OPP VIOLATED RIGHTS WITH CAR SEARCH, COURT SAYS

A Court of Appeal ruling overturning a drug conviction reinforces the need
for police officers to make sure they have reasonable grounds for detaining
suspects and initiating a search, a local lawyer says.

"I think it's a significant (ruling) for this area in particular, because
there have been a number of searches recently involving drugs," David
Bruzzese said in an interview. "But all it does is reconfirm the existing
standard."

The decision, released Monday, is a "very good preliminary guide," added Ron
Poirier, who prosecutes drug cases in the region for the federal government.

"In Northern Ontario it's a very significant case because we do more drug
courier cases than anywhere else in Canada," he added.

In a 2-1 decision, the Appeal court found there were serious violations of
the Charter of Rights and Freedoms and that the evidence gained from the
search should have been thrown out.

The matter dates to nearly four years ago. At about 3 a.m. on Sept. 22,
2000, OPP officers clocked a Lincoln Towncar doing 100 km/h on the
Trans-Canada Highway west of Nipigon.

A computer check determined the car was a B.C. rental. When the officer went
to the vehicle, he noticed cellphones, a pager, road maps, fast-food
wrappers and luggage in the back seat. Those observations led to the
suspicion that the two men were drug couriers.

When officers opened the trunk, they found 10 kilograms of marijuana in two
duffel bags.

The men -- Ponce Franklin Calderon, now 29, and Michael Stalas, 30, both
from the Montreal area -- were convicted of possession of drugs for the
purpose of trafficking. On June 24, 2002, they were sentenced to a year in
jail.

In writing the majority decision, Justice John Laskin said the officers had
to have reasonable grounds to suspect the men were drug couriers and simply
could not detain them on a hunch.

The indicators -- fast-food wrappers, cellphones, road map -- could be found
in any car because they "now form part of many people's lives," he wrote.

The officer testified that since he had taken a training course he had
stopped 10-20 vehicles based on these indicators but made no arrests. His
partner, who took the same course, had stopped between 50 and 100 cars, and
he too made no arrests.

"Given the neutrality and apparent unreliability of these indicators, I fail
to see how their presence could amount to reasonable grounds for detention,"
Laskin wrote.

Along with arbitrary detention, the officers committed other constitutional
violations (against unreasonable search and seizure, and the right to retain
counsel without delay), which are serious enough to bring the administration
of justice into disrepute, Laskin said.

"A random stop, even for speeding, does not give the police an open
invitation to search every car that they pull over."

In a dissenting opinion, Justice Karen Weiler agreed the police acted
unjustifiably in obtaining the driver's consent to search his vehicle
without giving him his right to counsel. However, she would not overturn the
decision of Justice Stanley Kurisko to allow the marijuana to be used as
evidence.

But Laskin found that Kurisko "minimized the seriousness" of the situation
in allowing the evidence. He would not have admitted the marijuana as
evidence, which would have undermined the Crown's case. As such, he allowed
the appeal and set aside the convictions.

The federal Department of Justice has 30 days to decide if it will appeal
this decision.