Pubdate: Fri, 08 Jan 2010 Source: Now, The (Surrey, CN BC) Copyright: 2010 Canwest Publishing Inc. Contact: http://www.canada.com/surreynow Details: http://www.mapinc.org/media/1462 Author: Tom Zytaruk Bookmark: http://www.mapinc.org/coke.htm (Cocaine) DRUG CONVICTION UPHELD DESPITE CHARTER BREACH The B.C. Court of Appeal has upheld a Surrey woman's cocaine possession conviction despite the original trial judge's finding that police had infringed on her Charter rights. Gail Phyllis Ward was busted with a small quantity of rock cocaine in a Surrey alley where drug deals regularly occur. The police officer who arrested her, the court heard, had worked in that vicinity a long time, had observed hundreds of deals go down and carried out many arrests and seizures. The court heard he spotted Ward standing in an alley with several other people, with a weight scale in her hand. The cop decided that they appeared to be trying to conceal what they were doing and were conducting "heat checks" for police. He arrested Ward, searched her and found a contact lens container in her jacket pocket containing a small amount of rock cocaine. Following a voir dire hearing - essentially a trial within a trial where lawyers debate the admissibility of evidence - the provincial court trial judge decided that the police officer violated Ward's Charter rights because he didn't have reasonable and proper grounds for arresting her. That said, the judge also found that admitting the cocaine as evidence wouldn't bring the administration of justice into disrepute. While the breach was "certainly deliberate," he found, it wasn't "flagrant" nor "particularly obtrusive or egregious." The judge also decided the police officer "had a genuine belief in the lawfulness of what he was doing." Ultimately, despite the breach, the judge admitted the cocaine into evidence and found Ward guilty as charged. After Ward tried unsuccessfully to have a B.C. Supreme Court judge overturn the provincial court's verdict, she appealed to the Court of Appeal. Her latest appeal was based on a recent decision of the Supreme Court of Canada, which her counsel argued raises a question of law that merits new consideration in her case. Under the new approach, her lawyer argued, the evidence seized by the officer would have to be held inadmissible. But Justice P.D. Lowry dismissed Ward's application. "I do not accept the judge found the officer willingly infringed the applicant's Charter rights," he found. "The judge found the officer acted deliberately in the sense that he intended to arrest and search the applicant, but he lacked bad faith in acting as he did, because he had "a subjective, genuine belief in the lawfulness of what he was doing.'" "This," Lowry determined, "renders the infringement less serious and weighs towards admitting the evidence." He also considered the evidence "highly reliable," and its exclusion "would have a negative impact of the determination of the truth." - --- MAP posted-by: Jo-D