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02/01/2019 09:54 EST | Updated 02/01/2019 10:23 EST

B.C.'s Supreme Court Was Right Not To Admit Seized Fentanyl As Evidence

Our freedom and Charter rights should be more important to us than ensuring that every criminal is apprehended.

On January 25, an alleged-fentanyl trafficker in British Columbia was acquitted of criminal charges, based on an ambiguous reaction from a drug-sniffing dog.

The man had been stopped by police for a traffic violation in April 2017. The officer who stopped him said he displayed signs of nervousness when producing his information, as his hands were shaking. The officer also noticed signs consistent with drug trafficking in the vehicle, including multiple cell phones and air fresheners. As a result, he decided to deploy the drug-sniffing dog he had with him to conduct a search of the man's vehicle.

After walking around the vehicle, the dog sat down only partially, either at a half or quarter-sit. The officer claimed that a curb in the dog's way prevented it from completing a full sit, which would be a positive indication of drugs in the vehicle.

The Canadian Press
An Ontario Provincial Police officer displays bags containing fentanyl during a news conference in Vaughan, Ont., on Feb. 23, 2017.

Based on that ambiguous response, the man was arrested for drug trafficking, and the vehicle was seized and searched. Although an initial search revealed no controlled substances, there was a bottle of car body filler in the vehicle, which prompted the officer to look behind the wheel. Ultimately, approximately 27,500 fentanyl pills were located.

Due to the nature of the offence, the matter was first heard in B.C.'s Supreme Court. At trial, B.C. Supreme Court Justice Michael Brundrett found that the arrest and subsequent search of the vehicle were unlawful. The next question, then, was whether the fentanyl should still be admitted into evidence.

In Canadian law, evidence obtained in violation of a person's rights under the Charter of Rights and Freedoms is not automatically excluded from consideration by the court. Instead, the court looks at three factors: the seriousness of the Charter breach; the impact of breach on the Charter-protected interests of the accused; and the overall importance of having criminal cases decided on the basis of evidence that is real, reliable and relevant.

The result was legally justifiable and important to the integrity of our justice system.

Those three factors are then balanced against the impact of admission or exclusion on the long-term reputation of the administration of justice. This is often known as the "Grant test," named after the famous 2009 Supreme Court of Canada decision that decided the three factors to be considered.

In this case, despite the fact that the public interest in having the evidence admitted at trial is obviously high, Brundrett found that the evidence should be excluded, although it's important to note that the fentanyl that was seized in this case will not be returned to the streets; it will be destroyed, or used in police training exercises. The substance itself poses no further risk to the public.

When word of the result broke, there was a great deal of public outcry about the decision. Some even called for the judge's removal. Many people were seriously uncomfortable with the idea that a person who had allegedly been caught in possession of half a million dollars in fentanyl could be set free simply because a dog didn't sit down.

David L. Ryan/The Boston Globe via Getty Images
Seized fentanyl is displayed on a table during a press conference held by the United States Attorney's Office in Boston on Aug. 23, 2018.

And while criticism of the outcome in this case is certainly understandable, it still doesn't mean that the evidence should have been admitted into trial. Rather, the result was legally justifiable and important to the integrity of our justice system.

The right to have a justice system that allows for public criticism of its rulings, and the privilege of being able to freely express one's opinion about the outcome of a criminal case, is part of the fabric of our free and democratic society.

But the right to speak freely is just one of many rights guaranteed by the Charter, which also includes the right to be secure against unreasonable search and seizure, and the right to be free from arbitrary detention.

These rights, the judge found, were violated by the officer. And the impact of the violation was significant in that the car was seized and dismantled before it was returned to the accused. No law-abiding person would expect to be subject an unlawful arrest, and then have their vehicle towed away and taken apart.

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While the accused in this case may not have been law-abiding, another important Charter principle is the presumption of innocence; he was presumed to be law-abiding and innocent until the conclusion of the trial. This means that he had the same rights and freedoms as those who are outraged by the outcome of the case, and who would be rightfully outraged if this happened to them.

It's an uncomfortable thing to come to terms with, but we have to accept that rights apply equally to everyone, regardless of whether or not a person is engaged in criminal activity.

Our freedom and Charter rights should be more important to us than ensuring that every criminal is apprehended, prosecuted and convicted. If we accept any less, we accept the ultimate erosion of our free and democratic society.

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