Judge rules seized drugs to be excluded from trial

The seizure of some six kilograms of marijuana and cocaine from a Mount Uniacke man in February 2015 was the result of an unlawful search by police, a Supreme Court judge has ruled.

Justice Robin Gogan said that while there is no question the seized evidence is crucial to the Crown case against the accused, there is also no question the seizure stemmed from multiple breaches of the rights of an accused under the Charter of Rights and Freedoms.

“I conclude that the serious nature of the infringements in this case call for exclusion of the evidence obtained in the search. I am satisfied that the admission of the evidence would bring the justice system into disrepute,” said Gogan, in a decision released this week.

As a result of being stopped near Baddeck in 2015, Carl Henry Morgan, 31, of South Rawden Road, was charged with two counts of possession for the purpose of trafficking, involving marijuana and cocaine, and two counts of trafficking in the same drugs.

He is scheduled to return to Supreme Court Sept. 5 when the court is expected to receive a status report on the case in terms of whether the Crown will continue to proceed with the prosecution.

RCMP Cpl. Curtis Kutcha stopped Morgan’s vehicle on suspicion of an impaired driver, having witnessed the vehicle sway in the eastbound lane on Highway 125.

In making his third trip between his police vehicle and Morgan’s vehicle, Kutcha said he smelled a “slight odour” of marijuana coming from the vehicle and placed Morgan under arrest but failed to advise Morgan of his right to counsel.

“If there was a smell of marijuana, common sense dictates that it would be coming either from inside the vehicle, or, more likely, from the suitcase where the drugs were later found,” said Gogan, noting the suitcase was located in the outside box of Morgan’s truck.

The judge said she had concerns about the fact that the smell was “slight,” its origin was vague, and that its detection came late in Cpl. Kutcha’s interaction with Morgan.

“I am not convinced that ‘slight’ odour, detected at roadside, more than 15 minutes into the interaction, is a reliable piece of evidence,” ruled Gogan, adding there was no reasonable grounds for Morgan’s arrest.

“I find the arrest arbitrary and the subsequent search unlawful,” said Gogan, ruling the evidence seized during the search will be excluded from the trial.