A convicted Surrey drug dealer who appealed his convictions in a case where the aroma of sassafras led police to obtain a search warrant has lost his case in the Court of Appeal for British Columbia.
Judge Donald Gardner convicted Andrew Ronald Slemko on Aug. 30, 2017 of two counts of possessing methamphetatamine (43 grams) and MDMA (390 grams) for the purpose of trafficking, and two counts of possessing class A precursors – 1.3 kilograms of red phosphorus and 1.08 kilograms of ephedrine.
Slemko, age 40 at the time, was sentenced to two years and six months, less 15 months time served.
Gardner quashed the warrants, finding Slemko’s Charter rights had been breached, but accepted evidence that led to the convictions.
“This appeal requires us to consider whether a trial judge correctly quashed warrants and, having done so, whether he erred in admitting some of the evidence obtained on what he deemed to be unconstitutional searches,” Appeal Court Justice Peter Willcock noted in his July 17 reasons for judgment, with which Justices Mary Saunders and Bruce Butler agreed.
The case involved searches at Slemko’s Surrey residence, a storage locker on 24th Avenue and a dwelling and detached garage at 72nd Avenue in Langley.
The court heard police observed Slemko putting three 20-kilogram bags of caustic soda as well as five bags and a plastic container of kitty litter into his vehicle.
The court heard a police officer smelled sassafras near a Langley property under surveillance, on account of wind blowing from the west, and observed four CCTV cameras at the property. The officer said a chemist with the Health Canada Drug Analysis Service Laboratory told him safrole, a controlled precursor that’s found in sassafras oil, is used in the production of ecstasy and is commonly found a clandestine laboratories, as is caustic soda and kitty litter.
“These three items together are consistent with illicit drug manufacturing,” Willcock noted.
The court heard safrole smells like black licorice or star anise, and is used in the synthesis of MDMA.
Gardner, however, gave little weight to the police officer’s claim he smelled safrole emanating from the property. He noted that while caustic soda and kitty litre are often used at clandestine labs to conceal odours, “that also does not justify the issuance of a warrant when one considers these items also have lawful uses.”
“Furthermore, in my view the presence of security cameras should not be viewed as evidence that illegal activity was necessarily occurring on the property; security cameras are not only used in illegal activity, they obviously also have lawful purposes.”
The trial judge decided that none of the evidence contained in the Information to Obtain a search warrant “can elevate mere suspicion into sufficient grounds for a warrant” and therefore, “because the warrant should not have been issued,” the subsequent search violated Slemko’s Charter rights.
“In the case at bar, although the police did not act in bad faith, it does not automatically follow that they acted in good faith.”
Slemko’s lawyer at appeal argued that the trial “erred in principle” by concluding the warrants were improperly obtained and then admitting as evidence “fruit of the forbidden tree.”
Willcock found the provincial court judge “erred in quashing the warrants” but also decided the judge didn’t err in admitting evidence that was obtained during the search of the storage locker, and so dismissed the appeal.