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The Queen v. Chen L. (Markham)

Charges: Possession of a Firearm in a Motor Vehicle; Prohibited Firearm Possession, etc.

Facts: Chen L. was leaving a nightclub in Markham with three friends when the car they were in was pulled over by police. Chen was driving; the car belonged to him. Two police officers approached the car, one on the driver’s side, one on the passenger’s side. The officer on the driver’s side questioned Chen about their activities that night while the other officer shone a flashlight inside the car. The police demanded I.D. from everyone, then ordered them out of the car. All of the passengers were frisked. One officer demanded to know “where are the drugs?”, and accused Chen of selling drugs in the nightclub. The other officer searched the car and located a loaded 9mm handgun along with a Ziploc bag of ecstasy pills under the driver’s seat of the car. All four were arrested.

The Defence Strategy: From the beginning, this case was going to turn on the validity of the search. Did the police have the right to search the car? A review of the disclosure revealed that the police were claiming that they pulled over the car for a routine traffic stop, and that Chen’s licence plate marker was expired. One officer said that he noticed the Ziploc bag containing pills sticking out from under the driver’s seat, and therefore the seizure was justified as being in “plain view”. We took the case to trial, and challenged the police version of events. On cross-examination, one of the officers admitted that they had the nightclub under surveillance that night and had pulled over several other cars. The nightclub was a source of many complaints, from noise and underage drinking, to drugs and suspected Asian gang activity. The police were forced to admit that the main purpose of the stop was to investigate the car and its passengers for drugs, since the car was expensive and “pimped out” (to use the officer’s words), and had four young Asian men inside. They tried to insist that the stop was nevertheless legitimate, because of the expired validation sticker, but our client produced proof that his licence had been valid at the time.

We brought an Application in the Superior Court for a declaration that the search of the car was conducted in violation of the Charter of Rights, and for an order excluding the evidence. Recent case law from the Supreme Court emphasized that exclusion of the evidence would not be automatic in these cases, so a great deal of research and legal argument was presented to the court.

The Result: The court accepted our argument and excluded the evidence of the gun and the drugs. As a result, Chen was found Not Guilty and acquitted.

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