Judge rules Charter violated

A Yorkton judge has excluded evidence in a drug trafficking case based on a Charter violation and acquitted the 28-year-old suspect on all charges.

At a hearing December 20, Judge Ross Green recapped the evidence against Dustin Kennedy.

He noted that police had attended Kennedy’s Yorkton residence May 5 to conduct a search pursuant to conditions applicable to the homeowner, Michael Winter. Winter had been arrested the day before and was suspected of operating a marijuana grow operation.

When officers entered the home, Kennedy and another individual were present. The Mounties proceeded to search and seized 33 grams of marijuana and a smaller quantity of methamphetamine, as well as, trafficking paraphernalia, $200 cash and a cell phone.

Police testified the meth was found next to the defendant’s wallet, some mail addressed to him and a cell phone logged onto a Facebook account in the name of Dustin Kennedy. An expert on drug trafficking said hundreds of Facebook messages between January and May 2016 were consistent with trafficking, but admitted the amount of meth seized could have been for personal use.

Kennedy testified the meth and cell phone were not his and that his Facebook account must have been hacked because he had not been on the social media site since 2014. He admitted the marijuana was his and produced a valid licence to possess marijuana for medical purposes and denied selling any drugs.

At trial, defence attorney Richard Yaholnitsky brought a Charter challenge that the search was unconstitutional because the original target had been Winter.

Green agreed. He said Kennedy had a reasonable expectation of privacy, which was violated. Since the search was not legally authorized, all the evidence obtained thereby was excluded, the judge ruled.

Furthermore, Green said had he not excluded the evidence, he would have still been left with a reasonable doubt the Crown had proven trafficking and would have found Kennedy to have been in legal possession of the marijuana for medical purposes. He accepted that the cash was not the proceeds of crime, but Kennedy’s student money as the accused had claimed.

Concurrent to the drug trial, Kennedy also faced trial on obstruction of police charges for an incident in which the defendant had tried to interfere with a drunk driving investigation.

According to the Crown, police had pulled over a friend of Kennedy’s. Kennedy approached the officers claiming the car was his and that they had no right to search it.

In his decision on that case prior to the verdict on the drug charges, Green ruled Kennedy had both interfered and had the prerequisite intention of obstructing the investigation and found him guilty.

As of press time, he had not been sentenced.