B.C. Court of Appeal rules against use of a drug-detecting dog at an RCMP road-safety check

By Charlie Smith, Georgia Straight

 

B.C.'s highest court has ruled that the RCMP violated a man's charter right when it used a drug-detecting dog at a road-safety checkpoint.

 

As a result, Sebastien Payette's conviction for marijuana trafficking was set aside on September 3 by three B.C. Court of Appeal justices.

 

Payette was busted on March 30, 2006 near Midway, B.C., and was convicted in Provincial Court in June 2009.

 

According to the B.C. Court of Appeal ruling, the RCMP believed there was "reasonable suspicion" because Payette was driving a newer-model Volvo owned by a third party.

 

In addition, Payette was pale and unshaven, wore a dark hoodie, and his head was shaking. The vehicle had a radar detector and more than the usual amount of debris, including Tim Horton's wrappers.

 

These were the justifications for an RCMP sergeant instructing a constable to deploy a drug-sniffing dog named Otis. It resulted in the RCMP finding 34 one-pound bags of pot in the trunk.

 

In Provincial Court, the marijuana was admitted as evidence, resulting in a conviction.

 

In the B.C. Court of Appeal, Payette's lawyer, Kirk Tousaw, argued that two major cases involving sniffer dogs involved searches in a public bus terminal and a high school.

 

Tousaw claimed that a higher standard is required at a roadside traffic stop, which is for the "specific purpose of road safety and not for conducting criminal investigations".

 

A 1992 case in the Supreme Court of Canada, R. v. Mellenthin, determined that the right of police to conduct random roadside checks cannot become an “unfounded general inquisition or an unreasonable search”.

 

In upholding Tousaw's argument that the RCMP violated the charter guarantee against unreasonable search and seizure, Justice Kathryn Nielsen wrote: "I find this a close call but conclude that admission of the marihuana seized from the appellant’s vehicle in evidence against him would bring the administration of justice into disrepute."