POLICE BOTCH DRUG CASE

Woman walks after judge rules officers committed 5 charter breaches

A judge dismissed drug charges against a Winnipeg woman yesterday, ruling city police committed five serious breaches of the Charter of Rights and Freedoms when they caught her carrying crack cocaine.

The decision is the third drug case thrown out of court since July because of actions by Winnipeg police.

Provincial court Judge Wesley Swail agreed with the submission from defence lawyer Martin Glazer that the two officers had no right to:

*Arrest the woman under the Highway Traffic Act.

*Force her to empty her pockets.

*Question her about money she produced.  Search her car and purse without a warrant.

*Ask her if she owned a pink box of crack cocaine and a crack pipe found in her car without having given her the required right to counsel and to remain silent.

"The seriousness of these breaches...  dictates that the admission of these articles into evidence ( the drugs and paraphernalia ) would, in all the circumstances, bring the administration of justice into disrepute," Swail said.

Winnipeg police didn't return calls seeking comment yesterday.

Carrie Dawn Coutu was arrested in January 2002 following a spot check by police in the North End.

Two general patrol officers -- Const.  Doug Powell and Const.  Sukhvir Brar -- told court they stopped the woman's vehicle because she was driving on a flat tire and may have been intoxicated.  Coutu gave police what turned out to be a false name and claimed she didn't have her driver's licence because officers had kept it after a traffic stop that occurred days earlier.  She told court that police were always "harassing" her.

Police claim they warned Coutu she may be charged under the Highway Traffic Act for not having a licence and ordered her to empty her pockets.  The officers, both men, say they didn't want to conduct a "pat-down" search.

"This was a serious breach of Ms.  Coutu's charter rights," Swail said yesterday, noting it goes beyond what the Supreme Court has ruled is acceptable.  A pat-down search of Coutu's extremities would have been allowed, he said.

Coutu produced $150 in cash, prompting police to ask her where she got the money.  Coutu claimed it was from a recently cashed GST cheque.

Swail said police had no right to question her without first giving her the right to counsel and to remain silent.

Police then put Coutu in the back seat of their cruiser car.  They say she asked them to retrieve her purse from the car.

One of the officers told court he went to grab the purse when he noticed a small, pink plastic box on the driver's-side floor, and it appeared to be carrying about a gram of crack cocaine.

He seized the item, confirmed it was drugs and asked Coutu if it was hers -- another serious breach.  He also searched the rest of the car without getting a warrant, seizing a crack pipe.

"It constituted an attempt to conscript evidence from her," Swail said.  Coutu was arrested and charged with possession of narcotics.

Only then did police instruct her of her right to counsel and to remain silent.

Swail said the damage was already done.

The judge also questioned the evidence given in court by both officers, saying he is concerned about their lack of recollection of specific events.

In particular, neither officer was able to describe what they actually saw in the pink box to make them think it was cocaine.  No notes were taken, either.

Last month, a suspected drug dealer found with two rocks of cocaine in his possession walked free because of serious police misconduct cited by a Manitoba judge.

Police admitted they conducted a warrantless search on Eric Sinclair's vehicle within minutes of stopping it in the North End.

The officers had been sitting inside their cruiser car in the parking lot of a Robin's Donuts when they observed a man approach Sinclair's car, reach his hand in and appear to quickly exchange something with the driver, court was told.

Police, suspecting they'd just witnessed a drug deal, quickly stopped the vehicle and noticed two balls of foil sitting on the passenger seat.  An officer reached inside the car, opened the foil and found two rocks of crack cocaine.  A cellphone was also ringing non-stop, suggesting plenty of customers in a "dial-a-dealer" operation.

Sinclair was arrested and charged with possession for the purpose of trafficking.

Although the officer's "hunch" proved to be correct, his actions came under intense scrutiny once the case got to court and were found unlawful by the judge.

The decision came on the heels of a ruling by the Supreme Court of Canada, which said police officers across the country can no longer play hunches and go on "fishing expeditions" for evidence when questioning potential suspects.

Their decision involved a Winnipeg case in which police searched the pocket of a man spotted walking near the scene of a suspected break-in.

Although police found 27.5 grams of marijuana on Phillip Mann, the evidence was discarded by the high court on the grounds it was illegally obtained.  As a result, Mann was cleared of drug-trafficking charges.