[420 Girl]

An RCMP officer who stopped two men near Kananaskis did not have sufficient grounds to use a dog to sniff out the 58 kilograms of marijuana stashed in a tank in the back of their truck, a judge has ruled.

Provincial court Judge Peter Barley ruled the fruits of the Mountie's warrantless search were inadmissible at the trial of Kevin Wilfred Slater and Gary Robert Paul, then dismissed charges of possession for the purpose of trafficking.

"The dog sniff was an unreasonable search and a violation of . . . the charter," Barley said in the written decision released on Wednesday.

"Without the result of the dog sniff, there were insufficient grounds to further detain the accused or to arrest them. There was not a constellation of objectively discernible facts that would give reasonable cause to suspect that the detainees from the traffic stop were criminally implicated and that detention was necessary."

The decision comes less than three weeks after the Supreme Court of Canada ruled in the case of a Calgary man, Gurmakh Kang-Brown, that sniff dogs constituted a search and police must have reasonable and probable grounds to use a dog for that purpose.

Defence lawyers Simon Lord and Peter Hoare argued the evidence should be excluded because of charter breaches.

Barley said that although he found Const. Rob Haney "acted in good faith throughout," and the dog sniff was in accordance with law in existence in Alberta at the time, it was not in accordance with the present state of law.

Haney of the Cochrane RCMP highway patrol pulled the men over about 3:30 a.m. on Aug. 27, 2006, because the driver -- Paul -- had committed a minor traffic violation by weaving in his lane.

They told the officer they had come from Ontario and were on their way back after being in British Columbia. The two men, however, gave different stories of where they had been and for how long.

When Haney determined Paul was sober, thus ruling out impairment as a cause of the weaving, he noticed a tank in the open back of the truck, owned by Slater, had "irregularities" and suspected the men were transporting drugs.

The officer removed both men from the truck and brought out a dog that always accompanied him on highway patrols.

When the dog reacted to the tank, Haney arrested both of them. He then opened up the fuel tank and found 129 one-pound ( 0.45 kilogram ) bags of what he believed to be marijuana.

"In this case, the initial stop was proper, as was the questioning of Paul," said Barley. "It was only when Slater was questioned that the nature of the detention changed."

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