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La Cour d’appel de l’Ontario rejette l’appel de Kamil Kurzyna de sa condamnation et de sa peine pour possession de drogue et infractions liées aux armes à feu.
The court dismissed a s. 24(2) Charter application, holding the drugs and records were too remote from the s. 8 strip-search breach and s. 10 delay.
Given the totality of circumstances the officer had an objectively reasonable belief of an imminent threat to public and officer safety (including intelligence from other police, presence of children, impending release of control to a tow operator and high speed/unsafe driving), the warrantless search of the vehicle was justified as a safety search, the roadside detention was not arbitrary, and despite limited ss.10 breaches the admission of the firearm and ammunition under s.24(2) was appropriate; appeal dismissed.
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The Court held that a brief, non-confrontational request for identification during a lawful traffic stop did not amount to detention under ss. 9 and 10 of the Charter.
Viewed functionally and in context, the trial judge provided adequate reasons for accepting the officer's evidence; the credibility finding was supportable because the officer was unshaken in cross-examination, his explanations were logical, and the evidentiary record (including notes referencing information consistent with the informant) undermined the defence fabrication theory; no prejudice from late disclosure was shown and there was no basis for a stay; appeal dismissed.
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The Court held the officer did not breach s.10 by asking why the vehicle smelled of marijuana, the arrest for possession was justified, and the subsequent search of the vehicle (including opening the hood and discovering cocaine in plain view) was a lawful search incident to arrest; therefore the evidence was admissible and the conviction was upheld.
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The court held that a traffic stop based on observed Motor Vehicle Act lane-change violations was lawful, and a secondary investigative motive did not make it arbitrary.
The Supreme Court of Canada dismissed Scott Diamond’s appeal, upholding convictions for weapon possession and cocaine trafficking after a traffic-stop search challenge.
The trial judge's credibility findings were open to him, the second officer's evidence corroborated material aspects of the arresting officer's account supporting reasonable and probable grounds for the traffic stop and search, and there was no basis for appellate interference; appeal dismissed.
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The Court of Appeal held the trial judge did not err: the Highway Traffic Act stop became an investigative detention after police received computer information, the trial judge’s credibility findings rejecting officer safety as justification for the searches were open to him, and although his questioning was unwise it did not give rise to a reasonable apprehension of bias; therefore exclusion under s.24(2) was available and the Crown’s appeal failed.
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