An Ontario Superior Court judge has quashed the conviction of a man stopped outside a strip club in Guelph with $10 worth of marijuana in his car, because of a serious Charter violation by police.
Justice Casey Hill excluded the seizure of just over one gram of marijuana, set aside a conviction for simple possession and a $100 fine, and entered an acquittal for Brandon Richards in the latest chapter of a legal proceeding that began with a traffic stop more than 20 months ago.
While the federal Crown was ultimately unsuccessful in its prosecution for possession of cannabis, the province also brought its own application under the Civil Remedies Act. It ultimately managed to keep nearly all of the $25,000 in cash found in Richards’ car, based on the gram of marijuana in the vehicle.
“This has been Kafkaesque,” says Toronto defence lawyer Benjamin Goldman, who acted for Richards in his criminal case. “The line between what was done [possession of one gram of marijuana] and the seizure of the money — that is what is galling,” says Goldman, in reference to two levels of government taking part in court actions against his client.
The defence lawyer questions why the federal Crown took a case to trial involving $10 worth of marijuana. “It was divorced from law, policy, and logic,” states Goldman.
Guelph lawyer David Doney was the federal agent who prosecuted the case. He directed questions to Clyde Bond, a former senior federal Crown and currently the lead agent for the Public Prosecution Service of Canada in the Guelph area.
Marijuana possession “is still against the law,” says Bond. “We are advised to enforce the law as it applies to the Controlled Drugs and Substances Act,” Bond explains, adding that there was not a significant expense to the public in this case.
Richards, who is black, was stopped at about 1 a.m. on Oct. 4, 2014 by Constable Trevor Hern after leaving a strip club in a rented vehicle with Quebec licence plates. “The officer observed no abnormal driving as he followed the vehicle,” noted Hill.
The Guelph police officer did not smell alcohol but asked the driver if he had any marijuana. Richards produced an item wrapped in plastic, which was later determined to be a gram of cannabis. The constable searched the vehicle and found the money in the trunk. At trial, provincial court Justice Kathleen McGowan rejected the defence argument that the vehicle stop was not a sobriety check but a “pretext” to search the vehicle. The fact the officer asked incriminating questions without advising Richards first of his right to counsel was a “minimal” Charter breach, ruled McGowan.
Hill, in his decision, disagreed that the violation was minor. The Superior Court judge noted that the Supreme Court issued clear guidelines in Suberu in 2009, about the requirement to notify someone immediately of the right to counsel once they are detained.
“Traffic stops are a routine feature of the uniformed police officer. There should have been no legal uncertainty as to the officer’s obligations. This is hardly a trivial, technical, or inadvertent breach. The officer’s conduct was deliberate and on the evidence, not going ‘quite far enough’ amounted to a serious violation,” wrote Hill.
Even though the conviction was ultimately quashed, Bond notes that there was a finding of guilt at trial.
“The defence brought the appeal. That does not mean we are going to throw up our hands and undermine the Ontario Court of Justice ruling. It was a reasoned and reasonable decision. Justice Hill had a different opinion. That is his right,” says Bond.
While the focus of the defence was on the failure of police to inform his client of the right to counsel, Goldman says there were other issues he could have argued. Racial profiling was not raised at trial or the appeal and Bond says it would be inaccurate and inappropriate to say this was the reason for police stopping Richards’ car. “This has nothing to do with the colour of the man’s skin,” says Bond.
Richards was not facing any criminal offence related to the amount of money found in the trunk. The federal Crown did not attempt to have the money forfeited, and two months after the arrest, the provincial court ordered the return of the $25,000 to Richards. Before that could take place, the Ontario government initiated a forfeiture proceeding under the Civil Remedies Act.
Superior Court Justice Michal Fairburn issued a preservation order for the money in January 2015 after an ex parte hearing, based on an affidavit sworn by Guelph police. Fairburn ruled that the provincial court order did not bar the province from attempting to seize the money.
The details of the affidavit are not public, but in her decision, Fairburn wrote what she referred to as a “small amount of marijuana” was sufficient to show that the cash was the proceeds of unlawful activity.
The province says it later reached a deal where a small percentage of the $25,000 was returned to Richards to avoid a full forfeiture hearing.