Pubdate: Tue, 20 Sep 2011 Source: Ottawa Citizen (CN ON) Copyright: 2011 The Ottawa Citizen Contact: http://www.canada.com/ottawacitizen/letters.html Website: http://www.canada.com/ottawacitizen/ Details: http://www.mapinc.org/media/326 Author: Douglas Quan, Postmedia News CAN OFF-DUTY COPS REMAIN ANONYMOUS? A Multimillion-Dollar Drug Bust in Southern Ontario Could Decide Whether Police Can Conceal the Names of Fellow Officers WHO Tip Them Off, Writes Douglas Quan. When Niagara Regional Police took down one of Ontario's largest marijuana-grow operations three years ago, they compared it to "winning the World Series." But last month, the case unravelled when a judge stayed charges against two of the accused after it came to light that detectives had deliberately withheld from the Crown the fact that their tipster was an off-duty cop from another police agency. Now, federal prosecutors are appealing the decision in a case that raises questions about whether offduty police officers are entitled to the same protections of confidentiality that are given to citizen informants. In December 2007, off-duty Hamilton police detective Aivars Jekabsons was visiting relatives in the Town of Lincoln. While walking by a house, he smelled marijuana and jotted down the licence plate of a Ford pickup in the driveway. He later phoned Niagara Regional Police to pass along his observations, but said he would prefer that his name be kept out of the investigation because he had relatives in the area and believed that organized crime might be involved. With that tip, Niagara police uncovered a massive operation involving thousands of marijuana plants spanning multiple locations. An expert later estimated the value of the plants and marijuana seized to be between $8 million and $16 million. However, when Niagara police investigators Det.-Sgt. James Leigh, Det. James Malloy and Det. Chris Lemaich handed over their notes to the Crown, there was no mention of Jekabsons as being the original tipster. The Hamilton detective's name was either redacted or he was referred to as an anonymous source. In a scathing 39-page decision last month, Ontario Superior Court Judge Peter Hambly wrote that there was "no justification" for the Niagara police detectives to not disclose Jekabsons' identity. "The police are obligated to produce all information that they gather in an investigation to the Crown," the judge said, adding that it is the Crown -- not the police -- that decides what is to be disclosed to the defence. Hambly stayed charges against two of the accused, Massimo Spagnoli and John Shore, saying this was one of the "clearest of cases" to justify staying charges. "If police lying is tolerated by the courts, they will soon lose the respect of the community," he said. However, in a four-page notice of appeal filed this month, federal prosecutors said the judge "erred in finding that an abuse of process had occurred" and that he failed to appreciate the safety concerns of the police officer-tipster. Asked to elaborate, Nathalie Houle, a spokeswoman for the Public Prosecution Service of Canada, said in an e-mail Monday that the Crown is asking the Court of Appeal to "clarify that off-duty police officers may be protected by informer privilege." "While police officers cannot be confidential informants in cases related to their official duties, it is appropriate that their identities be protected when they provide information obtained in their purely personal lives," she said. But Steven Fishbayn, a Toronto lawyer representing one of the accused, said Monday that officers encounter risks all the time -- "that's the nature of the job that they're in." "Every police officer could have that concern (about possible retaliation) with every case," he said. Fishbayn added that Jekabsons, the Hamilton detective, did not meet the definition of a true confidential informant because he never explicitly told Niagara police at the outset that he was giving the information only on the condition of confidentiality. A spokesman for the Niagara Regional Police Service said he couldn't comment on the case because the conduct of the three detectives was under investigation by the London Police Service. - --- MAP posted-by: Richard R Smith Jr.