Border control officer Joseph Smith’s testimony at a recent court hearing dealing with a drug arrest at Pearson airport was so evasive and misleading that even the Crown attorney admitted Smith “did a horrible job on the stand.”
As a result of Smith’s conduct in court and during the arrest itself, a Brampton judge acquitted Toronto resident Kadeem Andrew Clarke this week, even though she noted he arrived at the airport with a “gutful of cocaine.”
Despite that damning piece of evidence — court heard that Clarke had swallowed 52 pellets of the drug — Superior Court Justice Deena Baltman found that Smith had trampled on the 24-year-old man’s rights guaranteed by the Charter of Rights and Freedoms.
“I have determined that the conduct of the arresting officer and its impact on the accused is so egregious that it outweighs any interest society may have in a trial on the merits,” she wrote in her eight-page ruling. “Consequently, the evidence is excluded.”
She noted Smith, who has been a border control officer since 1998, “plucked Clarke out of the horde of passengers leaving primary inspection and headed toward the baggage carousel” at the airport without a reasonable basis to do so and proceeded to arrest him only when Clarke asked for a lawyer.
“In other words, as punishment for exercising his Charter rights, Smith arrested him,” Baltman wrote.
After being arrested and handcuffed in public, Clarke was strip searched and detained for almost two days in hospital, according to the ruling.
The Canada Border Services Agency said it is reviewing Baltman’s decision. A spokesperson for the Public Prosecution Service of Canada, which handles drug crimes, said the agency will also be notifying Smith’s supervisor of the court ruling in accordance with its protocol.
“It’s an important case for people who are travelling into Pearson because hopefully it will make CBSA officers aware of the fact that they just can’t arrest somebody, throw handcuffs on him or her and throw them into a room for two days without any objective basis to even suspect they’ve done anything illegal,” said Clarke’s lawyer, Chris Murphy.
The judge recognized that there is a lesser expectation of privacy in airports, writing that the government has an important interest in preventing the importation of drugs, but also noted that airports are “not a Charter-free zone, where anything goes.”
Clarke was flying back from Jamaica when he was arrested in January 2014. After speaking with duty counsel, he admitted to the crime and was taken to hospital. He had ingested about half a kilogram of cocaine, which Baltman said had an estimated street value of $15,000 to $26,000.
But the Crown conceded during the court hearing to exclude the evidence that Smith had “insufficient grounds” to arrest Clarke in the first place. The officer’s testimony was “replete with errors, evasions and excuses,” Baltman wrote.
“At certain points his answers literally changed from one minute to another, on important issues,” she said.
Most notably among those issues is Smith saying he spent 39 minutes interviewing Clarke, when Baltman said in her ruling that it was less than five minutes. She found he could not offer a valid reason for pulling Clarke aside.
Smith denied that his interrogation of Clarke had anything to do with the fact that Clarke is black.
“The officer denied that he was plucked out of that horde of passengers because he was black, but the fact remains that (Clarke) was singled out of that horde, and from my review of the videotape, he was the only young black man coming down that aisle,” said Murphy.