Her Majesty the Queen v. Wu

[Indexed as: R. v. Wu]

Ontario Reports

Court of Appeal for Ontario,

LaForme, Watt and G.J. Epstein JJ.A.

October 2, 2015

127 O.R. (3d) 494 | 2015 ONCA 667

Case Summary

Charter of Rights and Freedoms — Search and seizure — Search incident to arrest — Trial judge finding that police did not have reasonable and probable grounds to arrest accused for drug offences and that search incident to arrest violated accused's rights under s. 8 of Charter — Trial judge excluding evidence and accused found not guilty — Crown appealing — Trial judge erring in failing to assess probative value of evidence through lens of reasonable person standing in shoes of investigating officer with impressive training and considerable experience in investigating drug-related criminal activity — Officer having reasonable and probable grounds for arrest — Search of accused's vehicle being incidental to lawful arrest and not violating s. 8 of Charter — Appeal allowed and new trial ordered — Canadian Charter of Rights and Freedoms, s. 8.

The accused was charged with production and distribution of methamphetamine. The police arrested J after finding a half kilogram of freshly prepared methamphetamine in a vehicle from which J was seen running after he had been observed with two other men in the parking lot of a plaza. The police received a tip from a confidential informant that a man believed to be the accused was involved in the production and trafficking of methamphetamine. The informant provided a telephone number for the accused. That number was found in a cellphone seized from J when he was arrested, although it was recorded under a different name. Other records obtained from police, Border Security and the Ministry of Transportation linked the telephone number to the address provided by the informant. This information was passed along to an investigating officer with impressive training who had considerable experience in drug investigations. He oversaw the investigation that took place over the following two months. During the surveillance of the accused over the course of the investigation, he regularly met with people at all hours of the day and night, usually for brief periods of time, often in parking lots, sometimes in cars associated with drug trafficking activity. Frequently, packages were exchanged. The accused was habitually seen going to two condominium units on his way to and from those encounters, and was habitually seen moving kitchen items from one residence to another. After the accused was observed to be in one of those units very late at night and sounds of banging pots were heard coming from the unit, the lead investigator decided to arrest the accused. During a search incident to that arrest, the police found evidence of methamphetamine possession and production. The lead investigator was the affiant in the information to obtain ("ITO") used to obtained search warrants for the two condominium units. A search of the units found extensive evidence of methamphetamine production. The trial judge found that the lead investigating officer did not have reasonable and probable grounds to arrest the accused and that the search incident to arrest violated the accused's rights under [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/