Ranthosh MAHALINGAM

Course Assignment: Case analysis review

R. v. JSG, 2016 ONCJ, [JSG]

Summary of the Case

For the past 16 years, Constable S has served with the Ontario Provincial Police

(OPP) department. On March 13th, 2016, he was conducting routine traffic patrol, a duty he

had performed for the past eight years. This involved checking seatbelt use, phone usage,

and vehicle registration validity. Positioned near the Castle Frank Eastbound on-ramp to

Highway 417 at 4:15 p.m., Constable S stopped JSG who was driving a 2000 Honda

Accord due to an improper exhaust system. Once the Honda was parked on the shoulder,

Constable S used his baton to confirm his suspicion, finding no baffling to suppress the

exhaust noise. Standing by the passenger side window, he observed green residue on the

carpet and clothing, and smelled marijuana. Consequently, Constable S arrested JSG for

possession of marijuana. While approaching the driver's side, JSG handed Constable S a

bag containing controlled drugs and illegal substances which was some unknown white

powder and a silver digital mini scale. At 4:20 p.m., JSG was removed from the vehicle and

handcuffed for arrest and search. Constable S began the search, where he discovered nine

phones, a paintball gun, illegal drugs, and empty alcohol cans and two swords. JSG's

vehicle was impounded at 4:51 p.m., and both arrived at Ottawa OPP department by 4:58

p.m. JSG was released the next day with a promise to appear, and a notice of intent to

produce was issued. Consequently, JSG's vehicle was released. The case of R. v. JSG will

be thoroughly examined, outlining its foundational aspects.

The legal issues that the judge must decide upon

In this case, we have two issues that the judge must decide upon. The first one is due

to the fact that it is a preliminary hearing, the legal issue at-hand is not focused on the guilt

of JSG but rather if the Crown has sufficient evidence and backing to move forward with a

trial.

The second legal issue that the judge must decide upon is if the evidence found

during the search of Constable S is admissible in court or not. This is the case since both

parties agreed on the substance found that was in the possession of JSG. Like the Crown

counsel said, “There are admissions regarding the following: The nature of the substances

as described in the information.” This mean that the court might look whether the way the

police found the substance was legal or not. Therefore, the legal issue is that the judge has

to figure out the admissibility of certain pieces of evidence or statements given the

admissions made.

The type of case

In the transcript of R. v. JSG, the case appears to lean more towards the criminal

aspect compared to others. This is evident from the arraignment phase, which indicates it is

a criminal case. Understanding the significance of this term is crucial to see why it is this

type of conviction. Arraignment is the initial step in any criminal proceeding, the defendant

is brought before a judge to hear the charges against them and to enter a plea. During this

stage, the alleged crime is cited, and the defendant is given the opportunity to enter a plea.

This step can be seen when the court say, “JSG, you are charged that on or about the 15th

day of March in the year 2015, at the City of Ottawa in the said Region, unlawfully did, for
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the purpose of trafficking, possess a substance included in Schedule I of the Controlled

Drugs and Substances Act, to wit: cocaine, contrary to Section 5(2) of the said act, thereby

committing an indictable offence under Section 5(3)(a) of this act.” In this sentence, we can

explicitly grasp that the court is citing the crime that JSG committed. We can also

acknowledge this when the Counsel for the Federal Crown said, “I'll proceed to

arraignment?” Therefore, we can see that we are in the initial portion of a criminal case,

which is the arraignment.

Subsequently, there is the preliminary hearing, which indicates that the case is

proceeding as a criminal matter. This term occurs after the arraignment if the defendant

pleads not guilty. It is used in felony cases to determine whether there is enough evidence

to require the defendant to stand trial. This hearing acts as a safeguard against unfounded

charges, ensuring there is probable cause to believe the defendant committed the crime. For

example, all long the transcript, the Counsel for JSG tries to prove that there is enough

evidence to proceed to a trial. Also, as previously mentioned, the legal issue lies on whether

the proof found by Constable S are admissible which is implemented to safeguard against

unfounded charges.

The applicable legislation(s)

In this case, the applicable legislation is the Controlled Drugs and Substances Act

(CDSA). This federal legislation has been implemented to regulate Canada’s federal drug

control statute. Like it is said in the Controlled Drugs and Substances Act (S.C. 1996, c.

19), it’s “An Act respecting the control of certain drugs, their precursors and other
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substances and to amend certain other Acts and repeal the Narcotic Control Act in

consequence thereof.”1

The section(s) of the applicable legislation that relates to the offence(s)

In this court case, we can see that JSG was accused with two violations within the

framework of Section 5. The first violation of the charges was under the section 5 (2). This

subsection talks about the possession of drug for the purpose of trafficking. This means that

possessing substances listed in Schedules I, II, III, IV, V, VI, VII, VIII, and IX with the

intent to traffic them is considered an offense in the eyes of the legal system. This law

targets individuals who possess illegal substances, whether with the intention to sell them

or not. In the case of JSG, he was charged to “possess a substance included in Schedule I of

the Controlled Drugs and Substances Act, to wit: M - methyl - 3,4-

methylenedioxymethamphetamine (ecstasy) contrary to Section 5(2) of the said act”.

Therfore, JSG went against the section 5 of the CDSA due to his possession of two

Schedule I substances with the intent of trafficking.

The second finding of these offences is a violation of Section 5(3)(a) which states that

“every person who contravenes subsection (1) or (2); if the subject matter of the offence is

a substance included in Schedule I or II, is guilty of an indictable offence and liable to

imprisonment for life” 2Due to his violation of the section 5 (2) of the CSDA, and his

offence in the Schedule I, he qualifies for further legal charges beyond simple possession.

This could imply charges related to trafficking itself, which carry more severe penalties.

1
Consolidated Acts. Statutes of Canada, c.19. Canada. Department of Justice. 1996. Department of Justice.
1996-06-20.
2
Consolidated Acts. Statutes of Canada, c.19. Canada. Department of Justice. 1996. Department of Justice.
1996-06-20.
 5

Given the circumstance that JSG is found guilty of an indictable offence, he will also be

liable to imprisonment for life.

The weaknesses in the Crown’s case

In this preliminary hearing, several weaknesses can be observed in the Crown’s case.

In 2011, a report from the Department of Justice emphasized the importance of

collaboration between the police and the Crown. This collaboration is essential because the

Crown is responsible for representing the public interest in court. Consequently, the police

are required to provide all evidence gathered during the investigation. At the beginning of

the cross-examination, the Crown questioned Constable S to reinforce all the findings he

had made in JSG's car. For instance, he mentioned discovering marijuana specks on the

accused's clothing and on the car's carpet floor. Additionally, the Crown attempted to

reinforce the case by describing how the officer followed guidelines when conducting the

car search. However, during the defense counsel's cross-examination of the officer, it

became apparent that the Crown's efforts to strengthen the evidence were not particularly

on point for the following reasons.

When it was time for the Defense counsel to cross-examine Constable S, they began

by pointing out that he had not collected any evidence for the marijuana specks he

mentioned. In response, the officer stated that he detected the smell of marijuana in the car

and upon inspection, observed specks of marijuana on the clothing and the car's carpet

floor. This weakens the Crown’s case because there is no concrete evidence to confirm that
 6

the specks identified were indeed marijuana. If the officer wanted to establish possession of

the drug, he would have needed to either photograph the specks for further analysis or

collect samples from both areas to conduct tests and confirm the nature of the substance.

Consequently, this undermines the credibility of the Crown's case, weakening it to the

extent that it may not be sufficient to proceed with a trial due to insufficient evidence.

When the Defense counsel conducted an extensive examination of Constable S, he

explained that after smoking a marijuana joint, there would typically be a roach left behind,

which is the remains of the joint, similar to a cigarette butt. Therefore, JSG’s lawyer

concluded that if his client had indeed smoked in the car, evidence of this would be most

likely to be present in the car. Consequently, the defense counsel asked the officer if he had

observed anything like that in the car, which could strengthen their case for stopping him.

However, the officer stated that he did not find anything of that nature on the ground or in

the central console of the car. As a result, it can be concluded that the specks found on the

ground may not have been marijuana but could have been some other substance, such as

salad bits or something else. This casts doubt on the credibility of the Crown's case,

potentially weakening it to the point where it may not be sufficient to proceed with a trial

because there was no trace of roaches.

Another point would be linked with The Charter that was not respected. During his

stop for having an improper exhaust system, Constable S smelled marijuana, which was

illegal at the time, and proceeded to arrest JSG and search his car for possession of that

drug. The officer had the authority to arrest him under section 5 of the Criminal Code. Once

JSG was arrested, the officer began to search the car for the presence of the illegal
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substance. As stated in the case summary, the officer found a small zip lock bag with white

powder and a mini scale. He then seized these items as evidence and brought JSG to jail.

Under Section 10(b) of the Canadian Charter of Rights and Freedoms, the police are

obligated to inform the suspect of their right to counsel. 3However, contrary to this section,

Constable S did not provide JSG with the right to counsel. This meant that JSG did not

have the opportunity to contact his lawyer before answering police questions while detained

or arrested.

All potential defences available to the accused including the pertinent legislation

Now that we understand the weaknesses in the Crown’s case, we can leverage them

to our advantage and construct a potential defense strategy to aid JSG's case. Many

potential defenses are outlined within the Canadian Charter of Rights and Freedoms, which

prioritizes “protecting basic rights and freedoms that are essential to maintaining Canada as

a free and democratic society.” 4Sections that will be particularly crucial in this case include

section 10, and section 24 of The Charter.

Section 10 of The Charter provides “for certain rights that are triggered as soon as an

individual is detained or arrested within the meaning of the section.” 5This section contains

two subsections that indicate where Constable S respected and where he did not respect the

individual's rights and freedoms. Let's examine how section 10(a) was not honored by the

officer. This part of the provision ensures that individuals have the opportunity to challenge

3
CONSTITUTION ACT. Statutes of Canada. Canada. Department of Justice. 1996. Department of Justice.
1982.
4
CONSTITUTION ACT. Statutes of Canada. Canada. Department of Justice. 1996. Department of Justice.
1982.
5
CONSTITUTION ACT. Statutes of Canada. Canada. Department of Justice. 1996. Department of Justice.
1982.
 8

the lawfulness of an arrest or detention by being promptly informed of the reason for it. 6As

previously mentioned, the police officer did not inform JSG that he was being arrested for

possession of illegal drugs; therefore, JSG still believed he was being arrested for an

improper exhaust system. Due to the constable's failure to inform the accused of the true

reason for his arrest, he violated JSG's rights and freedoms. Additionally, the police officer

contravened section 10(b) of The Charter. Under Section 10(b) of the Canadian Charter of

Rights and Freedoms, the police are required to inform the suspect of their right to counsel.
7
However, Constable S failed to provide JSG with the right to counsel, depriving JSG of the

opportunity to contact his lawyer before answering police questions while detained or

arrested.

Furthermore, there is section 24(2) of The Charter, which states that “Where, in

proceedings under section (1), a court concludes that evidence was obtained in a manner

that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence

shall be excluded if it is established that, having regard to all circumstances, the admission

of it in the proceedings would bring the administration of justice into disrepute.” 8 As

previously mentioned, Constable S violated section 10 of The Charter. This indicates that

the application of section 24(2) would be appropriate. Consequently, the evidence

discovered during the officer's search would not be admissible in court. This section also

relies on the public's trust in our criminal justice system. Despite JSG being in possession

of an illegal substance, his rights regarding arbitrary detention and access to counsel were
6
CONSTITUTION ACT. Statutes of Canada. Canada. Department of Justice. 1996. Department of Justice.
1982.
7
CONSTITUTION ACT. Statutes of Canada. Canada. Department of Justice. 1996. Department of Justice.
1982.
8
CONSTITUTION ACT. Statutes of Canada. Canada. Department of Justice. 1996. Department of Justice.
1982.
 9

violated. Ignoring police misconduct would further undermine trust in our justice system,

particularly given the significant authority held by officers like Constable S in law

enforcement. This provision of the Charter serves as a critical defense for JSG, should any

evidence against him be excluded or disregarded. Also, this omission weakens the Crown’s

case because the evidence found can now be challenged for admissibility based on

violations of the Canadian Charter of Rights and Freedoms.

The anticipated outcomes at the PH and trial explaining why

By examining cases with similar circumstances, we can forecast the potential

outcome of R. v. JSG. Take, for instance, R. v. Therens 9, where Therens was not informed

of his right to counsel, violating his protection under section 10(b) of the Charter.

Consequently, the evidence against him was deemed inadmissible, as per section 24(2).

Should JSG proceed to trial, it's conceivable that his case may also be impacted if the

evidence against him is excluded under section 24(2).

Despite the weaknesses in the Crown's case, the court found JSG fit to stand trial.

This case exemplifies the intricacies of the Canadian justice system. R. v. JSG involves

navigating through summary, hybrid, or indictable offenses, referencing The Charter, and

adhering to guidelines from the Controlled Drugs and Substances Act. These aspects

underscore the complexity of the legal system and highlight how interconnected these

systems are, as well as how outcomes can differ based on individual circumstances.

9
R. v. Therens. 1 S.C.R. 613. Supreme Court of Canada. 2009. Supreme Court of Canada. 1985-05-23.