Summary

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Summary

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Constitutional law - Charter of Rights - Search and seizure - Arbitrary detention - Remedy - Whether the Court of Appeal erred when it concluded that the police officer’s inspection of the accused’s vehicle was authorized by law and did not constitute a search - Whether the Court of Appeal erred when it determined that the accused’s arrest for possession of the knife pursuant to s. 88 of the Criminal Code was lawful - Whether the Court of Appeal erred when it determined that the accused’s rights under the Charter were not infringed.

Mr. Diamond was convicted of one count of unlawful possession of a weapon dangerous to the public peace and of one count of possession of cocaine for the purpose of trafficking. He was pulled over at night while driving his pick-up truck over the speed limit. While Mr. Diamond was searching for his driver’s licence and the vehicle registration, the officer spotted an unsheathed hunting-type knife with his flashlight. Mr. Diamond was arrested for possession of a weapon dangerous to the public peace. He was then subjected to a pat-down search at roadside, which revealed a small bag of cocaine. A subsequent strip-search at the police detachment led to the discovery of 28 additional small bags of cocaine.

At trial, Mr. Diamond argued that the search of his vehicle was a warrantless search in violation of s. 8 of the Canadian Charter of Rights and Freedoms, that his arrest was unlawful and in violation of s. 9 of the Charter, and that all of the evidence should be excluded under s. 24(2) of the Charter. The trial judge found that the officer’s actions at the side of the road did not constitute a search, that the seizure of the knife was justified, that the officer had reasonable and probable grounds to arrest Mr. Diamond and that the seizure of the cocaine was justifiable and incidental to the arrest. The majority of the Court of Appeal upheld the trial judge’s conclusions and dismissed the appeal. White J.A., dissenting, would have allowed the appeal, ordered that all evidence be excluded, and entered verdicts of acquittal in respect of all charges. He was of the view that there was a warrantless search but that it was justified for officer safety reasons. However, he found that the officer did not have reasonable and probable grounds to arrest Mr. Diamond and therefore that the arrest violated s. 9 of the Charter. Because the arrest was unlawful, in his view, it followed that the search incident to the arrest was unlawful and a violation of Mr. Diamond’s s. 8 Charter rights. He concluded that the knife and the cocaine should be excluded under s. 24(2) of the Charter not to bring the administration of justice into disrepute.

Lower Court Rulings