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R v K & K (2015)

  • Clayton Rice, Q.C.

The two defendants were charged with possession of cocaine for the purpose of trafficking and possession of a handgun without a licence. The police had the defendants’ apartment building under surveillance as a result of a related investigation. They saw R leave the building carrying a duffle bag and enter a taxi cab. The police stopped the cab and demanded that R provide his name and identification. R told the police his name. When he said he did not have identification on him the police searched the duffle bag and found the cocaine. R said the defendants gave him the bag and told him they would pick it up later. The police arrested R and found the handgun when the duffle bag was searched again at the police station. Mr Rice brought a pretrial motion to exclude the cocaine and handgun from evidence based upon a breach of his client’s reasonable expectation of privacy under s 8 of the Charter of Rights. The initial detention of R at the taxi cab was arbitrary and the search of the duffle bag was not incidental to a lawful arrest as R was not under arrest when the bag was searched. The second search at the police station was tainted as derivative of the first search at the taxi cab. The Crown Attorney then stayed all charges.

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