Pubdate: Fri, 26 Feb 1999
Source: Calgary Herald (Canada)
Contact:  http://www.calgaryherald.com/
Author: Daryl Slade

MOUNTIE SLAMMED BY JUDGE OVER CASH SEIZURE

A judge has ruled that  a veteran RCMP officer had no legal grounds
to stop a man at the airport, question him and seize $20,523 cash, on
a `hunch' he was a drug courier.

Provincial court Judge Allan Fradsham said in a harshly written
119-page decision that Cpl. Iain McPhee violated several of Randal
Ross Rochat's Charter rights when he detained the man as he was
catching a flight to Vancouver at Calgary International Airport last
May 8.

Fradsham, ruling on the Crown's application to have Rochat forfeit the
cash as proceeds of crime, wrote that Rochat's detention, search of
his carry-on bag, failure to be permitted to contact a lawyer, right
to remain silent and seizure of the money, were all flagrant Charter
breaches.

Any potentially incriminating evidence found as a result of the
encounter, therefore, is not admissible, said the judge.

He said inclusion of such evidence would adversely affect a person's
hearing and `the admission is more likely than its exclusion to bring
the administration of justice into disrepute.'

Rochat was never charged and the money still is in the possession of
the Crown.

The Crown, represented by lawyers Barb Mercier and Robert Sigurdson,
must decide whether to close its case or appeal the ruling. The next
hearing is scheduled for today.

Fradsham agreed with Rochat's  lawyers - Simon Lord and Brian Maude -
that the arbitrary detention was a `willful, deliberate and flagrant
breach of Rochat's rights.

`The common law permits a peace officer to detain a person for
investigative purposes,' wrote Fradsham. `However, that power is not
unfettered, and must be supported by proper foundation.

`The Corporal knew that he had no grounds to detain Mr. Rochat,'
continued the judge, `and simply played upon a lay person's ignorance
of when police officers have the authority to do what they do, and
when they do not.'

Fradsham also said the subsequent search of the luggage, seizure and
use of a pager found within the luggage, and the seizure of the money,
also were Charter breaches.

The discovery of traces of marijuana in the luggage as a result of the
improper search could not be used as evidence, Fradsham ruled.

`They were serious and not merely technical,' he wrote.  `They were
motivated by neither urgency nor necessity...The Corporal had only a
hunch and, in such a case, the subject is to be left alone.

`The investigatory means available to the police consisted of
gathering evidence upon which to act, as opposed to hunches.'

McPhee, a 20-year RCMP veteran who testified during the hearing,
admitted he did not have reasonable and probable grounds to stop and
question the man.

But the Mountie said he suspected Rochat was either transporting
illegal drugs or drug money, because the man was traveling alone; was
casually dressed; was going to Vancouver which the corporal knew to be
a supply for drugs; checked in at the last minute; had minimal
luggage; and `looked over' security before presenting himself.

He also testified that after he saw Rochat's name on the airline
ticket, he immediately recognized it from a project he had worked on
with RCMP's main drug unit in 1996.

Fradsham wrote that statements given by Rochat to the officer to
explain the money found in the search were not voluntary.

`It is clearly implied that the explanation had to be given then and
there to avoid the seizure,' wrote the judge.

`In my view, that effectively eliminated for Mr. Rochat any meaningful
ability to choose silence over answering questions of the police. 
From Mr. Rochat's perspective, the choice was answer the questions or
bid fond farewell to $20,000.

Rochat, court heard, told McPhee that the money was intended to
purchase a car for a friend in Saskatchewan through a private deal in
Vancouver.

He said the friend had set everything up and was paying him $500 to do
so.

Fradsham also noted that though McPhee said he told Rochat he was not
on any trouble, the mere fact he singled him out would have left
Rochat to conclude he was very much in trouble.

`That left only one conclusion; the officer was interested in him in
relation to his conduct, and that could only mean the officer had
concerns about the legality of that conduct,' the judge wrote.

`Legal conduct does not attract the attention of police officers. In
my view, Mr. Rochat could only have concluded that he was potentially
in some legal difficulty, and that things being asked by Cpl. McPhee
were in the nature of directions, compliance with which was the only
prudent course available to him.'

Fradsham will now have to rule on the admissibility of evidence of two
other witnesses who testified during a separate hearing.
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