Pubdate: Mon, 13 Jun 2016
Source: Law Times (Canada)
Page: 3
Copyright: 2016 Canadian Lawyer Magazine Inc.
Contact:  http://www.lawtimesnews.com/
Details: http://www.mapinc.org/media/3095
Author: Shannon Kari
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

COURT CASE WAGES WAR OVER $10 WORTH OF MARIJUANA

Man Acquitted Over Charter Violation

An Ontario Superior Court judge has quashed the conviction of a man 
stopped outside a strip club in Guelph with $10 worth of marijuana in 
his car, because of a serious Charter violation by police.

Justice Casey Hill excluded the seizure of just over one gram of 
marijuana, set aside a conviction for simple possession and a $100 
fine, and entered an acquittal for Brandon Richards in the latest 
chapter of a legal proceeding that began with a traffic stop more 
than 20 months ago.

While the federal Crown was ultimately unsuccessful in its 
prosecution for possession of cannabis, the province also brought its 
own application under the Civil Remedies Act. It ultimately managed 
to keep nearly all of the $25,000 in cash found in Richards' car, 
based on the gram of marijuana in the vehicle.

"This has been Kafkaesque," says Toronto defence lawyer Benjamin 
Goldman, who acted for Richards in his criminal case. "The line 
between what was done [possession of one gram of marijuana] and the 
seizure of the money - that is what is galling," says Goldman, in 
reference to two levels of government taking part in court actions 
against his client.

The defence lawyer questions why the federal Crown took a case to 
trial involving $10 worth of marijuana. "It was divorced from law, 
policy, and logic," states Goldman.

Guelph lawyer David Doney was the federal agent who prosecuted the 
case. He directed questions to Clyde Bond, a former senior federal 
Crown and currently the lead agent for the Public Prosecution Service 
of Canada in the Guelph area.

Marijuana possession "is still against the law," says Bond. "We are 
advised to enforce the law as it applies to the Controlled Drugs and 
Substances Act," Bond explains, adding that there was not a 
significant expense to the public in this case.

Richards, who is black, was stopped at about 1 a.m. on Oct. 4, 2014 
by Constable Trevor Hern after leaving a strip club in a rented 
vehicle with Quebec licence plates. "The officer observed no abnormal 
driving as he followed the vehicle," noted Hill.

The Guelph police officer did not smell alcohol but asked the driver 
if he had any marijuana. Richards produced an item wrapped in 
plastic, which was later determined to be a gram of cannabis. The 
constable searched the vehicle and found the money in the trunk. At 
trial, provincial court Justice Kathleen McGowan rejected the defence 
argument that the vehicle stop was not a sobriety check but a 
"pretext" to search the vehicle. The fact the officer asked 
incriminating questions without advising Richards first of his right 
to counsel was a "minimal" Charter breach, ruled McGowan.

Hill, in his decision, disagreed that the violation was minor. The 
Superior Court judge noted that the Supreme Court issued clear 
guidelines in Suberu in 2009, about the requirement to notify someone 
immediately of the right to counsel once they are detained.

"Traffic stops are a routine feature of the uniformed police officer. 
There should have been no legal uncertainty as to the officer's 
obligations. This is hardly a trivial, technical, or inadvertent 
breach. The officer's conduct was deliberate and on the evidence, not 
going 'quite far enough' amounted to a serious violation," wrote Hill.

Even though the conviction was ultimately quashed, Bond notes that 
there was a finding of guilt at trial.

"The defence brought the appeal. That does not mean we are going to 
throw up our hands and undermine the Ontario Court of Justice ruling. 
It was a reasoned and reasonable decision. Justice Hill had a 
different opinion. That is his right," says Bond.

While the focus of the defence was on the failure of police to inform 
his client of the right to counsel, Goldman says there were other 
issues he could have argued. Racial profiling was not raised at trial 
or the appeal and Bond says it would be inaccurate and inappropriate 
to say this was the reason for police stopping Richards' car. "This 
has nothing to do with the colour of the man's skin," says Bond.

Richards was not facing any criminal offence related to the amount of 
money found in the trunk. The federal Crown did not attempt to have 
the money forfeited, and two months after the arrest, the provincial 
court ordered the return of the $25,000 to Richards. Before that 
could take place, the Ontario government initiated a forfeiture 
proceeding under the Civil Remedies Act.

Superior Court Justice Michal Fairburn issued a preservation order 
for the money in January 2015 after an ex parte hearing, based on an 
affidavit sworn by Guelph police. Fairburn ruled that the provincial 
court order did not bar the province from attempting to seize the money.

The details of the affidavit are not public, but in her decision, 
Fairburn wrote what she referred to as a "small amount of marijuana" 
was sufficient to show that the cash was the proceeds of unlawful activity.

The province says it later reached a deal where a small percentage of 
the $25,000 was returned to Richards to avoid a full forfeiture hearing.
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