detention Section 24(2) Exclusion of Evidence Exigent Circumstances +3 more

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Parties

Regina

Crown

Van Toan Do

Accused

Procedural Posture

Criminal (controlled Drugs and Substances Act, Criminal Code) / Voir Dire on Charter Issues (s.8 and S.9); Trial Pending

Legal Issues

  1. 1 Whether the arrest of the accused violated s.9 of the Charter
  2. 2 Whether the search of the accused's person incident to arrest violated s.8 of the Charter
  3. 3 Whether the accused had standing to challenge the warrantless search of the residence under s.8

Ratio Decidendi

Court held the officer had objective reasonable suspicion to detain the accused for investigation (investigative detention lawful) but the arrest, at the precise time it was effected, violated s.9 because it was primarily motivated by a criminal investigation of a suspected marihuana grow operation rather than exigent safety concerns; consequently the search of the accused's person was not incidental to a lawful arrest and violated s.8; the accused lacked standing to challenge the warrantless search of the residence; resolution on exclusion under s.24(2) was deferred pending additional submissions.

Court Disposition

Voir dire findings: investigative detention lawful; arrest violated s.9; search of person violated s.8; accused has no standing to challenge residence search under s.8; s.24(2) admissibility deferred for further submissions.

Orders

  • Request for additional written and/or oral submissions from defence and Crown on application of s.24(2) (including discoverability issues)
  • Court to deliver further judgment on admissibility after receipt of additional submissions