CONVICTION OVERTURNED AS SEARCH RULED UNLAWFUL

The B.C. Court of Appeal has overturned the conviction of a man who
was arrested after a police sniffer dog found 34 half-kilogram bags of
marijuana in his vehicle.

Sebastien Payette was driving along Highway 3 near Midway in the
Kootenay Boundary Regional District when he was stopped at an RCMP
random traffic checkpoint.

An officer identified by the appeal court only as Sgt. Smith decided
to deploy police dog Otis to conduct a walk-around sniff search of the
vehicle.

The cop noted six things that he felt were proper grounds for the search.
The vehicle was a newer-model
Volvo owned by a third party, Payette was the lone occupant and was
unshaven and wearing a dark hoodie.

The vehicle had debris inside, including water and coffee containers,
and on the passenger side appeared to be lived in. There were Tim
Hortons food wrappers indicating Payette was using drive-thru eateries.

Finally, Payette was pale and his head was shaking and there was a
radar detector in the vehicle.

After the dog indicated there were drugs in the vehicle, a police
search uncovered the narcotics in a suitcase in the trunk.

The provincial court judge hearing the case in Rossland, who is not
named in the appeal court ruling, found the traffic safety stop was
lawful and determined that police had a reasonable suspicion that
Payette was involved in criminal activity.

In June 2009 the judge found Payette guilty of one count of possession
of marijuana for the purpose of trafficking.

But Payette appealed his conviction, arguing that his rights had been
violated by the police search.

In a ruling released Friday, Court of Appeal Justice Kathryn Neilson
found that the trial judge had erred in assessing the factors that the
police officer used to conduct the search.

The judge found that police had conducted an unreasonable search and
seizure and while the Charter breach was not wilful or flagrant, it
could not be characterized as inadvertent.

She added: "I find this is a close call but conclude that admission of
the marijuana seized from the appellant's vehicle in evidence against
him would bring the administration of justice into disrepute."

The judge excluded the evidence and overturned the conviction.