Law Times

Law Times • apriL 25, 2016 Page 5 www.lawtimesnews.com NEWS Judge says 'state misconduct was serious' Court of Appeal overturns drug conviction BY SHANNON KARI For Law Times A veteran Ontario Pro- vincial Police officer who routinely search- es cars he stops for suspected driving offences has been admonished by the Court of Appeal in a recent decision that overturned a marijuana trafficking conviction. "The state misconduct was serious and the impact on the appellant's Charter rights was significant," wrote Justice Peter Lauwers about the actions of Constable Robert Sinclair, in the court's ruling in R v. Harflett. The Court of Appeal noted that in at least two other cases in the past five years, evidence has been excluded and acquittals en- tered because of Charter viola- tions during searches of vehicles by the Brockville-based officer. Evidence of what was de- scribed as a "large quantity" of marijuana found in Harf lett's car after it was stopped on High- way 401 was excluded and an acquittal was substituted for his conviction at trial. The actions of the officer and the legal analysis of the trial judge were criticized by Lauwers, with Justices David Watt and Gladys Pardu concur- ring, in the April 6 ruling. Provincial court Justice Catherine Kehoe ruled that the officer's conduct was a "techni- cal" breach of the Charter and the evidence was admissible under the section 24(2) analysis set out in 2009 by the Supreme Court of Canada in R v. Grant. The Court of Appeal stated that Kehoe was incorrect in con- cluding the officer's breach was minor and it found fault with her Grant analysis. "Deference is not warranted in this case, because the trial judge's reasoning on the application of s. 24(2) of the Charter was sparse, deficient and erroneous in mate- rial ways," wrote Lauwers. Erec Rolfe, a Toronto defence lawyer and co-counsel with Malcolm McRae for Harf lett in his appeal, says the officer could not rely on good faith to justify his actions. "Good faith means respect for the Charter," says Rolfe. The fact that the court took note of the other two cases where defen- dants were acquitted because of Sinclair's conduct is an encour- aging sign, Rolfe says. In one of those cases, the of- ficer was found to have coerced a Vietnamese immigrant into signing a waiver for police to search his vehicle after Sinclair concluded the man was acting suspiciously while getting gas. The defendant was acquitted and nearly $200,000 in cash was excluded as proceeds of crime evidence. Greg Lafontaine, the defen- dant's lawyer, says Sinclair's re- peated Charter violations stand out. "It is unusual for an individ- ual police officer to run rough- shod over our constitutional rights with such tenacity and such determination that, over the years, a body of case law has developed out of his undeterred misconduct," says Lafontaine, who heads Lafontaine & Asso- ciates in Toronto. "It seems that even after a number of judicial pronounce- ments that his methods were unconstitutional, the evidence seized by this officer was still being admitted at trial. It should not be a surprise that his meth- odology continued unchanged," says Lafontaine. He adds that Harf lett signals that courts can more readily exercise their 24(2) discretion to discourage officers who rou- tinely breach the Charter. That view is shared by Anne London-Weinstein, president of the Defence Counsel Associa- tion of Ottawa. "Trial courts have to disasso- ciate themselves from this kind of conduct," she says. The Ottawa lawyer points out the provincial Police Ser- vices Act explicitly states that one of its guiding principles is compliance with the Charter. At the Harf lett trial, the of- ficer testified he stopped the driver for having a suspended Ontario licence. The car was searched be- cause Sinclair said he does that every time he calls for a tow truck as a result of a Highway Traffic Act infraction. The of- ficer also explained that the 401 is a popular route for drug and weapons traffickers. The Court of Appeal referred to Sinclair's routine searches as an "impermissible fishing expe- dition," which is a more serious Charter violation since he also instructs other police officers. "He ought to be fully con- versant with his legal authority, but the evidence shows either that he was not or that he was prepared to search regardless," wrote Lauwers. The OPP honoured Sin- clair and two of his Brockville colleagues with its Accolades Award in 2008, for their high- way enforcement duties. [The colleagues were charged last fall with numerous offences, including theft, possession of property obtained by crime, and obstruction of justice. An- other OPP officer and eight ci- vilians were also charged in the same investigation.] The officer testified at the Harf lett trial that he has been involved in dozens of major marijuana investigations and he is "really good" at finding ways to search motor vehicles. Sergeant Kristine Rae, a spokeswoman for the OPP, says the force is "reviewing" the deci- sion of the Court of Appeal. In the meantime, Sinclair is continuing with his regular du- ties as part of the highway en- forcement team. LT Anne London-Weinstein says the provincial Police Services Act explicitly states one of its guiding principles is compliance with the Charter. When you're working, Grow your business and acquire new clients with a full-service online marketing solution. 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