Pubdate: Fri, 11 Mar 2016
Source: Toronto Star (CN ON)
Copyright: 2016 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Jacques Gallant
Page: GT2

BORDER OFFICER'S CONDUCT DESTROYS AIRPORT DRUG CASE

Testimony, Charter violations lead to acquittal for man who swallowed
52 cocaine pellets

Border control officer Joseph Smith's testimony at a recent court
hearing dealing with a drug arrest at Pearson airport was so evasive
and misleading that even the Crown attorney admitted Smith "did a
horrible job on the stand."

As a result of Smith's conduct in court and during the arrest itself,
a Brampton judge acquitted Toronto resident Kadeem Andrew Clarke this
week, even though she noted he arrived at the airport with a "gutful
of cocaine."

Despite that damning piece of evidence - court heard that Clarke had
swallowed 52 pellets of the drug - Superior Court Justice Deena
Baltman found that Smith had trampled on the 24-year-old man's rights
guaranteed by the Charter of Rights and Freedoms.

"I have determined that the conduct of the arresting officer and its
impact on the accused is so egregious that it outweighs any interest
society may have in a trial on the merits," she wrote in her
eight-page ruling. "Consequently, the evidence is excluded."

She noted Smith, who has been a border control officer since 1998,
"plucked Clarke out of the horde of passengers leaving primary
inspection and headed toward the baggage carousel" at the airport
without a reasonable basis to do so and proceeded to arrest him only
when Clarke asked for a lawyer.

"In other words, as punishment for exercising his Charter rights,
Smith arrested him," Baltman wrote.

After being arrested and handcuffed, Clarke was strip-searched and
detained for almost two days in hospital, according to the ruling.

The Canada Border Services Agency said it is reviewing Baltman's
decision. A spokesperson for the Public Prosecution Service of Canada,
which handles drug crimes, said the agency will also be notifying
Smith's supervisor of the court ruling in accordance with its protocol.

"It's an important case for people who are travelling into Pearson
because hopefully it will make CBSA officers aware of the fact that
they just can't arrest somebody, throw handcuffs on him or her and
throw them into a room for two days without any objective basis to
even suspect they've done anything illegal," said Clarke's lawyer,
Chris Murphy.

The judge recognized that there is a lesser expectation of privacy in
airports, writing that the government has an important interest in
preventing the importation of drugs, but also noted that airports are
"not a Charter-free zone, where anything goes."

Clarke was flying back from Jamaica when he was arrested in January
2014. After speaking with duty counsel, he admitted to the crime and
was taken to hospital. Smith denied his interrogation had anything to
do with the fact that Clarke is black.

"The officer denied that he was plucked out of that horde of
passengers because he was black, but the fact remains that (Clarke)
was singled out of that horde, and from my review of the videotape, he
was the only young black man coming down that aisle," said Murphy.
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