Judge in Nanaimo rules rights of man accused of trafficking street drugs, won’t do jail time and that police violated his rights against unreasonable search and seizure. (News Bulletin/file)

Judge in Nanaimo rules rights of man accused of trafficking street drugs, won’t do jail time and that police violated his rights against unreasonable search and seizure. (News Bulletin/file)

No jail time for Nanaimo man originally charged with drug trafficking after ‘unlawful’ police search

Accused pleads guilty to possession, judge notes police violated his rights

A man originally charged with trafficking fentanyl, heroin and meth in Nanaimo pleaded guilty to drug possession instead and won’t be doing time for the crime.

Zachery Dane Weaver entered the guilty plea to simple possession of fentanyl, heroin and methamphetamine in provincial court in Nanaimo on July 7. He had been accused of possession of the drugs for the purpose of trafficking when he was arrested for obstructing a police officer in January 2019 after he was stopped for riding his bicycle without a helmet.

According to court records, when police asked Weaver to produce identification, he did so, but objected when the officers tried to photograph him with his B.C. Services Card. The disagreement led to a struggle with Weaver being subdued and placed in a police vehicle.

The officers then searched his wallet and allegedly found a small aluminum foil package containing a red crystalline substance believed to be an illicit drug. Police then searched Weaver’s backpack and found more packages of similar substances.

In April, Judge Ted Gouge ruled that Weaver’s rights against unreasonable search and seizure were violated when police searched his wallet because, even though police were at that point investigating Weaver for possibly obstructing a police officer by providing false identification, a search of the wallet without a warrant “was not necessary to preserve such evidence from destruction because the wallet was safely in the hands of the police.”

Gouge went on to say the search failed to meet the standard of being reasonable in all the circumstances of the arrest because the police had been satisfied of the accuracy of Weaver’s self-identification before they arrested him.

As for the drug possession and bail breach sentencing hearing in July, Crown had asked for five days in jail for possession of the drugs and two days for breaking curfew. Weaver’s defence argued for an absolute discharge because his rights were violated.

Gouge noted Weaver had already spent more than seven days in pretrial custody, but did not think an absolute discharge was appropriate. Instead he used the sentencing to send police a message.

“In an earlier decision in this case … I expressed my concern that the absence of a meaningful charter remedy in this case would encourage the police in the belief that they can conduct unlawful searches (under the guise of ‘searches incidental to arrest’) without adverse consequences. The ‘communicative function of sentencing’ … seems admirably suited to address my concern,” the judge said.

He also noted that Weaver had taken steps toward a “productive and law-abiding future” as has has been compliant with his bail conditions for more than one year, is employed and there is no indication of current substance abuse.

Weaver was given a conditional discharge and 18 months’ probation.

READ ALSO: Nanaimo man who has had 20 friends die of overdoses sentenced for trafficking fentanyl



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