Our client was charged with cannabis possession under Section 4(1) 5) of the Criminal Code. Our client had five prior convictions for related offences and, if convicted, the Crown demanded a short prison sentence. The stakes were therefore very high.
In this case, the police officers had stopped our client under the Highway Safety Code because he had failed to stop at a red light. During the stop, one of the officers noticed that our client was getting up and lifting himself up as if he were putting something under his seat.
After arriving at our client’s car door, the officer saw an open case of beer in plain view behind the driver’s seat, and he also noticed a fresh odour emanating from our client’s breath. To determine whether the scent of alcohol was really coming from our client’s breath, the officer had our client exit the vehicle. It ultimately appeared that our client’s faculties were not impaired, and the officer decided not to subject him to the approved screening device.
The officer was nevertheless convinced beyond a reasonable doubt that our client had hidden a beer under the driver’s seat. He leaned in to take a look and finally found a bag of cannabis weighing about 5 grams.
We filed a motion under Sections 8 and 24 (2) of the Canadian Charter of Rights and Freedoms to exclude the evidence gathered since we considered that the officer did not have the right to search our client’s vehicle.
During cross-examination, the police officer confirmed to the court that he had been investigating under Section 443 of the Highway Safety Code and that he had based his power to search on determining whether our client had been drinking alcohol in the vehicle in violation of the Highway Safety Code.
During our arguments, we demonstrated that the Highway Safety Code grants no power to search the vehicle and that the officer could not rely on the Highway Safety Code to search the vehicle. The court granted our motion and found that, despite the violation, it would not be in the public interest to hear the case on its merits. Our client was acquitted.