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Speculation undermines judge’s decision


July 7, 2014
By Mike Novakowski

A police officer’s motive for a traffic stop isn’t rendered illegal just because of special training, experience and resources.

In <R. v. Brodeur, 2014 NBCA 44> a roving traffic unit member with a police service dog was patrolling the Trans-Canada Highway. While sitting in an unmarked vehicle in a 110 km/h posted zone, he captured three radar readings of 120 kmh, 125 kmh and 130 kmh. He believed a black vehicle driven by the accused was passing vehicles at the 130 kmh speed.

The officer pursued Brodeur for about 1.5 km before turning on his flashing police lights and pulling him over. He approached the passenger side, smelled perfume and saw an open bottle of Axe in plain view in the vehicle’s console. As the smell dissipated, the officer could smell raw marijuana and arrested Brodeur. He searched the vehicle incident to arrest and discovered 14 pounds of marijuana in Ziploc bags, which were not vacuumed sealed. The police service dog wasn’t deployed during the stop. Brodeur was charged with possessing marijuana for the purpose of trafficking.

In the New Brunswick Court of Queen’s Bench the officer, a 23 year police veteran who had worked in the drug section, testified that, based upon his experience and training, perfume is used to camouflage the odour of marijuana. The smell, in his view, was an indication the vehicle might be carrying contraband drugs. He had previously taken “Pipeline” training, which teaches police officers to notice signs and indicators of other offences while performing a routine traffic stop.

Brodeur said he wasn’t speeding and believed the officer stopped the wrong vehicle. The judge accepted much of Brodeur’s evidence while rejecting the officer’s. The judge found the officer was deliberately misleading the court and used his training, experience and resources as a basis to determine his motives; his mission was to stop and catch drug traffickers. The judge found Brodeur was arbitrarily detained under <s. 9> of the Charter, excluded the evidence under <s. 24(2)> and found him not guilty.

The Crown appealed to the New Brunswick Court of Appeal, arguing the judge erroneously grounded some of his critical factual conclusions on speculation and conjecture, including his finding about the officer’s motive based on his training, equipment, resources and duties.

Justice Bell, delivering the court’s decision, agreed. Even though the officer was assigned to a traffic unit, was patrolling the only major arterial highway and was trained in radar use, his Pipeline training and the presence of a police dog caused the trial judge to speculate about the officer’s purpose for the stop.

<In my view, speculating about (the officer’s) motives for stopping (the accused’s) vehicle based upon equipment, resources available and direction of traffic is tantamount to questioning the motives or credibility of a police officer accused of excessive force because he happens to carry a baton or a revolver and is trained in its use.

The approach adopted by the trial judge appears to advance the notion that Charter violations will be easier to prove when the arresting officer testifying is highly trained and has significant resources available to him or her, the presumption being that the police officer would use that knowledge and equipment for an improper purpose.

The converse, of course, is that where police officers are poorly trained and have limited resources available, the court will be less inclined to be skeptical of their motives and less inclined to find a Charter breach. I need make no comment on the legitimacy of such an approach> (para. 36).

A proper inference contains two essential elements: (1) it must be rational and (2) it must be based on the evidence.

The trial judge’s conclusion about the officer’s motives and truthfulness, among other findings, was neither rational nor based on the evidence. As a result of these legal errors, the Crown’s appeal was allowed, Brodeur’s acquittal set aside and a new trial ordered.


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