Pubdate: Fri, 01 May 2015
Source: Record, The (Kitchener, CN ON)
Copyright: 2015 Metroland Media Group Ltd.
Contact:  http://www.therecord.com/
Details: http://www.mapinc.org/media/225
Author: Gordon Paul
Page: B1

JUDGE CHASTISES OFFICER FOR 'FLAGRANT' CHARTER VIOLATIONS

Drug, Weapon Charges Dropped After Evidence Ruled Inadmissible

KITCHENER - A judge threw out key evidence in a Kitchener drug case 
after ruling a police officer made "deliberate and flagrant" 
violations of the Charter of Rights and Freedoms.

Justice Gary Hearn also concluded the officer tailored his evidence 
to try to justify his actions.

"Members of the public ... should expect that when they are detained 
by the police or questioned by the police ... that their charter 
rights will be respected and they will not be detained nor arrested 
without reasonable and probable grounds," Hearn wrote in a ruling last week.

Charges of drug trafficking and possession of an illegal weapon 
against Shazam Hanif were dismissed after Hearn ruled marijuana and a 
spring-loaded knife seized from a car Hanif was in were inadmissible 
due to charter breaches.

Waterloo Regional Police Const. Adam Kinghorn detained Hanif just 
after midnight on Nov. 7, 2013, after Kinghorn smelled alcohol coming 
from an Acura parked at Kingsdale Community Centre on Wilson Avenue, 
Kitchener. Three other people in the car were also detained.

"When out of the vehicle, none of the occupants were given their 
rights to counsel," Hearn said in a 38-page ruling. "None of the 
occupants were advised of the reason for the detention, save and 
except it was apparently to enable the officer to assess the driver's 
sobriety and isolate the odour of alcohol."

After the four were detained, police searched the car and found the 
knife, which had a three-inch (7.6centimetre) blade, and a black 
nylon bag with a large amount of marijuana, a scale and grinder. 
Hanif was handcuffed and charged; the other three were released.

The judge ruled Kinghorn's actions "were deliberate and flagrant 
violations of Mr. Hanif 's charter rights."

Hearn called the search of the car "unreasonable," Hanif 's detention 
"unlawful" and the arrest "arbitrary."

When Kinghorn arrived at the scene, there was no indication of 
criminal activity, Hearn said. Hanif was sitting in the driver's seat 
but the car was not running.

"There was no sense of urgency. Mr. Hanif and his colleagues were 
simply sitting in a vehicle in an area that technically was a 
trespass but that certainly was not the officer's main concern. In 
fact, I find it was more of a justification offered by the officer 
for his actions."

Hearn said Kinghorn, the investigating officer, tried to "legitimize 
his conduct throughout his evidence. I found that he has tailored his 
evidence to reach that goal. His conduct from the get-go when he 
first approached the vehicle and demanded identification from 
everyone was unjustified and/or unexplained."

Kinghorn maintained his actions were out of concern for officer 
safety but Hearn concluded that was "simply a ruse" to justify 
entering the car.

The officer testified one of the people in the car "had a history 
with robbery," Hearn said. The judge said it wasn't until cross 
examination that Kinghorn acknowledged the robbery charge was pleaded 
down to theft.

"Const. Kinghorn's safety concerns were vague, not well defined and 
in no way equate with objectively reasonable grounds to believe 
officer safety was at risk ..." the judge said.

"I find Const. Kinghorn's evidence was presented with a mission. That 
mission was to have the court find the officer's actions were well 
considered, were for officer safety purposes at all times ...

"To be clear, I have every concern for officer safety but in this 
case it seems to me Const. Kinghorn has overstated that concern 
significantly and used it as a justification and ploy for his 
intrusion into the vehicle. He expanded the investigation into a 
broader and unrelated investigation, and he had no basis for doing so 
other than a hunch."

After tossing the evidence, Hearn said the Crown can no longer prove 
its case. The charges were dismissed.

The decision to exclude evidence is not taken lightly, Hearn said. 
"If reliable evidence is excluded from a trial, there can be serious 
consequences to our justice system as a result of the inability of 
the Crown to prosecute the matter," he said. "However, also 
consideration must be given to the longer term effect on the justice 
system of prosecuting a crime where evidence was procured through 
serious violations of an accused's rights."

Hearn cited a case where a judge ruled that a severe charter 
violation increases the need to exclude evidence "to preserve public 
confidence in and ensure state adherence to the rule of law."
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MAP posted-by: Jay Bergstrom