An Ontario Superior Court justice in North Bay has thrown out the evidence in the case of Douglas Indoe, of Hanover, Ont., who was charged with possession of cocaine and hashish for the purpose of trafficking.
Mr. Justice George Valin excluded the evidence in a decision delivered today after Indoe’s lawyer, Andrew Perrin, had filed an application under the Canadian Charter of Rights and Freedoms, stating that his client had had his rights breached.
"Accordingly the evidence of hashish and cocaine found in the backpack and on the person of the applicant should be excluded under s. 24(2) of the charter," Justice Valin stated in his decision.
Rule of law
Perrin said he was "very pleased" that the charter "is not just a suggestion."
"It’s codified law," Perrin said, "and it’s quite clear that the Superior Court in this jursiditction is prepared to make it a full force in effect, particularly as it relates to police activity on the roadside."
Perrin said he was not in any position to comment on "how it is the police should be going about their business."
"All I would ask is that they be aware of the charter and understand that it’s not a suggestion," Perrin said, but it’s the rule of law in this country."
Paul Trenker, the Crown attorney for the case, did not return calls from BayToday.ca.
Perrin had argued in his application that police who had stopped Indoe and Dean Burnett, of Durham, Ont., had embarked on a criminal investigation without reasonable and probable grounds to do so, “with the results that the applicant’s rights to be free from unreasonable search and seizure and arbitrary detention and to consult with counsel pursuant to sections, eight, nine, 10(a) and 10(b) of the charter were violated,” Justice Valin’s decision stated.
Perrin had also argued that the admission of the evidence in the case would bring the administration of justice into disrepute, under section 24(2) of the charter.
Justice Valin agreed, stating the administration of justice “would be brought into greater disrepute” if the court did not exclude the evidence “and disassociate itself from the conduct of the police that resulted in a serious violation of the applicant’s constitutional rights.”
Excluding the evidence, Justice Valin stated, “is the only result that will preserve the integrity of the justice system.”
Reasonable and probable
Trenker had argued that the discovery by the police of open liquor in a vehicle is sufficient to sustain a warrantless search, pursuant to s. 32(5) of the Liquor Licence Act.
He also argued an exchange the officer had with Burnett regarding hashish provided "reasonable and probable" grounds to arrest Burnett for possession and to search the truck.
In granting Perrin’s application, Justice Valin also ruled that evidence “consisting of the utterance made by applicant admitting ownership of the burgundy backpack and the controlled substances seized from that pack and from the person of the applicant is excluded.”
Indoe and Burnett were stopped Oct. 10/’03 during an OPP/Anishinabek Police Service RIDE check on the North Bay bypass at Frost Street.
An OPP officer, citing the Liquor License Act, searched the extended cab half-ton truck owned and operated by Burnett, and found two one-liter bottles of vodka coolers, one of which was opened, and a 1.14 litre bottle of vodka, Justice Valin stated in his decision.
The officer also found rolling papers and asked Burnett if there was anything in the vehicle related to drugs, Justice Valin stated.
Burnett responded that there was a “quarter” of hash in a duffel bag in the vehicle. The officer pulled out a burgundy Coleman backpack and found a zip-lock bag containing 267.7 grams of hashish, Justice Valin stated in his decision.
Without a warrant
Indoe had told a second officer the pack belonged to him and was arrested for possession of hashish for the purpose of trafficking. The officer also searched Indoe’s person and found a baggy which contained a white powdery substance suspected to be cocaine.
Valin stated the search of the pack was done without a warrant and without Indoe's permission.
Withdrew the charges
This was the second charter challenge related to a North Bay case to be won by Perrin.
Earlier this year a Superior Court justice threw out evidence in the Exeter Street marijuana bust, and the Crown subsequently withdrew the charges.
Perrin anticipates the same thing will happen in the Indoe case, although there's a bit of a twist to the case.
Burnett, the co-accussed, who had given evidence at the preliminary hearing, had "cut himself" a deal with the Crown, Perrin said.
"It was a very self-serving deal in return for a very light sentence for possession of some of the same substances," Perrin said.
"He provided a statement against my client which my client categorically denies at this stage, and the fact of the matter is the only evidence they have is the word of a gentleman who gave statements in order to save his own well-being."