TORONTO — A man convicted of drug trafficking has been set free because of what Ontario’s top court called a troubling pattern of police playing fast and loose with charter rights.
In ordering O’Neil Thompson acquitted, the Court of Appeal rapped officers in Peel region for their continuing disregard for constitutional rules.
“Police must appreciate that, absent exigent circumstances or other appropriate justification, they cannot go about their undeniably important duties to enforce the law by obstructing ordinary Canadians in their cars until they are satisfied that they have answered their questions,” the Appeal Court said.
According to court records, police received a vague anonymous tip about a man dealing drugs from a car late one evening in a shopping plaza in Brampton, Ont. Two officers spotted an idling Cadillac, and boxed it in with their cruisers, even though both conceded they had no reason to believe anything criminal was occurring.
The officers approached the car and one testified to smelling marijuana. They arrested the driver, Thompson, 31, and a passenger for having cannabis, then searched the car and found 29 grams of cocaine, a weigh scale and $18,000 in cash.
It would take more than 20 minutes after the officers first blocked Thompson’s vehicle that they advised him of his right to a lawyer.
In December 2017, Superior Court Justice John Sproat convicted Thompson of possessing cocaine for the purposes of trafficking despite defence arguments the officers had violated his rights by arbitrarily detaining him, illegally searching the car, and failing to let him speak to a lawyer right away.
Sproat found the breach of Thompson’s right to a lawyer reflected a “chronic problem” with Peel Regional Police. Nevertheless, the judge concluded the detention was legal and the suspect had only been detained at the moment of his arrest not when they first boxed his car in.
The charter violation, Sproat decided, had minimal impact. He admitted the seized drugs and cash as evidence. A jury convicted Thompson.
In quashing the conviction, the Appeal Court found the trial judge made several errors. Police had no grounds to suspect any crime and therefore had arbitrarily detained Thompson from the moment the first cruiser blocked his vehicle and he could no longer drive away, the Appeal Court said.
“This arbitrary detention triggered the appellant’s right to counsel,” the Appeal Court said.
The appellate court noted several prior cases in which Peel police failed to respect their obligation to inform a detainee of the right to counsel immediately, calling the problem “institutional and systemic.”
The higher court, in its analysis, also noted that Thompson was a black man sitting in his car at night. While there was no evidence of racial profiling, the court did say his status as a “racialized Canadian in Brampton, one of the largest majority-racialized cities in Canada,” was relevant to whether he felt free to leave.
Colin Perkel, The Canadian Press