Judge rules man’s privacy violated

Officers’ evidence tossed out of court for ‘extreme’ infringement of Charter rights

Only a body cavity search would have been more intrusive than two Calgary police officers’ violation of a man’s privacy during an unlawful arrest in 2018, a provincial court judge ruled earlier this month.

The evidence found after a man was arrested and searched by officers is being thrown out of trial by Judge Allan Fradsham because of an “extreme” infringement of the man’s Charter rights.

Employees of a Telus store in Marlborough mall reported a suspicious customer to police on Jan. 11, 2018, after they had been warned by the Telus loss prevention team about a man using a fraudulent ID to obtain free phones, according to a court document issued Oct. 11.

When two officers arrived at the location, the customer, described as a white man in his 40s, remained in the store and he was immediately arrested.

After the arrest, police spoke with the store’s employees to confirm the man was the suspicious customer they called about, said the court document.

The defendant Roger Roy’s pockets and bag were then searched outside at the constables’ police vehicle.

The officers, identified as Const. Wilde and Const. Wishnowski, found a “small baggie” of carfentanil — a drug more potent than fentanyl and heroin — other controlled substances, drug paraphernalia, a nine-millimetre Luger live round of ammunition and three pieces of false identification.

In his wallet, they found a Quebec driver’s licence, a Canada Social Insurance Number and a Quebec health card.

“His liberty was effectively eliminated,” Fradsham said in the court document. “Only a body cavity search would have been more intrusive.”

The judge determined there was “absolutely nothing known” by the officers that would have supported reasonable belief or suspicion that their safety or the public’s safety was at risk by Roy.

The judge said that being publicly handcuffed, forcibly removed from the store and placed in a police vehicle as a prisoner was a gross infringement of the defendant’s right not to be arbitrarily detained or imprisoned, which is written in Section 8 of the Canadian Charter of Rights and Freedoms.

Fradsham noted that even if Const. Wilde had detained Roy for investigative purposes, the officer would not have had the authority to search his pockets or backpack.

The search violated Roy’s rights to be protected against unreasonable

His liberty was effectively eliminated. Only a body cavity search would have been more intrusive.

search or seizure, under Section 9 of the Charter.

“In my view, it would be impermissible speculation on my part to assume that during an investigative detention the constable would have gained enough information to give him reasonable grounds to arrest Mr. Roy, and then to conduct a search incidental to arrest,” said the judge.

If the officers had not conducted the “unlawful” search, the items seized would not have been discovered.

Therefore, Fradsham ruled them inadmissible from the remainder of the trial between the Crown and Roy.

The court document said the evidence found during the arrest and search is fundamental to the Crown’s case against Roy.