Allegations
S.W. faced a number of serious charges, including possession of a loaded firearm, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime. Police stopped a vehicle for running a red light. Three males were in the car, including Mr. Fedorowicz’s client S.W., who was in the rear passenger seat. Upon speaking to the driver, the police constable (PC) smelled cannabis. The PC then immediately radioed for further officers to attend. The PC then demanded that the driver hand over an item from the center console, which was a cannabis package. When opened, the package was empty. Eventually, further units attended and all three males were removed from the vehicle for the purpose of conducting a search under the Cannabis Control Act. A search of the vehicle revealed a handgun in the rear of the vehicle, next to where S.W. was seated. A further search of S.W. revealed money and drugs on his person. A subsequent forensic analysis revealed S.W.’s DNA on the handle of the firearm.
Defence Strategy
Based on the location of the firearm and drugs located in S.W.’s pockets, along with the DNA evidence, the Crown’s case was very strong, if not overwhelming. As a result, the focus of Mr. Fedorowicz’s defence of S.W. was to seek the exclusion of the evidence based on multiple violations of S.W.’s constitutional rights, including:
- That the search of the vehicle and S.W.’s person was unlawful and contrary to s. 8 of the Charter of Rights and Freedoms, as the police lacked reasonable grounds to believe that cannabis was contained within the vehicle in contravention of section 12 of the Cannabis Control Act.
- Failing to advise S.W. immediately that the reason for his detention was an investigation under the CCA, contrary to s. 10(a) of the Charter. (The law states a person under detention must be advised of the reason for their detention immediately.)
- That the police failed to advise his client of the Right to Counsel, contrary to s. 10(b) of the Charter. (The police are required to provide rights to counsel immediately upon detention or arrest.)
- Section 10(b) of the Charter was again violated when the police questioned S.W. after he had requested to speak with a lawyer. (The law requires that once under arrest, all questioning must stop until the person speaks to a lawyer.)
Result
Not guilty of all charges. Based on the cross-examination of the PC by Mr. Fedorowicz, the trial judge concluded that the officer’s testimony regarding having reasonable grounds to conduct a search under the CCA “lacked credibility and reliability.” As a result, the search of S.W. was unreasonable, in violation of s. 8 of the Charter. The trial judge further agreed with Mr. Fedorowicz that S.W.’s rights under s. 10(a) and (b) were violated. As result, all the evidence (the gun and drugs) was excluded under s. 24(2) of the Charter.