R. v. Clements (S.R.), 2002 ABQB 443

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 01, 2002
• Citations: 2002 ABQB 443;(2002), 315 A.R. 386 (QB)

R. v. Clements (S.R.) (2002), 315 A.R. 386 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. MY.051

Her Majesty The Queen v. Steve Ray Clements

(Action No. 016596355Q1; 2002 ABQB 443)

Indexed As: R. v. Clements (S.R.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

May 2, 2002.

Summary:

Police stopped the accused's vehicle after observing two white objects being thrown from the vehicle. The accused was not advised why he was detained. The officers became suspicious of the accused's nervousness and agitation. The accused invited the officers to search his vehicle. One of the accused's pants pockets was bulging. The accused denied having a weapon. The officer searched the pocket and pulled out crack cocaine. The search was conducted because the officer stated that he feared for the safety of he and his partner. The accused was charged with possession of cocaine. A voir dire was held to determine the admissibility of the seized evidence.

The Alberta Court of Queen's Bench held that the warrantless search constituted an unreasonable search and seizure contrary to s. 8 of the Charter. However, the court declined to exclude the evidence under s. 24(2).

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - Police stopped the accused's vehicle after observing two white objects being thrown from the vehicle - The accused was not advised why he was detained - The officers became suspicious of the accused's nervousness and agitation - The accused invited the officers to search his vehicle - One of the accused's pants pockets was bulging - The accused denied having a weapon - The officer searched the pocket and found crack cocaine - The search was conducted because the officer stated that he feared for the safety of he and his partner - The Alberta Court of Queen's Bench held that the accused's s. 8 Charter right to be secure against unreasonable search and seizure was violated - A warrantless search incidental to arrest was reasonable - However, the accused was not arrested - He was merely detained for a ticket for a motor vehicle infraction (littering) - Police were entitled to search a detained person if they reasonably believed that their safety was jeopardized - Fear for safety was unreasonable, given the lack of threatening behaviour and the nature of the stop - However, the court declined to exclude the evidence under s. 24(2) of the Charter.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1214 ].

Cases Noticed:

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 16].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 17].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 21].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298 (C.A.), refd to. [para. 21].

R. v. Kelleher (D.M.) (1995), 176 A.R. 329 (Prov. Ct.), refd to. [para. 22].

Terry v. Ohio (1968), 20 L. Ed.2d 889 (U.S.S.C.), refd to. [para. 24].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 28].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 28].

Counsel:

Frank P.K. Friesacher, for the Crown;

Michael B. Marcovitch, for the accused.

This case was heard on May 1, 2002, before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 2, 2002.