A Manitoba Courtroom of King’s Bench Justice tossed proof in a drug possession case after ruling a Winnipeg police officer violated a person’s constitution rights by conducting a “humiliating and invasive” strip search throughout the man’s arrest final 12 months.
Kyle McKenzie was stripped and searched at police headquarters after an officer arrested him for drug possession in Might 2021, Courtroom of King’s Bench Justice Jeffrey Harris wrote in his ruling, delivered Dec. 9.
Two officers advised courtroom that in a routine patrol on Might 7, police pulled over a taxi McKenzie was driving in after they noticed he was not sporting a seatbelt.
They testified that once they went to the passenger aspect of the automotive, they noticed McKenzie had a baggie with methamphetamine in his hand.
When he was arrested, police patted him down and searched his bag, the place they discovered medicine, $280 in money, drug paraphernalia and a knife, courtroom heard.
Harris dominated that search was affordable. Nevertheless, whereas later conducting a strip search in a personal room, the officer bought McKenzie to take away his underwear, then made him raise his scrotum and unfold the cheeks of his buttocks, based on the officer’s testimony.
Nothing was discovered throughout that search.
“There was no compelling purpose to conduct this humiliating and invasive search,” Justice Harris wrote.
“The strip search was a critical invasion of Mr. McKenzie’s privateness and his human dignity.”
The arresting officer testified a strip search is “all the time performed” if police imagine one thing is hid on the suspect’s physique.
Justice Harris stated that reasoning was “egregious,” given a 2001 Supreme Courtroom of Canada ruling that stated routine strip searches violate the Constitution of Rights and Freedoms part that protects towards unreasonable search and seizure.
Based mostly on that, Harris dominated the proof seized from McKenzie throughout the arrest won’t be admissible in his upcoming trial, the place McKenzie faces fees of possession for the aim of trafficking, possession of a weapon, and possession of property obtained by way of crime.
Ruling a part of voir dire
Justice Harris’s ruling was a part of a voir dire held forward of McKenzie’s trial.
A voir dire is a form of trial inside a trial — a separate listening to to decide whether or not proof is admissible in courtroom.
Harris stated in his ruling final week there may be “little doubt that society has a eager curiosity within the prosecution of alleged drug traffickers,” however that the general public ought to anticipate the police to “stop practices that the courts decide are unconstitutional.”
Throughout the voir dire, McKenzie disputed the officers’ testimony claiming he was holding methamphetamine when his taxi was pulled over, testifying he would have had ample time to cover the medicine earlier than police bought to his aspect of the automotive.
Justice Harris additionally wrote that he shared McKenzie’s issues that police didn’t seize the video proof from the taxi, regardless of with the ability to, and that one of many arresting officers did not make notes throughout McKenzie’s arrest.
“Having the good thing about video may have assisted the courtroom in its fact-finding,” Harris’s resolution stated. “The very best proof ought to all the time be put earlier than the courtroom.”
McKenzie’s matter stays earlier than the courts, and his subsequent look can be in January.
Lawyer hopes police will change search practices
Jonathan Pinx, McKenzie’s lawyer, stated usually after key proof is excluded from a trial, the Crown will ask the courts to acquit on all fees.
“My consumer is clearly very comfortable concerning the resolution. This was a very long time coming,” he advised CBC Information on Tuesday.
Pinx stated he hopes the ruling will affect when Winnipeg police conduct strip searches.
“The hope is that … the police would change their practices sooner or later and never simply strip search anybody who was accused of committing a sure kind of crime,” he stated.
“The rationale folks ought to care about these rulings, and any rulings involving the constitution, is it’s not simply concerning the occasions that individuals get caught.… The entire purpose for the constitution is to guard everybody, it doesn’t matter what crime they’re accused of.”
A request for remark from the Winnipeg Police Service was not returned on the time of publication.
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