B.C. Court of Appeal in Vancouver. (File)

Kelowna man loses appeal of drug conviction resulting from unlawful search

Cash and illicit drugs were found on the man during a first aid examination

A Kelowna man found guilty of three counts of possession of a controlled substance for the purpose of trafficking has lost an appeal of his conviction, which he claims resulted from an unlawful search.

According to documents from the Court of Appeal for British Columbia, the conviction stems from an incident on Sept. 23, 2016 in which Nicholas Pountney was found in medical distress outside a Kelowna restaurant. An RCMP officer attending the scene asked his dispatcher to send paramedics and began performing first-aid, trying to determine whether Pountney had suffered an injury.

The documents describe the officer’s examination, during which he found a bulge on Pountney’s left ankle. He examined it, thinking that the ankle might be twisted or broken.

“He pulled up the leg of the man’s sweatpants and observed that something appeared to have been stuffed down the man’s sock,” reads the document. “He rolled the sock down and pulled out a clear plastic bag that contained three smaller bags and a wad of money. The officer suspected that the smaller bags contained drugs and that the money was proceeds of trafficking.”

Further investigation concluded the bag contained $360 in cash, and that the smaller bags contained cocaine (29.4 grams of white powder), a mixture of heroin and fentanyl (15.3 grams of small reddish-brown pebbles), and a mixture of fentanyl and caffeine (15.1 grams of white powder).

Initially not intending to lay charges, the officer did not take notes of his encounter with the man and did not complete the paperwork in respect of the seizure of the drugs and cash.

Eventually, charges were laid and the matter went to trial.

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Through a voir dire to determine the validity of the seized drugs and cash as evidence, it was found the search breached Pountney’s section eight of his charter rights. Despite Crown’s acknowledgement of the unlawful search and Charter issue, the judge decided to include the evidence.

“I do not find that the admission of the evidence would bring the administration of justice into disrepute,” said the judge in her decision to include the evidence following the voir dire.

“In regards to the search, there were some fairly unique circumstances at play here. The officer was in the process of administering first aid to a man lying in the parking lot and came upon the evidence in the course of treatment. I find no bad faith in the officer’s actions. In regards to the failure to file a Form 5.2 Report, the only items seized were illegal drugs and some cash.”

Pountney chose not to call evidence when the trial resumed, arguing the police officer’s identification of him as the man he had dealt with was insufficiently reliable to meet the criminal standard.

Considering the length of time the officer spent with Pountney and the close observation of the first aid examination, the judge was satisfied beyond a reasonable doubt that Mr. Pountney was the man the officer attended to.

A Nov. 29 decision from the Court of Appeal dismissed Pountney’s claims, finding that the judge was right to admit the evidence and the officer’s identification.

“She made no reversible error in choosing to admit the evidence,” wrote Justice Harvey Groberman.

“I would add that the judge gave adequate consideration to the issue of the officer’s failure to complete Form 5.2 in respect of the drug seizure in this case. Assuming the completion of the form was required, the failure to do so in this case had no appreciable effect on either the seriousness of the state conduct or on Mr. Pountney’s Charter-protected rights.

“The judge’s determination that Mr. Pountney was the person that the officer dealt with is not unreasonable, nor does it represent a misapprehension of the evidence or an error of law. Accordingly, this court cannot interfere with that finding.”

Pountney has remained in custody since his conviction on Aug. 31, 2018.


@michaelrdrguez
michael.rodriguez@kelownacapnews.com

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