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Supreme Court affirms drug, firearm convictions despite police officer’s mistake

In a 6-1 decision, the court upheld the arrest even though it violated the man’s charter rights
The Supreme Court of Canada is seen in Ottawa, on Thursday, June 17, 2021. THE CANADIAN PRESS/Justin Tang

The Supreme Court of Canada has upheld a man’s convictions on firearm and drug charges even though his arrest in Calgary six years ago violated his charter rights.

In a 6-1 ruling Thursday, the high court said that despite the fact police made a mistake, excluding the evidence in Sokha Tim’s case would ultimately harm the reputation of the criminal justice system.

After Tim crashed his car, a police officer noticed a small bag in the vehicle containing a single yellow gabapentin pill — a substance the officer mistakenly believed to be an illegal drug, while Tim tried to sweep the bag out of sight.

The officer immediately arrested Tim, and subsequent searches of the car and the suspect turned up fentanyl, a loaded firearm and ammunition.

At trial, Tim tried to have the evidence excluded on the basis he had been improperly arrested, given that gabapentin was a prescription painkiller and anti-seizure medication.

The trial judge found the arrest and subsequent searches to be lawful and Tim was convicted of five offences, a decision upheld by a majority of the Alberta Court of Appeal.

Writing for a majority of the Supreme Court, Justice Mahmud Jamal said the arresting officer’s subjective belief that he had reasonable and probable grounds to arrest Tim was “based on a mistake of law, and thus was not — and could not be — objectively reasonable.”

As a result, the arrest was unlawful, contrary to the charter guarantee against arbitrary detention, Jamal said.

“Allowing the police to arrest someone based on what they believe the law is — rather than based on what the law actually is — would dramatically expand police powers at the expense of civil liberties,” Jamal wrote.

“This would leave people at the mercy of what particular police officers happen to understand the law to be and would create disincentives for the police to know the law. Canadians rightly expect the police to follow the law, which requires the police to know the law.”

Jamal found that all of the evidence seized by police was obtained in a manner that breached Tim’s charter guarantees.

In considering whether the evidence should be excluded, Jamal noted that a relatively inexperienced police officer made “an honest mistake” about the legal status of gabapentin, which is traded on the street and that Tim tried to hide during a lawful collision investigation.

That led to an arrest and searches that uncovered items including fentanyl — a drug that has been described as public enemy number 1, he wrote.

Jamal said excluding this evidence “would simply punish the police,” which is not the purpose of the legal provision at play, “and would damage, rather than vindicate, the long-term repute of the criminal justice system.”

– Jim Bronskill, The Canadian Press