R v C, 2004 ABQB 397
The Accused was operating a motor vehicle that had “a large quantity of methamphetamines, cocaine, and other drug paraphernalia.” The Accused was charged with possession for the purposes of trafficking.
Mr. Royer argued that she has been subjected to an unreasonable search and seizure contrary to s. 8 of the Charter, and that under s. 24(2) of the Charter the seized items should be excluded from the evidence.
Mr. Royer also argued that despite the Accused being the operator of the motor vehicle there was insufficient evidence that the Accused possessed the drugs.
Nature of Application? Charter application/Possession argument.
The legal test for the Charter application is:
The Charter requires that agents of the state act in accordance with the Rule of Law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy him or herself that there is a valid purpose for the search incident to arrest before the search is carried out. This accords with the ultimate purpose of s. 8, which, as Dickson J. stated in Hunter, supra, is to prevent unreasonable searches.
The legal test for possession is:
Possession is defined by legislation. Criminal Code , s4 defines possession, while Controlled Drugs and Substance Act , s 2(1) simply imports the definition from the Criminal Code. In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. Constructive possession requires knowledge and control. Control in the context of constructive possession means consent with the power to affect the location of the item.
Ruling:
Mr. Royer argued that the inventory of the motor vehicle which led to the search was unconstitutional. The trial judge agreed. “I conclude then that there were no reasonable and probable grounds for the search, and no connection between the arrest(s) and the search. There were no exigent circumstances justifying the search, just a supposed policy provision to inventory and secure vehicles before they were towed away.”
However, the court did not exclude the evidence despite finding the Charter breach, and instead agreed with Mr. Royer’s argument that the accused did not have possession of the drugs, despite being the operator of the vehicle. Mr. Royer’s client was acquitted despite being the operator of a motor vehicle that had “a large quantity of methamphetamines, cocaine, and other drug paraphernalia.”