RULING NEEDED ON VEHICLE SEARCHES: JUDGE

Moncton Courts Divided on Constitutionality of Warrantless Searches

With the Moncton judiciary split on the legality of a local Mountie's
vehicle searches, Judge Irwin Lampert says it's time for New
Brunswick's Court of Appeal to rule on the subject.

Lampert gave a lengthy decision yesterday afternoon, ruling that 50
pounds (23 kilograms) of marijuana found during a vehicle search on
Highway 2 (the Trans-Canada Highway) can be admitted into evidence.
Gee Van Wong is charged with possession for the purpose of
trafficking after being stopped near Petitcodiac last October. The
matter will return to court in mid-September.

But this is one of many cases involving Caledonia RCMP Const.
Stephane Raymond -- a 17-year veteran and dog handler who works in
Caledonia's Roving Traffic Unit -- which have come before the Moncton
court over the past four years. While specific details differ, the
cases are very similar.

Lampert said yesterday Raymond's cases involve motorists being pulled
over for supposed traffic infractions, with no ticket actually
issued. Before the motorist leaves, the officer asks if he can ask a
few questions, suspicions are raised and the officer then asks if he
can search the vehicle.

"I do not find this pattern of conduct to be illegal," said Lampert.

But he acknowledged opinion is split on the matter of warrantless
police searches, both in Moncton and on a national level. For
example, just over a month ago, Lampert's colleague on the Moncton
bench, Judge Pierre Arseneault, ruled drug evidence seized during a
highway vehicle search could not be admitted into evidence because
the search was illegal.

In that case, the judge ruled Raymond was acting on a hunch more than
reasonable grounds. As a result, drug charges against Kinte Ambrose
were withdrawn.

While the specific details of the two cases differ, they followed the
same pattern. A motorist was stopped on suspicion of a Motor Vehicle
Act infraction and questioned by Raymond. When the officer felt he
had the grounds for a search, he asked the driver if he could search
the vehicle and was given permission to proceed without a warrant.

Lampert said there are many cases involving the same officer and the
same pattern of investigation, and the provincial court is obviously
divided on the constitutionality of the searches.

"It's time for the Court of Appeal to take a look at this matter,"
said the judge.

Defence lawyer Scott Fowler, who represents Wong, agreed after court
that it seemed like the judge was taking the rare step of inviting
the lawyer to appeal his decision to a higher court.

"I'm going to have to talk to my client about that. I'd like to
(appeal it), but the decision has got to be his," said Fowler.

When asked if he's dealt with drug cases involving Raymond in the
past, Fowler said he has.

"I think we all know of them, all the defence bar down here is aware
of what's going on," he said. "Some judges, as you heard, have
different opinions as to whether (police) should be permitted to do that."

While Fowler didn't use the phrase yesterday, these cases are
referred to by some local defence lawyers as 'Raymond stops.'

While Fowler doesn't know if his client will want to take this case
to the Appeal Court in Fredericton, it's only a matter of time until
someone does it.

"So many of these cases are fact-specific, but I believe it's
improper, this whole procedure. But that's just me," said the lawyer.
"At some point in time the Court of Appeal will pronounce on it,
whether it's in this case or someone else."

The Wong case dates back to Oct. 11. According to evidence given by
Raymond during the voir dire on the admissibility of the seized
drugs, he pulled over the accused because he didn't think he was
wearing a seat-belt.

When the vehicle stopped, Raymond saw the driver was buckled up and
when he checked his documents, he saw Wong had no criminal record. He
told Wong he was free to go, but asked if he could ask him a few
questions first and Wong agreed. He told the court he's trained to
notice indicators of criminal activity and was alerted by Wong's
shaky hands, the odour of fresh paint and the presence of food
wrappers in the vehicle.

Wong said he was driving from Ontario to Halifax in his son's vehicle
and Raymond said he appeared to be nervous, with bloodshot eyes and
had trouble swallowing. When Raymond asked if he was carrying drugs,
he dropped his head.

Lampert said the officer testified he asked if he could search the
vehicle, while telling Wong he was free to refuse and leave. Wong
consented to the search, even though Raymond said he could be charged
if anything was found.

The 50 pounds (23 kilograms) of marijuana was found in a duffel bag
in the trunk.

At the voir dire hearing, Fowler argued his client's rights were
violated by the search, while federal prosecutor Christian Libotte
argued Wong consented to the search.

Lampert went through a lengthy decision and much case law in reaching
the conclusion the search in this case was legal, because Wong was
free to leave, yet consented to the search.

While reading his decision, the judge also highlighted the importance
of police having reasonable grounds prior to conducting searches.

He said if police are allowed to search people based on guesses or
hunches, it "can too easily mask discriminatory conduct."