Criminal Law

Expert witness testimony key in Charter violation ruling

By Peter Small, Contributor

The defence in a B.C. drug trial has made effective use of an expert witness to demonstrate that a police dog’s behaviour did not justify the search of a man’s vehicle, says Ottawa criminal lawyer Céline Dostaler.

A video shows the sniffer dog partially sitting instead of fully sitting, as she was trained to do when finding drugs, says Dostaler, founder of Céline Dostaler Professional Corporation.

“This case worked out very well for the defence,” says Dostaler, who has handled several drug trials. “I would hope to do the exact same thing, which is to look at the video and get an expert to help me interpret it.”

Justice Michael Brundrett of the Supreme Court of British Columbia ruled the RCMP violated the defendant’s s. 8 Charter rights against unreasonable search and seizure when it uncovered 27,500 fentanyl pills in his minivan during a roadside stop. He was acquitted of possession of fentanyl for the purpose of trafficking.

Brundrett found that the sniffer dog, named PSD Doods, gave a highly ambiguous partial sit signal, which she was not trained to do but which her RCMP handler interpreted as a sign she had found drugs.

If the dog had done a full sit, the fentanyl seizure would likely have been deemed constitutional, Dostaler tells

Without that clear canine signal, however, the court had to assess the police handler’s interpretation of the dog’s body language — whether her tail was wagging, whether her nostrils were flaring enough and whether her quarter- or half-sit was enough to show that she potentially smelled the drugs, Dostaler says.

Challenging the officer’s interpretation was a technical exercise, Dostaler says.

“That’s why we get experts to come to help us understand, in their field, what that means,” she says.

Financial or other constraints may prevent the defence from calling an expert such as the former California police officer who testified in this case, Dostaler says. But lawyers regularly take on equally technical cases with or without expert assistance, she adds.

“It’s a breach that we often will see argued in court — that an individual is arrested without there being reasonable and probable grounds,” Dostaler says.

The accused was lucky there was video from a police dashcam showing portions of the search, she says.

“The fact that there was some video helped to corroborate how the dog was reacting before she sat. That was very useful,” Dostaler says. “We don’t see a clear sit. That’s definitely what helped the accused.”

Without the video, which was posted by Global News, the case would have focused on the police officer’s description of how the dog was reacting, she says.

“It would be very easy for the officer to say the dog sat for a few seconds or attempted to sit. That’s difficult to interpret without actually seeing it,” Dostaler says.

The RCMP corporal’s hunch was right — the man he stopped had drugs in his van. But society’s interests in protecting citizens from arbitrary search and seizure are more important, she says.

“It’s a win for society because police are then held up to a standard,” Dostaler says. “The whole point of the Charter is to make sure the government is held up to a standard when they do arrest individuals, that they don’t arrest and detain individuals without reason.”

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