Pubdate: Fri, 30 Nov 2012
Source: Globe and Mail (Canada)
Copyright: 2012 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Kirk Makin

SUPREME COURT UPHOLDS DRUG CONVICTION DESPITE UNCONSTITUTIONAL SEARCH

The Supreme Court of Canada has ruled that drug evidence obtained in 
an illegal police search can nonetheless be used by the Crown to 
prosecute a Nova Scotia motorist.

In a 5-2 decision, the majority said that a Kentville man, Brendan 
David Aucoin, should not have been searched while an officer was 
preparing a traffic ticket for him.

However, they said that the need to prosecute crime outweighs the 
unconstitional nature of the search.

The search arose after a routine traffic stop in 2008 by a police 
officer who suspected a licence plate infraction. Detecting alcohol 
on Mr. Aucoin's breath, the officer administered a roadside screening 
test and impounded his car.

Out of concern that Mr. Aucoin might disappear into a milling street 
crowd while his traffic ticket was being prepared, the officer asked 
him to get into his police cruiser.

Before opening the cruiser door, however, the officer gave Mr. Aucoin 
a routine pat-down search. He discovered a small package containing 
eight bags of cocaine and 100 green pills. Mr. Aucoin was ultimately 
convicted of drug offences and sentenced to two years in prison.

Writing for the majority Friday, Mr. Justice Michael Moldaver's said 
that the detention and search were dubious in light of the fact that 
other officers had been in the area and could easily have been summoned.

"Without wishing to second-guess the actions of the police and 
recognizing, as I do, that the police are often required to make 
split-second decisions in fluid and potentially dangerous situations, 
I am nonetheless of the view that (the officer's) actions, though 
carried out in good faith, were not reasonably necessary," Judge Moldaver said.

Balancing that, however, he said the sequence of events was carried 
out by an officer acting in good faith; not one motivated by flagrant 
disregard for his constitutional rights.

"As for the impact of the search on the appellant's privacy rights, I 
accept that the impact was significant - but no more so than 
society's interest in having this case tried on the merits," Judge 
Moldaver said, writing on behalf of Madam Justice Marie Deschamps, 
Madam Justice Rosalie Abella, Mr. Justice Marshall Rothstein and 
Madam Justice Andromache Karakatsanis.

But in dissenting reasons, Mr. Justice Louis LeBel and Mr. Justice 
Morris Fish countered that the officer lacked a legitimate reason for 
breaching Mr. Aucoin's right to privacy.

"The Court must dissociate itself from this conduct if it is to 
maintain the long-term repute of the justice system," he wrote.

Judge LeBel stressed that police officers must have reasonable 
grounds to believe that there is a risk to their safety - or that of 
others - before they go ahead and conduct a protective pat-down search.

"The evidence indicated that Mr. Aucoin was cooperative throughout 
the encounter," Judge LeBel said. "He did not say or do anything that 
would indicate a desire to flee. In addition, there was a second 
uniformed officer present to supervise him."

Judge LeBel also noted that the officer said he routinely put 
detained motorists in the locked rear seat of his police car after a 
pat-down search.

"This is evidence of a pattern of abuse," Judge LeBel said.

He said that admitting the evidence would condone police officers 
detaining and searching suspects without having any real grounds to 
do so: "The effect would be to significantly erode public confidence 
in the rule of law," he said.
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