Pubdate: Fri, 24 Apr 2015
Source: Toronto Star (CN ON)
Copyright: 2015 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Marco Chown Oved
Page: GT1

COP 'LIED' TO GET WARRANT, JUDGE RULES

Justice of the peace was 'misled' by Peel drugs and gangs officer

Using uncommonly frank language, a Superior Court judge said a Peel
police officer "misled" a justice of the peace in order to obtain a
search warrant for a marijuana grow-op, then "lied" about his
investigation on the stand afterward.

"I cannot accept Officer (Aamer) Merchant's evidence," Justice Gordon
Lemon wrote in a ruling last month. "He misled the justice of the
peace. . . . Officer Merchant lied to the court."

The Star has been chronicling judges' rulings that have found police
officers lied on the stand since the 2012 award winning investigation,
"Police Who Lie."

In response to the investigation, then attorney general John Gerretsen
established a policy requiring Crown attorneys to report such
decisions to their hierarchy, which can then refer the matter to the
relevant police force. After its own investigation, the police force
may press Police Services Act charges against deceitful officers,
which carry a maximum penalty of dismissal.

The process may be long, but it nevertheless represents a functional
mechanism for holding Ontario police officers to account for their
conduct in trials.

However, the Ministry of the Attorney General will not confirm whether
it has conducted a review of a particular ruling.

Nor will the ministry say whether it has referred the decision to a
police force, according to a spokesman, Brendan Crawley. That makes it
difficult for the public to determine whether a specific officer is
being investigated.

A judge found Const. Aamer Merchant "lied" in court about a grow-op
investigation.

The only way to be sure an officer is being held to account is if the
force decides to file charges and hold a public hearing - a process
that can take months, if not years.

Merchant relayed a message to the Star on Thursday declining to
comment for this story. The Public Prosecution Service of Canada,
which prosecutes drug cases, couldn't confirm whether the case had
been referred to the Peel Police or whether they employ a referral
policy similar to provincial Crowns.

Peel Regional Police were not aware of the judge's ruling until they
were contacted by the Star, Staff Sgt. Dan Richardson wrote in an email.

"Since learning of this decision, Chief (Jennifer) Evans has directed
that a review be conducted surrounding these circumstances," he wrote.

The Peel Regional Police Association did not respond to a request for
comment.

Merchant is a drugs-and-gangs officer with 12 years of experience on
the force.

In front of Justice Lemon, Merchant testified that he had applied for
a warrant about 30 times in his career, which involved preparing a
document called an "Information to Obtain" - or ITO - to present to a
justice of the peace.

In January 2011, after receiving a tip from a confidential informant,
Merchant drew up an ITO to request a search warrant. The warrant was
granted and police raided a house in Markham the same day, finding "a
quantity" of marijuana plants in the basement, Lemon wrote in his ruling.

Because a tip from an informer isn't sufficient to grant a search
warrant, Merchant was required to gather additional evidence for his
ITO.

"Officer Merchant set out in the ITO that he 'was conducting
surveillance' at the two residences in question. What he did not say
was that he simply drove by those two residences," wrote the judge.
"(Merchant) agreed that the word 'surveillance' was a 'strong word'
and not full, frank and fair."

Merchant also wrote in his ITO that the suspect "has a criminal record
for violence, offence weapons, break and enter, drugs, other Criminal
Code and other Federal Statutes," according to the ruling.

During the preliminary inquiry, the judge heard that the document from 
which Merchant had obtained this criminal information had the words 
"Caution: this is not a criminal record" and "No convictions" written on 
the front page.

Merchant told the court he did not notice these disclaimers until the
pre-trial.

"The (criminal) record was a sham," wrote Lemon. "As I listened to
Officer Merchant give his evidence . . . I found that I simply did not
believe what he had to say.

"The conduct of Officer Merchant is so subversive that (it) requires
that the warrant be quashed." The marijuana case is still ongoing.
Members of the legal profession who have come across
less-than-truthful testimony from officers say the policy for referral
is far from transparent. Lawyer Enzo Rondinelli says prosecutors
assure him the policy is in place, but won't confirm that it's been
used in a particular case.

"'Don't worry, you can trust us' policies are understandably met with
skepticism," he said.

"A more formal mechanism must be put in place by the Legislature to
ensure that a process is fair to the police in meeting such
allegations, but also (should) include a reporting requirement
detailing the number of complaints and their ultimate outcome. It is
the only way you can get full accountability in this area."
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MAP posted-by: Matt