A Supreme Court of Newfoundland and Labrador justice has thrown out a drug possession and trafficking charge because the accused’s Charter rights were infringed.
Justice William Goodridge ordered the evidence be tossed in the case heard in Corner Brook of Ian Campbell, who was stopped by police while driving across the province. The RCMP discovered he had 32 1/2 pounds of marijuana in his car.
Campbell contended he was driving normally and there was no observed safety issue that would prompt the police to pull him over, but rather the officer was acting on a hunch and detained him solely for a criminal investigation, violating his Charter rights.
“A failure to exclude the evidence would be to condone flagrant Charter breaches and that would not enhance the long-term repute of the administration of justice,” Goodridge said in his decision on Campbell’s application to have the drug evidence excluded.
“The application … is allowed and the evidence obtained during the traffic stop, including the drugs and drug paraphernalia, shall be excluded from evidence. Admission of it in the proceedings would bring the administration of justice into disrepute.”
The arrest happened in November 2011 when RCMP Const. Leon Sheppard was on traffic enforcement duty on the Trans-Canada Highway in Deer Lake.
When a Nova Scotia-registered Honda Prelude passed by, Sheppard checked the licence plate and traced the ownership to Chow Vu, according to the facts of the case.
“Const. Sheppard knew, from a prior drug investigation, that Chow Vu was a Vietnamese name, and he knew from observation that the (sole occupant) was not Vietnamese,” Goodridge’s decision states. (Sheppard has testified that a prior investigation involved a person with the same last name — Vu.)
Campbell was followed for 10-15 kilometres and then pulled over.
The RCMP officer testified he did so to confirm that the driver had a valid licence and permission to use the car.
During the stop, Campbell said the owner of the car was a buddy from Halifax and he wasn’t sure how long he’d be in the province, but was going to look for a job in the St. John’s area.
Sheppard got suspicious when he noticed cologne spray in the glove box — which Campbell had opened to get the requested licence and permit — as well as a desk, clothes hamper, fan and TV in the back seat.
The furniture didn’t jibe with the story of a three- or four-day job search.
And having cologne in the car is not necessarily an indication of someone wanting to smell nice, but could be a clue — perfumes are used by drug traffickers to mask the smell of marijuana.
A check on the licence and registration found the documents in order.
Sheppard advised Campbell — who didn’t know Vu’s address — that his story didn’t make sense, and that he was being detained for further investigation. He was read his rights.
Besides the cologne, furniture, out-of-province plates and the fact that the driver was not the owner of the car, the basis for detaining Campbell for a drug investigation included the fact that Nova Scotia and, in particular, Halifax is often the origin of drug couriers.
Also, Campbell’s hands were shaking and he gave vague and evasive responses, according to the officer’s testimony.
Campbell refused to give permission for a search and Sheppard called for a police dog to sniff around outside the car.
While he was waiting, Sheppard called the Corner Brook detachment and asked about possible entries in the National Criminal Database.
“That database includes entries made by police officers, sometimes based on proven reliable sources, and sometimes based on the less reliable sources, observations or anonymous tips,” the court decision said.
The search came back with an entry from Halifax Regional Police alleging Campbell was a drug courier, so Sheppard concluded he had reasonable grounds to arrest him.
A subsequent vehicle search turned up the marijuana.
“The purpose behind this stop was not related to the Highway Traffic Act,” Goodridge concluded. “This was not a random stop; this was not a stop based on highway safety reasons; this was not a stop based on reasonable grounds. The sole purpose behind this stop was to check for drugs.”
He noted that video and voice recordings show that Sheppard was professional and polite.
“However, that does not excuse the Charter-infringing actions. The result of this stop — discovery of illegal drugs — does not excuse
the Charter-infringing actions,” Goodridge said.