Pubdate: Thu, 10 Jan 2013
Source: Ottawa Citizen (CN ON)
Section: Front page
Copyright: 2013 The Ottawa Citizen
Contact: http://www.canada.com/ottawacitizen/letters.html
Website: http://www.canada.com/ottawacitizen/
Details: http://www.mapinc.org/media/326
Author: Gary Dimmock

OFFICER HAD NO GROUNDS TO SEARCH FOR DRUGS, JUDGE RULES

Traffic Stop Story Not Accepted; Case Thrown Out

A judge has thrown out a drug case after an Ottawa police patrol
officer unlawfully detained a Canadian soldier under the guise of a
Highway Traffic Act stop, only to later arrest him and subject him to
a strip search because, the officer said, he "wanted to."

Ontario Court Justice R.G. Selkirk didn't buy the officer's testimony
that he had pulled over Matthew Moore on April 14, 2012, for Highway
Traffic Act purposes, and ruled instead that Const. Dan Chartrand was
in fact conducting a one-man drug investigation, parking his marked
cruiser down the road from a reputed drug house and setting up his own
surveillance on a night shift.

Though Chartrand testified that he wanted to get the licence plate
numbers of cars parked at the house, he denied under oath that he
stopped Moore's vehicle because it was leaving what he had known to be
a drug house four years earlier when he was on the drug squad.

"It was to collect police intelligence on the coming and goings of
possible illegal drug users," Selkirk said in a Dec. 19 ruling.
"Despite the officer's protestations to the contrary, I do not accept
that this stop had anything to do with Highway Traffic Act purposes.
This was a drug investigation and not related to the Highway Traffic
Act." "The officer drove by and recorded the license plates of a
vehicle not for Highway Traffic Act purposes but because the vehicle
was at a residence that had been associated with drugs," Selkirk said
in a ruling. "The officer knew the vehicle did not belong to the
homeowner so he wanted to know who was there associating with a
possible member of the drug underworld. This is why he parked, four
doors down, out of sight, hidden so that he could keep surveillance on
the house to see who was coming and going from there."

When Chartrand ran the licence plate number he recorded when he
cruised by the home, he found out it was registered to a woman who had
been reported AWOL from the Canadian Forces.

Shortly before 8 p.m., Moore backed out of the parking lot and headed
to a nearby corner store. Chartrand testified that he motioned for
Moore to pull over but that Moore pulled into the corner store, got
out and started to head inside.

The officer demanded Moore to come over. Chartrand told court that he
recognized Moore's name for alleged "drug matters" and demanded to see
his driver's licence. Moore didn't have one on him but showed the
officer his Canadian Forces identification card.

Chartrand said that as Moore pulled out his wallet, he noticed a small
bit of what he thought was an OxyContin pill and placed him under
arrest for drug possession. He had Moore empty his pockets on the
trunk of the cruiser, then patted him down, searched his wallet and
found two more pills. Chartrand then handcuffed the "co-operative"
accused, read him his rights, and showed him the back seat.

Moore asked to speak to a lawyer right away but the officer said he
could do that later down at the station. It was five minutes short of
an hour before the accused got to do so.

When Moore got to the police station, "the accused is then strip
searched because the officer 'wanted to'," the judge noted as he
recalled the officer's own words.

The judge also noted that Chartrand never bothered to ask the accused
if he had a prescription for the drug.

The judge ruled that Chartrand detained the accused arbitrarily and
without reasonable grounds, and that the soldier's charter rights were
so trampled that the evidence (a few pills) had to be excluded. Moore
was found not guilty on the possession charge. The judge said the
courts can't associate with "police conduct that has been denounced as
unlawful for years by the highest courts."

The judge added: "The fact that the evidence is real, reliable and
necessary does not outweigh the seriousness of the violation or the
impact the police conduct had on Charter values. The common law police
power did not authorize (Chartrand's) conduct. It is unlawful."

The patrol officer did not return a telephone message for comment on
this story.

It's not the first time Ottawa police have used Highway Traffic Act
stops as a ruse to investigate other criminal activity.

In January 2011, Ontario Superior Court Justice Charles Hackland, who
more recently presided over Toronto Mayor Rob Ford's trial, tossed out
an Ottawa Police "guns and gangs unit" case after ruling that an
officer from that squad violated an accused's Charter rights.

Hackland said at the time: "These actions show a very high-handed and
egregious attitude toward the rights of the accused, his right not to
be arbitrarily detained, and his right against self-incrimination and
his right to counsel."

The accused's lawyer in that case, Paolo Giancaterino, told the
Citizen in 2011 that the Hackland ruling sent a clear message that
Ottawa police can no longer use their powers to stop vehicles for
alleged violations under the Highway Traffic Act as a "ruse" to
investigate other criminal activity. 
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