R. v. Zammit (J.), (1993) 62 O.A.C. 272 (CA)

• Judge: Catzman, Carthy and Labrosse, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 16, 1992
• Jurisdiction: Ontario
• Citations: (1993), 62 O.A.C. 272 (CA);1993 CanLII 3424 (ON CA);13 OR (3d) 76;21 CR (4th) 86;81 CCC (3d) 112;[1993] OJ No 881 (QL);15 CRR (2d) 17;19 WCB (2d) 348;62 OAC 272

R. v. Zammit (J.) (1993), 62 O.A.C. 272 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Jamie Zammit (appellant)

(No. C11814)

Indexed As: R. v. Zammit (J.)

Ontario Court of Appeal

Catzman, Carthy and Labrosse, JJ.A.

April 14, 1993.

Summary:

The accused appealed his convictions on charges of possession of cocaine for the purpose of trafficking and possession of marijuana.

The Ontario Court of Appeal allowed the appeal and acquitted the accused.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - Police, acting on a tip from a previously unknown informer that the accused was a trafficker and had pos­session of drugs, stopped the accused's motor vehicle on the pretext of a motor vehicle violation, searched the vehicle and found a quantity of cocaine - The Ontario Court of Appeal held that the warrantless search and seizure violated s. 8 of the Charter because the police officer lacked reasonable and probable grounds for the search and seizure - See paragraphs 3 to 28.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - Police, acting on a tip from a previously unknown informer that the accused was a trafficker and would come into possession of drugs at a specified time, stopped the accused's motor vehicle, searched and found a quantity of cocaine -Police did not attempt to obtain a search warrant - The Ontario Court of Appeal held that the search and seizure violated s. 8 of the Charter where the Crown failed to establish that it was not feasible to obtain a warrant prior to the search and seizure - See paragraphs 29 to 36.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Acting on a tip from a previously unknown informer that the accused was a trafficker and would come into possession of drugs later that day, police conducted a warrantless search of the accused's vehicle and seized a quantity of cocaine - The Ontario Court of Appeal held that the search and seizure violated s. 8 of the Charter because there were not reasonable and probable grounds for the search and because it was feasible to have obtained a warrant - The court excluded the evidence under s. 24(2) of the Charter, where its admission would bring the ad­ministration of justice into disrepute - See paragraphs 37 to 45.

Cases Noticed:

R. v. Rao (1984), 4 O.A.C. 162; 40 C.R.(3d) 1; 12 C.C.C.(3d) 97 (C.A.), refd to. [para. 1].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 18].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129, affg. 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 19].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161; 75 C.R.(3d) 257; 46 C.R.R. 1; [1990] 3 W.W.R. 577; 73 Alta. L.R.(2d) 97, refd to. [para. 28].

R. v. McComber (1988), 29 O.A.C. 311; 44 C.C.C.(3d) 241 (C.A.), refd to. [para. 35].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207, refd to. [para. 38].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta.L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 40].

R. v. Acciavatti (1993), 62 O.A.C. 137, refd to. [para. 43].

R. v. Mellenthin (1992), 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 43].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 28]; sect. 24(2) [para. 37].

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.1 [para. 34].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 10, sect. 11 [para. 1].

Counsel:

Charles Wagman, for the appellant;

Scott Fenton, for the respondent.

This appeal was heard on November 16, 1992, before Catzman, Carthy and Labrosse, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by La­brosse, J.A., who released the following judgment on April 14, 1993.