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DOC-X VOLUME VI: APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 6.) UNLAWFUL WARRANTLESS SEARCH
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Information Nos.: C51190
court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
DOC-X
VOLUME VI
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
6.) UNLAWFUL WARRANTLESS SEARCH
6.) UNLAWFUL WARRANTLESS SEARCH:
[971] For summary of facts:
• please see Systemic Racism/Racial Profiling in APPLICANT’S FACTUM FOR CONSTITUTIONAL QUESTION(C51190), on page 46-61;
• please see Colouring of Complainant and Tainting of Events in APPLICANT’S FACTUM FOR CONSTITUTIONAL QUESTION(C51190), on page 75-78;
• please see Colouring of Complainant and Tainting of Events in APPLICANT’S FACTUM FOR CONSTITUTIONAL QUESTION(C51190), on page 46-61;
• please see Warrantless Search in APPLICANT’S FACTUM FOR CONSTITUTIONAL QUESTION(C51190), on page 46-61.
UNLAWFUL WARRANTLESS SEARCH PREMISE:
CASE 1: The Applicant was detained for about 20 minutes.
CASE 2: The Applicant was not informed of the reasons for his detainment pursuant to Section 10(a).
CASE 3: The Applicant was not informed of his rights to retain and instruct counsel without delay pursuant to Section 10(b).
CASE 4: Their was a search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR).
CASE 5: Their was no Warrant for the search.
CASE 6: The search was warrantless.
CASE 7: The Warrantless Search was an unlawful search.
CASE 8: The Unlawful search should be looked at in the context of “Fruit from a
Poisonous Tree”.
CASE 9: Their was a reasonable expectation of privacy.
CASE 10: The search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR) contravene Section 8. of the Charter.
CASE 1:
[972] Was the Applicant detained on March 27 and 28, 2007?
Pursuant to the arresting Officer (P.C. Monk);
“Q. After I showed my driver's licence - my
driver's licence, vehicle insurance and ownership to Officer
Bird, was I allowed to leave?
A. No.
Q. So was I being detained?
A. Yes, sir. As I say before, we were
investigating a complaint of impaired driving.
Q. Was I allowed to leave?
A. No.
Q. SO was I being detained?
A. Yes, you were.
Q. Okay. Upon my detainment before my arrest do
you know if that was about 20 minutes?
A. I approximate it around there, yes.
Q. About.
A. Fifteen, 20 minutes”.
(R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88-93)
[973] The issue of the Applicant’s detainment is not a contested issue. But the arresting Officer (P.C. MONK), clearly informed the court of the Applicant’s detainment. Officer, Monk even went as far as concurring that the Applicant was detained for about 20 minutes.
[974] The Applicant’s detainment for about 20 minutes is consistent with THE POLICE OFFICERS MANUAL OF CRIMINAL OFFENCE AND CRIMINAL LAW. It states as follows;
“2. What constitutes "detention". A restraint of liberty other than arrest
There is a "detention" when a police officer or other agent of the State assumes control over a person by a demand or a direction which may have significant legal consequences and which prevents or impedes access to counsel.
Detention may be effected without the application or threat of application
physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. An example of the detention of a person is a demand to accompany the police officer to a police station and to submit to a breathalyzer test (R. V. Therens (1985). 18 c.C.C. (3d) 481 (S.C.C) “
(THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000 pg 66 - pg 73 )
[975] Therefore, CASE 1: is proven.
Thus, the Applicant was detained on March 27 and 28, 2007
CASE 2:
[976] Was the Applicant informed of the reasons for his detainment pursuant to Section 10(a)?
[977] Pursuant to the arresting Officer (P.C. Monk);
“Q. Did you inform me that I was being detained?
A. No, sir. As I said before we weren't able to
_ elicit any response from you while we were there.
Q. But did you ...
A. You didn't ....
Q. ...inform me? This doesn’t require a response.
A. No.”
(R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88-93)
[978] The Applicant’s detainment for about 20 minutes is inconsistent with the Charter and a violation of Section 10(a), which states as fellows;
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
[979] Therefore, CASE 2: is proven.
Thus, the Applicant was detained on March 27 and 28, 2007, with out being inform of the reasons therefor.
CASE 3:
[980] Was the Applicant informed of his rights to retain and instruct counsel without delay pursuant to Section 10(b)?
[981] Pursuant to R. Monk - Cr-ex;
“Q. You're informing me. While being detained did
you read me my rights to counsel and caution?
A. Personally, no, I didn't.
Q. Did anyone else read me my rights to ....
A. Once again, I can't comment on what other
officers did if I didn't notice it.
Q. I'm just asking you if you witnessed ....
A. No, I did not.
Q. Did you make any demand on me to provide
forthwith a sample of breath?
A. No, I didn't because I didn't - I made no
observations in regards to alcohol.
Q. But - I mean - you did - or somebody did call the D.R.E.
A. Yes, sir. A - a D.R.E. would have been
_ utilized had we - had there been - reasonably that you would
have been cooperative with that test, but given the
uncooperative nature of yourself during the - our interaction it
was deemed that there - there was no point in contacting a drug
recognition expert.
Q. Yes, but like I asked you before ...
A. Mm-hmm.
Q. .... I asked you if you asked me to take a
breathalyser test?
A. Well a breathalyser test has nothing to do with
the D.R.E. test, sir.
Q. Okay. Did you ask ....
A. There's no - we didn't ask you to do either.”
(R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88-93)
[982] The Applicant’s detainment for about 20 minutes is inconsistent with the Charter and a violation of Section 10(b), which states as fellows;
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right; and
[983] Furthermore, pursuant to MARTIN’S Annual Criminal Code;
“Right to counsel on arrest - Where a person is detained for a search, as in the case of a body search incident to arrest, then, immediately upon detention, the detainee has a the right to be informed of the right to counsel under s. 10(b) of the Charter. However, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. The police are, however, required to suspend the search where the lawfulness of the search is dependent on the detainee’ consent or where the statute gives a person a right to seek review of the decision to search: R. v. Debot, [1989] 2 S. C.R. 1140, 52 C.C.C. (3d) 193...”
(ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 978)
[984] Therefore, CASE 3: is proven.
Thus, the Applicant was detained on March 27 and 28, 2007, with out being inform of his right to retain and instruct counsel without delay and to be informed of that right.
CASE 4:
[985] Was their a search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR)?
[986] Not only, was their a search of the Applicant’s Vehicle, But, the Applicant at no time gave his permission for the the search in question. In-fact, he was not present in the immediate vicinity of the vehicle, but in custody at the 3DHQ.
“Q. It’s - did you search the vehicle, sir?
A. Yes I did. I searched your vehicle incident to arrest.
Q. Did you file a report?
A. For searching your vehicle?
Q. Yes, for searching the vehicle.
A. There’s a report put on for whole incur (sic) - occurrence, Yes. There’s - we don’t generate a separate occurrence for searching a vehicle, no.”
(23rd of July 2008, Trial Transcript, page# 98 & 99, line 10-17, line 1-7)
[987] Therefore, CASE 4: is proven.
Thus, the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR) on March 28, 2007, was searched without being inform of his rights or being informed of the search.
CASE 5:
[988] Was their a Warrant for the search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR)?
“Q. Do you know if there was a warrant to search the vehicle?
A. No warrant is required, searching the
vehicle is the immediate area upon arrest, it is in the Criminal
I Code.
Q. Don't you need a reasonable ...
A. It is in the Criminal Code. It is part of
the arrest.
THE COURT: I guess the answer though to his specific question
is there was no warrant.
A. No sir.
THE COURT: To search the vehicle.”
(Officer Broughton Cr-ex, May 9th, 2008 Trial Transcript, On page 49 & 50, starting at line 25)
[989] Therefore, CASE 5: is proven.
Thus, their was no Warrant for searching the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR) on March 28, 2007.
CASE 6:
[990] Was the search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR), a Warrantless search?
[991] Pursuant to CASE 5:, the said search was a Warrantless search.
Therefore, pursuant to R. v. Caslake, the “warrantless search is prima facie unreasonable”, and the onus switches to the Crown to prove on a balance of probabilities that the warrantless search was reasonable;
“Ordinarily, the person alleging a violation of Charter rights bears the burden of proving that violation. However, in Hunter and Collins, supra, the Court held that a warrantless search is prima facie unreasonable. Hence, once the accused has demonstrated that the search was warrantless, the Crown has the burden of showing that the search was, on the balance of probabilities, reasonable. In this case, as I will explain, the Crown has failed to do so.”
(R. v. Caslake, [1998] 1 S.C.R. 51, page 11)
[992] Therefore, CASE 6: is proven.
Thus the search was not only a Warrantless search. But the Warrantless search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR) was also unreasonable.
CASE 7:
[993] Was the Warrantless Search an unlawful search?
SEARCH INCIDENT TO ARREST:
[994] The Crown’s defence was that the Warrantless search, was a search incident to arrest.
[995] Pursuant to Officer Monk’s given evidence; ”...I searched your vehicle incident to arrest.”
[996] Recall that in “5.) UNLAWFUL WARRANTLESS ARREST:”, It was shown that the arrest was unlawful. A search incident to arrest carries with it the condition of the arrest being lawful. Hence, incident to lawful arrest! So if it is the case that the arrest was unlawful, this would render the search unlawful. Then their would be nothing left to prove.
So to be prudent in the UNLAWFUL WARRANTLESS ARREST argument, let it be the case that the arrest is lawful.
[997] The case of “search incident to lawful arrest” is constraint by legislation, their are limits placed on the said legal instruments being used to justify the unreasonable search. Pursuant to R. v. Caslake, the conditions placed on a WARRANTLESS SEARCH are :
1. “First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search.”
2. “Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides.”
3. “Third, a search must not exceed its scope as to area and as to the items for which the law has granted the authority to search.”
[998] For the first case, Officer Monk in his given evidence did point to “search incident to arrest”, therefore he was able to point to a common law rule that authorizes the search. Thus, condition of 1 for the search is fulfilled.
[999] For the second case, pursuant to Officer Monk’s the search was not carried out with the procedural and substantive requirements of law. By Officer Monk’s own words, he did not inform the Applicant of his detainment, he did not inform the Applicant of his rights, he was looking for any thing or any supporting evidence which would support his personal belief that the Applicant was driving with the influence of drugs--absent a D.R.E. test or Breathalyzer test.
Thus, condition for the second case for the search has failed.
[1000] For the third case, one needs to look at the following conditions in the next para.... The search need to be truly incidental to arrest. Officer Monk conducted the warrantless search after the arrest; however, it was not in the immediate vicinity of the Applicant. the search took place after Officer Brown had completed his delivery of the Applicant to 3DHQ and placed him under the care and control of SSGT Ringler. So their is no link in the inferred relationship of proximity. How could the Officer Monk possible be insuring the safety of the public and the safety of the Officers in the immediate area of the arrest, when the the Applicant was not even on location after the arrest.
[1001] Officer Monk may have had subjective reasons, derived from his unprofessional “post offence conduct” Analysis. The inference taken from Officer Monks given evidence, is that he is not a trained D.R.E. professional Technician. Furthermore, their was no D.R.E. examination conducted, so their was not objective drug test with a positive result to act as a road map or guide to aid Officer Monk in his search of the Applicant’s vehicle for relevant evidence. Officer Monk only had his prejudgement suspicions which violated presumption of innocence to guide his unlawful search. Officer Monk did not even have the aid of the Complainant, because he chose not to interview him and use the relevant parts of the said extracted information to guide is warrantless search.
[1002] Their was no reasonable prospect of securing evidence. Pursuant to Officer Monk’s given evidence; “ Let me - let me finish, sir. Anything I would have seen or observed there that I would have deemed to be of value for evidence I would have preserved or secured, yes.” It is clear that the search was arbitrary, he was looking for anything to support his case or unarticulated goals of his investigation. How can their be possible a reasonable prospect of finding something when the search is for anything? Anything is an extremely hard illusive beast to capture!
[1003] In any case, the notion of justifying the search as a “search incident to arrest” was an after the deed was done though. This is a reasonable inference from Officer Monk’s given evidence and the secrecy surrounding the search and supporting documentation for the search which still has not been disclosed but is hidden in some secret closet;
“… Q. Those are your notes, okay. Did - the vehicle
was at Elliot's Towing for almost a day. Why did you not wait
for a warrant?
A. 'Cause I didn't need a warrant…”
(J. Monk - Cr. ex, July 23, 2008 Trial Transcript; page 99-100)
Thus, the condition for the third case for the search has failed. The Officer in question did not respect or abide by the constraints or limits of the common law doctrine (“search incident to arrest”), the Crown is relying on for authorization and justification of the WARRANTLESS SEARCH. Hence the search was not truly “incident to arrest. as is required by legislation”
[1004] Pursuant to R. v. Caslake, the conditions placed on “search incident to arrest” are :
“If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected.”
1. “The most important of these limits is that the search must be truly incidental to the arrest:”
2. “they must have subjectively had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.”
3. “Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested.”
[1005] Therefore CASE 7: is proven.
Thus the Warrantless Search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR) is an unlawful search because it does not conform to the limitation of the common-law relied upon by Officer Monk.
“FRUIT FROM A POISONOUS TREE”:
CASE 8:
[1006] The Unlawful search should be looked at in the context of “Fruit from a
Poisonous Tree”.
[1007] What is the poison which defiles the process and threaten to bring the Administration into disrepute? Is it the ill gotten evidence, or the act or act of omission of obtaining the said evidence? Not being a legal professional, the most dangerous element which challenges our rights, freedom, and democratic system of governance is; the improper motive or human psychological force which drives the act or act of omission. For the Applicant, the thing to watch out for most or keep in check and under control is the psychological force which drive an agent of the Crown to bypass checks and balances to rip wide open legal boundaries and constraints to obtain treasured evidence at all cost. “The end justifies the means”, Machiavelli would be very proud!
[1008] The Applicant was detained far outside of the Charter constraint; not only was is vehicle unlawfully search, but his person was searched for more than about four time.
[1009] Not one single piece of evidence was found while conducting the illegal search or bold violation of the Applicant’s reasonable expectation of privacy, for the purpose of extracting supporting evidence for an unjustified CRACK COCAINE THEORY. The Applicant was detained for about 20 minutes, without being informed of the said detainment or read his legal rights and had the said rights implemented without delay.
[1010] The Officers justification for the Unlawful search was “search incident to arrest” or more accurately, search incident to lawful arrest. Pursuant to R. v. Caslake, the common law doctrine of search incident to arrest carries with it limitation, and the said limitations should be respected by the Crown’s agents who endeavor to invoke it. The unlawful search of the Applicant’s vehicle was not conducted while he was in the immediate vicinity of the said vehicle.
[1011] The unreasonable search occurred while the Applicant was in custody, while SSGT Ringler had care and control of him. This was after the arrest had been completed. Moreover, the complainant’s complaint was in the context of a highway traffic act violation which cannot be used to justify an unreasonable search, incident to arrest. The arresting officer failed or refused to interview the complainant before the arrest. Pursuant to R. v. Caslake;
“ 22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).”
[1012] Not one single Officer has put forward a believable complaint about their safety, except they said the Applicant was passively resisting and he attempted to use the handcuffs the Officers placed on his wrist as a weapon against them. Their was 5 excitable armed Officer’s! Five!
SECTION 8. ARGUMENT:
[1013] Similarly, the Crown’s articulated reasons for their not being a Section 8. violation is that their was no evidence found so their was no object confiscated. Given that their was no object confiscated, their is no remedy under section 24(2). The Applicant has never argued section 24(2) or requested a stay in prosecution proceedings. I has only asserted section 8. violation and remedy under section 24(1).
[1014] Within the context of warrantless search. A warrantless search is prima facie unreasonable, so the Crown must justify it on a balance of probabilities to be reasonable. The onus is on the Crown. The warrantless search of the Appellant’s vehicle occurred while the Applicant was in custody in the “Bull Pen”(miles away from the vehicle), so the usually justification cannot be used to make the search lawful.
(a) If nothing is found or confiscated into evidence during an unlawful search, does this fact bar the search from being unlawful?
(b) Would the finding and confiscation of incriminating evidence in an a warrantless search make the warrantless search unlawful?
(c) Is a arbitrary warrantless search an unlawful search?
(d) What is it that makes a warrantless search unlawful, the incriminating object or objects which is found, the search itself or the unlawful arbitrary actions of the Officer conducting the said search byway of “trespass to chattel”?
(e) Just because someone breaks and enters a home without the owners permission and without stealing or damaging any property; does not mean the said person is not liable for breaking and entering after violating the owners reasonable expectation of privacy, even if the perpetrator was to leave behind $1 000 000.00 for the owner!
[1015] In summary, it is the Improper motive or human psychological force which is poisoning the process and other processes which depend on the criminal process. In short, access to justice is being denied. Hence, the legal notion of “Fruit from a Poisonous Tree” should be taken into consideration. It is the people who make the process and it falls or stands by the integrity of its workers.
[1016] For proof, one only need to look at the attitudes and reasonable belief articulated in the officers given evidence:
“Q. You did it - oh, yeah, you did say - you did an investigation? You did an investigation right?
A. Yeah.
Q. You?
A. Yeah.
Q. Okay. You searched the vehicle?
A. Nope.
Q. No?
A. There’s no reason.
Q. Possibly. I’d have to check the other officers’ notes for that.”
(Officer Broughton (#1079), January 18, 2008 Trial Transcript, On page 64 )
[1017]
“A. In particular drugs. You - you had been
arrested for impaired by way of impaired by way of drug. We - we....
Q. Did you ....
A. I searched your vehicle incident to arrest to -
to gather any possible evidence that was - was there to support
that.
{...}
Q. Those are your notes, okay. Did - the vehicle
was at Elliot's Towing for almost a day. Why did you not wait
for a warrant?
A. 'Cause I didn't need a warrant.
Q. You didn't need a warrant ...
A. I was searching the vehicle incident to arrest.
Q .... to search the vehicle?
A. No. I said I searched your vehicle incident to
arrest like you were searched incident to arrest before
you were placed into the back of the police cruiser. “
(J. Monk - Cr. ex, July 23, 2008 Trial Transcript; page 99-100)
[1018]
“Q. Do you know if there was a warrant to search the vehicle?
A. No warrant is required, searching the vehicle is the immediate area upon arrest, it is in the Criminal Code.
Q. Don’t you need a reasonable...
A. It is in the Criminal Code. It is part of the arrest.”
(S. Broughton - Cr. ex, May 9, 2008 Trial Transcript; page 49, line 15-32)
[1019] For further proof, one only need to look at the attitudes, secrecy and evasive maneuvers around the truth in the reasonable belief articulated in the Officers given evidence:
[1020] Officer Brown (#1666) was asked a question concerning the accused vehicle;
“Q. Did you - do you know if the vehicle was searched?
A. I don’t know if the vehicle was searched or not, no.”
(23rd of July 2008, Trial Transcript, page# 60, line 18-20)
[1021] Officer Williamson (#1108) was asked this question concerning the accused vehicle by the defense;
“Q. Okay. When - after the arrest was made were you aware wether or not the - my vehicle was searched?
A. Officer Williamson replied “I’m not - I did not search your vehicle. I’m unaware weather somebody search your vehicle.”
(23rd of July 2008, Trial Transcript, page# 15, line 13-17)
[1022] Officer Broughton (#1079) on page# 85 of his notes made the statement;
“vehicle was SEARCHED AT THE SEEN and towed”.
(Officer Broughton (#1079), TYPED OFFICER’S NOTES, page 31)
[1023] Officer Broughton (#1079) was asked a series of question concerning the accused vehicle;
“Q. Okay . Did you search the vehicle , the vehicle that was interested at this trial?
A. No.
Q. Do you know who search it?
A. No I don’t. ...
Q. So was the vehicle searched?
A. My notes say that the vehicle was searched, you asked me who searched it, I have no idea. ...
Q. So you have no idea nobody search it?
A. No....
Q. You did not search the vehicle but you do know it was searched?
A. Yes
Q. Okay. Are you the officer-in-charge?
A. I am the officer-in-charge of this case, yes?”
(May 9th, 2008 Trial Transcript, on page 29 & 30, line 13-32, line 12-15)
[1024] Officer Beattie (#1583) was asked a series of question concerning the accused vehicle;
“Q. Yes. Do you know if my vehicle, the red caravan was searched?
A. My involvement in this incident was minimal. I don’t recall. ...
Q. Do you know who searched the vehicle?
A. No”
(May 9th, 2008 Trial Transcript, On page 73 line 12-15)
[1025] Officer Burd (#1075) was asked a series of question concerning the accused vehicle;
“Q. Do you know if the Rogers vehicle was searched, the vehicle I was driving?
A. I believe it - there was a search of the area of the driver. I don’t recall what...
Q. Do you know who search it?
A. No I do not know who search It?”
(May 9th, 2008 Trial Transcript, on page 91, line 18-24)
[1026] Officer Monk (#1399) was asked a series of question concerning the accused vehicle ;
“Q. It’s - did you search the vehicle, sir?
A. Yes I did. I searched your vehicle incident to arrest.
Q. Did you file a report?
A. For searching your vehicle?
Q. Yes, for searching the vehicle.
A. There’s a report put on for whole incur (sic) - occurrence, Yes. There’s - we don’t generate a separate occurrence for searching a vehicle, no.
Q. Did you tell anybody you searched the vehicle?
A. Absolutely.
Q. Who?
A. All the rest of the officers that were involved in the incident when I returned...
Q. How many of them?
A. to the station? The other four officers that were there.
Q. All of them?”
A. “While we were sitting in the C.I.B. office I informed that - everyone that was there that I searched the vehicle and didn’t find anything that’s significant.”
Q. “And officer Broughton included?”
A. ” Yes, he was there.”
Q. “Okay. While you were there searching the vehicle was officer Beatty there?”
A. “I didn’t take note of who was there with me while I was searching the vehicle. I believe another officer may have been on scene.”
(Officer Monk Cr-ex, 23rd of July 2008, Trial Transcript, page# 98 & 99, line 10-17, line 1-7)
[1027] The Crown is still denying me the relevant documentation for the unlawful search, it has been since 2008!
[1028] Please see “0.) ACCESS TO JUSTICE” in APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION(C51190).
[1029] Thus CASE 8: has been demonstrated to be useful.
Thus, the unlawful search should be looked at in the context of “Fruit from a
Poisonous Tree”. It is the improper motive or psychological force which infects administrators processing the matter before this Honourable Court.
CASE 9:
[1030] Was their a reasonable expectation of privacy?
Section 8. of the Charter guarantees a reasonable expectation of privacy against unreasonable search and seizure. It states as fellows;
8. Everyone has the right to be secure against unreasonable search or seizure.
[1031] Furthermore, the unlawful search by Officer Monk, was a demonstration of “Trespass to Chattels” and a gross violation of reasonable expectation to privacy. This actionable wrong constitute a contravention of section 8 of the Charter.
“An unauthorized search of another’s purse is a trespass to chattels.
{...}
Section 8 of the Charter of Rights and Freedoms 59 protects citizens from unreasonable search and seizure thereby enshrining privacy as a concept worthy of constitutional protection 60...”
59 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, U.K. 1982, c.11.
60 see, Hunter v. Southam Inc., [1984] 2 S.C.R. 145 and R. V. Dyment, above note 50.
(Philip H. Osborne, THE LAW OF TORTS 3rd, page 254 - 255)
[1032] Pursuant to R. v. Debot;
“Per Dickson C.J. and Lamer and Cory JJ.: The right to search incident to arrest derives from the fact of arrest or detention of the person. The right to retain and instruct counsel derives from the arrest and detention, not from the fact of being searched. The detainee, therefore, has the right to be informed of the right to retain and instruct counsel immediately upon detention. The police, however, are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel.
Denial of the right to counsel will result in a search's being unreasonable contrary to s. 8 of the Charter in only exceptional circumstances. A search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. The denial of the right to counsel does not affect the "manner" in which the search is conducted. The "manner" in which the search is conducted relates to the physical way in which it is carried out and should not be inclusive of restrictions of other rights that already receive the benefit of the Charter's protection.
Evidence obtained by way of a search that is reasonable but contemporaneous with a violation of s. 10(b) of the Charter will not necessarily be admitted under s. 24(2). Evidence will be excluded if there was a temporal link between the infringement of the Charter and the discovery of the evidence, and if the admission of the evidence would bring the administration of justice into disrepute.”
(R. v. Debot, [1989] 2 S. C.R. 1140, 52 C.C.C. (3d) 193, page)
[1033] Pursuant to R. v. Buhay;
“The initial search by the security guards did not trigger the application of the Charter because the guards were not acting as agents of the state, nor could their activities be assimilated or ascribed to the government. However, the police were required to obtain a warrant to search the accused’s locker. The warrantless search and seizure was an impermissible intrusion of the state on a legitimate and reasonable expectation of privacy and therefore constitutes a violation of s. 8 of the Charter. The Court of Appeal erred in finding that there was no search and seizure by the police. A person’s reasonable expectation of privacy as to the contents of a rented and locked bus depot locker is not destroyed merely because a private individual invades that privacy by investigating the contents of the locker. The accused’s reasonable expectation of privacy was continuous. The intervention of the security guards does not relieve the police from the requirement of prior judicial authorization before seizing contraband uncovered by security guards.”
(R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, page)
[1034] The vehicle in question was least by METAFORE INC., the Applicant’s employer and entrusted to the Wayne FERRON, the Applicant; for example, if any thing was stolen from the Applicant’s vehicle, he would be required to replace it at his expense. The Applicant drove to and from work with the said vehicle in addition to parking it at his home on the days he was not working. If the Applicant’s vehicle was damaged in an accident, the Applicant would be required to pay for the repairs. In short, the Applicant is liable for Vehicle (1D4GP21R77B138672 / 8920TR), because he was given carriage and control of the said vehicle with a condition of liability in accordance with a labour contract.
[1035] Therefore CASE 9: has been proven.
Thus their was a reasonable expectation of privacy for searching of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR).
CASE 10:
[1036] Did the search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR) contravene Section 8. of the Charter?
[1037] On 28th of March 2007 at about 00:29 hundred hours. Officer Monk completed the processing of the Applicant’s vehicle to be impounded.
[1038] On 28th of March 2007 at about 00:40 hundred hours, Officer Monk completed is duties with GO 07-70285.
[1039] The Warrantless search of the suspects vehicle occurred between 00:29 and 00:40 on 28th of March 2007.
[1040] It would be prudent to note that there is no Warrantless search report documenting GO 07-70285 occurrence. The Applicant cannot find any information in the GO 07-70285 disclosed documentation, documenting the warrantless search. All that can be said about the search is that it occurred at an unknown time, in an unknown location by Officer Monk, between 00:29 and 00:40 on 28th of March 2007.
[1041] It should be noted that the York Regional Police Services representative, Janet Raylan (#5234), assure the Information and Privacy Commission that information concerning the Warrantless search would be disclosed by the Crown. Asper YRP assurance and my agreement, IPC close the complaint file.
[1042] The Applicant was never given documentation concerning the search or written articulated reasons why there is no documentation. Officer Monk(#1399), testified that it was in the GO 2007-70285. All GO 2007-70285 disclosure documentation the Applicant received are void of information concerning the questionable search, which the Applicant reasonable believe is unlawful and unwarranted.
[1043] The Applicant, the courts, and the public have all been denied the benefits of the said evidence. This has been done in violation of Section 7, Section 11,Section 15, and has unnecessarily impeded the Applicant ability to give full answer to the administration of justice towards the ends of justice. The Applicant respectfully request this pending disclosure and written articulated reason for its untimely disclosing.
[1044] Pursuant to Officer Burd Ex-in-Ch;
“A. Once the vehicle was pulled over, I approached the vehicle in an attempt to speak with the driver.
Q. Okay and you approached the vehicle on your own?
A. I believe initially on my own and P.C.
Broughton followed behind.
Q. Okay. So what did you do when you approached the vehicle?
A. I - sorry I attempted to speak to the driver
of that vehicle on the driver's side. I opened the driver's
side door and attempted to speak with the driver of the vehicle
at that time. I was asking him several questions advising him
that we were investigating an impaired driving complaint,
requested his driver's licence, ownership and insurance. I was
unable to get any verbal response from him, eventually was able
to get the driver's licence, ownership and insurance from him.”
(Officer Burd Ex-in-Ch, 9th of May 2008, Trial Transcript, page 85, starting at line 15)
[1045] The safety of the police and the Applicant was not compromised, with the exception of the brutalization of the Applicant. The applicant at no time tried to escape and at no time did Officers need to prevent his escape. The Applicant had nothing to escape from except is innocence. The search of he Applicant’s vehicle is not a valid objective of the proper administration of justice nor was it to collect identifiable evidence that can be used to establishing the allege guilt of the Applicant. The search was arbitrary and driven by improper motives rooted in systemic racism.
[1046] SEARCH INCIDENT TO ARREST:
“Search incident to arrest - Police officers have the power to search an accused as an incident to a lawful arrest and to seize anything in his possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the accused’s escape or provide evidence against him. The existence of reasonable and probable grounds to believe that the accused is in possession of weapons or evidence is not a prerequisite to the existence of the power to search, provided, however, that the search is for a valid objective and not unrelated to the objectives of the proper administration of justice. Accordingly, a search done for weapons or other dangerous articles is necessary as an elementary precaution to preclude the possibility of their use against the police, the nearby public or the accused himself. A search is also proper to collect evidence that can be used to establishing the guilt of the accused.”
(ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 977)
[1047]
“VII. MAKING SECTION 24(2) CHARTER RULINGS IN
CONTEXT: A CASE IN POINT
1.105 In R. v. Buhay,81 the Supreme Court of Canada considered the
constitutionality of a seizure of marijuana from a locker that the accused had rented at the Winnipeg bus depot. Among other things, the case involved the determination of whether a warrantless search and seizure by the police violated the accused's rights under s. 8 of the Charter and, if so, whether the evidence should be excluded under s. 24(2) of the Charter.”
(Sopinka, Lederman and Bryant THE LAW OF EVIDENCE IN CANADA, 3d, Alan W. Bryant, Sidney N. Lederman, Michelle K. Fuerst, ISBN978 0 433 45724-4)
page 28-29-30)
[1048] Within the context of warrantless search. A warrantless search is prima facie unreasonable, so the Crown must justify it on a a balance of probabilities to be reasonable. The onus is on the Crown. The warrantless search of the Appellant’s vehicle occurred while the Applicant was in custody in the “Bull Pen”(miles away from the vehicle), so the usually justification cannot be used to make the search lawful.
[1049] Pursuant to the Attorney General’s PRACTICE MEMORANDUM To Counsel, Criminal Law Division, PM [2009] No. 1;
“(h) where reasonably capable of reproduction, and where Crown counsel intends to introduce them into evidence, copies of documents, photographs, audio or video recordings, of anything other than a statement by a person, and other materials should normally be supplied to the defence. The defence may be limited to a reasonable opportunity, in private, to view and listen to a copy of any audio or video recording where Crown counsel has reasonable cause to believe that there exists a reasonable privacy or security interest of the victim(s) or witness(es), or any other reasonable public interest (12 (c)iii), which cannot be satisfied by an appropriate undertaking from defence counsel; (see paragraph 12 (c)iii supra;
and policy C-3)
(i) a copy of any search warrant relied upon by the Crown, the information in
support, and a list of items seized thereunder, if any, subject to paragraph 8(a);
“k. Search Warrants
Subject to the terms of any sealing orders, Crown counsel should provide the defence with a copy of all search warrants relating to the matter, a list of any items seized pursuant to such warrants, copies of any search warrant returns, and ensuing court orders. In addition, Crown counsel should provide the defence with access to or a copy of the information used to obtain the search warrant, subject to the existence of any sealing order.
The provision of disclosure with respect to search warrants is subject to Crown counsel’s discretion to delay disclosure or withhold details in accordance with the limitations on the obligation to disclose set out in s. 2(b) of this PM to protect a legal privilege, including protecting the identity of a confidential informer. “
(PRACTICE MEMORANDUM To Counsel, Criminal Law Division, PM [2009] No. 1
Page 19 of 33 )
[1050] The Warrantless search of the Applicant’s vehicle occurred between 00:29 and 00:40 on 28th of March 2007, while the Applicant was not in the immediate vicinity of his vehicle. In short the Applicant was incarcerated at 3D HQ or being process at the same Police facility. The Warrantless search was an unlawful search in the Applicants humble opinion. The arbitrary evidence which officer Monk was seeking to preserve was never found or even defined. The danger which the said search was protecting the officers from was never articulated, defined are justified. The information concerning the illegal search has been hidden in secrecy and misinformation. The search report has stilled not been disclosed to the Applicant despite numerous request for access to it.
[1051] Furthermore, the unlawful search by Officer Monk, was a demonstration of “Trespass to Chattels” and a gross violation of reasonable expectation to privacy. This actionable wrong constitute a contravention of section 8 of the Charter.
“An unauthorized search of another’s purse is a trespass to chattels.
{...}
Section 8 of the Charter of Rights and Freedoms 59 protects citizens from unreasonable search and seizure thereby enshrining privacy as a concept worthy of constitutional protection 60...”
59 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, U.K. 1982, c.11.
60 see, Hunter v. Southam Inc., [1984] 2 S.C.R. 145 and R. V. Dyment, above note 50.
(Philip H. Osborne, THE LAW OF TORTS 3rd, page 254 - 255)
[1052] Thus Officer Monk’s actionable wrong within the scope of the Unlawful Warrantless search, was a bold violation of the Applicant’s reasonable expectation of privacy and a wanton disregard for his duty as an Officer of the law, to uphold and implement the directions of the Charter when arresting, processing or investigating a suspect.
[1053] The context in-which Officer Broughton states that the accused was given his rights to counsel and caution; seem as though it was his own personal independent recollected experience. Even though he states in his notes explicitly that the rights of the accused was suspended.
[1054] Officer Broughton recorded in his notes , that the accused vehicle was searched and towed. Yet he insist that he does not know who searched the accused vehicle. Furthermore, Officer Monk states that he told Officer Broughton at the C.I.B. that he searched the accused vehicle. If Officer Broughton notes is his own personal experience; how can he record that the accused vehicle was searched, but does not know by whom?
[1055]
“VII. MAKING SECTION 24(2) CHARTER RULINGS IN
CONTEXT: A CASE IN POINT
1.105 In R. v. Buhay,81 the Supreme Court of Canada considered the
constitutionality of a seizure of marijuana from a locker that the accused had rented at the Winnipeg bus depot. Among other things, the case involved the determination of whether a warrantless search and seizure by the police violated the accused's rights under s. 8 of the Charter and, if so, whether the evidence should be excluded under s. 24(2) of the Charter.
1.106 Justice Arbour, speaking for a unanimous Court, held that the accused had a reasonable expectation of privacy in the contents of the locker he rented sufficient to engage his s. 8 Charter rights and that the police search and seizure without a warrant violated s. 8.
{...}
§1.109 As to seriousness of the breach, it depended on whether the police conduct was committed in good faith, was inadvertent or was of a merely technical nature, or whether it was deliberate, wilful or flagrant. It is also relevant to consider whether the violation was motivated by a situation of urgency or necessity. Also to be considered is whether the police could have obtained the evidence by other means, thus rendering their disregard for the Charter gratuitous and blatant. The trial judge could also look at some or all of the following factors: the obtrusiveness of the search, the individual, expectation of privacy in the area searched and the existence of reasonable an probable grounds.”
(Sopinka, Lederman and Bryant THE LAW OF EVIDENCE IN CANADA, 3d, Alan W. Bryant, Sidney N. Lederman, Michelle K. Fuerst, ISBN978 0 433 45724-4
page 28-29-30)
[1056] Within the context of warrantless search. A warrantless search is prima facie unreasonable, so the Crown must justify it on a a balance of probabilities to be reasonable. The onus is on the Crown. The warrantless search of the Appellant’s vehicle occurred while the Applicant was in custody in the “Bull Pen”(miles away from the vehicle), so the usually justification cannot be used to make the search lawful.
(a) If nothing is found or confiscated into evidence during an unlawful search, does this fact void the search from being unlawful?
(b) Would the finding and confiscation of incriminating evidence in an a warrantless search make the warrantless search unlawful?
(c) Is a arbitrary warrantless search an unlawful search?
(d) What is it that makes a warrantless search unlawful, the incriminating object or objects which is found, the search itself or the unlawful arbitrary actions of the Officer conducting the said search?
(e) Where is the report or documentation for the warrantless search?
(f) If the search is legal, then why is there so much secrecy, lack of transparency and not disclosed search report?
[1057] Therefore CASE 10: has been proven.
Thus the search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR) contravene Section 8. and Section 10. of the Charter.
“Per Lamer C.J. and Cory, McLachlin and Major JJ.: A search, to be
reasonable under s. 8 of the Charter, must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. Because a warrantless search has been held to be prima facie unreasonable, once the accused has demonstrated that the search was warrantless, the Crown has the burden of showing that the search was, on the balance of probabilities, reasonable.
Searches and seizures must be authorized by law and can fail to meet this
requirement if any one of three conditions is not met. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. Third, a search must not exceed its scope as to area and as to the items for which the law has granted the authority to search.
If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest: the police must be able to explain, within the purposes recognized in the jurisprudence (protecting the police, protecting the evidence, discovering evidence) or by reference to some other valid purpose, why they conducted a search. They do not need reasonable and probable grounds. However, they must have subjectively had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. That inference may be rebutted by a proper explanation.”
(R. v. Caslake, [1998] 1 S.C.R. 51, page 2 - 3)
“Ordinarily, the person alleging a violation of Charter rights bears the burden of proving that violation. However, in Hunter and Collins, supra, the Court held that a warrantless search is prima facie unreasonable. Hence, once the accused has demonstrated that the search was warrantless, the Crown has the burden of showing that the search was, on the balance of probabilities, reasonable. In this case, as I will explain, the Crown has failed to do so.”
(R. v. Caslake, [1998] 1 S.C.R. 51, page 11)
“22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).
23 As explained above, these limits will be no different for automobiles than for any other place. The right to search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances.”
(R. v. Caslake, [1998] 1 S.C.R. 51, page 17)
“The exercise of the power to search is not however unlimited. First, this power does not impose a duty. The police have some discretion and, if satisfied that the law can be effectively and safely applied, they may see fit not to conduct a search. They must also be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives forming the basis of the right to search. Second, as regards these objectives, the search must be
for a valid objective in pursuit of the ends of criminal justice -- such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused -- and the purpose of the search must not be unrelated to the objectives of the proper administration of justice. Third, the search must not be conducted
in an abusive fashion, and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. A search which does not meet these objectives could be characterized as unreasonable and unjustified at common law.”
(Cloutier v. Langlois, [1990] 1 S.C.R. 158, page 3)
UNLAWFUL WARRANTLESS SEARCH CONCLUSION:
The Applicant was detained for about 20 minutes. without being informed of his legal rights.
CASE 2: The Applicant was not informed of the reasons for his detainment pursuant to Section 10(a).
CASE 3: The Applicant was not informed of his rights to retain and instruct counsel without delay pursuant to Section 10(b).
CASE 4: Their was a search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR).
CASE 5: Their was no Warrant for the search.
CASE 6: The search was warrantless.
CASE 7: The Warrantless Search was an unlawful search.
CASE 8: The Unlawful search should be looked in the context of “Fruit from a
Poisonous Tree”.
CASE 9: Their was a reasonable expectation of privacy.
CASE 10: The search of the Applicant’s Vehicle (1D4GP21R77B138672 / 8920TR) contravene Section 8. of the Charter.
Information Nos.: C51190
court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
CITATION - VOLUME VI
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
6.) UNLAWFUL WARRANTLESS SEARCH
WORK CITED
1. (R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88-93)
2. (THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000 pg 66 - pg 73 )
3. (R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88-93)
4. (R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88-93)
5. (ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 978)
6. (23rd of July 2008, Trial Transcript, page# 98 & 99, line 10-17, line 1-7)
7. (Officer Broughton Cr-ex, May 9th, 2008 Trial Transcript, On page 49 & 50, starting at line 25)
8. (R. v. Caslake, [1998] 1 S.C.R. 51, page 11)
9. Officer Broughton (#1079), January 18, 2008 Trial Transcript, On page 64 )
10. (J. Monk - Cr. ex, July 23, 2008 Trial Transcript; page 99-100)
11. (S. Broughton - Cr. ex, May 9, 2008 Trial Transcript; page 49, line 15-32)
12. (23rd of July 2008, Trial Transcript, page# 60, line 18-20)
13. (23rd of July 2008, Trial Transcript, page# 15, line 13-17)
14. (Officer Broughton (#1079), TYPED OFFICER’S NOTES, page 31)
15. (May 9th, 2008 Trial Transcript, on page 29 & 30, line 13-32, line 12-15)
16. (May 9th, 2008 Trial Transcript, On page 73 line 12-15)
17. (May 9th, 2008 Trial Transcript, on page 91, line 18-24)
18. Officer Monk Cr-ex, 23rd of July 2008, Trial Transcript, page# 98 & 99, line 10-17, line 1-7)
19. (Philip H. Osborne, THE LAW OF TORTS 3rd, page 254 - 255)
20. (R. v. Debot, [1989] 2 S. C.R. 1140, 52 C.C.C. (3d) 193, page)
21. (R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, page)
22. (ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 977)
23. (Sopinka, Lederman and Bryant THE LAW OF EVIDENCE IN CANADA, 3d, Alan W. Bryant, Sidney N. Lederman, Michelle K. Fuerst, ISBN978 0 433 45724-4)
24. page 28-29-30
25. (PRACTICE MEMORANDUM To Counsel, Criminal Law Division, PM [2009] No. 1
26. Page 19 of 33 )
27. (Philip H. Osborne, THE LAW OF TORTS 3rd, page 254 - 255)
28. (Sopinka, Lederman and Bryant THE LAW OF EVIDENCE IN CANADA, 3d, Alan W. Bryant, Sidney N. Lederman, Michelle K. Fuerst, ISBN978 0 433 45724-4
29. page 28-29-30)
30. (R. v. Caslake, [1998] 1 S.C.R. 51, page 2 - 3)
31. (R. v. Caslake, [1998] 1 S.C.R. 51, page 11)
32. (R. v. Caslake, [1998] 1 S.C.R. 51, page 17)
33. (Cloutier v. Langlois, [1990] 1 S.C.R. 158, page 3)
All of which is respectfully submitted.
Date:.
_________________________
Wayne Ferron
Email: ferronwayne@gmail.com
TO: The Clerk of the Court--Registrar
Osgoode Hall
130 Queen Street West
Toronto, Ontario, M5H 2N5
Tel: 416 327 5020
Fax: 416 327 6032
AND TO
The Attorney General of Ontario
Constitutional Law Branch
4th floor
720 Bay Street
Toronto, Ontario M5G 2K1
fax: 416 326 4015
AND TO:
The Attorney General of Canada
Constitutional Law Branch
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario M5X 1K6
fax: 416 973 3004
court of appeal for ontario
|
R -versus- Wayne Ferron |
Court file no.: C51190 |
|
|
COURT OF APPEAL FOR ONTARIO
PROCEEDING COMMENCED AT Osgoode Hall 130 Queen Street West Toronto, Ontario, M5H 2N5
DOC-X VOLUME VI APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 6.) UNLAWFUL WARRANTLESS SEARCH
Wayne Ferron , Email: ferronwayne@gmail.com |
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