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Despite ruling that a search of a suspect's vehicle wasn't warranted, an Ontario Superior Court judge has ruled that evidence from the search – illegal drugs – is still admissible.

The case dates back to October 2018, when Algoma Ontario Provincial Police using a radar gun clocked a driver travelling 120 km/r in a 90 km/h zone. They pulled the driver and his passenger over in Vasiloff Township near Sault Ste. Marie.

Police "noticed an open unsealed beer can laying on its side on the back seat of the vehicle near a puppy," said the transcript of the case. "The can was ostensibly empty."

At that point, the OPP constable searched the console of the vehicle and found more than 30 grams of marijuana.

"He located multiple air fresheners and a full open box of fabric softeners in the glove box," the transcript said. "He located a red glass pipe containing marijuana residue in between the driver and passenger seat."

Cocaine in the trunk

Both people in the vehicle were arrested for cannabis-related charges and police searched the entire vehicle, finding two bags of cocaine in the trunk weighing 51 grams.

"In addition, the police officer found 128 dime bags, a replica .357 handgun, and a straw with cocaine residue on it," the transcript said, and both were arrested for trafficking.

The defence lawyer in the case argued police didn't have grounds to search the vehicle because of the open beer can. And even if the judge rules they did, the lawyer argued police didn’t have the right to search the console since it wasn't big enough to hold beer.

The Crown argued the beer in the vehicle justified the search, and even if it didn't, the evidence from the search shouldn't be excluded.

In his decision, the judge ruled there was no evidence that police in the case didn't believe that they had grounds for the search. In other words, the search was done in good faith and wasn't a pretense to allow a search to find other contraband.

"The crux of this application is whether observing an opened can of beer, on its side, on the back seat of a motor vehicle positioned beside a puppy provides an officer with an objective basis to search a motor vehicle," the judge wrote.

"Whether searches are justified in these situations can depend on the circumstance, he wrote. For example, if police pulled someone over who was driving home on a Sunday from a weekend party who has garbage in the back seat – including empty beer cans – the reasonable conclusion might be that the beer was consumed on the weekend," the judge wrote.

No basis for search

"Possibly, and absent other factors, the officer would have no basis to believe that there was open alcohol in the vehicle."

But if that same officer pulled someone over and they an open beer can in their coffee holder, the search would be justified.

"In the case before me, I find that the officer did not have objectively reasonable grounds to believe that there was open alcohol in the vehicle," he wrote. "For all the officer knew, the can was placed in the vehicle while it was empty. Said can of beer does not provide the officer with objective grounds to believe that other unopened alcohol was in the vehicle."

However, the Supreme Court of Canada requires a three-pronged analysis to determine whether such evidence should be excluded as a result of an illegal search: the seriousness of the breach, the seriousness of the impact of the breach, and society’s interest in adjudicating the matter on the merits.

On the first point, the breach was not serious because the officer was acting in good faith, not using the open beer can as an excuse to make a search he knew wasn't justified.

"This is also not a case where an officer unlawfully detains a driver and then obtains evidence as a result of said unlawful detention," the judge wrote. "This is a case where the officer had lawful authority to pull the vehicle over and to make observations."

On the second point, the judge ruled the impact of the breach was moderate.

"The illegal search was the only manner in which the officer could have discovered the marijuana, which in turn led to a search of the trunk," he wrote. "This imports some level of severity of impact. However, it must also be noted that nothing about the search 'intrude[d] on an area in which the individual reasonably enjoys a high expectation of privacy, or that demean[d] his or her dignity,' such that the breach ought to be considered as being towards the more serious end of the spectrum."

Guns, drug offence are serious

On the third point, "offences involving guns and drugs have a heightened level of seriousness," the judge wrote.

"Replica handguns, while obviously not as immediately dangerous as real handguns, are nonetheless very concerning in narcotic trafficking situations because they can easily lead to the use of real firearms in street-level altercations. Also, Sault Ste. Marie is in the midst of an opioid epidemic."

Cocaine trafficking is a serious threat to the community, and without that evidence, the case would fall apart.

"Therefore, when I consider all of the facts described in this section of the reasons, society’s interest in adjudicating the matter on its merits is high," he wrote.

Under the Supreme Court's guidelines, the judge ruled the evidence should be allowed.

Read the full transcript here.