Judge calls search ‘police misconduct’

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This article was published 03/11/2021 (1616 days ago), so information in it may no longer be current.

A Manitoba judge says a Brandon police officer’s search of a man’s vehicle amounted to “police misconduct” in a decision on the admissibility of evidence.

Manitoba Court of Queen’s Bench Justice Herbert Rempel ruled the Brandon Police Service officer crossed a “bright-red line” when they searched Nathan Neubuhr’s vehicle during an April 2019 traffic stop.

The officer found approximately one kilogram of methamphetamine during the stop, but the search was challenged during a voir dire, which determined the admissibility of the evidence.

“I would describe this as serious police misconduct that weighs heavily in favour of a finding that admission of the resulting evidence would bring the administration of justice into disrepute,” reads Rempel’s Oct. 26 decision.

On April 24, 2019, the officer ran a routine licence-plate check on a black pickup truck with an Alberta plate on a service road next to the Trans-Canada Highway, according to the decision. The plate was inactive and registered to a white 2014 Dodge Ram.

They left to go to another call but came back later to find the truck parked in the same place and initiated a traffic stop. Neubuhr was sitting in the driver’s seat with a “less than friendly” pit bull in the front seat.

The officer then checked the accused’s licence, which came back as inactive, Rempel wrote.

The arresting officer called for backup because he was going to arrest Neubuhr for driving without a licence. The backup was to put the pit bull in a separate vehicle, according to the decision.

Once backup arrived, the officer told the accused he was under arrest for driving without a licence and put in the back of a police car. Rempel says the officer “strangely” didn’t handcuff or search Neubuhr for officer safety.

The officer went back to the truck to search for paperwork so it could be towed and found a single beer can on the floor of the car. The vehicle itself was described as a “pigsty,” and that it looked like someone was living in it.

“This triggered a bumper-to-bumper search of the Chevy, which the arresting officer claimed was now justified under the provisions of the [Liquor Gaming and Cannabis Control Act],” Rempel wrote.

“The theory offered by the arresting officer was that if he could find one beer can, then he could perhaps find more.”

During the search, the officer found a leather satchel with drugs in it in the back seat. But the judge took issue with the fact Neubuhr was never charged under the LGCCA and wasn’t told the officer would be searching the truck.

Despite finding the beer can, Rempel said the search was unlawful, as transporting empty beer cans is not an offence under the LGCCA.

Rempel said the officer’s actions resulted in an infringement of the Canadian Charter of Rights and Freedoms.

“The facts before me show serious Charter-infringing police misconduct, with a correspondingly high impact on Mr. Neubuhr’s protected interest. I am satisfied this is precisely the sort of police conduct that the Charter was intended to abolish,” Rempel wrote.

The judge ruled the drugs couldn’t be used as evidence in the case, so the charges against Neubuhr were stayed.

Brandon Police Service Chief Wayne Balcaen said Tuesday he had not had the chance to review the decision, given how recent it is.

“The Brandon Police Service strives to provide up-to-date training to our officers tasked with making difficult investigative decisions in the field and if there are lessons to be learned in this situation, we will take advantage of them to improve our service to the community, remove illicit drugs from our streets and obtain convictions in court when charges are laid.”

» dmay@brandonsun.com

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