Possession charge.....help!

[MoMack]

To play devil's advocate. Do not forget the basic fact that the law WAS broken here. Regardless of how anyone feels about the law.

As for the way the police got to that point, sure its ugly. But I'm curious as to what is permitted under the narcotics act, that would be saved under s. 1 of the Charter? For some reason I think suspicion, smell etc. may be enough. Although I may be confusing it with US law, where a good old Steal your Face is enough to get pulled over and searched in some states (e.g. NJ)

[StoneMtn]

Okay, I should again comment that I am not a criminal defence lawyer, rather a civil litigator. I can shed some light, though.

Section 1 from the Charter is applied pursuant to the "Oakes Test". That is the case in which it was said under what conditions a Charter right can be breached by legislation. The point of the test is to decide whether a particular statute is constitutional.

“The Oakes Test” is:

1. Pressing and Substantial Objective:

Is the Government’s objective in limiting the Charter protected right a pressing and substantial objective according to the values of a free and democratic society? If no, the law is unconstitutional. If yes, apply branch 2.

2. Proportionality Test:

Examine the proportionality between the Parliament or the Provincial legislature's objective and the means used to further that objective:

a) Rational Connection:

Is the legislation’s limitation of the Charter right have a ''rational connection to Parliament’s objective? The means used must be carefully designed to achieve the objective. They must not be arbitrary, unfair or based on irrational considerations.

Minimal Impairment:

Does the legislative means to achieve the objective impair the Charter protected right in question as minimally as possible? Are there alternative modes of furthering Parliament’s objective that infringe the right to a lesser extent? The legislation cannot not be overbroad or unduly vague.

c) Proportionality between effects and objective:

Are the measures that are responsible for limiting the Charter right proportional to the objective? Does the benefit to be derived from the legislation outweigh the seriousness of the infringement? The legislation may not produce effects of such severity so as to make the impairment unjustifiable.

If the legislation fails any of the above branches, it is unconstitutional. Otherwise it passes the Section 1 Oakes test.

Now, the legislation we are talking about here, is called the Controlled Drugs and Substances Act. The following is an excerpt from a publication by the BC Civil Liberties Association addressing this point:

This discussion on extending police powers arose as the result of the 1999 decision of R. v. Campbell and Shirose (1999) 133 CCC (3d) 257, where the Supreme Court of Canada held that the investigative techniques employed by the police were illegal. In that case, the police engaged in a "reverse sting" money laundering scheme with a view to gaining evidence against persons who were suspected of being involved in the trafficking of narcotics. Effective as the technique was in that particular case, the finding of illegality meant that investigative method was no longer available for use by the police. And while the Court rejected any notion of a "general law enforcement justification" for flouting the law (Campbell and Shirose, at.283-284), the Court at the same time recognized that law enforcement is difficult and that in order to be effective, "the ingenuity of criminals must be matched by that of the police" (at 522).

In response to this case, the government enacted regulations to specifically permit the police to engage in conduct which is otherwise criminal by exempting the police, in these circumstances, from the application of specified provisions of law. In particular, the Controlled Drugs and Substances Act (Police Enforcement) Regulations exempt police officers from the application of various sections of the Controlled Drugs and Substances Act. For the more serious activities of trafficking and making controlled deliveries, an officer will be exempt if (1) he or she has been issued a certificate, (2) the officer is an active member of the police force, and (3) the officer "is acting in the course of the member's responsibilities for the purposes of a particular investigation."

As far as the specific issue of searches goes, I am not entirely confident to provide an opinion, but I will tell you what I do know. There are relaxed standards when it comes to searching a vehicle over searching a home. You are correct that the Court does weigh factors such as the smell of marijuana, apparent drug-induced state of the inhabitants of the car, and other factors to decide if the search is warranted under the circumstances. To my knowledge, a Steal Your Face sticker is not grounds for such a search, however, I speculate that a bumper sticker saying "Smoke All You Want, We'll Grow Some More" and other similar stickers, would be a factor that the court would take seriously.

I hope this helps a little bit.