When a late model Volvo rolled up to an RCMP checkpoint on
Highway 3 near Midway on March 30,
2006, both the occupant and the
vehicle attracted the attention of the sergeant in charge.
The driver didn't own the vehicle, he was alone, unshaven and
wearing a dark hoodie; he was pale and his head was shaking. There
was a radar detector on the dashboard and the vehicle had a lived-in
appearance, with Tim Hortons food wrappers strewn on the floor,
suggesting the driver had been hitting drive-throughs to eat instead
of getting out of the vehicle.
The sergeant -- referred to only as Sgt. Smith in the B.C. Court
of Appeal judgment -- took a hard look and decided the driver fit
the profile of someone who might be transporting drugs. He called
for a police dog that was at the roadblock with its handler.
The dog walked around the car and sniffed out drugs. When the
trunk was opened, the police found 34 one-pound bags of marijuana
inside.
The driver, Sebastien Payette, was arrested, charged and
eventually convicted of possession of marijuana for the purpose of
trafficking.
But did Sgt. Smith have reasonable grounds to use the sniffer
dog?
A B.C. Supreme Court judge decided it was a good bust, but the
Court of Appeal took a different view and decided that each of the
factors that combined to arouse the officer's suspicions, taken
singly, could have an innocuous explanation.
The search was ruled unlawful and a breach of Payette's charter
rights.
The court also found that the seized pot could not be used in
evidence, and so dismissed the conviction.
gbellett@vancouversun.com
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