TORONTO — A woman found with marijuana in her car trunk has won an acquittal on appeal, in part because police violated her rights with an unnecessary high-risk takedown and then lied about what had happened.
In a decision this week, Ontario's top court rejected prosecution arguments that the rights violations were minor or only happened after police had already found the drugs.
"The admission of the marijuana would bring the administration of justice into disrepute," the Appeal Court said.
"This is one of those cases in which the court's need to disassociate itself from the police's conduct is greater than society's interest in prosecuting (the accused)."
The case arose in June 2010 when Ottawa police saw Eneida Pino, 43, leave a suspected grow-op and put a box in the trunk of her car. As she and another man were driving, two officers in an unmarked cruiser forced them to stop.
One officer, Det. Jason Savory, was dressed in black, his face was covered with a balaclava. With his gun pointed at the occupants, Savory yelled at them to get out of the car. Pino was arrested and handcuffed before Savory and Const. Marco Dinardo searched the car and found the marijuana.
At trial, Ontario court Judge David Paciocco concluded the officers had lied about whether Savory had drawn his gun and that the stop had been routine.
In all, Paciocco found three violations of Pino's rights: that the arrest by way of a dangerous and unnecessary masked takedown at gunpoint was unreasonable, that the officers misinformed her about her right to counsel, and that police held her in a cell for more than five hours before allowing her to call a lawyer. Nevertheless, he refused to exclude the marijuana evidence and convicted Pino of possession for the purposes of trafficking.
In quashing the conviction, the Ontario Court of Appeal agreed with Paciocco's findings, but not his conclusion to allow the drug evidence.
That the violations of her right to counsel occurred only after discovery of the drugs did not automatically mean the evidence should be admissible given all the circumstances, the Appeal Court found.
"This is a difficult issue (but) the court should consider the entire 'chain of events' between the accused and the police," the Appeal Court said.
"The marijuana seized from the trunk of Ms. Pino's car and all three Charter breaches are part of the same transaction...Ms. Pino's arrest."
The Appeal Court also rejected the prosecution argument and the judge's finding that the violations were relatively harmless, finding instead that the breaches were close to the "extreme end of seriousness."
The fact that the officers had lied at trial was especially problematic, the Appeal Court found.
"For the purpose of assessing the seriousness of the Charter breaches and the overall assessment of whether the marijuana should have been excluded from the evidence at trial, the officers' dishonest testimony should not be understated," the Appeal court ruled.
