A Grand Forks man has lost his appeal of a trafficking conviction over a claim his Charter rights were violated by an unreasonable detention when he was forced to wait almost two hours for a drug sniffing dog to arrive at the scene of the incident.
Jessie Adam Makortoff had initially filed the Charter of Rights and Freedoms claim during his 2023 trial, alleging that he had been subject to an unlawful stop on Highway 3 in 2020 while returning to Grand Forks and that the officer had held him for an unreasonable and arbitrary time until the narcotics dog could arrive.
Makortoff had been pulled over for riding the center line, swerving around on the road, and hard braking. Upon approaching Makortoff in the vehicle, the officer reported smelling a recent heavy spray of air freshener, which he believed was to obscure the smell of any drugs.
In addition to having previous convictions for trafficking, for having his vehicle flagged by Vancouver Police the night before, the officer had confidential informant information that Makortoff was bringing drugs up from the Lower Mainland.
The officer then cuffed Makortoff and placed him in the back of his police vehicle until a police dog could arrive.
The dog and its handler had to travel 142 kilometres from Fruitvale to get to the scene, and did so in an hour and 47 minutes.
After arriving, the dog found drugs in the vehicle, including 137.5 grams of cocaine worth over $10,000 and over 1,000 pills of MDA. The charge related to the MDA was quashed, according to the recently published BC Court of Appeal ruling, but he received a 22-month jail sentence in 2024 for the cocaine charge.
Justice Matthews had weighed the Charter claim during a voir-dire that took place at the 2023 trial, which, if it had been successful, would have excluded the evidence found during the search. Most importantly, it would have excluded the drugs that were discovered.
The Justice deemed the police had acted with reasonable caution, and that while Makortoff did wait an undue amount of time, the wait was not egregious enough and did not outweigh the importance of including the evidence in the trial.
Makortoff’s appeal largely reiterated the Charter claim, arguing that Justice Matthews should have found the length of the wait was enough to deem it arbitrary and thus a Rights violation, and that the Justice had treated the investigation as though it was for hard drugs, and not, as based on the evidence, of what should have been a marijuana-related crime.
The Court of Appeal noted that Makortoff did not dispute Justice Matthews’ findings around the lawfulness of the initial traffic stop or that the police officer had sufficient grounds to detain him for the investigation.
After reviewing the case law and Justice Matthews’ reasons, the Court of Appeal found no error in the decision to include the evidence in the trial.
“In sum, I find no error in the judge’s assessment of the detention,” reads the Court of Appeal’s ruling. “In accordance with the Barclay framework, she conducted a fact-specific inquiry, did not overstate the seriousness of the investigation, found the narcotics dog was the least intrusive method of proceeding in the circumstances, and—despite the intrusion into the appellant’s liberty—concluded the police did not violate the appellant’s s. 9 rights. In my view, she was correct in her analysis.”
With no error, the appeal was dismissed.