TOY GUNS CAN'T JUSTIFY SEARCH, COURT SAYS

Appeals Court Upholds Drug Acquittal, Saying Police Action Needless

Federal prosecutors have failed to persuade the Ontario Court of
Appeal the presence of toy guns inside a vehicle should be grounds
for a police search.

The case involves John Aselford, who was driving home with friends in
his pickup truck in July 2003 when he was pulled over by police in
Bells Corners, near Ottawa.

The Crown argued police were justified in stopping Aselford and
searching his truck for "safety" reasons after discovering several
spring-powered toy Airsoft guns inside.

During the search, officers found bags containing nearly 300 grams of
marijuana. Aselford was acquitted of drug charges in 2007 by a judge
who didn't believe Const. Shelley Pender's claim that, at the precise
moment she pulled the guns forward to inspect them, a bag of drugs
fell to the floor.

On appeal, federal prosecutors Rod Sonley and Rosemarie Fincham
argued that a Supreme Court decision two years ago involving a gun
call at a Brampton strip club confirmed police can search cars and
their occupants for weapons if public safety is at risk.

In this case, it was because officers had been responding to a report
of a gunshot in the area and it was possible Aselford might have also
had real guns in his truck, they argued.

But Jonathan Dawe and Karen Ann Reid, Aselford's lawyers, said the
Supreme Court ruling didn't provide police with "untrammelled
detention powers every time a gun or gunshot is reported."

In a brief written judgment released yesterday, a three-judge appeal
panel said the problem with the Crown's submission is that Pender
herself indicated her safety wasn't at risk and she didn't need to
keep searching "once she knew that the guns in the back seat were toys."