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This Guideline deals with the responsibility of landlords to maintain residential complexes and rental units and with the appropriate choice of remedies.
A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.
A tenant may apply to the Board under paragraph 1 of subsection 29(1) of the RTA for an order to determine if the landlord is in breach of these obligations.1 If the Board determines that a breach occurred, section 30 provides a number of available remedies that may be ordered, including ordering the work to be done, abatement of rent, and termination of the tenancy. The Board may also order the landlord to pay compensation to the tenant for the cost of repairing or replacing property damaged, destroyed or disposed of as a result of the landlord's breach, as well as other reasonable out-of-pocket expenses. The Board may also award general damages for breach of the tenancy agreement.
The statute should be interpreted in a way which encourages the best maintained complexes and units. The landlord is required to rectify maintenance deficiencies and meet applicable standards. When a deficiency is found, the breach of maintenance obligations will generally result in an order under section 30. In some situations, the landlord will also be ordered to compensate tenants for problems of which the landlord was aware, or could reasonably be expected to have knowledge of, but took no action to rectify.
It is not a proper defence to such an application that the landlord needs the money for other purposes, even for other repairs. If there are many repairs necessary in a complex, the Member could take into account that some work should come first, and delay an order for other repairs. However, the obligation to maintain residential premises is not subject to whether the landlord has available funds.
Any physical facilities which the landlord can be found to have rented to the tenant, or permitted the tenant to use, should be maintained by the landlord. This may include facilities not immediately adjacent to the complex, but which the landlord has specifically agreed to provide (such as a swimming pool at a nearby building, parking in a separate lot, storage elsewhere, etc.).
A landlord may assert that they have a good program of maintenance and repair, including preventative maintenance and a system of processing complaints. This is not a release of the landlord's responsibility to respond to a real problem. It is reasonable management practice to answer maintenance requests in the order of their urgency (e.g., water leaks come before a loose wall tile), but all legitimate requests must be answered within a reasonable time.
An application must be made by the current or former tenant within one year of the date the alleged breach occurred. When determining whether an application has been made "in time" pursuant to subsection 29(2) of the RTA, a Member will have to determine when the alleged breach occurred.
When a breach is a single event such as an illegal entry, the limitation period begins on the day the event happened. Where the breach is not a single event but is ongoing or recurring as may be the case with some maintenance obligations or with non-compliance with standards, then the breach occurs over a period of time and the limitation period runs from the date that the repair is completed or the standard is complied with. The landlord's obligation for maintenance is ongoing and continues until the landlord has fulfilled the obligation. In all cases the limitation period is one year.
The intention behind the limitation period found in section 29(2) of the RTA is that the applicant has only a certain amount of time to file the application and obtain a remedy, but may bring the application at any time within the limitation period. For instance, a unit or complex may have numerous problems which started at various times and gradually worsened to arrive at a state of non-repair which caused the tenant to apply. The fact that the tenant did not bring the application when the breach first arose does not affect the tenant's right to file an application. There is no provision in the RTA requiring the tenant to bring an application immediately upon the breach of an obligation by the landlord. However, the tenant may not include in an application any item which has been rectified by the landlord more than one year before the application was filed.
If the application is filed "in time" pursuant to subsection 29(2) and the breach is no longer occurring as of the date of the order, the Board may award a remedy (such as a rent abatement) for the timeframe calculated from one year prior to the application filing date to the date the breach ended . Where the breach is ongoing as of the date of the order, the potential remedy may provide for periods beyond the date of the order to the date that the breach is no longer occurring (Goodman and Pearlman v. Menyhart and Menyhart,  O.J. No. 1602, and Toronto Community Housing Corp v. Allan Vlahovich, .O.J. No. 1463). (Also see the section on REMEDIES THAT MAY BE ORDERED, further on in this Guideline).
In light of the one year limitation period in s. 29 (2), the Board can only make a determination that a landlord has breached an obligation under s. 20 (1) during the one year period before the making of the application. Accordingly, the remedy that may be granted may only be granted in relation to breaches during that one year period.
In Vlahovich, the Divisional Court explained that, "properly understood" the earlier decision of the Divisional Court in Goodman v. Menyhart,  O.J. No. 1602, was not inconsistent with the Court's approach in Vlahovich. The Court emphasized that the Divisional Court panel in Goodman v. Menyhart had ordered that an abatement can extend back one year before the application had been made and no further. The Court in Vlahovich stated that in Goodman v. Menyhart, the only issue was whether the limitation period should extend back twelve months from the order of the Board or from the filing of the application. In that case, and, consistent with the reasoning in Vlahovich, the limitation period extended back one year from the filing of the application.
Clause (b) of subsection 195(1) indicates that where the Board considers it appropriate, the Board may permit a tenant who is making a maintenance application to pay some or all of their rent into the Board. Subsection 195(5) states that if such a payment is allowed, it is not considered to be arrears of rent or a breach of the tenant's obligations. As discussed in Guideline 2 "Payment Into the Board", such requests will only be granted in special circumstances.
See Rule 20, Paying Money into and Out of the Board for details on the procedures for requesting payment of rent into the Board.
The applicant has an obligation to set out the nature of the issues being raised, so that the respondent has the opportunity to prepare for the hearing. The items alleged to be in need of maintenance or repair or failure to meet standards should be set out on the application form, as should any claims for compensation for damaged, destroyed or disposed of items. If no details are set out, the application could be dismissed, or the applicant may be allowed an amendment to provide details. In some cases this will cause an adjournment to allow the landlord to prepare to meet those issues.
Even if the tenant has been specific in the application about the items which require repair or are below standards, or about compensation claims, they may try to raise further items at the hearing. The Member will have to decide whether to permit these additional items, usually after hearing the tenant's explanation of why they were not raised before, and the landlord submissions about any prejudice they may suffer in responding to the new items. The new items must have a connection with the items raised initially.
Each item raised by the tenant which was not remedied within the last year must be considered under all the tests in section 20. For example, with a complaint of lack of heat, the Member will have to consider whether this is failing to maintain a good state of repair, whether the premises are unfit for habitation because of the lack of heat, and whether the landlord has thus failed to comply with standards. If the problem alleged by the tenant falls into any of these categories, it will justify a finding of breach of obligations.
In general, where there is a conflict between what the Member believes would be required by "good state of repair and fit for habitation" and the standard imposed by the responsible public authority, and the landlord has met the standard, the Member should not find the landlord in breach of section 20.
The landlord's obligation under section 20 to provide and maintain the premises in a good state of repair is very broad. It would include anything that was capable of being repaired. The full extent of the obligation does not depend on the tenancy agreement.
A number of cases have also considered the meaning of "fit for habitation". Summers v. Salford Corp.5 is the leading case from Britain. The Court held that if the state of disrepair is such that by ordinary use, damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, the house is considered not reasonably fit for habitation.
This phrase "fit for habitation" is not the standard expected, and should not be used to limit or qualify "good state of repair". Generally, it is enough for any part of the premises to be unfit. Examples would include infestations of rodents or vermin, bathrooms with backedup sewage, rooms with broken windows, etc.
Most standards are found in municipal property standards by-laws, but may also be provincial standards such as the fire code, elevator standards or the provincial standard under the RTA (see below). The tenant has the obligation to bring the standard to the attention of the Member, usually by filing a copy of the by-law, RTA or other document either before or at the hearing. However, the Member may on his or her own initiative refer to the standard.
If a notice of violation, work order or other order has been issued for this complex or unit, it represents a finding by a public official that the landlord has not complied with the standard. Once the tenant files a copy of the notice or order, a Member will be entitled to accept this as evidence of non-compliance with a standard. However, the landlord is entitled to have the issue determined by the Board if they dispute the notice or order. In such a case, the landlord must raise this dispute, file the document and bring forward evidence to prove their position.
A landlord may argue that the work order has not taken effect, and should not be considered, if the time for compliance has not yet expired. In fact, many work orders are issued after non-compliance with a standard has existed for some time. The fact that the landlord has been given more time by another authority to rectify the problem does not mean that there is no problem. The issue should not be dismissed on this basis. Of course, if the work order was the first way that the landlord discovered this problem existed, the fact that the compliance period has not yet expired for a non-urgent item may indicate a different remedy than a long-standing problem that was ignored.
A landlord may also argue that actions taken by the public authority pursuant to the work order, such as prosecution of a provincial offence, should be considered as penalty enough for the non-compliance with the standard. However, the Member must still determine whether there was non-compliance with a standard, although it may be taken into account that the landlord has paid a fine in deciding what remedy is appropriate.
If no complaint has been filed with the appropriate public authority, it is then necessary for the Board to hear evidence on the issue and come to its own conclusion. A notice of violation issued by a public authority is not necessary for a finding of a breach of section 20.
If the applicant submits that a maintenance condition does not meet a standard, but has no evidence at the hearing of the exact nature of the standard, the Member may consider the item under the other tests (good state of repair or fit for habitation). However, the landlord is entitled then to introduce the standard, and to show that they are meeting it.
Some tenants may wish to use the provincial maintenance standard, even though their own municipality has a property standards by-law. However, section 20 requires landlords to comply with standards and this must be read as meaning only those standards which are enforceable for that complex.
Landlords may choose to undertake programs of preventative maintenance. However, a tenant cannot insist that their landlord undertake specific preventative maintenance work as a necessary repair.
When landlords undertake repairs, there is often a dispute between the parties about whether the repairs were properly done. The tenant has no right to insist upon a standard of perfection regarding repairs. By the same token, a landlord is not entitled to rely upon repairs that were improperly done as a complete answer to the need for repairs, especially if the repairs had no effect or resulted in a need for further repairs.
The tenant must apply within one year after the breach of obligation existed, but the fact that a problem has been rectified before the application was filed does not exclude it from consideration. However, it would appear that the cases generally support the principle that, if the landlord responded within a reasonable time, and the response was appropriate to effect the repair, no abatement or other remedy should be ordered.
Timeliness of response depends on a great number of factors, but principally on the seriousness of the state of non-repair and its possible effects on the tenant and the availability of materials and possibly contractors to do the repairs. The tenant may also be alleging that the repairs attempted by the landlord were ineffective or badly done, which has reduced the value of the unit or left the same problem unremedied. These issues must be addressed directly through evidence and decided by the Member.
Section 34 of the RTA provides that the tenant is responsible for the repair of any undue damages to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, other occupants of the rental unit or persons who are permitted in the residential complex by the tenant. Thus, if the landlord alleges that the repairs requested by the tenant were in fact the tenant's responsibility, this issue must be decided by the Member.
Similarly, it may be necessary to hear evidence regarding an allegation that the tenant or persons they permitted on the premises contributed to the severity of the maintenance problem, or aggravated its repair. The tenant may have unreasonably prevented the landlord from entering the unit to assess the problem or make the repairs. In such a case, the repair may still be ordered to be done by the landlord or the tenant, but the tenant's conduct may result in no abatement or other remedy.
Assuming that the Member has heard the evidence and decided that there has been a breach of the landlord's obligations, there are a number of factors that should be considered before arriving at the remedy or remedies to be included in the order.
The Member should ask for submissions from the parties specifically about the remedies that are appropriate for each item. The applicant and respondent may have discussed the dispute and come to some conclusion concerning the type or amount of relief to be given, although a Member is not bound to follow a joint submission.
Subsection 30(2) of the RTA states that, in determining the remedy, the adjudicator shall consider whether the applicant advised the landlord of the alleged breaches before filing their application. If the tenant failed to notify the landlord before making the application, it does not mean that the application must be dismissed, or even that this item should be dismissed.
Although the best practice for a tenant is to notify a landlord in writing of any serious problem, this provision does not require the notice to be written. Where the tenant alleges there was oral notice, they must convince the Member through their testimony that notice was given to the landlord or an employee, and when.
However, failure to advise the landlord will affect the remedies to be ordered, unless the landlord knew about the problem already or should have known. An applicant should not be awarded less relief than another tenant if they reasonably believed other tenants had already complained or the problem should have been obvious to the landlord or their employees.
Section 30 permits the Member to order the landlord to do specified repairs or replacements or other work within a specified time.
Most tenants apply because they want the landlord to be ordered to do the repairs or replacements. Thus, where these applications are mediated or settled, the agreement will usually include the landlord's promise to do the agreed work by a certain date.
An order should be very specific about the repairs or replacements that are required and by what date. The time allowed should be realistic given the season and any other factors that may delay the work. A Member may order that a tenant can deduct an amount from future rent payments if a landlord fails to comply with the order within a specified period of time.
Section 30 allows a Member to authorize a repair or replacement that has been or is to be made and order its cost to be paid by the landlord to the tenant.
This will be an appropriate remedy where the failure of the landlord to comply with their maintenance obligations has resulted in the tenant being forced to do the repair or replacement. For example, if a tenant has already paid to have their refrigerator repaired, the Member could authorize the repair and order the landlord to refund the tenant the cost they incurred (so long it is reasonable) by a specific date or to deduct the amount from the rent.
In general, if repairs or replacements have not been done yet, difficult repairs or replacements and those that must be done consistently with similar work in the complex should usually be done by the landlord.
Where the repairs or replacements could be properly done by the tenant, the best order may be a combination. For example, the landlord could be ordered to do specified work by a specific date, failing which, the tenant would be authorized to do the same work, and deduct a specified amount from the rent. It would usually be advisable to have evidence, through estimates, of the cost of the repairs or replacements.
Section 207 of the RTA allows the adjudicator to set out recovery provisions in the order in the event that the landlord does not pay the tenant the lump sum amount ordered.
Section 30 allows a Member to order an abatement of rent. This is a monetary award expressed in terms of past or future rent. It may be a lump sum payment the landlord is ordered to pay the tenant, which effectively orders the landlord to give back part of the rent paid. It may be an order to allow the tenant to pay less rent by a certain amount or percentage, or even to pay no rent, for a specified time period. It could also be a combination of these.
This remedy is not appropriate where the landlord was not aware of the problem until the application was filed, but they should be ordered to fix the problem. If the landlord has already rectified the problem, and did so within a reasonable time, an abatement is not appropriate.
There is no guidance in the RTA to assist the Member in determining the amount of an abatement of rent. In determining the amount to be ordered, the Member will consider the period of time that the problem existed and the severity of the problem in terms of its effect on the tenant.
The test should be the impact on the average tenant or the impact a reasonable person would expect this problem to have had on a tenant. If the tenant has a particular susceptibility to this particular problem, the landlord can only reasonably be liable to the tenant for more significant penalties if it can be shown that the landlord knew of the particular condition of the tenant.
This remedy should not be seen as punishment for landlord conduct or inaction. It is compensation to the tenant for the inadequate state of repair and any inconvenience or actual loss of use of the rental unit or common facilities.
The usual approach will be to look at an abatement as a portion of the rent. In other words, a Member will assess what percentage of the package of shelter and services rented by the tenant is not available to the tenant. That will then be expressed as a dollar amount, and logically this will be greater if the rent is greater.
The other side of this issue is whether a higher rent entitles a tenant to better maintenance, and thus faster repairs, a wider responsibility for repairs and higher abatements if repairs are not done. This would seem to be an expectation related to the contract, rather than a tenant protection intended by the statute. Section 20 should not be interpreted in this way.
A landlord may assert that they are not liable for the unexpected results of maintenance problems of which they were not aware or that they could not reasonably be expected to have knowledge of. This is indeed the law, as established by two Ontario Court of Appeal decisions. The Court rejected the claim for damages to a tenant who fell through rotting steps, of which the landlord was unaware.8 However, in a similar case in which the tenant had advised the landlord of the wobbling stairs, the Court found the landlord liable for damages.9 These were claims for "damages" but the same principle applies to abatements.
Is There Liability for Abatement During Repairs or Replacements?
In some past decisions, the Court ordered landlords to pay an abatement of rent for the period of major repairs done for the tenant's benefit. This reflects the loss of use of part of the unit or services, and from one point of view this loss was directly caused (at least in some cases) from the landlord's failure to do work earlier. The opposite viewpoint is that such an abatement is counterproductive because the landlord will not have enough funds to do the work, and will discourage landlords from doing necessary improvements.
The Supreme Court of Canada set out the basic rule in Herbold v. Pajelle Investments Ltd.10. The Court held that only in the most exceptional cases should an abatement of rent be granted for failure to provide common facilities and services during a short period required for necessary repairs and renovations. The Court noted that where there are long and important delays in providing these things which the landlord is responsible for providing, an abatement should be ordered. In Greenbranch Investments Ltd. v. Goulborn11 the Court of Appeal held that repairs done by the landlord in that case did not deprive the tenants of the physical use and enjoyment of their premises.
Section 8 of O. Reg. 516/06 sets out criteria to be applied by the Board in determining whether there is substantial interference when a landlord does maintenance, repairs or capital improvements, criteria for determining whether to order an abatement of rent, and rules for calculating an abatement. These rules must be applied in an application for a finding that the landlord has substantially interfered with the reasonable enjoyment of the unit by the tenant, but they do not apply to an application for a finding that a landlord has failed to repair or maintain the unit or complex.
If a landlord has done little maintenance for an extended period, and a serious condition results that takes some time to rectify, the landlord should be responsible for the tenants' loss of use of their unit or common facilities during the repairs. However, if the landlord has a reasonable program of maintenance, including preventative maintenance, and is acting responsibly to rectify a problem that requires extensive repairs, an abatement of rent should not be ordered.
This approach imposes greater liability on landlords who do not meet their maintenance obligations, while encouraging responsible landlords to undertake major projects.
Thus, although proving that there is good maintenance of a complex will not avoid a finding that specific maintenance problems exist and must be rectified, it will affect the abatement remedy. Thus, it is only where the tenant has claimed an abatement of rent and that remedy is available that evidence of a good maintenance program should be accepted.
These remedies should be used in serious cases and only where the tenant requests them or a public authority has required the unit to be vacated. These remedies may also be ordered on consent of both parties if, for example, they both feel the relationship cannot continue.
If the rental unit is not fit for human habitation, the tenancy should be terminated. For example, if this occurred due to a disaster such as flooding, and the landlord does not wish to restore the unit immediately and make provisions such as a hotel to bridge the time, the tenancy could be terminated retroactively to the date of the flooding, with an abatement ordered from that date on (similar to compensation in the other direction).
The Member may also choose this remedy if the condition of the unit is so poor as to threaten the safety of the tenants or threaten their well-being. However, ordinarily the landlord should have had a reasonable opportunity to rectify the situation before termination is ordered.
Where an eviction of the tenant is ordered, the effective date of the eviction may not be earlier than the termination date specified in the order.
The Member may order the landlord to pay the reasonable costs the tenant has or will incur to replace property where the tenant's property has been damaged, destroyed or disposed of as a result of the landlord's breach. These costs should only be awarded where repairing the property is not a reasonable alternative.
The Member may order the landlord to pay the tenant compensation for other reasonable out-of-pocket expenses that the tenant has or will incur as a result of the landlord's breach. The Board may also, in an appropriate case, award general damages for breach of the tenancy agreement.
taking any rent increase for which notice has been given if the increase has not been taken before the date of any order the member may issue under this section.
has completed the specified repairs or replacements or other work ordered under paragraph 4 of section 30 found by the Board to be related to a serious breach of the landlord's obligations under section 20(1) or section 161 of the RTA.
Note: A Member must find that a landlord has not completed the items in a work order or orders relating to a "serious" breach of the relevant standard or obligation. What constitutes a serious breach is discussed under "Serious Breach of Landlord Obligations" in Guideline 7, Relief from Eviction.
Section 30 also permits the Board to make any other order that it considers appropriate.
The Board has the authority under the Statutory Powers Procedure Act to issue interim orders. This may be an appropriate remedy when the landlord has shown no inclination to do the work required, and the Member does not believe that an order to do the work will be respected. This would be especially applicable where authorizing the tenant to do the work would not be appropriate because of the nature of the repairs needed. The Member could issue an interim order assessing an abatement of rent of an appropriate amount for each month until the landlord completes the repairs. This will encourage the landlord to do the work expeditiously.
For cases in which the work should be done very quickly, the decision on the abatement could be delayed by adjourning the case for a short period, allowing the landlord to return on a later date to show the work is completed. The advantage of this approach is that it encourages the work to be done, while not putting the Member in the position of issuing a final order with conditions (which may be difficult to enforce for the tenant). Usually a date for the adjourned hearing should be set, but in appropriate cases the hearing could be adjourned without a date, allowing any party to bring it back on with seven days notice to the other parties.
Another option would be to order the landlord to do the specific repairs within a specific period, but also order that, failing the work being done within that time, the tenant may recover the appropriate amount to do the work through deductions to the rent. Alternatively, if the landlord failed to do the work by the deadline, the tenant would be entitled to rent abatement for each rental period until the work was completed.
The Member may also combine any of the above mentioned remedies where they believe it is appropriate to do so.
1 This guideline does not discuss the additional responsibilities under section 161 for mobile home parks or land lease communities. For a mobile home park or land lease community, the landlord has additional specific responsibilities under section 161, such as garbage removal, park roads maintenance and sewage disposal, etc. Although these obligations may also be enforced under subs. 29(1), they are not specifically addressed in this Guideline.
3 In Herbold v. Pajelle Investments Ltd.,  2 S.C.R. 520, the Supreme Court of Canada held that rented premises extend beyond the rental unit and include the facilities and common areas provided to the tenants. This has been further clarified in the TPA by the use of the terms "rental unit" and "residential complex".
8 In McQuestion v. Schneider (1975), 8 O.R. (2d) 249 (C.A.), the Court rejected the tenant's argument that this duty to repair imposed a strict or absolute liability on the landlord.
9 In Dye v. McGregor (1978), 20 O.R. (2d) 1 (C.A.), the Court found that this notice was sufficient to establish some degree of want of repair and found the landlord liable.

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Here’s a Breaking Bad question for you: If Walt lets Jesse cook a batch of Meth and Jesse screws it up, such that it is unsellable, can they be punished for the amount of bad methamphetamine that they cooked in addition to the amount of good methamphetamine (if there were such a thing)? This 5th Circuit tells us in United States v. Ramirez-Olvera.
Antonio Ramirez-Olvera was convicted of possessing methamphetamine (meth) with the intent to distribute, violating 21 U.S.C. § 841(a)(1) and (b)(1)(B); he received a sentence of 240 months imprisonment, which is ten years below the bottom of the federal sentencing guidelines range for this offense. Arguing that the district court excessively punished him, as the court did not distinguish between d-methamphetamine (“d-meth”) and l-methamphetamine (“l-meth”) for the sentencing guidelines’ equivalency table, Ramirez-Olvera appealed to the United States Court of Appeals for the Fifth District.
How Should the Court Determine the Weight of Meth in a Possession Case?
The issue before the Court is whether federal courts must distinguish between the types of meth when deciding punishment, or, whether courts can punish based on a “lump sum” of the meth. As you can imagine, higher amounts generally mean a longer prison sentence.
Had the district court used only the d-meth in its calculations, Ramirez-Olvera’s prison sentence might have, in theory, been shorter. Relying on DEA lab reports,Ramirez-Olvera’s probation officer generated a presentence report that recommended, he “should be held responsible for 7.7 [total] grams,” combining both the l-meth and d-meth seized fromRamirez-Olvera’s home and car.
The Court discusses types of methamphetamine, highlighting the differences scientifically and practically. “D-meth and l-meth are stereoisomers of meth…consist[ing] of identical molecules [that are] differently arranged.” United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). D-meth causes psychological and physical changes in humans. L-meth, on the other hand, “produces little or no physiological effect when ingested.” Id. Further, L-meth is a “weak form of [meth], is rarely seen and is not made intentionally, but rather results from a botched attempt to produce d-meth.” U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)(2014). In other words, l-meth is an accidental byproduct when creating d-meth goes awry; L-meth has little to no cash value.
The Court reviews this case anew, focusing on the plain meaning of the Federal Sentencing Guidelines for drug crimes; the Guidelines are the authoritative, controlling source of law. United States v. Moore, 733 F.3d 161-63 (5th Cir. 2013). Amendment 518, “a 1995 amendment to § 2D1.1, indicates that courts need not distinguish between d-meth and l-meth when determining the quantity of…meth attributable to a defendant.” U.S. Sentencing Guidelines, [Sentencing Commission Dicta], §2D1.1(c)(1)(2004). Under this amendment, “l-meth [is to] be treated the same as d-meth…thereby simplifying guideline application [from this point forward].” Id. Further, the Court “ha[s] relied on Amendment 518 to hold [in an unpublished case] that any distinction between d-meth and l-meth is now immaterial when calculating drug quantity under the guidelines. United States v. Beltran, 91 F. App’x 349 (5th Cir. 2004).
The Court affirms the district court’s opinion, holding that under Amendment 518 to the sentencing guidelines, meth no longer is to be categorized for sentencing purposes; l-meth and d-meth are to be added together to render the quantity courts will use in assessing punishment. All meth created, pure and botched, will be added together to determine a defendant’s prison sentence.


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Dr. Strauss is a respected leader in injury analysis, human factors, biomechanics and accident reconstruction. He has a long history of human-centered problem solving, and has been teaching problem solving skills to engineering students for 27 years at the University of Illinois at Urbana-Champaign. He has been performing federally and privately funded biomechanics and human factors research for 35 years, publishing and presenting his research results at national and international scientific venues.
What follows is a partial list of Dr. Strauss' education, training, experience, research, and professional activities. View his full curriculum vitae for a more comprehensive listing of his professional life and accomplishments.
Please contact Dr. Mark Strauss if you would like more information, or would like to discuss your case with him.
B.S., 1979:	Mechanical Engineering, Polytechnic Institute of New York.
Multi-year	Faculty advisor to engineering students who earned national recognition for their designs and problem solving abilities.
Multi-year	Research publications in SAE judged by peers to be among the most outstanding technical research published in the field.
Multi-year	Outstanding Student Advisor, awarded by the Dean's Student Advisory Committee, University of Illinois.
1991	Nominated for the Everitt Award for Teaching Excellence, University of Illinois.
1990	United Way award for Community Service, "Using Engineering to Alleviate Problems of the Disabled."
1990	Outstanding Student Advisor, awarded by the Dean’s Student Advisory Committee, University of Illinois.
1988	Nominated Outstanding Alumnus of the University of Texas at Arlington Biomedical Engineering Program.
Strauss, Mark G., James V. Carnahan and Roland A. Ruhl, "The Accuracy of Pedestrians in Estimating the Speed of a Moving Vehicle." SAE Paper 2013-01-0785. SAE World Congress, Detroit, MI; 17 April, 2013.
Strauss, Mark G., James V. Carnahan and Roland A. Ruhl, "The Accuracy of Vehicle Speed Estimations by Pedestrians." European Accident Reconstruction Group Conference, Wildhaus, Switzerland, June 22, 2012.
Strauss, Mark G. and James V. Carnahan, "The Ability of People to Estimate Distances Along a Roadway and How Their Education, Hobbies and Occupation Affect Accuracy." Publication F2010-D-043. FISITA World Automotive Congress Proceedings, Budapest, Hungary, June 1, 2010.
Strauss, Mark G. and, James V. Carnahan. "Observed Errors in Distance Estimates." SAE Paper 2010-01-0046. SAE World Congress, Detroit, MI. 13 April, 2010.
Strauss, M.G., "The Experimental Study of the Air Flow Produced by Road Vehicles and its Potential Destabilizing Effect on Nearby Pedestrians." European Accident Reconstruction Conference Group, Wildhaus, Switzerland, July 5, 2008.
Strauss, Mark G., Louis V. Inendino and James V. Carnahan. "The Experimental Study of the Air Flow Produced by Road Vehicles and its Potential Destabilizing Effect on Nearby Pedestrians." SAE paper 2007-01-0758. SAE 2007 World Congress, Detroit, MI. 17 April 2007. Also published in Pedestrian Safety, SAE SP-2114.
Strauss, M.G., and L.V. Inendino. "Deaths Due to Rollover Accidents in The U.S.A., 1994-2002: A Statistical Study." European Conference for Accident Reconstruction 2004, Neumunster, Germany, June 2004.
Strauss, M.G., J.V. Carnahan, L.V. Inendino, R. Jayswal, C.A. Senalik, and E.J. Southcombe. "Factors Affecting the Friction Coefficients Between Wooden and Plastic Pallets and the Wooden Floor of a Van-type Semi-trailer." SAE Paper 2002-01-3104, SAE International Truck and Bus and Meeting and Exposition, Detroit, MI, November 2002.
Strauss, M.G. "Biomechanics of a Low Speed Rear-End Collision." 11th Congress of the European Association for Research and Analysis of Road Accidents, Portoroz, Slovenia, 6-7 September 2002.
Strauss, M.G., J.V. Carnahan, and L.V. Inendino. "Factors Affecting the Friction Coefficients Between Wooden Pallets and the Wooden Floor of a Van-type Semi-trailer." SAE Paper 2001-01-2755, SAE International Truck and Bus Meeting and Exposition, Chicago, IL, 13 November 2001.
Strauss, M.G. "Measurement of the Dynamic Forces during Manual Wheelchair Propulsion." American Society of Biomechanics, Tempe, AZ, 16 October 1991.
Strauss, M.G. "Non-Invasive Assessment of Fracture Healing Using Impact Resonant Frequency Analysis - An in-Vitro FEM Model and in-Vivo Correlations." 15th Annual Bioengineering Conference, Boston, MA, 28 March 1989.
Strauss, M.G., and J. O'Reagan."An X-ray Translucent Cervical Orthosis." First Southern Biomedical Engineering Conference, 1982.
Strauss, Mark G., James V. Carnahan and Roland A. Ruhl, The Accuracy of Pedestrians in Estimating the Speed of a Moving Vehicle." SAE Paper 2013-01-0785. SAE World Congress, Detroit, MI; April 17, 2013.
Strauss, Mark G. and James V. Carnahan, "How Well Can the Average Person and Police Estimate Distance Along a Roadway?" Publication 12-01/2010. Accident Reconstruction Group Conference, Wildhaus, Switzerland, 2010.
Strauss, M.G. "Biomechanics of a Low-Speed Rear-End Collision." IMPACT: The Journal of the Institute of Traffic Accident Investigators 13.3 (2004): 71-75.
Strauss, M.G., J.V. Carnahan, L.V. Inendino, R. Jayswal, C.A. Senalik, and E.J. Southcombe. "Factors Affecting the Friction Coefficients between Wooden and Plastic Pallets and the Wooden Floor of a Van-Type Semi-trailer." SAE Paper 2002-01-3104, Detroit, MI, 2002. SAE 2002 Transactions - Journal of Commercial Vehicles.
Strauss, M.G. "Biomechanics of a Low-Speed Rear-End Collision." Road Vehicle Accident Reconstruction. Ed. Ivan Prebil, Iztok Cigaric, and Littera Picta. Ljubljana, Slovenia, 2002.
Strauss, M.G., J.V. Carnahan, and L.V. Inendino. "Factors Affecting the Friction Coefficients between Wooden Pallets and the Wooden Floor of a Van-Type Semi Trailer."; SAE Paper 2001-01-2755, Chicago, IL, 2001. SAE 2001 Transactions - Journal of Commercial Vehicles.
Strauss, M.G. and D. Brusnighan. "Independent Navigation by People Who Are Blind." Brazilian Journal of Adapted Physical Education Research 1.1 (1994): 169-181.
Moeinzadeh, M.H., M.A. Schneller, M.G. Strauss, and J. Trimble. "Three Dimensional Biomechanical Analysis of the Upper Extremity during Wheelchair Propulsion." First World Congress of Biomechanics Proceedings, San Diego, California, 1990.
Strauss, M.G., R.W. Bucholz, A.F. Tencer, and K.L. Lawrence. "Resonance Frequency Evaluation of Patients with Closed Tibiae Fractures." Biomedical Engineering III, Recent Developments (1984): 63-66. Ed. L. Sheppard, Pergamon Press, New York.
Jones, R. E., A.F. Tencer, R.W. Bucholz, K.L. Lawrence, K.D. Johnson, V. Mooney, T.W. Carmichael, A.R. Potvin, and M.G. Strauss. "Fracture Fixation and Healing." Rehabilitation R & D Progress Reports (1983): 22-23.
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that guide our decisions and actions are : (A) values (B) ethical dimensions (C) priorities (D) desires J-17-11 . 2. demand changes by 5 per cent III. For a given 10 per cent change in price. The important macro-economic aggregates are (A) Aggregate Consumption (B) Gross Domestic Capital Formation (C) Gross Domestic Savings and GNP (D) All of the above Paper-II 2 Match the following List – I I. the income elasticity of demand is (A) Positive (B) Unitary (C) Negative (D) Infinity The slope of the iso-cost line is determined by (A) Prices of the two factors (B) Productivity of the two factors (C) Degree of substitutability of the two factors (D) None of these Which one of the following statements is correct or more nearly correct ? (A) An increase in the price of commodity represents a fall in its value (B) Value has nothing to do with the price (C) If the price of a commodity falls. its value relative to other goods does not change (D) The price of a good is its value measured in terms of money 6.MANAGEMENT Paper – II Note : This paper contains fifty (50) objective type questions. For a given 10 per cent change in price demand changes by 10 per cent IV. 4. e = 0 IV 4 1 4 4 Long – lasting beliefs about what is important in a variety of situations. For a given 10 per cent change in price. e > 1 2. For a given 10 per cent change in price. 1. In the case of an inferior commodity. e = 1 3. e < 1 4. demand changes by zero per cent II. 3. demand changes by 20 per cent Code : I II III (A) 3 1 2 (B) 4 3 2 (C) 1 2 3 (D) 2 3 1 List – II 1. Attempt all the questions. 5. each question carrying two (2) marks.
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8. The distinction between ‘job enrichment’ and ‘job enlargement’ is (A) semantics (B) ‘job enrichment’ is vertical loading while ‘job enlargement’ is horizontal loading (C) ‘job enrichment’ is the outgrowth of Hertzberg’s theory while ‘job enlargement’ is of Maslow’s orientation. (D) ‘job enrichment’ is more for the individual and the other is more of organisation making Paper-II 15. time and organisational boundaries with members who communicate mainly through information technologies are (A) telecomputers (B) virtual teams (C) teleworkers (D) telemarketers Career resilience means (A) Ability to switch careers (B) Ability to remain with same competencies refining suitably for organizations (C) Lack of capacity to remain in career (D) None of the above Lock out means (A) An antithesis of strike (B) Refusal to employ person in employment (C) the temporary closing of a place of employment (D) Illegal strike any J-17-11 . 9. 10. Psychological contract is related to (A) job – person fit (B) role – person fit (C) organisation – person fit (D) none of the above Equity is called as (A) equality of all (B) standard performance (C) comparative sense of justice to self (D) none of the above 14. 11. nor authority is delegated is Cross-functional groups that operate across space. 12. Figure – Ground Theory explains the process of (A) Cognition (B) Sensation (C) Perception (D) Motivation Successive re-inforcements resulting in desired behaviour are (A) mentoring (B) motivation (C) shaping (D) behaviour-modification 13. not authority (D) Neither responsibility.7. 4 In ‘delegation’ (A) Only authority is delegated not responsibility (B) Both authority and responsibility are delegated (C) Only responsibility delegated.
µÖÖ ú¸üŸÖÖ Æîü … (A) ÃÖÓ–ÖÖ−Ö (C) ²ÖÖê¬Ö 8.Ö−ÖÖ (C) •Öß×¾ÖúÖ-¾Öé×¢Ö ´Öë ²Ö−Öê ¸üÆü−Öê úß FÖ´ÖŸÖÖ úÖ †³ÖÖ¾Ö (D) ˆ¯Ö¸üÖêŒŸÖ ´Öë ÃÖê úÖê‡Ô −ÖÆüà 15. ´Öã. (B) (D) †×¬ÖúÖ¸üÖë úÖ ¯ÖÏŸµÖÖµÖÖê•Ö−Ö ´Öë (A) êú¾Ö»Ö ÃÖ¢ÖÖ úÖ ¯ÖÏüŸµÖÖµÖÖê•Ö−Ö ÆüÖêŸÖÖ Æîü. ‘úÖµÖÔ ÃÖÓ¾Ö¬ÖÔ−Ö’ ŸÖ£ÖÖ ‘úÖµÖÔ ¾Ö¬ÖÔ−Ö’ êú ²Öß“Ö ŒµÖÖ †ÓŸÖ¸ü Æîü ? (A) †£ÖÔ ÖŸÖ (B) úÖµÖÔ ÃÖÓ¾Ö¬ÖÔ−Ö ¤üÖ×µÖŸ¾ÖÖë úÖ ˆ¬¾ÖÖÔ¬Ö¸ü ¾ÖéÆüŸÖßú¸ü$Ö Æîü •Ö²Ö×ú úÖµÖÔ ¾Ö¬ÖÔ−Ö ¤üÖ×µÖŸ¾ÖÖë úÖ ×FÖ×ŸÖ•ÖßµÖ ¾ÖéÆüŸÖßú¸ü$Ö Æîü (C) úÖµÖÔ ÃÖÓ¾Ö¬ÖÔ−Ö Æü•ÖÔ²Ö ÖÔ êú ×ÃÖ¨üÖÓŸÖ úÖ ×¾ÖúÖÃÖ Æîü •Ö²Ö×ú úÖµÖÔ ¾Ö¬ÖÔ−Ö ´ÖÖÃ»ÖÖê êú ×ÃÖ¨üÖÓŸÖ úÖ (D) úÖµÖÔ ÃÖÓ¾Ö¬ÖÔ−Ö ¾µÖÛŒŸÖ êú ×»Ö‹ †×¬Öú Æîü ŸÖ£ÖÖ úÖµÖÔ¾Ö¬ÖÔ−Ö †×¬Öú ÃÖÓ Öšü−ÖÖŸ´Öú Æîü J-17-11 5 Paper-II . ˆ¢Ö¸ü ¤üÖ×µÖŸ¾ÖÖë úÖ −ÖÆüà (B) ÃÖ¢ÖÖ ŸÖ£ÖÖ ˆ¢Ö¸ü¤üÖ×µÖŸ¾ÖÖë ¤üÖê−ÖÖë úÖê ¯ÖÏŸµÖÖµÖÖê×•ÖŸÖ ×úµÖÖ •ÖÖŸÖÖ Æîü (C) êú¾Ö»Ö ˆ¢Ö¸ü¤üÖ×µÖŸ¾Ö úÖ ¯ÖÏŸµÖÖµÖÖê•Ö−Ö ÆüÖêŸÖÖ Æîü. ¾Öé×¢Öú ÃÖ´ÖãŸ£ÖÖ−Ö ¿ÖÛŒŸÖ úÖ †£ÖÔ Æîü : (A) •Öß×¾ÖúÖ-¾Öé×¢Ö ²Ö¤ü»Ö−Öê úß µÖÖê µÖŸÖÖ (B) ÃÖÓ Öšü−Ö êú ×»Ö‹ ˆ¯ÖµÖãŒŸÖ ²Ö−ÖÖ−Öê ÆêüŸÖã ˆ−Æüà FÖ´ÖŸÖÖ†Öë úÖê ¯Ö×¸üÂéúŸÖ ú¸ü ˆ−Æëü úÖµÖ´Ö ¸ü. 12.Ö−Öê ÃÖê ´Ö−ÖÖ ú¸ü−ÖÖ (C) ¸üÖê•Ö ÖÖ¸ü êú FÖê¡Ö úß †Ã£ÖÖµÖß ²ÖÓ¤üß (D) †¾Öî¬ÖÖ×−Öú Æü›ÌüŸÖÖ»Ö ÃÖÓ¾Öê¤ü−Ö †×³Ö¯ÖÏê¸ü$ÖÖ ¾ÖÖÓ×”ûŸÖ ¾µÖ¾ÖÆüÖ¸ü êú ×»Ö‹ ²ÖÖ¸ü´²ÖÖ¸ü ¯Öã−ÖÔ¾Ö»Ö−Ö ŒµÖÖ Æîü ? (A) ¯Ö¸üÖ´Ö¿ÖÔ ¤êü−ÖÖ (B) †×³Ö¯ÖÏê¸ü$Ö (C) ÖœÌü−ÖÖ (D) ¾µÖ¾ÖÆüÖ¸ü-¯Ö×¸üÂú¸ü$Ö 9. ŸÖÖ»ÖÖ²ÖÓ¤üß úÖ †£ÖÔ Æîü : (A) üÆü›üŸÖÖ»Ö úÖ ×−Ö¸üÖê¬ÖÖŸ´Öú (B) ×úÃÖß ³Öß ¾µÖÛŒŸÖ úÖê ¸üÖê•Ö ÖÖ¸ü ´Öë ¸ü. ÃÖ´ÖŸÖÖ úÆüÖ •ÖÖŸÖÖ Æîü : (A) ÃÖ³Öß úß ÃÖ´ÖÖ−ÖŸÖÖ (B) ´ÖÖ−Öú úÖµÖÔ ×−ÖÂ¯ÖÖ¤ü−Ö (C) Ã¾ÖµÖÓ êú ¯ÖÏ×ŸÖ −µÖÖµÖ úÖ ŸÖã»Ö−ÖÖŸ´Öú ³ÖÖ¾Ö (D) ˆ¯Ö¸üÖêŒŸÖ ´Öë ÃÖê úÖê‡Ô −ÖÆüà 11.7. ´Ö−ÖÖê¾Öî–ÖÖ×−Öú †−Öã²ÖÓ¬Ö ÃÖ´²ÖÓ×¬ÖŸÖ Æîü … (A) úÖµÖÔ-¾µÖÛŒŸÖ ÃÖ´ÖÖµÖÖê•Ö−Ö (B) ³Öæ×´ÖúÖ-¾µÖÛŒŸÖ ÃÖ´ÖÖµÖÖê•Ö−Ö (C) ÃÖÓ Öšü−Ö-¾µÖÛŒŸÖ ÃÖ´ÖÖµÖÖê•Ö−Ö (D) ˆ¯Ö¸üÖêŒŸÖ ´Öë ÃÖê úÖê‡Ô −ÖÆüà 10.µÖŸÖ: ÃÖæ“Ö−ÖÖ ¯ÖÏÖêªÖê× Ö×úµÖÖë êú ´ÖÖ¬µÖ´Ö ÃÖê ÃÖ´¯ÖÏêÂÖ$Ö ú¸ü−Öê ¾ÖÖ»Öê »ÖÖê ÖÖë êú ÃÖÖ£Ö Ã£ÖÖ−Ö. ÃÖ´ÖµÖ ŸÖ£ÖÖ ÃÖÓ Öšü−ÖÖŸ´Öú ¤üÖµÖ¸üÖë êú ²ÖÖÆü¸ü úÖµÖÔ¸üŸÖ ¯ÖÏ×ŸÖ-úÖµÖÔúÖ¸üß ÃÖ´ÖæÆüÖë úÖê ŒµÖÖ úÆüŸÖê Æïü (A) ™êü»Ößú´µÖæ™üÃÖÔ (B) ¾Ö“ÖãÔ†»Ö ™üß´ÃÖ (C) ™êü»Öß¾ÖÔúÃÖÔ (D) ™êü»Öß´ÖÖìú×™ü†ÃÖÔ 14. ‘±úß Ö¸ü- ÖÏÖˆ$›ü’ ×ÃÖ¨üÖÓŸÖ ______ úß ¯ÖÏ×ÎúµÖÖ úß ¾µÖÖ. ÃÖ¢ÖÖ úÖ −ÖÆüà (D) −Ö ˆ¢Ö¸ü¤üÖ×µÖŸ¾Ö úÖ −Ö Æüß ÃÖ¢ÖÖ úÖ ¯ÖÏŸµÖÖµÖÖê•Ö−Ö ÆüÖêŸÖÖ Æîü 13.
III.16. Rate of return method 1. Fifo Method (D) Internal rate of returns Code : Which statement is true about deep discount bonds ? (A) These are in the form of low interest bonds (B) These bonds are sold at a discounted value and on maturity face value of the bond is paid to the investors (D) 21. V (B) III. Post Purchase behaviour Code 6 (A) IV. I. Need Arousal III. IV. Depreciation Balance Method (A) Net present value (B) Profitability index (C) Payback period IV. I. Purchase consideration Which method of capital budgeting focuses on liquidity of a project ? (C) 19. Which is the task of a finance manager ? 4. Merger II. Stock valuation I II III IV (A) 1 3 2 4 (B) 3 2 4 1 (C) 1 2 3 4 (D) 1 4 3 2 Arrange the following steps of a five-stage model of the consumer buying process : I. 18. V (D) II. III. There is no interest payout during lock-in period None of the above Financial leverage is EBIT (A) Sales × 100 EBIT (B) EBT Sales (C) Fixed Assets Profit (D) Sales × Capital Paper-II budgeting 2. Diminishing 3. V J-17-11 . Information search IV. II. Purchase Decision V. (A) Investment decision (B) Dividend decision (C) Management of income (D) All of the above Match the following List–I (items / method) List – II (used / Application) I. 20. I. 17. Capital III. V (C) I. II. III. IV. II. Evaluation of Alternatives II. IV.
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37. 2006 classified enterprises broadly into (A) Two categories (i) Manufacturing enterprises and (ii) Service enterprises (B) Three categories (i) Micro enterprises (ii) Small enterprises (iii) Medium enterprises (C) Four categories (i) Micro enterprises (ii) Small enterprises (iii) Tiny enterprises (iv) Medium enterprises (D) Four categories (i) Tiny enterprises (ii) Micro enterprises (iii) Small business enterprises (iv) Medium enterprises 42. 39. Which sector is called as Primary Sector in India ? (A) Industrial sector (B) Service sector (C) External sector (D) Agricultural sector “We must forget to learn and learn forgetting” is ascribed to (A) Tom Peters (B) Peter F. The MSMED Act. Maslow (D) Garry Hamel In highly competitive environment an organization to achieve sustained success should be (A) Better (B) Bigger (C) Resilient (D) None of the above Corporate governance is about (A) Crafting the strategy (B) Compliance with regulatory regime (C) Satisfying the stakeholders (D) governing the company in the interest of government in power Strategic planning is about (A) Strategic thinking (B) Strategic programming (C) Tactical Planning (D) Portfolio Planning Paper-II 12 J-17-11 . If two or more companies are merged and only one of them survives while others loose their independent entity. 38. Drucker (C) Abraham S. it is referred to as (A) Merger (B) Absorption (C) Amalgamation (D) Combination 41. 36. Processing data in groups collected over periods of time is known as (A) Time .sharing (B) Batch processing (C) Real – time processing (D) Multi – processing 40.35.
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I 49. IV. It is most aptly called as following (A) Environmental issues of ethics (B) Social responsibilities of business (C) Corporate governance & ethics (D) Ethical Dilemmas of business Paper-II 47. I. conditions II. III (B) II. Size up your company’s current ethics III. I (C) II. Arrange the following steps of a simple ethics programme I. laws Code : I II III (A) 2 4 3 (B) 3 1 2 (C) 1 3 4 (D) 3 2 1 14 Customers Society Employees Host Country IV 1 4 2 4 J-17-11 . IV. Following local 4. IV. Train your people IV. III. III. I (D) II. IV. Situations in which individuals are required to define right and wrong conduct to be complied with are called as following (A) Ethical climate (B) Ethical dilemmas (C) Code of Ethics (D) None of the above 48. Walk the talk II. III. small and medium Enterprises (MSMEs) have been made by Small Industries Development Organisation (SIDO) ? (A) 1 (B) 2 (C) 3 (D) 4 44. Industrial Policy of which year contained for the very first time a special thrust on measures for promoting and strengthening small tiny and village enterprises (A) 1956 (B) 1991 (C) 1948 (D) 1977 46. List – I (Ethical Issue) Members of organizations are increasingly finding themselves facing situations in which they are required to define right and wrong conduct. Match List-I with List-II. EDII is situated at (A) New Delhi (B) Ahmedabad (C) Patna (D) Kolkata 45. I. Create a code of conduct Code : (A) V. Environmental 3. List – II (Stakeholder affected) Unsafe working 1. Product safety 2. Who is involved in ‘Shoplifting’ from the following ? (A) Producer (B) Seller (C) Consumer & or a customer (D) None of the above 50. II. V. III. Pollution IV. II.43. How many times the census of registered Micro. V. Solicit feedback from your employees V.
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A Provincial Court Judge out of Amherst, Nova Scotia, in R. v. Gibson 2013 NSPC 56, has ruled that the police decision to arrest everyone coming out of the residence belonging to a drug trafficking suspect which they had under surveillance violated the Charter and the accused’s arrest was unlawful. The Judge used an analogy in the film Casablanca, where the famous line “round up the ususal suspects” was uttered by Captain Renault of the Gendarmeries when he advised another officer that Major Strasser had been shot. The Judge said, here the police, in conducting surveillance of a residence, used similar logic when the lead investigator determined that while they were engaged in surveillance of the co-accused, they would arrest anyone coming out of the residence where the co-accused was located. Subsequent to that, the accused exited the home, was arrested and found with cannabis marihuana.
In reaching his decision, the Judge made reference to several factors in deciding that the accused’s rights under Section 8 and 9 of the Charter had been violated, namely that the facts of this case were not compelling, nor credible and that there was a lack of corroborating evidence that would give the arresting officer the reasonable grounds required to make an arrest under Section 495 of the Criminal Code.
Following an unreported number of days conducting surveillance on the residence, police arrested one male after a short duration visit, which the arresting officer testified, was consistent with drug trafficking. This male was found with nine methamphetamine pills upon his person, and immediately denied purchasing them from the co-accused. The officer also testified to having information from qualified sources that the co-accused was selling drugs, a point which the Judge took issue with in that it ponders the question as to whether “qualified” sources equated to “credible” sources. Following on the heels of the arrested male leaving the co-accused’s residence, the co-accused, the accused, and another male left the residence. The arresting officer testified that there was a determination prior to that point to arrest any individual who might leave the co-accused’s residence, based on the following facts: (1) surveillance had been conducted that day; (2) surveillance had been conducted on other days; and (3) the pills that had been found on the individual that had just shortly left the residence. All three individuals entered into a taxi upon exiting the residence and were subsequently arrested following a high-risk take-down. Upon the arrest of the accused, the supervising officer testified that her purse was open and he could see that it contained a large bag of marihuana. The marihuana was contained in a plastic clear bag which he indicated he could see through. Further, the purse was open.
In evaluating whether a warrantless search was justified (i.e. there were reasonable grounds), the Court asked: (1) whether there was compelling information predicting the commission of a criminal offence; (2) whether the information, if it arose from a source outside the police, originated from a credible source; and (3) whether the information was corroborated by police investigation prior to making the decision to conduct the search. These factors do not form three separate tests, but guide the analysis of whether in the totality of circumstances the reasonableness of the warrantless search was established.
Here, following the voir dire, the Judge ruled there were no grounds to arrest the accused and the officer had no articulable reason to detain any of these individuals and therefore the arrest and subsequent search of the accused was arbitrary and unreasonable. The search therefore infringed the accused’s rights under Sections 8 and 9 of the Charter. Having considered all of the above and balancing the three prongs found under the Grant test for the admission of evidence in the face of Charter breaches, the Judge found that to admit the marihuana seized from the accused in these circumstances would in fact call the administration of justice into disrepute. As a consequence, the Judge did not allow the evidence submitted by the Crown to be admitted into evidence.
The fundamental legal articulation for a search incident to arrest (SITA) is often misunderstood. While we do, incident to an arrest, search the person for officer safety (and very important to do), that is the “why” (one of them), not the “authority”. The authority is derived from law. The Supreme Court of Canada has reaffirmed our authority for this “common law” power. In R. v. Caslake 1998 1 S.C.R. 51, at paragraphs 13 and 17 of the decision, the SCC ruled essentially that officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it. The right to search arises from the fact of the arrest. At paragraph 19, the SCC said that the three main purposes of a search incidental to arrest are: one, to ensure the safety of the police and the public; two, to protect evidence; three, to discover evidence. Taken one step further, at paragraph 22, the SCC ruled that if the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested. Hence the difference between SITA a motor vehicle for a driver arrested for breach of probation versus one arrested for operating while impaired. In this example, the reasonable prospect will generally be lacking for the first, but there for the latter.
The correct legal articulation for the, “Under what authority did you search my client” question is one of law, not “for officer safety” (different from investigative detention that was addressed in R. v. Mann 2004 S.C.J. No. 49); the, “Why did you search my client” question can be “for officer safety” (or two, to protect evidence; three, to discover evidence). Word play at its best, but important to know the difference.
(d) that he was to surrender to a search of his person, or any vehicle he was in, upon request of a police officer.
The officer asked the passenger to provide a copy of his undertaking, and when the passenger was unable to do so, he was arrested for failure to comply with his undertaking. An incidental search of the vehicle led to the seizure of 24 pieces of crack cocaine packaged in a manner consistent with street sales, and cell phones. Neither the accused nor the passenger claimed ownership of the drugs and phones. At trial, the accused objected to the introduction of the evidence seized during that search based on a breach of his Charter rights. Following a voir dire, the trial judge ruled the evidence was admissible. The trial judge found the traffic stop was lawful and the search of the vehicle on the basis of officer safety incidental to the passenger’s arrest was reasonable and reasonably conducted. The accused called no evidence at trial and was convicted. He was sentenced to three and one half years’ imprisonment, less six months’ credit, to be served consecutively to an extant two-year sentence. The accused appealed.
The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively.
The Appeal by the accused was dismissed. The search of the vehicle was undertaken for a valid reason and was performed reasonably. A reading of the police evidence revealed officer safety may not have been the primary reason for searching the vehicle after the arrest of the passenger, but it was a relevant factor. The officer operated under the premise of a caution the accused was a gang member, armed and dangerous and known for violent and aggressive behaviour. The circumstances objectively supported a decision to embark on a further search of the vehicle to look for prohibited weapons and ensure police security. In addition, following the arrest of the passenger for breach of undertaking, it was open to the officer to seek further evidence of a breach of the same undertaking.
A recent decision out of the Ontario Superior Court of Justice (R. v. Treliving 2013 ONSC 3368) has prompted a reminder that the right to retain and instruct counsel includes the right to contact others to obtain counsel. A person who requests to call someone, other than a lawyer in connection with instructing counsel, is asserting the desire to exercise their right to counsel. A person who seeks to contact counsel by requesting to call a 3rd party in connection with exercising that right, is not waiving their right to counsel. As noted in R. v. Brydges (1990) S.C.J. No. 8, in the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee’s efforts to do so. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel’s number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.
There must be some communication to the police that the necessity of contacting a non-lawyer is to obtain from that third party, information about the means of identifying or contacting a private counsel. Once that is done, if the police fail to assist the arrested party in obtaining that information, then they run the risk of a clear implementational violation of s. 10(b).
Many other courts have reached this decision (R. v. Tremblay (1987) S.C.J. No. 59, R. v. LaPlante (1987) S.J. No. 723, R. v. McNeilly (1988) Y.J. No. 71), to name but a few.

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