ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11178

DATE: 2015/09/04

B E T W E E N:

HER MAJESTY THE QUEEN

D. Moffatt, for the Crown

• and -

KENNETH OHIAMBO OYOMO

S. Pennypacker, for the accused Kenneth Odhiambo Oyomo

• and -

AMANDA FRANCES SMITH

R. Braiden, for the accused Amanda Frances Smith

LEACH J.

Introduction

[1] Kenneth Ohiambo Oyomo, one of the two accused persons in this proceeding, is charged with:

• one count of possessing cannabis, contrary to s.4(5) of the Controlled Drugs and Substances Act (“the CDSA”);

• one count of possessing cocaine for the purpose of trafficking, contrary to s.5(3)(a) of the CDSA; and

• one count of possessing proceeds of crime exceeding $5,000.00, contrary to s.355(1) of the Criminal Code of Canada, (“the Code”).

[2] He brings this pre-trial application seeking to have certain evidence, (26 grams of crack cocaine found in his left jacket pocket when he was arrested on March 24, 2010), excluded pursuant to s.24(1) of the Canadian Charter of Rights and Freedoms, (“the Charter”).

[3] In that regard, he submits that the evidence in question was obtained in a manner that infringed his right under section 8 of the Charter to be free from unreasonable search and seizure, as well as his right under section 9 of the Charter not to be arbitrarily obtained, and that to admit the evidence in question would bring the administration of justice into disrepute.

[4] The application is opposed by the Crown.

[5] Counsel for the co-accused appeared at the outset of the hearing to confirm that Ms Smith took no position in relation to the application and would not be participating in questioning or the making of submissions. He was excused accordingly.

Overview of party positions

[6] In the course of my analysis, (after addressing the relevant factual background to the application), I will be returning in more detail to positions and arguments advanced by the participating parties.

[7] At the outset, however, I think it fair to say that the primary focus of the parties, throughout most of the application hearing and argument, was on whether or not the police had reasonable and probable grounds to arrest Mr Oyomo on March 24, 2010, immediately prior to the admittedly warrantless search of his person which revealed the 26 grams of crack cocaine.

[8] In that regard:

• Counsel for Mr Oyomo argued that the police did not have such reasonable and probable grounds, such that the warrantless and therefore prima facie unreasonable search was not authorized by law, (through the common law police power of “search incident to arrest”), so as to render it consistent with section 8 of the Charter. Moreover, if the arrest was unlawful, (because it was effected without reasonable and probable grounds), that was said to support a conclusion that there also had been a breach of section 9 of the Charter.

• Crown counsel conceded that the search of Mr Oyomo’s person was warrantless and therefore presumptively unreasonable, but argued that the police had reasonable and probable grounds to effect the relevant arrest. In the Crown’s submission, the lawful nature of the arrest not only negated the existence of any section 9 breach, but also gave rise to a search incident to arrest that was lawful pursuant to the aforesaid common law police power, such that there was no section 8 breach.

[9] Much less attention was devoted to the question of whether, if a Charter breach was established, the evidence in question should be excluded pursuant to application of the analysis required by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

(continued verbatim exactly as in the source)

...

[45] For the reasons set out above, the Charter application brought by Mr Oyomo is dismissed.

“ Justice I. F. Leach”

JUSTICE I. F. LEACH

Released: September 4, 2015