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How cops botched search

When RCMP pulled over a van 40 kilometres from Fort Providence on April 11, 2001 they intercepted a large shipment of marijuana headed to Yellowknife.

Kevin Wilson
Northern News Services

Yellowknife (Apr 26/02) - A dramatic court ruling which effectively destroyed a massive drug trafficking case is being closely scrutinized by police and the Crown Attorney's office.

"The decision just came down, and the Crown will review it and take it from there," said Sgt. Phil Johnson, RCMP 'G' Division spokesperson.

In an April 19 written ruling, NWT Supreme Court Justice Virginia Schuler threw out evidence seized during the search of a rental van operated by Matthew James France and Daniel Robert Winter.

The two men were stopped 40 kilometres north of Fort Providence, en route to Yellowknife when police searched their van.

Officers seized 38 kilograms of marijuana, hidden in duffel bags, and more than $10,000 in cash. It was one of the largest single drug seizures in the NWT's history.

However, Schuler ruled that police acted inappropriately when they searched the vehicle.

"The accused's rights were completely ignored...until after the evidence was found. If evidence is admitted despite serious violations of an individual's fundamental rights, those rights may come to mean very little and may fail to protect not only those who may well be guilty but also those who are innocent," wrote Schuler.

Impact unknown

Johnson said it's "premature" to discuss the effect the ruling may have on police procedures.

"A period of time will pass before there's any decision on what's to happen regarding those matters," he added.

Prosecutor Sue Kendall said the Crown is reviewing its options.

Asked directly if the Crown would attempt to have Schuler's ruling overturned by a higher court, Kendall replied, "I can't say anything about that at this time."

While police and the Crown remain tight-lipped, one of Canada's top civil libertarians hailed the ruling.

Reached in Toronto, Alan Borovoy said the ruling focuses, "the attention of the police on possible misconduct."

President of the Canadian Civil Liberties Association, Borovoy added that, "people in a democracy should not be vulnerable to such encroachments, unless there is a very good reason."

The Ruling

NWT Supreme Court Justice Virginia Schuler ruled that police violated Sections 8, 9, and 10 (b) of the Charter of Rights and Freedoms when they searched Matthew France and Daniel Winter's rental van last April. In short: Everyone has the right to be secure against unreasonable search or seizure(Section 8).

Justice Schuler wrote:

"none of the observations made by (police)...considered objectively, can be the basis for a reasonable cause to suspect implication in drug or other criminal activity...(The arresting officer) did not have information that would permit a Justice to be satisfied there were reasonable grounds to believe that a controlled substance was in the van."

- Section 9 -- Everyone has the right not to be arbitrarily detained or imprisoned.

"...the detention of the accused on the second stop was not justified, it was arbitrary, and the S. 9 rights of the accused were breached."

- Section 10 (b) -- Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

"The evidence is also clear that the accused were not advised of the S. 10(b) right to counsel until after the marijuana was found and they were arrested. On detention, they had the S. 10(b) right to retain and instruct counsel without delay and to be informed of that right. The breach of that right is also important when considering whether their S. 8 rights were breached. Advising a person of his or her right to counsel and the decision of that person to exercise or waive that right may be significant factors on the issue of whether a consent to search is truly an informed one."