International Law

R. v. Dreyer

Another search incident to arrest, this time of the appellant’s car during a liquor search. After the appellant had been told to leave the car an officer searched the car, ostensibly for liquor, and found cocaine in a brown paper bag. Luckily for him, under the relevant legislation (s. 67(1) of the Liquor Control and Licensing Act) an officer may only search on reasonable and probable grounds “for the liquor where the peace officer suspects it to be, and may seize and remove liquor found and the packages in which it is kept.” In the present case the “officer turned up the drugs knowing full well that the bag contained no alcohol.”

The British Columbia Court of Appeal overturned the trial judge’s decision to admit the evidence and entered an acquittal.

If in the course of a liquor search illicit drugs come into plain view, seizure can be valid. This is not such a case. What the judge has permitted is an expansion of a search authorized for a limited purpose to a general search for contraband on a hunch. He has allowed the police to rummage for whatever might look suspicious, regardless of the authorized limits of the search. This is a serious error in law.

…

In my judgment, the evidence should be excluded. The evidence is non-conscriptive, so trial fairness would not be affected by its admission. However, I consider the breach to be serious. It represents a deliberate abuse of a limited power to search, and the officer showed bad faith in trying to justify it on a spurious claim of safety. Such an abuse cannot be shrugged off as merely trivial; it must be condemned by a decision to exclude the evidence, so that the Charter will be seen to matter in actual cases and not just in theory. The reputation of justice will be harmed by allowing this improperly obtained evidence to lead to a conviction.

What I find worth noting is the attention that was given to the officer’s claim that this was a “protective search,” done to mitigate safety concerns. Without suggesting that this is always a non-starter, it’s clear that this has become little more than an empty verbal formula to be repeated in court without any air of reality. Since the police are allowed to search more fully in such circumstances, they’ve taken to simply asserting officer safety as a rationale even in cases where it has no application. And in some cases such assertions have been accepted, even at the appellate level (for one such case, see my comment on Shankar here). The Court of Appeal was, I think, at least right here in drawing a line. In the present case the claim was simply not credible. Which, in turn, made it into something that turned around and came back to haunt the prosecution:

I think it is significant in terms of the good faith factor in section 24(2) that the officer offered a safety reason for opening the bag, where in the circumstances such a claim is unsupportable.

Full post as published by Criminal Review on February 27, 2008 (boomark / email).