COURT FILE NO.: CR-15-015

DATE: 20150703

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

PEGGY LYNN JAMIESON
Applicant

Carolyn Noordegraff, for the Crown

Wayne Paisley, for the Accused/Applicant

HEARD: June 12, 2015

RULING ON BLENDED VOIR DIRE
RE APPLICATION PURSUANT TO SS.8, 9 AND 24(2) OF THE
CHARTER OF RIGHTS AND FREEDOMS

DiTOMASO J.

THE CHARGES

[1] The Applicant Peggy Lynn Jamieson is charged with possession of cocaine and possession of cocaine for the purposes of trafficking contrary to s.4(1) and s.5(2) of the Controlled Drugs and Substances Act. She pleaded not guilty to these charges.

[2] Ms. Jamieson contends that the charges all flow from an unlawful and arbitrary detention, followed by an illegal search of her person and her purse on November 30, 2013 in the City of Barrie. She seeks an order excluding all evidence seized from her by the police.

FACTUAL OVERVIEW

[3] On November 30, 2013 at approximately 3:15 p.m., Ms. Jamieson was operating her Honda Civic motor vehicle northbound on Bradford Street in the City of Barrie. A witness, Marion Figueroa, observed Ms. Jamieson stopped in her vehicle for a green light at the intersection of Bradford Street and Tiffin Street. Ms. Figueroa sounded her horn and then Ms. Jamieson accelerated through the intersection. A short distance past the intersection, the Jamieson vehicle crossed over the centre line and collided with a pickup truck operated by Charmaine Nolan who was proceeding southbound on Bradford Street.

[4] Constables Brad Breedon and Jonathan Waugh of the Barrie Police Services attended the scene of the accident at 3:22 p.m. These police officers made observations of Ms. Jamieson. Although the police were unable to detect any odour of alcohol emanating from her, a determination was made that she was impaired by drugs.

[5] At approximately 3:35 p.m., Ms. Jamieson was arrested for impaired driving by PC Breedon. She was provided her rights to counsel and caution which she indicated she understood. She was further provided with the Drug Recognition Evaluation (D.R.E.) demand.

[6] Upon arrest, the police removed a black purse from her possession. In the black purse, the police officers located 60.2 grams of crack cocaine as well as $4,333.05 in cash. It is agreed that the quantity of drugs seized was sufficient to establish that the possession of the crack cocaine was for the purposes of trafficking.

[7] Ms. Jamieson was transported to the Barrie Police Service station for the purposes of D.R.E. testing. She submitted to the testing. It is admitted that at approximately 6:06 p.m., DC Rose, a qualified Drug Recognition Evaluator, concluded his evaluation and determined that there were not sufficient grounds to continue with the criminal charge of impaired driving. However, Ms. Jamieson was charged with possession of cocaine and possession of cocaine for the purposes of trafficking contrary to the Controlled Drugs and Substances Act.

POSITION OF THE PARTIES

Position of the Applicant Jamieson

[8] The Applicant’s position is that the grounds to arrest articulated by the police did not satisfy either the subjective or objective standard. She was detained, arrested and searched only on suspicion. The police did not have reasonable and probable grounds for the arrest. It was submitted that the arrest was unlawful and the detention of Ms. Jamieson violates s.9 of the Charter. Further, because her arrest was unlawful, it is submitted the search of her person and her purse cannot have been incidental to arrest and would violate s.8 of the Charter.

[9] Because her Charter rights were violated, it is submitted the evidence of the cocaine and money should be excluded pursuant to s.24(2) of the Charter upon an analysis and balancing of the factors set out in R. v. Grant, [2009] S.C.C. 32. It is submitted on behalf of the Applicant that having regard to all the circumstances, the admission of the seized cocaine and cash would bring the administration of justice into disrepute and therefore the impugned evidence ought to be excluded.

Position of the Crown

[10] The Crown submits the following:

a. as a result of the observations made by the officers and their investigation into the circumstances of the collision, including the contents of the witness statements, PC Breedon had reasonable and probable grounds to believe that Ms. Jamieson was impaired by a drug while operating a motor vehicle. There was no breach of her rights under s.9 of the Charter; and,

b. the search of Ms. Jamieson’s purse was conducted incident to the lawful arrest and did not constitute a breach of her rights under s.8 of the Charter.

[11] The Crown further submits that if this court finds a breach of s.8 or s.9 of the Charter, the evidence seized from Ms. Jamieson in this case should be admitted into evidence under the s.24(2) under Charter analysis in R. v. Grant (supra).

EVIDENCE ON THE BLENDED VOIR DIRE

[12] At the commencement of the trial and after Ms. Jamieson was arraigned and her pleas were taken, counsel agreed that Ms. Jamieson’s application be heard and for that purpose a blended voir dire took place. It was agreed that the evidence on the blended voir dire would be admissible and utilized on the trial proper. Five witnesses testified on the voir dire: two civilian witnesses Marion Figueroa and Charmaine Nolan and three police witnesses from the Barrie Police Service, PC Brad Breedon, PC Jonathan Waugh and PC Jason Minke. The defence called no evidence on the blended voir dire. The following is a summary of the evidence.

(continues verbatim…)

[116] For the reasons given, Ms. Jamieson’s s.8 and s.9 Charter rights were violated. Evidence of 60.2 grams of crack cocaine and $4,333.05 in cash seized from Ms. Jamieson shall be excluded pursuant to s.24(2) of the Charter. The application is granted.

[117] Counsel have agreed that the granting of this application shall be dispositive of the issues at trial. As agreed, Ms. Jamieson shall be found not guilty on both charges and acquittals will follow. I find Ms. Jamieson not guilty of counts 1 and 2 on the indictment and that she is acquitted on each count.

DiTOMASO J.

Released: July 3, 2015