Charter violation
Judge’s ruling prompts federal agency to review signage, policies
A Nova Scotia Supreme Court decision has prompted a review by Marine Atlantic of their signage inside ferry terminals dealing with passenger searches.
Justice Patrick Murray ruled this week in Sydney that the seizure of two kilograms of cocaine from an Ontario man in May 2016 violated the man’s Charter right to
protection against unreasonable search and seizure.
As a result of the ruling, Murray ordered the seized drugs could not be entered into evidence, which prompted the Crown to dismiss the trafficking charge against the accused.
“It is entirely important for statutory bodies to respect and implement the laws of the statute as intended, so as to ensure those affected will be fully informed of the authority to be exercised and what their rights are in relation to that authority,” ruled Murray.
He said this was particularly true in the long term for agencies like Marine Atlantic who deal with thousands of individuals on an annual basis.
“The language contained in the Act (Marine Transportation Security Act) is in my view, materially different that the language in the notices that were actually posted.”
Murray noted there is a significant difference between “you are not obligated to permit authorized screening of your goods if you choose not to” (as stated in the Act) when compared to a sign inside the terminal claiming “entering of the facility is deemed valid consent to security screening or inspection.”
The case involved David John Honcoop, 22, of Cambridge, Ont., who was charged with possession for the purpose of trafficking in cocaine after a search of luggage in May 2016 at the terminal in North Sydney. Honcoop was randomly selected for a search.
Marine Atlantic operates a ferry service between Nova Scotia and Newfoundland and Labrador. The search uncovered cocaine in Honcoop’s suitcase and he was turned over to Cape Breton Regional Police who charged him with possession for the purpose of trafficking.
Murray ruled that while he was satisfied Honcoop consented to the search, he was equally satisfied the accused was not aware of the repercussions or jeopardy he could face as a result of such a search. He said among the criteria for valid consent is the requirement an individual be aware of their right to refuse the search.
Testimony in the hearing concerning the breach was conflicting.
Commissionaire Stephen Shea testified at a preliminary hearing that he did not inform Hancoop of his right to refuse.
In testimony on the charter breach, Shea said he didn’t remember telling Honcoop what the repercussions were if he didn’t consent to a search but that he didn’t have to consent if he didn’t want to.
In his decision, Murray also referred to Marine Atlantic’s written policy stating that guards will ask permission to visually inspect vehicles or belongings and if permission is not given, the individual will be denied access to the terminal facility.
“Mr. Honcoop, as confirmed by the policy, signage and Act had a choice. At a minimum, he was entitled to be aware of the consequences of that choice, in order for the search to be voluntary,” said the judge.
In offering comment on the decision, Darrell Mercer, spokesperson for Marine Atlantic, said the company has reviewed the decision and will take steps to address the issues highlighted in this case.
“While the corporation was acting on good faith in protecting the public interest, we also recognize there are areas in which we need to improve,” he said.
Mercer said the company will now work to develop better signage, clarify wording regarding the search process and improve training processes for security personnel.
Defence lawyer TJ McKeough said he was pleased with the decision and hoped that other federal agencies would also undertake their own reviews of policies and procedures.
Prosecutor David Iannetti said the ruling is under review by federal justice officials to determine whether an appeal will be filed.