JUDGE THROWS OUT CASE

Drug charges against a 19-year-old convicted trafficker have been thrown
out by a judge who says the man's Canadian Charter of Rights and Freedoms
rights were violated by the local OPP during a roadside stop last summer.

In cases where such a violation is identified, the judge then has to weigh
that violation with the significance of the evidence and decide,
essentially if the end justifies the means.

In this case, Justice Donald Fraser decided that police misconduct was the
greater wrong in relation to the amount of drugs seized from Aaron Shumka's
car.

On June 19, Shumka was stopped for going 23 kilometres over the speed limit
on Highway 17 West near Clearwater Bay and, while issuing a ticket, Kenora
OPP Const. Darren Beebe asked the Kenora Communications Centre to do a CPIC
check of Shumka.

The check revealed he had a record for drug trafficking, though wasn't
wanted on warrants.

Shumka was issued a ticket and, according to defence attorney David Gibson,
should have been allowed on his way but the constable instead asked Shumka
if he was in possession of any contraband. He also asked to search Shumka's
vehicle and was told he couldn't.

This line of questioning, Beebe testified, was learned in Operation
Pipeline Convoy, a two-day drug interdiction seminar put on by the RCMP,
who adopted the program from policing counterparts in the U.S.

Gibson argued the officer had no grounds to press for a search based solely
on Shumka's record but the officer persisted even after being denied
permission to look in the vehicle, saying he was suspicious of Shumka's
nervousness.

When Beebe went to his cruiser to obtain a consent to search form he wanted
Shumka "to look over," Shumka took advantage of the opportunity to escape,
heading into the bush with his dog in tow. He was later arrested and charged.

Shumka's vehicle was towed to the OPP garage and citing the roadside
incident in an application for a search warrant, one was granted by a
Justice of the Peace, though Gibson argued some key factors were left out
of the application, either accidentally or intentionally. He said because
of the unconstitutionality of the transaction at the roadside, the warrant
never should have been granted.

He provided Fraser with case law from the Supreme Court of Canada where
similar abuses of power resulted in evidence being ruled inadmissible.

The judge ruled the charter violation was serious enough to warrant the
exclusion of the drugs found in Shumka's car as evidence against him,
leaving the charge dead in the water.