Judge finds that Port McNeill RCMP has violated human rights in the Charter
Mounties in Port McNeill violated a suspect’s rights by not allowing him to immediately contact a lawyer after his arrest in 2019, a judge ruled.
As a result of the decision, Crown prosecutors cannot rely on evidence obtained from the search of two homes in their case against Alexander Morgan Haenisch.
BC Supreme Court Justice Robin AM Baird delivered his voir dire decision in the case on Feb. 28, but it was posted online Friday.
A voir dire is essentially a process within a process to determine the admissibility of evidence.
According to the decision, Haenisch argued that Port McNeill RCMP officers violated his rights under both section 9 and section 10 of the Canadian Charter of Rights and Freedoms when they arrested him on February 6, 2019.
Section 9 of the Charter protects the right to be free from arbitrary arrest or detention, and Baird found that police did not violate this section in Haenisch’s arrest.
Officers had “assembled a compendium of credible, convincing and corroborating evidence indicating that the accused was likely a doping user,” the judge wrote in his decision. Because of this, there were sufficient reasons to arrest him without a warrant.
However, once Haenisch was arrested, police repeatedly violated his Section 10 right to legal counsel, the judge found.
Police informed Haenisch of the reason for his arrest and his right to counsel when they first arrested him, the order said. He did not ask to call the scene of his arrest, but did tell police he wanted to speak to a lawyer.
When he was taken to the police station, police searched his person and found “16 spitballs of suspected cocaine,” amounting to 10.5 grams, hidden in his underwear, Baird’s decision reads. The judge considered this house search incidental to the arrest and therefore admissible as evidence.
However, after the search, police were required to give him access to legal counsel, Baird wrote. Instead, Haenisch was held “incommunicado” for nearly two hours, something the judge said had been part of the investigating officers’ plan from the start.
Police claimed they took Haenisch into custody to prevent him from destroying evidence and so that they could determine the proper terms for his release once search warrants for two properties related to their investigation of him were finalized.
While Baird felt that detaining Haenisch pending the completion of the searches was justified, he concluded that denying Haenisch the opportunity to speak to a lawyer during that time was not appropriate.
“Evidence shows that police secured both the Beach Drive and Quatsino Crescent residences no later than 1:30 p.m. Feb. 6, 2020,” the judge wrote.
“From then on, these alleged crime scenes remained firmly under the control of the police while the paperwork for search warrants was prepared. If there had ever been any genuine concern about the destruction of evidence, by then it had finally expired.”
Similarly, police had a duty to notify Haenisch immediately when searches uncovered a loaded prohibited firearm in a bedroom that police believed belonged to him, Baird wrote.
“Under these circumstances, with a marked change in the suspect’s exposure to serious criminal liability, and especially as he intended to question the suspect about the firearm and other evidence discovered during the searches, it was Const’s duty to Brady for the additional grounds for his arrest and the reason for his continued detention, and for re-advising him of his right to promptly engage and instruct legal counsel,” the judge wrote.
“Instead, Const. Brady left the defendant in his cell for nearly four hours without telling him the reason or giving him immediate access to critical legal advice about the new circumstances of his heightened criminal risk. constituted, in my opinion, a second grave violation of the defendant’s (Charter rights).”
As a result of these breaches, Baird ruled that the evidence obtained during the searches would not be admissible at Haenisch’s trial.