Accused Nunavut drug smuggler loses Charter fight

A Cape Dorset man’s Charter rights were not violated when police searched his luggage in Aug. 2016 and discovered 1.6 kilograms of marijuana and 1,000 vials of marijuana oil, a Nunavut judge has ruled.

Pitsiulak Manumikalak contended that this search violated the Canadian Charter of Rights and Freedoms, which protects him from unreasonable searches and seizures, and asked that any resulting evidence be excluded from his upcoming trial.

But on July 20, Justice Earl Johnson concluded that the RCMP had reasonable grounds to search Manumikalak’s belongings.

The judge noted that Const. Kyle Elliot, the leading officer on the case, is an experienced police officer who previously worked for a number of units in B.C. that specialized in investigating drug crimes, before serving with the federal operations section of the Nunavut RCMP, where he participated in approximately 20 different drug operations.

On Aug. 9, 2016, Elliot received a tip from a confidential informant that Manumikalak would be flying drugs from Ottawa to Iqaluit, and then on to Cape Dorset. He was told to look for a man about 50 years old, five-foot-six to five-foot-seven, with a moustache and no teeth, who would be wearing a Maple Leafs cap, carrying one piece of luggage and travelling alone.

This informant had previously provided information to the RCMP about five times since 2015, and each time the information was accurate.

Elliot found Manumikalak’s name on Canadian North’s passenger lists for a flight from Ottawa to Iqaluit on Aug. 10, and from Iqaluit on to Cape Dorset on Aug. 11.

Another officer, Const. Robert Dykstra, then searched Manumikalak’s record and found he was a suspect in a drug investigation in 2014, but had not been convicted. He also had several prior drug convictions for possession and possession for the purpose of trafficking of marijuana and drug oils.

Ottawa police waited at their city’s airport the day of Manumikalak’s flight to confirm that a man matching the description given by the informant had checked one bag and boarded the plane. They sent a photograph of the man to the Cape Dorset detachment, which confirmed Manumikalak’s identity.

After Manumikalak disembarked in Iqaluit, he went to collect his luggage. He wasn’t aware that Elliot and Dykstra, wearing plain clothes, stood about 15 feet from him.

Manumikalak did not remove his sunglasses, and “Elliot took this to be a tell similar to that used by poker players to hide their eyes and disguise their nervousness,” states Johnson’s decision.

“They observed him looking over his shoulders as if he was looking for police. He seemed very nervous and in a rush unlike others who were joking and talking.”

Shortly after Manumikalak grabbed a black bag, the officers moved in and arrested him for possession of controlled substances. After verifying that the bag bore Manumikalak’s name, they opened it and found the drugs.

That evening, during an interview with Dykstra, Manumikalak admitted he was bringing drugs from Ottawa to Cape Dorset. He was charged and released shortly afterwards.

In his analysis, Johnson gave weight to the fact that the leading officer in the case was experienced in investigating drug crimes.

“Elliot had been a member of the RCMP for 10 years and had spent much of that time investigating drug offences, taking many courses to help him in his work. He has worked on the street and undercover. He has dealt with organized crime.”

The judge also deemed the confidential informant to have been a reliable source, as he “had been used on about five previous occasions and on two of them search warrants were executed, which resulted in the police finding the suspected drugs.”

The shakiest part of the Crown’s case, said Johnson, was the small amount of corroboration police had to verify what their informant had told them.

“The only facts to suggest that the applicant was not an innocent coincidence were: his background as a suspect and his connection to a suspected drug trafficker who had three convictions for drug offences,” Johnson wrote.

“The airport surveillance could have applied to anyone. Some people leave their sunglasses on indoors and looking over the shoulder could also apply to many people who are looking for someone to meet them. Interpreting nervousness is very subjective.”

But “Elliot and Dykstra took what steps they could on a short timeline to ensure that the person arriving at the airport was the applicant,” Johnson wrote. “They had the Ottawa police take a picture of him at the Ottawa airport and then had it sent to Cape Dorset so they could make a positive identification at the Iqaluit airport. He also fit the description provided … on approximate age and height, having a moustache, and wearing the Maple Leaf ball cap.”

The high credibility of the informant, in this case, reduced the amount of verification required, said Johnson.

Given this, and Elliot’s experience in investigating drug crimes, Johnson said “I have no doubt that there were reasonable and probable grounds for the arrest and it was lawful.”

R v Manumikalak, 2018 NUCJ 19 by NunatsiaqNews on Scribd