Insufficient grounds for the arrest and search of a Whitehorse man led to charges being stayed despite almost 30 grams of cocaine being found on him. (File Photo)

Insufficient grounds for the arrest and search of a Whitehorse man led to charges being stayed despite almost 30 grams of cocaine being found on him. (File Photo)

Arrest and search ruled improper, drug trafficking charge against Whitehorse man stayed

Judge finds lack of grounds for 2019 arrest violated man’s rights.

A Yukon Territorial Court judge tossed out the results of an RCMP search that recovered almost 30 grams of cocaine, finding that police violated the rights of the Whitehorse man who was arrested and searched.

With evidence from the search excluded, the charges against the man were promptly dropped.

The incident in question took place on Aug. 20, 2019, when the RCMP arrested Navkaran Singh Sidhu. Sidhu was charged with possession of cocaine for the purposes of trafficking and resisting a police officer in the execution of their duty.

In a voir dire, a hearing prior to trial on the admissibility of evidence, Judge Adrian Brooks ruled on whether the arrest and strip search breached Sidhu’s rights under the Canadian Charter of Rights and Freedoms.

Section 8 of the charter provides protection from unreasonable search or seizure of property. Section 9 protects from arbitrary detention or imprisonment.

A written decision issued on Nov. 8 describes the hearing that lead to Brooks’ verdict, detailing evidence provided by two RCMP officers Const. Smee and Cpl. Hutton.

According to the judgement, Smee observed a woman described as a “known drug user” getting in Sidhu’s car. Smee asked Hutton for Sidhu’s name over the radio and mentioned that he associated with drug traffickers.

The judgement says Smee followed Sidhu’s car to the parking lot of a fast food restaurant where it sat parked for a few minutes. No one got out of the car or went into the restaurant. The car then left, travelling behind a neighbouring hotel and out onto the street. Smee interpreted this as an effort to thwart surveillance. Smee lost sight of the car for a minute or two before spotting it again and then deciding not to follow further because he was in a marked police car.

Hutton stopped the woman who got into Sidhu’s car back at the building where they first spotted her. The judgement states she had two grams of crack and a gram of powder cocaine in her hand.

According to the judgement, Hutton conceded on cross examination that he didn’t see where she came from, if she was dropped off by Sidhu or who she interacted with between the time she was seen with Sidhu and her return to the building.

Hutton broadcasted that Sidhu was to be arrested based on the meeting between Sidhu and the drug user fitting the pattern of drug transactions in his experience. He was arrested and his vehicle was searched approximately 35 minutes after this call went out. The judgement states that identification in Sidhu’s name, cash, a weapon and three cell phones were among the items found in the car.

Referring to case law dealing with similar situations, Brooks found that the cause for an arrest and search was weak.

“What we have is a heavy drug user meeting with a person about whom the police have a hunch is a drug dealer. They drive for a short distance, stop and park for four or five minutes. They then return in the direction of where the drug user lives and then for six minutes (on Const. Smee’s observation, more than 10 minutes to Cpl. Hutton’s knowledge) there is absolutely no observation of the drug user. At the end of those six minutes she has drugs in her hand,” The judgment reads.

“To conclude that this constitutes reasonable grounds for arrest would be to permit a scope of arrest that is breathtaking.”

Brooks writes that police suspects have the same right to privacy as everyone else and that while a hunch can serve as the basis for good police work, it can never be the sole basis of a valid arrest. He found the arrest was without reasonable grounds and breached Sidhu’s rights.

Brooks also analyzed the legality of strip search conducted at the jail that yielded 26.7 grams of rock and powder cocaine hidden in Sidhu’s clothing.

Brooks appeals to a Supreme Court of Canada decision which says that strip searches cannot be carried out as a matter of routine police policy. Guidelines created by that case say searches must be authorized by a supervisory officer and proper records of the reasons for the search must be kept.

Grounds for the strip search given to the court by Smee are that traffickers often hide drugs in their underwear and that Sidhu had acted in a way that led Smee to infer he was hiding something.

Brooks found these grounds insufficient. He also found that failures in record-keeping surrounding the search constituted a breach of his rights.

“It is with little difficulty that I say that if I am right about the absence of reasonable grounds for the arrest and therefore the absence of grounds for the strip search that the evidence of the search of Mr. Sidhu be excluded,” the judgement reads.

A stay of proceedings was entered for the charges against Sidhu on Nov. 19. A court order was also filed requiring the return of some of Sidhu’s property seized as exhibits: $1,240 in cash and four cell phones.

Contact Jim Elliot at jim.elliot@yukon-news.com