DRUG CONVICTION UPHELD DESPITE CHARTER BREACH

The B.C. Court of Appeal has upheld a Surrey woman's cocaine
possession conviction despite the original trial judge's finding that
police had infringed on her Charter rights.

Gail Phyllis Ward was busted with a small quantity of rock cocaine in
a Surrey alley where drug deals regularly occur.

The police officer who arrested her, the court heard, had worked in
that vicinity a long time, had observed hundreds of deals go down and
carried out many arrests and seizures.

The court heard he spotted Ward standing in an alley with several
other people, with a weight scale in her hand. The cop decided that
they appeared to be trying to conceal what they were doing and were
conducting "heat checks" for police.

He arrested Ward, searched her and found a contact lens container in
her jacket pocket containing a small amount of rock cocaine.

Following a voir dire hearing - essentially a trial within a trial
where lawyers debate the admissibility of evidence - the provincial
court trial judge decided that the police officer violated Ward's
Charter rights because he didn't have reasonable and proper grounds
for arresting her.

That said, the judge also found that admitting the cocaine as evidence
wouldn't bring the administration of justice into disrepute. While the
breach was "certainly deliberate," he found, it wasn't "flagrant" nor
"particularly obtrusive or egregious." The judge also decided the
police officer "had a genuine belief in the lawfulness of what he was
doing."

Ultimately, despite the breach, the judge admitted the cocaine into
evidence and found Ward guilty as charged.

After Ward tried unsuccessfully to have a B.C. Supreme Court judge
overturn the provincial court's verdict, she appealed to the Court of
Appeal.

Her latest appeal was based on a recent decision of the Supreme Court
of Canada, which her counsel argued raises a question of law that
merits new consideration in her case. Under the new approach, her
lawyer argued, the evidence seized by the officer would have to be
held inadmissible.

But Justice P.D. Lowry dismissed Ward's application.

"I do not accept the judge found the officer willingly infringed the
applicant's Charter rights," he found. "The judge found the officer
acted deliberately in the sense that he intended to arrest and search
the applicant, but he lacked bad faith in acting as he did, because he
had "a subjective, genuine belief in the lawfulness of what he was
doing.'"

"This," Lowry determined, "renders the infringement less serious and
weighs towards admitting the evidence."

He also considered the evidence "highly reliable," and its exclusion
"would have a negative impact of the determination of the truth."