Evidence obtained from searches of homes in a drug trafficking investigation cannot be relied on after a judge ruled officers infringed on a suspect’s Charter rights.
The decision from Justice Robin Baird in a Charter voir dire (a separate hearing within a trial) stems from an arrest in 2019 by Port McNeill RCMP officers who were monitoring Alexander Haenisch for suspected drug trafficking.
Haenisch was arrested in February 2020 after evidence indicated he was likely “dial-a-doping,” and charged with possession of narcotics for the purpose of trafficking and possession of a loaded prohibited firearm.
Sixteen “spitballs” of cocaine were found in Haenisch’s underwear following the arrest, totalling around 10.5 grams.
Haenisch said police violated his rights under Sections 9 and 10 of the Charter for unlawful arrest and for not granting him legal counsel immediately.
While the judge did believe Haenisch was arrested lawfully and there was no violation of Section 9, he was not able to access counsel for multiple hours after his arrest which is a violation of Section 10 of the Charter, according to Baird.
Baird adds Haenisch was held “incommunicado” by officers while they executed search warrants at residences on Beach Drive and Quatsino Crescent.
While police said this was a reasonable decision to keep Haenisch in custody for a longer period, the judge said he was “simply left in his cell, without any explanation or recourse to legal advice.”
“The law is clear by now that access to counsel is to be granted immediately,” said Justice Baird.
“I have already said, and the Crown has agreed, that there was no justification for the two-hour delay in granting the accused access to counsel after his arrest. This was a deliberate decision of the police, made in advance, that cannot be justified or claimed to have been taken in good faith.”
Baird says that the result of this infringement is evidence produced from the arrest is admissible, while evidence found searching the Beach Drive and Quatsino Crescent residences are excluded.