Cash and drugs seized in 2019 can be used as evidence against a man accused of trafficking cocaine, an NWT Supreme Court justice has ruled, even though RCMP breached one of his charter rights.
Following a months-long investigation, RCMP arrested 35-year-old Noel Tesfazion outside Yellowknife’s Walmart on May 9, 2019. After the arrest, police say they seized 30 pieces of pre-packaged cocaine, $140 in cash and a cell phone.
The same day, police reported searching a unit at the city’s Sandstone apartment building on Range Lake Road and seizing 162 grams of powdered cocaine, 767 grams of crack cocaine, more than $1,600 in cash, cell phones, digital scales and other paraphernalia associated with drug trafficking.
Tesfazion is charged with possessing cocaine for the purpose of trafficking and possessing money obtained by crime. The charges against him have yet to be proven in court.
His defence lawyer, Austin Corbett, had argued items seized following Tesfazion’s arrest and the apartment search should be excluded as evidence, as RCMP had breached Tesfazion’s charter rights.
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Corbett said those breaches were related to mistreatment and unreasonable video monitoring of Tesfazion in cells at the RCMP detachment, as well as unreasonable use of force during his arrest. Corbett also argued the information police used to obtain a search warrant for the apartment did not include reasonable and probable grounds to believe evidence would be found.
Crown prosecutor Brendan Green argued the evidence should not be excluded.
In a decision on Tuesday, Justice Shannon Smallwood found that RCMP had breached Tesfazion’s charter right to be secure against unreasonable search by video-monitoring his cell around the clock without blurring or pixelating the toilet area.
Smallwood said that while people in custody have a lower expectation of privacy, and video monitoring in cells is reasonable, it is not unreasonable for people in custody to expect some degree of privacy when using the toilet.
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According to an agreed statement of facts filed in the case, NWT RCMP began pixelating the toilet areas of detachment cells in 2022, meaning they are no longer meaningfully visible on video monitoring.
Smallwood said, however, the 2019 breach was at the lower end of the spectrum and police had committed it inadvertently, without showing bad faith. She said there was no evidence that anyone other than the guard had viewed the surveillance video, nor that the footage was requested, downloaded or preserved.
Smallwood said there was little connection between the breach and the evidence uncovered following Tesfazion’s arrest and the apartment search. She dismissed other claims of charter breaches and found the evidence to be admissible.
Tesfazion had said he was not let out of his cell for fresh air during the four days he spent at the RCMP detachment following his arrest. He said there was a lack of entertainment and food options and he had no access to a shower, exercise or clean clothes.
Police testified that Tesfazion was taken from the detachment to the Yellowknife jail on Monday morning, rather than after he had seen a justice of the peace on Friday, because a 6pm deadline at Yellowknife’s jail had passed by the time his paperwork was completed. The jail did not take inmates over the weekend.
Smallwood said the jail has since extended that deadline to 7:30pm.
The judge said while Tesfazion’s custody conditions may have been undesirable and difficult, he was “not completely isolated and forgotten to languish in a cell.” She said he was given soap and a toothbrush, was regularly offered snacks, meals, coffee and tea, and was taken out of his cell several times, including to speak to his lawyer. She found his treatment did not amount to a charter breach.
Smallwood added there are occasions when people in custody may have to be held in police cells for longer periods in the NWT due to transportation, weather, resources and court schedules.
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While the defence argued there was little evidence directly connecting Tesfazion to the Sandstone apartment unit, Smallwood said all of the information police provided amounted to reasonable grounds for the search warrant.
Finally, Smallwood said the use of force during Tesfazion’s arrest was not unreasonable given the circumstances.
Officers testified they had broken two windows of Tesfazion’s vehicle as they were worried he was going to leave. He did not immediately respond when an officer identified himself and told Tesfazion to open his door, the court heard.
Officers also testified that they had seen Tesfazion lift a container to his mouth and were worried he was going to swallow drugs.
Smallwood said there was no evidence that Tesfazion had any injuries from the arrest.
