Port McNeill RCMP violated suspect's Charter rights during detention, judge rules
Mounties in Port McNeill violated a suspect's Charter rights by failing to allow him to contact a lawyer promptly after his 2019 drug trafficking arrest, a judge has ruled.
As a result of the decision, Crown prosecutors cannot rely on evidence gained from the search of two homes in their case against Alexander Morgan Haenisch.
B.C. Supreme Court Justice Robin A. M. Baird issued his voir dire decision in the case on Feb. 28, but it was posted online Friday.
A voir dire is, essentially, a trial within a trial to determine the admissibility of evidence.
According to the decision, Haenisch argued that Port McNeill RCMP officers had violated his rights under both section 9 and section 10 of the Canadian Charter of Rights and Freedoms when they arrested him on Feb. 6, 2019.
Section 9 of the Charter protects the right to be free from arbitrary arrest or detention, and Baird found that police did not violate this section when arresting Haenisch.
Officers had compiled "a compendium of credible, compelling and corroborative evidence showing the accused was probably dial-a-doping," the judge wrote in his decision. Because of this, there were ample grounds to arrest him without a warrant.
However, once Haenisch was under arrest, police repeatedly violated his section 10 right to legal counsel, the judge found.
Police informed Haenisch of the reason for his arrest and his right to counsel when they first arrested him, according to the decision. He did not ask to make a call at the scene of his arrest, but did tell police that he wished to speak with a lawyer.
When he was brought to the police station, police searched his person and found "16 spitballs of suspected cocaine," amounting to 10.5 grams, hidden in his underwear, Baird's decision reads. The judge considered this search incidental to the arrest, and therefore admissible as evidence.
After the search, however, police had an obligation to give him access to counsel, Baird wrote. Instead, Haenisch was held "incommunicado" for almost two hours, something the judge noted was part of the investigating officers' plan from the start.
Police claimed they held Haenisch in custody to prevent him from destroying evidence and so that they could determine appropriate conditions for his release once search warrants on two properties related to their investigation of him were completed.
While Baird found detaining Haenisch while waiting for the completion of the searches to be justified, he concluded that denying Haenisch the opportunity to speak to a lawyer during that time was not.
"The evidence shows that the police secured both the Beach Drive and Quatsino Crescent residences by no later than 1:30 p.m. on Feb. 6, 2020, approximately 20 minutes after the accused was arrested," the judge wrote.
"From that time, these alleged crime scenes remained firmly in control of the police, as the paperwork for search warrants was drawn up. If there had ever been any sincere concern about the destruction of evidence, it had definitely lapsed by then."
Likewise, police had an obligation to notify Haenisch promptly when the searches uncovered a loaded prohibited firearm in a bedroom police believed belonged to him, Baird wrote.
"In these circumstances, with an obvious change in the accused's exposure to serious penal liability, and especially because he intended to interrogate the accused about the firearm and other evidence discovered during the residential searches, it was incumbent upon Const. Brady promptly to inform the accused of the additional grounds for his arrest and the reason for his ongoing detention, and to advise him anew of his right to retain and instruct counsel without delay," the judge wrote.
"Instead, Const. Brady left the accused to sit in his cell for almost four hours without advising him of the reason for it or permitting him immediate access to critical legal advice about the new circumstances of his heightened criminal jeopardy. The failure to do this constituted, in my mind, a second serious breach of the accused's (Charter rights)."
As a result of these breaches, Baird ruled that the evidence obtained during the searches of the homes would not be admissible during Haenisch's trial.
CTVNews.ca Top Stories
Young people 'tortured' if stolen vehicle operations fail, Montreal police tell MPs
One day after a Montreal police officer fired gunshots at a suspect in a stolen vehicle, senior officers were telling parliamentarians that organized crime groups are recruiting people as young as 15 in the city to steal cars so that they can be shipped overseas.
Mandisa, Grammy award-winning 'American Idol' alum, dead at 47
Soulful gospel artist Mandisa, a Grammy-winning singer who got her start as a contestant on 'American Idol' in 2006, has died, according to a statement on her verified social media. She was 47.
Man sets self on fire outside New York court where Trump trial underway
A man set himself on fire on Friday outside the New York courthouse where Donald Trump's historic hush-money trial was taking place as jury selection wrapped up, but officials said he did not appear to have been targeting Trump.
Sask. father found guilty of withholding daughter to prevent her from getting COVID-19 vaccine
Michael Gordon Jackson, a Saskatchewan man accused of abducting his daughter to prevent her from getting a COVID-19 vaccine, has been found guilty for contravention of a custody order.
She set out to find a husband in a year. Then she matched with a guy on a dating app on the other side of the world
Scottish comedian Samantha Hannah was working on a comedy show about finding a husband when Toby Hunter came into her life. What happened next surprised them both.
Shivering for health: The myths and truths of ice baths explained
In a climate of social media-endorsed wellness rituals, plunging into cold water has promised to aid muscle recovery, enhance mental health and support immune system function. But the evidence of such benefits sits on thin ice, according to researchers.
'It could be catastrophic': Woman says natural supplement contained hidden painkiller drug
A Manitoba woman thought she found a miracle natural supplement, but said a hidden ingredient wreaked havoc on her health.
'It was joy': Trapped B.C. orca calf eats seal meat, putting rescue on hold
A rescue operation for an orca calf trapped in a remote tidal lagoon off Vancouver Island has been put on hold after it started eating seal meat thrown in the water for what is believed to be the first time.
Manitoba mom praises quick-thinking fire department for freeing daughter stuck in playground equipment
A Manitoba mother is praising firefighters for their quick work in helping her daughter who got stuck at a playground in Lorette, Man.