N.S. judge throws out cocaine evidence after Ontario man's rights breached
The Canadian Press
Published Tuesday, February 13, 2018 6:42AM EST
SYDNEY, N.S. -- A Nova Scotia judge has ruled the seizure of two kilograms of cocaine from an Ontario man during a search at a ferry terminal violated his charter rights, prompting the Crown to drop a drug charge against the accused.
David Honcoop was selected for random screening while attempting to board a ferry to Newfoundland in North Sydney, N.S., in May 2016, according to a written Nova Scotia Supreme Court decision released this month.
A commissionaire allegedly found two kilograms of cocaine in his suitcase.
But Justice Patrick Murray ruled Honcoop's rights were violated under Charter of Rights and Freedom protections against unreasonable searches and seizures, and threw the evidence out.
The judge said the Controlled Drugs and Substances Act requires that a person clearly consent to a search being conducted under screening procedures.
He said he was satisfied Honcoop -- who said he did not consent to a search and maintained he did not know the drugs were in the suitcase -- did consent. But the judge also found Honcoop, who is reportedly from southwestern Ontario, was not aware of the jeopardy he could face as a result of the search, and was likely not aware he could have refused.
The decision said the commissionaire testified that Honcoop consented to the search, but conceded he did not inform him of his right to refuse.
Murray noted that the language in the act -- "No person is obligated to permit authorized screening of their goods" -- was "materially different" than signs posted at the terminal, which read: "Entering this facility is deemed valid consent to security screening or inspection."
"It is entirely important for statutory bodies to respect and implement the laws of the statute as intended, so as to ensure those affected will be fully informed of the authority to be exercised and what their rights are in relation to that authority," said Murray.
"The legislature chose certain language in determining what constitutes proper notice. The facility is expected to follow the language closely, as such a procedure could impact heavily on individual guaranteed rights and reasonable search and seizure under the charter."
The decision also noted that Marine Atlantic's written policy says guards need to ask for permission to search passenger's belongings.
"Mr. Honcoop, as confirmed by the policy, signage, and act, had a choice. At a minimum he was entitled to be aware of the consequences of that choice, in order for the search to be voluntary," it said.
Murray ordered that the evidence seized during the search of his suitcase be excluded from evidence at the trial.
"Society's interest in the administration of justice is in one that is beyond reproach, and one that does not result in compromise of an individual's rights because they were not properly informed or because authority given under statute has been not been properly exercised," the judge wrote.
Honcoop's lawyer, T.J. McKeough, said Monday the charge against his client was dropped by the Crown following Murray's ruling, originally handed down last September in Sydney.