Fentanyl charge tossed due to charter violation by police officer

Kitchener man smiles after drugs found in backpack excluded from evidence

KITCHENER — An accused fentanyl trafficker flashed a big smile in court this week as his handcuffs were removed after a judge threw out evidence because of charter violations by a police officer.

“In short, the police conduct constitutes a cluster of flagrant breaches of (his) constitutional rights,” Justice Craig Parry said.

“The court must dissociate itself from such conduct. Admission of the evidence as the fruit of such conduct would encourage rather than discourage its repetition.”

Parry ruled a Waterloo Regional Police officer unlawfully arrested the 41-year-old Kitchener man and conducted an “unreasonable” search of his backpack, which contained 5.3 grams of fentanyl, some marijuana, a digital scale, empty “dime bags” and cash.

Because police breached the man’s charter rights, Parry excluded the drugs from evidence and acquitted him of possession of fentanyl for the purpose of trafficking and possession of marijuana charges.

There have been at least six times in the last 12 months that local judges have tossed charges because of charter violations by regional police or the OPP.

In a recap of the latest case, Parry said the police officer’s cruiser was approaching the corner of Guelph and Floyd streets in Kitchener last July 23 when a group of people fled. The accused left on an e-bike.

“According to (the officer), the vehicle drove away at a high rate of speed, a curious assertion since e-bikes by design are incapable of exceeding the default city speed limit of 50 kilometres per hour,” Parry said.

“They hardly qualify as speedy vehicles.

“This aspect of (the officer’s) narrative struck me as an embellishment intended to bolster the validity of (his) subsequent conduct.”

The constable followed the man for seven blocks and pulled him over.

The officer testified he stopped him to see if he had a valid driver’s licence but admitted he didn’t ask the man to show his licence.

Parry concluded the officer most likely stopped him while “conducting a generalized criminal inquiry” of the man.

The officer said he arrested the man because he was worried he would take off on the e-bike before he could hand him a summons for driving while suspended. Parry said he could have just taken his keys, which he didn’t.

The constable said he then searched the man’s backpack to look for his identification, despite the fact the man had already correctly identified himself.

Parry found that the officer was most likely “engaged in an unlawful and unjustified general inquisition of (the man’s) possible involvement in criminal activity.”

He ruled the officer arbitrarily detained him and conducted an unreasonable search of his backpack, which led to an unreasonable seizure of the drugs, which led to the charges.

“The detention, inquisition, arrest and search had a dramatic impact on (the man’s) liberty of movement, his right to be left alone by the state, his security of the person and his right to have his private affairs remain private,” Parry said.

“Admission of the evidence in the circumstances of this case would send the message that the rights we should all take for granted in fact count for little.”

With the drugs excluded from evidence, the man, represented by defence lawyer Hal Mattson, was acquitted.

The Highway Traffic Act charge of driving while suspended was dropped.