Supreme court quashes drug conviction over illegal search

Canada's top court tossed out a drug conviction linked to the seizure of 35 kilograms of cocaine Friday, saying evidence obtained with "willful and flagrant" disregard for the Charter of Rights and Freedoms can't be used in trial.
A woman walks past the Supreme Court of Canada in Ottawa. (Tom Hanson/Canadian Press)

Canada's top court tossed out a drug conviction linked to the seizure of 35 kilograms of cocaine Friday, saying evidence obtained with "willful and flagrant" disregard for the Charter of Rights and Freedoms can't be used in trial.

The ruling was one of four handed down by the Supreme Court aimed at clarifying when tainted evidence can be included at trial and when a person is considered detained by police.

While the ruling did turf out the drug conviction, it did allow the submission of evidence in three other cases. The rulings underscore that any breach of rights must be carefully balanced against the value of the evidence and the facts of each case.

In the cocaine trafficking case, Bradley Harrison and a friend were driving a rental sport utility vehicle to Toronto from Vancouver in October 2004 when they were pulled over by an Ontario Provincial Police officer near Kirkland Lake, Ont. The officer thought it was suspicious the SUV was driving at exactly the speed limit and didn't have a front licence plate.

Even though the officer learned the vehicle was registered in Alberta and therefore didn't need a front plate, he carried on with the questioning.

Harrison said he couldn't find his driver's licence. A computer search revealed that it had been suspended. The officer arrested Harrison on that basis, but then said he searched the vehicle in hopes of finding the lost licence — even though it was by now irrelevant.

A search of the SUV turned up a box containing 35 kilograms of cocaine — drugs with a street value of between $2.5 million and $4.6 million.

Rulings overturned

While the trial judge and the Ontario Court of Appeal ruled the value of the evidence outweighed the charter violations, the Supreme Court overturned those rulings in a 6-1 decision.

"The drugs seized constituted highly reliable evidence tendered on a very serious charge," Chief Justice Beverley McLachlin wrote for the court.

"However, the seriousness of the offence and the reliability of the evidence, while important, do not in this case outweigh the factors pointing to exclusion. To appear to condone willful and flagrant charter breaches amounting to a significant incursion on the accused's rights does not enhance, but rather undermines, the long-term repute of the administration of justice."

While the court noted a police officer's "hunch" is a valuable investigative tool, it cannot replace "proper charter standards."

Public interest allows evidence: court

In one of Friday's three companion rulings, the high court ruled 7-0 to uphold convictions against Donnohue Grant, 18, saying his rights had been justifiably violated when police stopped him on a Toronto sidewalk because they felt he was behaving suspiciously.

The court agreed police didn't have reasonable grounds to question Grant and failed to advise him of his right to counsel before questioning him in November 2003. Three police officers stopped and questioned  Grant, who admitted he was carrying a bag of marijuana and a loaded handgun. He was later charged with five gun offences and sentenced to a year in jail.

In its ruling, the top court said it was in the public's best interest to allow the weapon as evidence.

"The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers’ mistake in this case was an understandable one," the court wrote.

While the breach of the man's charter rights weighs strongly in favour of excluding the gun from evidence, "the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission."

The fact that officers were working in "circumstances of considerable legal uncertainty … tips the balance in favour of admission," the court wrote.

2 other appeals dismissed

The court also dismissed two other appeals from people who said evidence against them was obtained in violation of the charter.

In a January 2003 case from Saskatoon, a police officer pulled over a man who failed to stop at a stop sign, and asked for a breathalyzer test after noting he had red eyes, smelled of alcohol and seemed lethargic.

The man was acquitted of drunk driving charges by two lower courts, who ruled the breath sample couldn't be used as evidence because the officer didn't have reasonable grounds to ask for the test.

However, the top court disagreed, writing: "Since the officer had reasonable and probable grounds to make the breath demand, the demand was lawful."

In another 2003 case, a police officer stopped a man outside a liquor store in Cobourg, Ont., while a second man was being questioned by police inside the store on suspicion of using a stolen credit card.

The police officer was speaking to the first man, who was trying to get in his minivan, when he received information that the minivan's licence plate matched that of a vehicle being driven by someone who had used a stolen credit card earlier in the day.

The man argued his charter rights had been breached because the officer didn't inform him of his right to counsel until after he was in police detention. The man argued his detention started as soon as the officer told him to wait as he tried to get into his vehicle.

However, the Supreme Court disagreed.

"While [the man] was momentarily  'delayed' when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the charter," the ruling said.

With files from The Canadian Press