Legality of search, traffic stop upheld

Judge rules charter rights of pair from Kelowna weren’t violated in drug case

A B.C. Supreme Court judge has upheld a decision that the charter rights of two Kelowna residents charged with drug offences were not violated during a 2014 traffic stop.

Donahugh McWhirter, 44, and Brittany Stinn, 28, are charged with possession of drugs and possession of drugs for the purpose of trafficking, along with various firearms charges.

McWhirter and Stinn were on their way back to Kelowna from the Lower Mainland in November 2014 when they were stopped near Merritt.

The traffic stop was set up by police to intercept McWhirter, who was the subject of an ongoing drug investigation.

Both accused alleged their rights were breached by police and that any evidence obtained as a result of the traffic stop and subsequent search should not be admissible at trial.

On Dec. 12, 2017, Justice Barry Davies ruled police had “more than reasonable and subjective grounds to detain both accused to investigate whether they were at the time in possession of drugs.”

That ruling was based in part on the assumption that Cpl. Matthew Rattee, the primary investigator in this case who directed the traffic stop resulting in the arrest, had “reasonable and probable grounds to arrest both accused,” said Davies.

Rattee could not testify prior to the last ruling because of other commitments.

In the December traffic stop ruling, Davies said if his assumption later proved to be unsubstantiated when Rattee testified, his ruling would be open to reconsideration.

Rattee testified in November in a voir dire, a trial within a trial.

After considering the evidence, Davies concluded the officer had reasonable and probable grounds to arrest both accused.

“All of the evidence obtained on Nov. 4, 2014, as a consequence of the arrest of the accused and the search of the Audi during the traffic stop is admissible at trial,” he said.

At the time of their arrest, police said McWhirter was trying to recruit new members for a resurgence in Kelowna of the notorious Independent Soldiers gang.

Police found a high-powered prohibited handgun, a 20-gauge shotgun, a .22-calibre rifle, assorted ammunition, a crossbow and drug paraphernalia at a residence in Lake Country.

They also seized cocaine, methamphetamine, ecstasy and other illicit substances.