R. v. Polashek

45 O.R. (3d) 434, [1999] O.J. No. 968

Facts

ON CA

Police stop under HTA, strong smell of marijuana, based on smell, response of accused to question, area of city and time of night officer believed R&PG for arrest for possession, cursory search found cannabis, arrest continued search found $4000, search trunk found bags of marij., scale, and rolling tobacco, arrested P4P , RTC 13 minutes after initial arrest, question when asked to tell about dope, reply "what can I say? You caught me; I'm busted"

Reasons

ON CA

had officer based arrestv of accused solely on the presence of marijuana odour in vehicle, not R & PG, sense of smell highly subjective. however presence of smell can provide R&PG depending on circumstances. trial judge's finding of R&PG not unreasonable considering other circumstances. Police not required to suspend search incident to arrest to permit RTC

Reasons

ON CA

13 minute delay in advising accused of RTC, violated accused right to be informed of RTC without delay. at p. 11 QL "conceded the over 10 minute delay in advising the appellant of his right to counsel constituted a violation of s. 10(b) of the Charter."... "Following the violation of the appellant's rights, the police found the drugs and other indicia of trafficking in the trunk of the car and the appellant made an inculpatory statement. The items found in the trunk are non-conscriptive evidence, the admission of which would not affect the fairness of the trial. The violation of the appellant's rights was not serious, a relatively slight delay in informing him of rights in circumstances where he would not have been able to exercise the rights in any event. The one factor favouring exclusion of the evidence is the effect of the exclusion on the repute of the administration of justice. When asked what he was taught about when to read an arrestee the right to counsel, Constable Ross testified that, "We're not really taught at any particular point in time, it's just done subsequent to the arrest." This suggests a serious systemic failure within the police community, given that the decision in Debot was released over six years prior to the arrest in this case. However, balancing the three sets of factors under s. 24(2), I would not exclude the real evidence found in the search of the vehicle. I take a different view of the inculpatory statement. This was conscriptive evidence and its admission would generally tend to render the trial unfair."

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