Pubdate: Mon, 19 Sep 2011
Source: Niagara This Week (CN ON)
Copyright: 2011 Metroland Printing, Publishing and Distributing
Author: Amanda Street


Cites 'Overriding Error' by Judge

The judge presiding over one of the trials in association with
Niagara's largest pot bust to date committed an "overriding error" in
staying the charges. That's one of the reason the Crown has filed an
appeal against the ruling of Justice P. B. Hambly in the case against
Massimo Spagnoli and John Shore.

A notice of appeal was filed by the Crown requesting the stay be set
aside and the pre-trial hearing for the two men, Spagnoli of St.
Catharines and Shore of Fonthill. The two were facing multiple charges
in relation to the 2008 sweep which saw police raid facilities in
Lincoln, Thorold and Wainfleet.

The Public Prosecution Service of Canada will argue Hambly was wrong
in granting the stay for the following reasons: the judge erred in
concluding that the information of an off-duty police officer was not
covered by informer privilege; that the judge committed palpable and
overriding error in his appreciation of the evidence on the safety
concerns of the police; the judge erred in finding an abuse of process
had occurred; the judge failed to consider alternative remedies to a
stay of proceedings; the judge erred in finding this was the clearest
of cases and ordering a stay of proceedings; and such further and
other grounds as counsel may advise and this Honourable court permit.

On Aug. 16 the judge ruled that because the three Niagara offers
handling the case -- Det. Sgt. James Leigh, Det. James Malloy and Det.
Chris Lemaich -- concealed the name of the Hamilton police officer who
tipped them off to a grow operation in Lincoln, the charges should be
stayed against the two men whose case he was hearing. One week later a
Welland judge followed suit by staying the charges against four others
involved in the May 2008 marijuana bust that netted roughly $15
million in plants. Two others, who had previously pleaded guilty, are
serving sentences, one on weekends the other full time.

"A stay will act as a specific deterrent to the NRPS not to provide
redacted notes to the crown and not to testify falsely under oath,"
Justice P.B. Hambly said in his decision. "The accused will reap a
'windfall.' However, it is my opinion that the 'price' of a stay of
charges against these accused is 'worth the gain.' This is one of the
'clearest of cases' justifying a stay."

The notice of appeal was filed Sept. 9. No date has been set to hear
the argument in court.

As a result of the judge's decision, Niagara Regional Police have
asked the London Police Service to investigate the three officers
involved. There is no timeline for the investigation and it is unknown
if the results of the investigation will be released to the public.
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