Michael S. Purcell

On a Charter application in a robbery prosecution, the accused sought exclusion of a stolen wallet found in his possession and inculpatory custodial statements.

The court held that the initial arrest for possession for the purpose of trafficking was unsupported by reasonable and probable grounds, and that the ensuing overnight detention and failure to bring the accused before a justice within 24 hours constituted arbitrary detention.

The subsequent cellblock tote search was not authorized as a search incident to arrest or detention and breached s. 8, although the accused retained standing to assert a privacy interest in property stored in the cellblock.

While the later robbery statement was voluntary on a stand-alone confessions analysis, the cumulative Charter breaches, including the arbitrary arrest and detention and deficiencies in fresh s. 7 and s. 10 advice during the robbery interview, required exclusion of both the wallet and the statement under s. 24(2).

The applicant sought a stay of proceedings unless the Attorney General funded his defence at Legal Aid Ontario rates pursuant to a Rowbotham application.

Legal Aid had refused continued funding after the accused sought to change counsel.

The court accepted that counsel was essential to ensure a fair trial given the seriousness of the drug trafficking charge, the complexity of the proceedings, and the accused’s ability to participate.

After reviewing the applicant’s financial circumstances, including assistance from family members and equity in his spouse’s home, the court concluded that he lacked the means to retain counsel.

A conditional stay of proceedings was granted unless state-funded counsel was provided.