Pubdate: Fri, 01 Mar 2013
Source: Regina Leader-Post (CN SN)
Copyright: 2013 The Leader-Post Ltd.
Contact: http://www.leaderpost.com/opinion/letters/letters-to-the-editor.html
Website: http://www.leaderpost.com/
Details: http://www.mapinc.org/media/361
Author: Les MacPherson
Page: A3

DID POLICE VIOLATE RIGHTS?

Today, we're going to play You Be the Judge. You are only competing 
against The Honourable Martel Popescul, chief justice of 
Saskatchewan's Court of Queen's Bench, who presided over the trial. 
The following details are from his written judgment, issued last week:

The case begins in the fall of 2010 with a young woman driving alone 
in her sister's 2002 Acura from Calgary to Winnipeg. Near Swift 
Current on Highway 1, she is seen by a patrolling RCMP officer to be 
using a handheld cellphone. She stops promptly when the red and blue 
lights come on behind her.

When the officer approaches her car, he finds her accompanied by a 
small dog, barking its head off. He has to ask her three times to 
produce her papers. She seems more nervous than circumstances seem to 
warrant, he testifies. She keeps insisting she was not speeding or 
using the cellphone visible on the console.

Back in his own vehicle, the officer learns through his mobile 
computer that the car is not registered to the driver and that the 
driver had at one time faced a criminal charge related to a marijuana 
grow-op. The charge was stayed a year ago when the prosecution, for 
reasons unknown, chose not to proceed.

Suspecting that the driver is a drug courier, the officer detains the 
driver while another officer brings a drug-sniffing dog to the scene. 
The dog signals that drugs are present in the vehicle and a search 
reveals 10 kilos of marijuana in a storage tub in the trunk.

At her trial, the accused argued the marijuana should not be accepted 
into evidence. Police only found it, she says, by violating her right 
to freedom from unreasonable search and seizure, among others.

The prosecution argued the search was justified based on observations 
that the officer knew through his training and experience to be 
indicative of illegal drugs. He had completed and was now an 
instructor in the RCMP's Pipeline Convoy training program, in which 
officers learn how to identify drug couriers on the highway. The 
officer had taught the course in Canada and internationally and used 
its methods to intercept more than 600 drug couriers.

Alas, the officer was not asked how many drivers he has searched and 
found not to be drug couriers. He did testify in detail, however, as 
to how drug couriers give themselves away. They use third-party 
vehicles, for example, so a routine licence plate check will not 
reveal their criminal records. They travel with a dog to distract the 
drug-sniffing dog.

They often travel from Calgary, a drug distribution centre, to 
Winnipeg, a drug destination. The accused in this case rang all the 
bells, as well as being nervous and slow to produce identification, 
presumably so the officer would not learn of her previous marijuana charges.

Defence counsel for the accused argues there could be innocent 
reasons for any of the so-called indicators. A lot of people drive 
from Calgary to Winnipeg. A lot of people travel with a dog. A lot of 
people are nervous when stopped by police. A lot of people drive 
vehicles registered to someone else, and so on.

The accused produced her licence within a minute of being asked. 
Other important indicators were absent, including evidence of the 
vehicle being lived in and the smell of marijuana or air freshener.

So that's the case, more or less. Do you allow the marijuana to be 
entered as evidence and convict the accused or do you acquit to 
protect us all from unreasonable searches?

If you entered a conviction, you are on side with Chief Justice Popescul.

He found the police search to be justified by the accumulation of 
indicators, however innocent they might appear when viewed 
individually. Using the stayed charge as grounds for suspicion, the 
judge conceded, was "problematic," given the legal presumption of innocence.

He ruled, however, that the charge had investigative value and there 
was no good reason for the officer not to consider it, along with all 
the other indicators.

Drug couriers will be thinking about changing their procedures.
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MAP posted-by: Jay Bergstrom