Pubdate: Wed, 26 Nov 2014
Source: Record, The (Kitchener, CN ON)
Copyright: 2014 Metroland Media Group Ltd.
Contact:  http://www.therecord.com/
Details: http://www.mapinc.org/media/225
Author: Gordon Paul
Page: B1

POLICE CRITICIZED FOR ILLEGAL SEARCH

Evidence From Search of Barn Where Hells Angels Member Lived Tossed 
Because No Warrant Issued

KITCHENER - A judge has reprimanded Waterloo Regional Police for 
illegally searching for guns in a barn where a Hells Angels member 
occasionally lived.

Justice Gerald Taylor made it clear in a ruling that the Charter of 
Rights and Freedoms protects everyone - even members of outlaw biker gangs.

"The charter does not just apply to law-abiding citizens," Taylor 
wrote in the ruling that threw out all of the evidence from one 
search in a high-profile guns-and-drugs case against biker Frank Strauss.

"There is no exception for members of criminal organizations who are 
illegally in possession of firearms and ammunition."

A Feb. 29, 2012 search of a barn sometimes lived in by Strauss turned 
up 17 guns, 4,500 rounds of ammunition, drug debt lists, marijuana 
and traces of cocaine.

Taylor tossed the evidence because police failed to get a warrant to 
search the barn, located at 2078 Erbs Rd. in Perth County, near 
Amurlee, about 25 kilometres west of Kitchener.

Strauss, who was raised in Kitchener, is a full-patch member of the 
London chapter of the Hells Angels.

Although evidence from one search was not allowed, evidence from a 
later search was ruled admissible.

Strauss was convicted of 17 offences - most involving drugs and guns 
- - in the Superior Court of Justice in Kitchener on Tuesday. He will 
be sentenced on Wednesday.

Taylor criticized Regional Police Det. Sgt. Andrew Harrington for not 
getting a search warrant for the first search. The officer was aware 
of the law requiring a search warrant but "chose to ignore it," 
Taylor wrote. He concluded the police search was a "very serious" 
breach of Strauss's charter rights to not face unreasonable search and seizure.

"Det. Sgt. Harrington, a senior police officer with supervisory 
responsibilities, knowingly entered on private property without 
seeking a warrant or the property owner's consent," the judge said.

"He then entered a locked building for the purpose of conducting a 
search knowing that he did not have reasonable grounds to believe 
that the evidence of the commission of an offence was located in the building."

Taylor concluded the breach of Strauss's rights was made even more 
serious by Harrington not seeking advice from a Crown attorney before 
or after he entered the barn.

Harrington earlier testified he entered the barn without a search 
warrant because of a perceived threat to public safety.

Police were looking for more than two dozen guns and a stockpile of 
ammunition stolen from a Cambridge house and Strauss had been 
implicated. Harrington said he saw it as an "emergency situation," 
given that a Hells Angels member might have the guns.

"Det. Sgt. Harrington acknowledged ... it was his view that the ends 
- - meaning recovery of stolen firearms and ammunition from a member of 
the Hells Angels - justified the means, which was the warrantless 
search," the judge wrote. Police knew they had no grounds to get a 
search warrant, Taylor wrote.

Evidence seized in the second search, on March 6, 2012, was ruled 
admissible because police had a search warrant. In a room in the 
barn, police found nine guns, almost 10,000 rounds of ammunition, 8.2 
kilograms of cocaine, 53 kilograms of marijuana, 31methamphetamine 
pills, 106 grams of crystal meth and $29,000 cash.

"Stolen firearms and ammunition in the hands of an outlaw motorcycle 
gang is a serious concern," Taylor wrote.

The exclusion of evidence may "undermine the truth-seeking function 
of the justice system," he wrote, referring to a Supreme Court of 
Canada ruling. "However, as the Supreme Court of Canada in Grant 
(2009) also points out, this is a two-edged sword. Exclusion of 
reliable evidence of the commission of a serious offence will have an 
immediate impact on how members of society view the justice system, 
but it is the long-term repute of the administration of justice that 
must also be taken into consideration."

On the issue of whether the ends justify the means, as Harrington had 
suggested, the Supreme Court of Canada made it clear that "the 
weighing exercise is not one of comparing the misdeeds of the police 
with the heinous nature of the offence charged," Taylor wrote.

The judge quoted the Supreme Court as saying: "We expect the police 
to adhere to higher standards than alleged criminals."

He concluded allowing the evidence would do more harm than not allowing it.

Taylor made the ruling on Nov. 4. It was governed by a publication 
ban until Strauss was convicted on Tuesday.
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MAP posted-by: Jay Bergstrom