R. v. Beilard, (1985) 61 A.R. 321 (ProvCt)

Judge:Porter, J.
Court:Provincial Court (Alberta)
Case Date:April 19, 1985
Jurisdiction:Alberta
Citations:(1985), 61 A.R. 321 (ProvCt)
 
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R. v. Beilard (1985), 61 A.R. 321 (ProvCt)

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R. v. Beilard

Indexed As: R. v. Beilard

Alberta Provincial Court

Porter, J.

April 19, 1985

Summary:

The accused was a passenger in a motor vehicle with four other young men. The motor vehicle was pulled over for a spot check. An R.C.M.P. constable, upon speaking to the driver, detected a smell of what he believed to be marihuana in the car. The constable required all the occupants to leave the vehicle and commenced a groin search of each one, including the accused. A package of cannabis resin was found on the accused. The accused was charged with possession and the trial proceeded summarily. The accused alleged that his rights under s. 8 of the Charter (freedom from unreasonable search and seizure) had been violated. The Alberta Provincial Court held that such rights had been infringed. It excluded the evidence and acquitted the accused.

Civil Rights - Topic 1217

Security of the person - Unreasonable search and seizure - What constitutes - An R.C.M.P. officer detected a smell of marihuana in a car in which the accused was a passenger - Without obtaining further information either by inquiry or observation the officer subjected the accused to a groin search for narcotics - The Alberta Provincial Court held that the officer had no reasonable or probable grounds to believe the accused was in possession of drugs but was acting on "mere suspicion" alone - The court held that the search was illegal and "unreasonable" within the meaning of s. 8 of the Charter - See paragraphs 3, 6 and 7.

Civil Rights - Topic 1217

Security of the person - Unreasonable search and seizure - What constitutes - Standard to be applied - The Alberta Provincial Court reviewed what it considered to be a proper standard for securing the right to be free from unreasonable search and seizure - The court concluded that the standard applicable to a peace officer embarking upon a search under s. 10(1) of the Narcotic Control Act is the same standard necessary to arrest under the Criminal Code or to obtain a search warrant from a Justice of the Peace - See paragraphs 5 and 6.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - On the grounds of "mere suspicion" and in the absence of any prior inquiry or investigation an R.C.M.P. officer subjected an accused to a groin search for narcotic drugs - The accused was accordingly asked to open his pants so that his private parts could be inspected - The Alberta Provincial Court held that conducting searches in this manner was not to be condoned and to admit evidence obtained in this way would bring the administration of justice into disrepute - See paragraphs 8 and 9.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Evidence was obtained from an accused as a result of an illegal and unreasonable body search - The Alberta Provincial Court refused to admit the evidence pursuant to s. 24(2) of the Charter - The court held in the alternative that if s. 24(2) was not properly applicable it would appropriately and justly award a remedy under s. 24(1) of the Charter and exclude the evidence under that subsection - See paragraph 10.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - Evidence was obtained from an accused as a result of an illegal and unreasonable body search - The Alberta Provincial Court refused to admit the evidence pursuant to s. 24(2) of the Charter - The court held that if this section was not properly applicable, it would alternatively stay the proceedings as an appropriate and just remedy in the situation - See paragraph 10.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Bringing the administration of justice into disrepute - S. 24(2) - The Alberta Provincial Court affirmed that in determining whether the use of evidence in particular proceedings would bring the administration into disrepute consideration must be given to such factors as: the circumstances of the proceedings, the manner in which the evidence was obtained, the degree to which there was a breach of social values, the seriousness of the charge, and the effect the exclusion would have on the result of the proceedings - See paragraph 8.

Cases Noticed:

R. v. Rao (1984), 4 O.A.C. 162; 40 C.R.(3d) 1, refd to. [para. 4].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, consd. [para. 5].

R. v. Stevens (1983), 58 N.S.R.(2d) 413; 123 A.P.R. 413; 35 C.R.(3d) 1, consd. [para. 6].

R. v. Collins (1983), 33 C.R.(3d) 130 (B.C.C.A.), consd. [para. 7].

R. v. Cohen (1983), 33 C.R.(3d) 151 (B.C.C.A.), consd. [para. 7].

R. v. Blackstock (1983), 32 C.R.(3d) 91 (Sask. Q.B.), consd. [para. 7].

R. v. Wright (1984), 51 A.R. 124, consd. [para. 7].

R. v. Heisler (1985), 57 A.R. 230, consd. [para. 7].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 8].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 8 [paras. 1, 4]; sect. 24(1) [para. 10]; sect. 24(2) [paras. 8, 10].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 10(1) [paras. 4, 6].

Counsel:

S. Hamilton, for the Crown;

R. Rooneen, for the accused.

This case was heard at Hinton, Alberta, on April 19, 1985, before Porter, J., who delivered the following oral decision:

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