R. v. Debot (1989), 37 O.A.C. 1 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Kevin Joseph Debot (appellant) v. Her Majesty The Queen (respondent)
(No. 20099)
Indexed As: R. v. Debot
Supreme Court of Canada
Dickson, C.J.C., Lamer, Wilson, Sopinka and Cory, JJ.
December 7, 1989.
Summary:
The accused was acquitted of possession of a controlled drug for the purpose of trafficking, contrary to s. 34(2) of the Food and Drugs Act. The Crown appealed.
The Ontario Court of Appeal, in a decision reported 17 O.A.C. 141, allowed the appeal, set aside the acquittal and ordered a new trial. The accused appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 1213
Security of the person – Lawful or reasonable search – For reasonable and probable cause – The Supreme Court of Canada stated that “the police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and proper grounds for doing so …” – See paragraphs 1, 50.
Civil Rights – Topic 1213
Security of the person – Lawful or reasonable search – For reasonable and probable cause – The Supreme Court of Canada discussed the significance of the past record and reputation of an accused in determining whether police have reasonable grounds for a search – See paragraphs 1, 56 to 64.
Civil Rights – Topic 1214
Security of the person – Lawful or reasonable search – Searches incidental to arrest – [See first Civil Rights – Topic 4604 below].
Civil Rights – Topic 1217
Security of the person – Lawful or reasonable search – Unreasonable search and seizure – What constitutes – The Supreme Court of Canada referred to the test for when a search is reasonable – See paragraph 5.
Civil Rights – Topic 1217
Security of the person – Lawful or reasonable search – Unreasonable search and seizure – What constitutes – The Supreme Court of Canada rejected the notion that a denial of the right to counsel (Charter, s. 10(b)) is a factor when determining the reasonableness of a search – The court stated that it is only in exceptional circumstances that a denial of the right to counsel will trigger a violation of s. 8 of the Charter (the protection against unreasonable search and seizure) – The court referred to such an exceptional circumstance – See paragraph 4.
Civil Rights – Topic 1217
Security of the person – Lawful or reasonable search – Unreasonable search and seizure – What constitutes – [See second Civil Rights – Topic 4604 below].
Civil Rights – Topic 4602
Right to counsel – Denial of – Evidence taken inadmissible – [See second Civil Rights – Topic 4604 below].
Civil Rights – Topic 4604
Right to counsel – Denial of – What constitutes – The Supreme Court of Canada stated that a person detained for a search incidental to arrest has “the right to be informed of the right to retain and instruct counsel. However the police are not obliged to suspend the search incident to arrest until the detainee has the opportunity to retain counsel” – The court thereafter set out exceptions to this general rule – See paragraph 3.
Civil Rights – Topic 4604
Right to counsel – Denial of – What constitutes – Police had an accused under surveillance for drug activities – They stopped his vehicle and conducted a warrantless frisk search of the accused under s. 37 of the Food and Drugs Act – They found one ounce of speed in his pocket – He was then placed under arrest, informed of his right to counsel and charged with a drug offence – The Supreme Court of Canada held that there was no violation of s. 8 of the Charter (the search and seizure provision) – The court held however that s. 10(b) (the right to counsel) was violated and that the police should have advised the accused of his right to counsel before the search, although they were not obliged to suspend the search to give him an opportunity to consult with counsel – The court held that the evidence should be admitted pursuant to s. 24(2) of the Charter, notwithstanding the s. 10(b) Charter violation.
Civil Rights – Topic 4605.1
Right to counsel – Denial of – Effect on reasonableness of search and seizure – [See second Civil Rights – Topic 1217 above].
Civil Rights – Topic 4608
Right to counsel – Right to be advised of – [See first Civil Rights – Topic 4604 above].
Civil Rights – Topic 4608
Right to counsel – Right to be advised of – [See second Civil Rights – Topic 4604 above].
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – [See second Civil Rights – Topic 4604 above].
Food and Drug Control – Topic 1225
Drugs – Search and seizure – Warrantless searches and seizures – [See first Civil Rights – Topic 1213 above].
Food and Drug Control – Topic 1225
Drugs – Search and seizure – Warrantless searches and seizures – [See second Civil Rights – Topic 4604 above].
Cases Noticed:
R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81, refd to. [para. 3].
R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1, refd to. [paras. 3, 4, 6, 37, 38, 42, 65, 75, 79].
R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193, refd to. [paras. 5, 34, 52, 75].
R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [paras. 6, 37, 40, 42, 65, 75, 84].
R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [paras. 6, 37, 38, 42, 65, 67, 75].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [paras. 22, 24, 69].
Eccles v. Bourque, [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [paras. 27, 52].
R. v. Rao (1984), 4 O.A.C. 162; 12 C.C.C.(3d) 97, refd to. [para. 29].
R. v. Kelly (1985), 7 O.A.C. 46; 17 C.C.C.(3d) 419, refd to. [para. 31].
R. v. Guberman (1985), 37 Man.R.(2d) 219; 23 C.C.C.(3d) 406, refd to. [para. 32].
R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153, refd to. [paras. 32, 36, 37, 41, 45].
R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198, refd to. [para. 42].
Spinelli v. U.S. (1969), 393 U.S. 410, refd to. [para. 56].
R. v. Saunders (1988), 41 C.C.C.(3d) 532, refd to. [para. 84].
R. v. Bonin (1989), 47 C.C.C.(3d) 230, refd to. [para. 84].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 10(b), sect. 24(2).
Food and Drugs Act, R.S.C. 1970, c. F-27, sect. 37 [paras. 8, 22, 26, 35, 45, 46, 63, 69]; sect. 37(1) [para. 11]; sect. 37(1)(a), sect. 37(1)(b) [para. 29].
Counsel:
Andrew Z. Kerekes, for the appellant;
Robert W. Hubbard, for the respondent.
Solicitors of Record:
Kerekes, Collins, Toronto, Ontario, for the appellant;
John C. Tait, Ottawa, Ontario, for the respondent.
This appeal was heard on June 22, 1989, before Dickson, C.J.C., Lamer, Wilson, Sopinka and Cory, JJ., of the Supreme Court of Canada. The judgment of the court was rendered in both official languages on December 7, 1989, including the following opinions:
Lamer (Dickson, C.J.C. and Cory, J., concurring) – see paragraphs 1 to 9;
Wilson, J., dissenting in part – see paragraphs 10 to 79;
Sopinka, J. – see paragraphs 80 to 86.
