Charter Issues in Drug Cases

• Author: Nathan Gorham/Jeremy Streeter/Breana Vandebeek
• Pages: 85-124



Charter Issues

in Drug Cases

4

I. Overview ................................................ 

II. Arbitrary Detention ........................................ 

A. Introduction ........................................ 

B. Dual-Purpose and Pretext Stops ....................... 

III. Police Searches and Reasonable Expectation of Privacy .......... 

A. Introduction ........................................ 

B. Reasonable Expectation of Privacy ...................... 

C. Abandonment ...................................... 

D. Search Incident to Arrest and Reasonable Expectation

of Privacy .......................................... 

IV. Section  Challenges to Search Warrants: The Garofoli

Application .............................................. 

A. Introduction ........................................ 

B. What Is a Garofoli Application? ........................ 

C. What Is the Test on a Garofoli Application? ............... 

D. What Types of Challenges Can Be Mounted? ............. 

E. Condential Informer Issues in Garofoli Applications:

Resorting to“Step ” ................................ 

F. The Step  Procedure ................................ 

© 2024 Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Drug Cases

I. Overview

In all criminal proceedings, the police action during the course of the investigation

and dealings with the accused must comply with the obligations and rights under the

Charter. These obligations apply equally during drug investigations. This chapter

addresses three common issues that arise during the course of drug cases: (1) arbi-

trary detention and pretext stops, (2) search incident to arrest and reasonable expect-

ation of privacy, and (3) search warrants and the Garofoli

1 review procedure.

II. Arbitrary Detention

A. Introduction

Sections 9 and 10 of the Charter protect an accused from arbitrary detention2 or

imprisonment and require that an arresting or detaining ocer provide an accused

with information about the circumstances of their arrest or detention and the ability

to contact counsel to obtain legal advice.3 Whether an arrest or detention is lawful

will depend on whether the police have the statutory or common law authority to

arrest or detain the accused. At common law, an arrest requires that the police have

1 Named for R v Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52.

2 In R v Grant, 2009 SCC 32 at para 44, the Supreme Court described detention as follows:

1. Detention underss 9and10of theCharterrefers to a suspension of the individual’s

liberty interest by a significant physical or psychological restraint. Psychological deten-

tion is established either where the individual has a legal obligation to comply with the

restrictive request or demand, or a reasonable person would conclude by reason of

thestate conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear

whether a person has been detained. To determine whether the reasonable person in

the individual’s circumstances would conclude that he or she had been deprived by the

state of the liberty of choice, the court may consider,inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be

perceived by the individual: whether the police were providing general assistance;

maintaining general order; making general inquiries regarding a particular occur-

rence; or, singling out the individual for focused investigation.

(b) The nature of the police conduct, including the language used; the use of

physical contact; the place where the interaction occurred; the presence of others;

and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where rel-

evant, including age; physical stature; minority status; level of sophistication.

3 See the following cases generally regarding a detainee’s rights and the police obligations pursu-

ant to s 10 of the Charter: R v Bartle, [1994] 3 SCR 173, 1994 CanLII 64; R v Evans, [1991]

1SCR 869, 1991 CanLII 98; R v Brydges,[1990] 1 SCR 190, 1990 CanLII 123;R v Sinclair, 2010

SCC 35; R v McCrimmon, 2 010 SCC 36; R v Singh, 20 07 SCC 48; R v Hebert, [1990] 2 SCR

151, 1990 CanLII 118; R v Manninen,[1987] 1 SCR 1233, 1987 CanLII 67; R v Prosper,[199 4]

3SCR 236, 1994 CanLII 65.

© 2024 Emond Montgomery Publications. All Rights Reserved.

Chapter  Charter Issues in Drug Cases 

reasonable and probable grounds that the accused committed an oence.4 Investiga-

tive detention is established where the police have reasonable grounds to suspect that

the person is connected to a particular oence and that their detention is reasonably

necessary.5 There are also a variety of statutory authorities that authorize detention

in dierent circumstances. In the context of drug prosecutions, a situation that com-

monly arises is one where individuals are stopped and detained for a non-criminal

purpose, such as a trac investigation, but subsequently the detention turns into a

criminal investigation. This section addresses the issues that arise in these

circumstances.

B. Dual-Purpose and Pretext Stops

Sections 48 and 216 of the Highway Trac Act6 provide the police with statutory au-

thority to stop and detain motorists to enforce the requirements under that Act.7 Like-

wise, there is also common law authority that permits the police to stop motorists to

ensure that they are following the law and driving safely. However, the situation

becomes more complicated when there are multiple purposes to the stop. In this regard,

the jurisprudence has distinguished between dual-purpose stops and pretext stops.

Dual-purpose stops do not violate the Charter. That is, police are permitted to

lawfully enforce the provisions of the HTA while simultaneously conducting a con-

current criminal investigation. This type of dual-purpose investigation, however,

requires that the police have a legitimate intention to enforce the HTA at the time of

the stop.8

Pretext stops, on the other hand, amount to a Charter violation.9 A pretext stop

involves a situation where the police stop a motorist for a criminal purpose but then

attempt to rely on enforcement of the HTA as a basis for the stop. Ultimately,

whether a particular stop is deemed to be pretext stop or a dual-purpose stop will

depend on the circumstances of each case and the testimony of the detaining ocer

during the course of the Charter voir dire. To establish that the detention was based

on a pretext stop as opposed to a dual-purpose stop, defence counsel must be able to

4 R v Latimer, [1997] 1 SCR 217 at para 26, 1997 CanLII 405; R v Storrey, [1990] 1 SCR 241, 1990

CanLII 125.

5 R v Mann, 2004 SC C 52.

6 RSO 1990, c H.8 [HTA].

7 See e.g. R v Orbanski; R v Elias, 2005 SCC 37.

8 See e.g. R v Nolet, 2010 SCC 24 at paras 35-41;R v Shipley, 2015 ONCA 914;R v Morris, 2013

ONCA 223;R v Gonzales, 2017 ONCA 543 at para 58;R v Humphrey, 2011 ONSC 3024; Brown

v Regional Municipality of Durham Police Service Board,1998 CanLII 7198, [1998] OJ No 5274

(QL) (C A); R v Ceballos, 2014 ONSC 2281.

9 See e.g. Brown, supra note 8; R v MacKenzie, 2013 SCC 50; Nolet, supra note 8; Gonzales, supra

note 8; R v Johnson, 2009 ONCA 668.

© 2024 Emond Montgomery Publications. All Rights Reserved.