POT-SEARCH RULING BACKS PRIVACY RIGHTS

Police showed "blatant disregard" for the Charter of Rights and Freedoms by
seizing marijuana from a Winnipeg bus terminal locker without first
obtaining a search warrant, the Supreme Court of Canada ruled yesterday.

The court strongly endorsed an individual's right to privacy -- even when
the location in question is a musty locker rather than one's home, office
or body.

The ruling meant an acquittal on marijuana-trafficking charges for Mervyn
Allen Buhay. Mr. Buhay was arrested in 1998 after he and a friend left a
duffel bag containing the narcotic in locker 135 at the downtown bus station.

Madam Justice Louise Arbour said the violation was serious and warranted
the court sending an unmistakable message to other police who might be
inclined to treat the Charter as a minor annoyance.

"The court is concerned at the casual approach that the police took to
infringing the accused's rights in these circumstances," she wrote.

"It is the court's view and concern that if the evidence was to be admitted
in this trial, it may encourage similar conduct by police in the future."

Judge Arbour noted that the police faced no situation of imminent peril or
urgency, nor would the time element have prevented them from obtaining a
valid search warrant.

"The fact that obtaining a search warrant did not even cross the mind of
one officer demonstrates a casual attitude toward the accused's Charter
right," Judge Arbour said.

The court emphasized that constitutional principles do not come into play
only in connection with major cases that involve stark violations of
fundamental rights.

"The administration of justice does not have to be brought into disrepute
on a national scale before courts may interfere to protect the integrity of
the process within which they operate," Judge Arbour said.

The Buhay case was complicated by the fact that the initial search of the
locker was conducted by private security guards. The Charter, on the other
hand, applies only to government conduct.

However, Judge Arbour reasoned that despite there having been a continuous
sequence of events that began with the search by security guards, the
police search was a distinct act.

"I see no basis for holding that a person's reasonable expectation of
privacy as to the contents of a rented and locked bus depot locker is
destroyed merely because a private individual -- such as a security guard
- -- invades that privacy by investigating the contents of the locker," she said.

"A reasonable person would expect that his or her private belongings --
when secured in a locker that he or she has paid money to rent -- will be
left alone unless the contents appear to pose a threat to the security of
the bus depot."

The guards became suspicious after Mr. Buhay and a friend took something
out of it and then left the bus station on March 14, 1998. They went over
to sniff around the locker door and detected an odour of marijuana.

The guards opened it with a master key and discovered a duffel bag
containing marijuana.

Two Winnipeg Police Service officers arrived shortly afterward, opened the
locker again and seized the marijuana. They arrested Mr. Buhay when he
returned to the terminal the next day.

Mr. Buhay's trial judge acquitted him, noting his reasonable expectation of
privacy and a lack of any signs suggesting that lockers in the terminal
were liable to search.

However, the Manitoba Court of Appeal overturned the acquittal and ordered
a new trial.