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Facts

TO: Internship student

FROM: Kendra Waugh, Senior Partner

DATE: January 10, 2022

RE: Legal Memorandum Assignment

In this memo, you have asked me to draft a memo for the Molson file on two specific issues: the validity of Molson's strip search pursuant to s.8 and the right to counsel under s. 10(b). Molson has been accused with ownership of cocaine for trading conflicting section 5(2) of the controlled drugs and substance Act. The file has been set for a trial where I anticipate arguing that the police investigation met the client's charter rights.

DSU received information that Molson was selling cocaine. For the investigation, the police set up a surveillance project targeting Molson. In their surveillance, the police observed Molson make several meetings over a short period with different people. As a result, the police believed that such meetings were associated with a drug transaction. It could be observed that potential clients were meeting Molson at his house, and therefore the police established surveillance at Molson's residence.

For some weeks, the police observed consistent foot traffic to and from the residence. The police observed that most visitors would knock on the door, stay for a short period and then vacate the residence. Sometimes, Molson could meet the caller at the door, but sometimes the caller could step into the residence. This made the police more suspicious of Molson. Worse, Molson could answer the door and appeared to be initiating the meetings, and at some times, Edward could answer the call and initiate the meetings.

The DSU then organized surveillance to arrest Morison. By wearing plain clothes and driving unmarked police cars, the police organized the surveillance at the residence. Molson and Edward were arrested and taken to custody without any violence. The police read their rights and were transported to the Nanaimo RCMP detachment. In Molson's house, the police discovered some several grams of cocaine. Molson was given the right to conduct a lawyer, and a strip search was conducted. A strip search was not conducted for Edward since there was no female officer.

  • The validity of Molson's strip search in accordance with section 8 of the charter
  • The facilitation of the right to counsel under section. 10(b) of the charter.

As stipulated under section 5 (2) of the controlled drugs and substance Act, an individual is not allowed to possess any substance for trafficking. Concerning this section, despite the search or any other right guaranteed by the charter, a person remains wrongful for possessing any drug. Possession of the drug contravenes the provisions of this section, but for the validity of the possession of the drug to be established, search warranties, right to counsel and strip search must be done on reasonable grounds. In this case, Morison was convicted of possessing cocaine. However, the court has a duty to establish the validity of the right to counsel and the facilitation of the strip search offered to Morison.

As prescribed under section 10(b), every convicted suspect has the right to hold and initiate counsel without deferment on detention or confinement. On the same note, the suspect must be informed of his rights upon being arrested. Such provisions meet the provisions prescribed under section 2(C) of the Canadian Bill of rights. Purposely, the provisions laid under section 10(b) provide the detained or the incarcerated individual with a chance to get lawful advice pertinent to their lawful condition. In accordance with the verdict made in the case of R. V. Sinclair, the detained individual has to be provided with an opportunity to conduct a lawyer for legal advice about the situation. Failure to provide such an opportunity, the police have denied the detainee the right to counsel, and the arrest is termed to contravene the detainee's rights under the charter.

Issues

By following the verdict made in the case of R V Manninen, the provisions of section 10(b) of the charter do not only offer an opportunity or the detainee to be notified of his privileges and duties but also offer an opportunity to the detainee to access advice from the lawyer or any other individual as to how to implement his rights. In this case, the opportunity to counsel should be provided without any delay. Causing delay in providing such an opportunity to the detainee constitutes a defilement of the detainee's rights under the charter because the right to counsel was not offered on reasonable grounds.

As per the Charter, such opportunities are offered to the detainee to ensure that the convict's decisions collaborate with the enquiry, either to accept or decline. The detainee has free will in accepting or declining the offence in this situation. However, the provisions of section 10(b) of the charter do not promise that the convict's choice is wise or does it influences the decision. Rather, it targets granting the detainee the chance to access legal assistance pertinent to the decision.

However, the significant implementation of section 10(b) is confirmed through section 10(a). The provisions of section 10(a) provide that the detainee has the right to be conversant promptly of the reason for the arrest and confinement. In accordance with the verdict made in the case of R.V Evans, the right to advice must be accompanied by the right to be notified about the motives for being arrested or detained. If the provisions of section 10(a) are not met, section 10(b) will be contravened. In this case, the right to be notified of the purpose for being arrested and the precise to retain and instruct advice must be offered without delay, as depicted in the case of R. V Subaru.

On the same note, as stipulated under section 1 of the charter, the forces have an obligation to notify a convict of their right to hold and initiate advice. The police have to enable the exercise of that right directly upon the arrest or detention of an individual. However, under the verdict made in the case of R. V Debot, the police are not expected to interrupt a search event to seizure until the captive has had the chance to retain counsel. Therefore, in evaluating the validity of the right to counsel, police conduct is the focal point.

By considering the police conduct in the arrest of Morison, the arrest was done on reasonable ground. For instance, suspicious behavior of Morison of holding the meeting with different people was sufficient for the police to be suspicious of drug trafficking by Morison. Upon the arrest, the police met the provisions of section 10(a) of the charter. In this case, the police informed Molson about the right for being arrested. On the same note, after being taken to custody, Molson was red his offences and was given a right to counsel whereby he conducted Kendra Waugh. This clearly showed that in section 10(b), the right to retain and instruct counsel was provided by the police. Since the right to be informed about the reasons for being arrested was offered to Molson, the provisions of section 10(a) were met by the police. On the same note, by fulfilling the provisions of section 10(a), the police satisfied the provisions of section 10(b), and therefore the right to counsel is valid.

Analysis

In the case of R. Golden, the Supreme Court established the grounds that meet the provisions of section 8 of the charter. As prescribed under section 8 of the charter, each individual has the right to be safe against irrational pursuit or seizure. According to the law, a police officer is expected to have a search warrant, probable cause and reasonable suspicion to search an individual. Failure to have such elements, the search and the seizure are deemed unreasonable, and the police are considered to contravene the individuals' rights under the charter.

Contrary to the verdict made in the case of R. V Muller, Morison was arrested with a warrant. In the strip search, the police obtained some grams of cocaine which evidenced that Molson was dealing with drugs. However, an arrest warrant was issued. In this case, the police strip-searched Molson's residence without his presence and consent. In this case, Molson's right under section 8 of the charter was not violated, and therefore the strip search was valid. The police had a warrant from the Sgt for arresting Molson, but they just became suspicious of him and conducted their surveillance. Though the court allows a strip search to be conducted based on suspicious grounds, its conduct of Molson was sufficient enough to be searched by the police. Generally, there might be many reasons for organizing short periods of meetings, and this could necessarily constitute drug trafficking. Though the police were suspicious about Morison's behavior, the suspicion was reasonable to search Molson for drug trafficking.

Privacy is a critical concern under section 8 of the charter. In this case, a reasonable search or seizure by the police should ensure that the detainee's privacy is not exposed. In the case of Molson, Sgt. Winter authorized the strip search whereby the right to counsel was offered to Molson before the search. A search without the right to counsel is deemed unreasonable, and the police are deemed to contravene the detainee's right under section 8 of the charter. In the strip search, Molson's search was conducted inside the residence. This showed a high level of privacy, and therefore the strip search was conducted on reasonable ground. Therefore, Molson's rights under section 8 of the charter were not violated by the police.

For a search to be reasonable under section 8 of the charter, the strip search need be ratified by the law. On the same note, the law must be sensible, and the search must be carried out reasonably. A warrantless search is deemed to be unreasonable. In the case of Molson, the police had a search warrant from Sgt. In this case, the search conducted on Molson's residence was reasonable since it was done according to the law and ensured privacy.

Generally, a strip search must be authorized by the law. However, the strip search can fail to be authorized by the law if the search exceeds its scope as to the area and as to the items for which the law approved the authority to search. In the case of Molson, the search was conducted on the dime bags, which were found to contain cocaine. In this case, nothing privacy was exposed. Unlike in the case of R. V Pilon, where the search violated privacy, the case of Molson had nothing confidential. The police searched the residence through; Molson was not present. The fact that the search was warranted, the strip search was valid according to section 8 of the charter.

However, in establishing the rationality of the search, it is important to establish whether there has been a search or a seizure. Not every undertaking involves a search. An inspection is usually a search. The police, in the case of Molson, searched, but the issue arises as to whether the search violated Molson's rights under section 8 of the charter. According to the verdict made in the case of R V Tessling, a person is entitled to a sensible confidentiality interest in the object or subject matter of the state action and the facts. Molson was in police custody, and the search was conducted in a private room and observed by male police. This shows that high reasonable privacy was assured during the search, and therefore the rights of Molson under section 8 of the charter were not violated; hence the search was valid. 

Conclusion

By considering the police conduct in the arrest of Morison, the arrest was done on reasonable ground. For instance, suspicious behavior of Morison of holding the meeting with different people was sufficient for the police to be suspicious of drug trafficking by Morison. Upon the arrest, the police met the provisions of section 10(a) of the charter. In this case, the police informed Morison about the right for being arrested. On the same note, after being taken to custody, Morison was red his offences and was given a right to counsel whereby he conducted Kendra Waugh. This clearly showed that in section 10(b), the right to retain and instruct counsel was provided by the police. Since the right to be informed about the reasons for being arrested was offered to Morison, the provisions of section 10(a) were met by the police. On the same note, by fulfilling the provisions of section 10(a), the police satisfied the provisions of section 10(b), and therefore the right to counsel is valid.

However, in establishing the validity of the search, it is important to establish whether there has been a search or a seizure. Not every undertaking involves a search. An inspection is usually a search. The police, in the case of Molson, searched, but the issue arises as to whether the search violated Molson's rights under section 8 of the charter. According to the verdict made in the case of R V Tessling, a person is entitled to a reasonable privacy interest in the object or subject matter of the state action and the information. Molson was in police custody, and the search was conducted in a private room and observed by male police. This shows that high reasonable privacy was assured during the search, and therefore the rights of Molson under section 8 of the charter were not violated; hence the search was valid.

In accordance with the above discussion, by upholding the verdict made in the discussed cases, Molson's arrest was reasonable. The right to counsel, as stipulated under section 10 (b) of the charter, was lawfully facilitated since Molson was informed of the right to arrest and was granted the right to communicate with his lawyer. By considering the provisions of section 8 of the charter, it can be concluded that Molson's rights were not violated. The strip search was conducted on reasonable ground, and therefore the search was valid.

Conrod, Lee-Ann. "Smart Devices in Criminal Investigations: How Section 8 of the Canadian Charter of Rights and Freedoms Can Better Protect Privacy in the Search of Technology and Seizure of Information." Appeal: Rev. Current L. & L. Reform 24 (2019): 115.

Lampe, Joanna R., and Legislative Attorney. The Controlled Substances Act (CSA): A Legal Overview for the 117th Congress. Congressional Research Service, 2021.

R v Manninen [1987] 1 S.C.R. 1233

R v Sinclair 2010 SCC 35

  1. v. Debot, [1989] 2 SCR 1140
  2. v. Evans, [1991] 1 S.C.R. 869
  3. v. Muller (BA), (2014) 326 OAC 242 (CA) – vLex
  4. v. Pilon (R.), (2009) 247 O.A.C. 127 (CA)
  5. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83.
  6. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460

Steinberg, Kent. "Finding the Limit to" Stop and Identify" Statutes." Criminal Justice 35, no. 4 (2021): 34-38.

The Canadian Charter Of Rights And Freedoms. 2022. Vol. 10. Canada.

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