Judge rules seized drugs to be ex­cluded from trial

Cape Breton Post - - Cape Breton - BY CAPE BRE­TON POST STAFF news@cb­post.com

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.

Newspapers in English

Newspapers from Canada

© PressReader. All rights reserved.