A judge has reserved his decision in the case of a woman who sued a Nelson Police Department officer for what she calls an unlawful search. Justice Peter Voith heard testimony in Nelson Supreme Court over 3½ days last week.
In her statement of claim, plaintiff Charity Mason said that on the morning of June 26, 2009 she was a passenger in a truck pulled over in Nelson by Cst. Drew Turner. He said he smelled marijuana from the vehicle and searched Mason, the driver, and another passenger. The search, which involved a pat down of their bodies, produced no drugs and no charges were laid.
Mason claims the search was “without warrant or reasonable cause” and was an unreasonable breach of privacy that violated her Charter rights. She further claims the search was “deliberately or negligently conducted … in a public place to embarrass the petitioner” and constituted “false imprisonment” and “personal and sexual assault and battery.”
She is seeking declarations that her rights were violated as well as special, general, and punitive damages.
In his statement of defence, Turner denied the allegations. He said at all times he used reasonable care, skill and diligence, and acted in accordance with applicable standards, procedures, and practices.
In his version of events, he said he responded to a 911 call about a pickup truck heading toward Nelson that was crossing lanes and tailgating a motorcycle. He pulled the truck over in the 700 block of Highway 3A.
“Upon being told the reasons for the stop, the driver yelled obscenities and said the motorcyclist was speeding up and slowing down in front of him and driving like an idiot,” Turner wrote. Turner said he strongly smelled marijuana from the vehicle, which gave him reasonable grounds to search the vehicle. He said the search was conducted lawfully and reasonably and denied violating Mason’s charter rights or assaulting her.
Mason, who has represented herself in the case since 2011, is also suing the City of Nelson, alleging it was vicariously liable. She further named now-retired police chief Dan Maluta, who was present for the search, claiming he failed to supervise his officer.
However, at the end of the trial’s second day, the judge granted a motion to dismiss the case against Maluta, agreeing Mason had not introduced any evidence against him.
“There was virtually no reference to him or his conduct in the plaintiff’s case that gave rise to breach of standard of care, much less misconduct,” Voith ruled.
The trial heard from six witnesses: Mason, her mother, and fellow passenger Thomas Barthell, plus Turner, Maluta, and retired RCMP Cst. Tony Holland, who was also at the scene. The driver, Vaughn Blais, was originally expected to testify on Mason’s behalf, but did not do so.
Mason told the court that as a result of the search, she became withdrawn and depressed and was uncomfortable going outside.
Maluta testified the search was conducted on the roadside at the back of the truck as Blais raged about the legality of the stop and search. He and Holland both said they could strongly smell marijuana.
The sides will trade written arguments over the next several weeks before the judge begins deliberating.
According to one court document, Turner has no Police Act complaints, civil judgments, or criminal convictions on his record. Mason, who was 26 and living in Kaslo at the time of the incident, now lives in Armstrong. She has no criminal record either.
The case was also the subject an investigation by New Westminster police, who found Mason’s allegations of abuse of authority and discreditable conduct were unsubstantiated.