R.v. D.A. (POSSESSION FOR THE PURPOSE OF TRAFFICKING: COCAINE)

Location: Barrie Ontario Court of Justice 

BACKGROUND

Barrie Police received a call at 5:46 am to attend the Quality Inn in relation to a very loud party in a room at the hotel. At 6:24 am, police attended the hotel room and knocked but were unable to make contact with anyone inside the room. At 8:53 am, police again attended the hotel to follow-up on the noise complaint and to check for a “wanted party”. Police attended the room and did not hear any noise coming from within. Police knocked on the door and a black male answered the door. Police confirmed the wanted party was not inside the hotel room. Police then demanded identification from the black male that answered the door. Police then queried the black male and found that he was wanted on a Canadian Immigration Warrant. At 9:38 am, Barrie Police arrested the client on the strength of the warrant. A search incident to arrest revealed 10 small baggies of cocaine and a large quantity of cash. The client was charged with possession for the purpose of trafficking cocaine. The client was facing a significant jail sentence and automatic deportation with no right of appeal. 

THE ISSUE 

After review of the disclosure and consultation with the client, the defence believed that the police investigation was driven by racial profiling on behalf of the Barrie police. The male parties within the hotel room were both black and police were made aware of this by the hotel staff upon arrival. The defence position was that the noise complaint follow-up that the police carried out almost three hours after the party had ceased was motivated by racial profiling. It became apparent that the facts of this case had a significant tone of racial profiling. 

Additionally, the defence position was that the Barrie Police entered the client’s hotel room without a warrant. Further, the detention of the client was unlawful. After the client was unlawfully detained, in breach of the client’s Charter of Rights and Freedoms section 9, right not to be arbitrarily detained, the defence position was that the client was held in detention for close to one hour with no access to counsel, subsequently also breaching his section 10(b) right to counsel without delay. 

THE STRATEGY

A Crown pre-trial was scheduled and the very serious issues present among the facts of this case were discussed with the assigned Federal Crown Attorney. The defence position was that the issue of the illegal entry by police into the client’s hotel room where he was residing at the time of his arrest was obvious and should warrant a stay of the proceedings. Even where the police hold a valid arrest warrant, such as the valid immigration warrant in these circumstances, police cannot enter one’s home without prior authorization unless exigent circumstances exist. 

Following the Crown pre-trial, the Federal Crown Attorney requested that the police clarify whether or not they entered the hotel room of the client. The Police response was disclosed to the defence and the response was that the police remained in the hallway during the interaction with the client. The client indicated that this was not accurate. 

A Judicial pre-trial was scheduled where the Ontario Court of Justice Judge agreed that if the officers did enter the hotel room of the accused, Charterbreaches would likely be found. The Crown was unwilling to agree to a stay of proceedings and a Preliminary Hearing was scheduled. 

The strategy at the Preliminary Hearing was to challenge the two officers who attended the hotel independently on whether or not the hotel room was entered by the officers. 

THE RESULT

The Preliminary Hearing commenced, and the Crown called its first witness. This witness was one of the officers who attended the hotel room to follow up on the noise complaint. When questioned by the Crown, the officer testified that he did not enter the hotel room of the complainant. The defence challenged this officer in cross-examination. When confronted with the possibility of video evidence of the officer entering the hotel room, the Barrie Police officer agreed that he entered the hotel room. The Barrie Police officer also agreed that the client should have been given access to counsel during his lengthy detention and was not. Following the testimony from this officer, the Crown stayed all charges against our client.