Case Name:
R. v. Sivagurnathan

Between
Her Majesty the Queen, and
Ashohan Sivagurnathan

[2005] O.J. No. 5683

Ontario Court of Justice
Toronto, Ontario
D.P. Cole J.

May 10, 2005.
(6 paras.)

Constitutional law — Canadian Charter of Rights and Freedoms, 1982 — Legal rights — Protection against unreasonable search and seizure — Application by accused allowed for exclusion of gun from evidence on basis that accused's rights under s. 8 of Charter were breached — Warrantless search after accused arrested — Police had no reasonable and probable grounds on which to arrest accused

Criminal law - Powers of search and seizure - Warrantless searches — Application by accused allowed for exclusion of gun from evidence on basis that accused's rights under s. 8 of Charter were breached — Warrantless search after accused arrested — Police had no reasonable and probable grounds on which to arrest accused.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982 s. 7, s. 8, s. 24(2)

Criminal Code

Counsel:

L. Jacek Counsel for the Crown

C. Angelini Counsel for the Accused


 1      D.P. COLE J.:— In this case I am requested to make a ruling under s. 7 and 8 of the charter to exclude the gun which is being entered as Exhibit 1 from evidence on the basis that the accused's right to be free from unreasonable search and seizure and to enjoy privacy and security of the person being infringed.

 2      I have not found this to be an easy decision. I once again wish to thank counsel for the quality of their arguments. They have marshalled them extremely well and I thank them for their assistance. I think I have to keep in mind three points. First, this is a warrantless search and it is now trite law that the party seeking to rely upon a warrantless search must justify it. Secondly, there is of course the presumption of innocence that animates all criminal proceedings. And thirdly, that although obviously illegal possession and use of guns are very serious matters in this city at this time (as evinced by the establishment of a specialized guns and gangs task force of which these police officers were part), I have to keep in mind that public attitudes towards guns must not trump the law.

 3      The Criminal Code of Canada is very clear that where an officer elects to arrest a person, he must have reasonable and probable grounds to do so. In my judgment, while it was quite reasonable and proper for these officers to investigate this accused, they did not have the justification in law to arrest him. I think what they had at that point was reasonable and possible grounds, not reasonable and probable grounds.

 4      I have given anxious consideration as to whether or not I should apply s. 24(2) of the Charter to allow the evidence in, despite the police lack of justification to arrest the accused. The important decision of the Supreme Court of Canada in Regina v. Mann, [2004] 3 S.C.R. 59, had not been released at the time of the accused's arrest on February 20th, 2004, and thus the police nationally did not have guidance as to their right to conduct investigative detentions. However, in this province investigative detention as a legitimate and appropriate police tactic has been available for well over a decade following the decision of the Ontario Court of Appeal in Regina v. Simpson.

 5      It seems to me that in this province sufficient time has elapsed for the police to be properly trained on Simpson and that it would not now be appropriate for me to legitimate what the police did here in light of the length of time that has passed since Simpson.

 6      Ironically had the police resorted to investigative detention, I think they properly could have searched the accused for officer's safety, and then no doubt the gun would have been discovered, but that is not what they did here. And while this is a close and difficult case, I think in all of the circumstances the s. 8 argument raised by defence counsel should be exceeded to.

QL UPDATE:  20060117
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