Pubdate: Wed, 06 May 2015
Source: Sudbury Star (CN ON)
Copyright: 2015 Osprey Media
Contact: http://www.thesudburystar.com/letters
Website: http://www.thesudburystar.com
Details: http://www.mapinc.org/media/608
Author: Harold Carmichael
Page: A1

POLICE VIOLATED MAN'S RIGHTS

Sudbury Judges Tosses Out Evidence Improperly Obtained in Grow Op Case

A Sudbury judge has tossed out evidence against a man accused of 
running a marijuana grow operation because Greater Sudbury Police 
officers failed to properly obtain a search warrant.

"There were no extingent circumstances," Justice Richard Humphrey 
said in his 19-page ruling, released Tuesday. "Their actions were at 
worst wilful and at best cavalier. There was no issue of ignorance of 
the law as evidenced by the fact that they did eventually proceed to 
obtain the warrant.

"The law of search and seizure into a private dwelling had long been 
well-established and there could have been no confusion about their 
lack of authority to enter without a warrant."

Humphrey said the actions of investigators breached Brian Kitchin's 
rights under the Canadian Charter of Rights and Freedoms. Humphrey 
said Section 8 of the Charter protects people and not places.

"The court concludes that the impact on the Charter protected 
interests of the accused was profoundly intrusive and serious ... 
given the cumulative effect of the breaches in the particular 
circumstances of this case, the truth seeking function of this one 
criminal trial must yield to maintenance of the integrity of the 
whole of the criminal trial process ...

"This court concludes, on balance, that the unauthorized evidence 
could bring the administration of justice into disrepute. The 
evidence obtained upon execution of the search warrant shall 
therefore be excluded from the trial." As a result, assistant Crown 
attorney Philip Zylberberg told the judge the Crown no longer had 
evidence to present and that Kitchin, 27, should be acquitted of his 
charges, which were laid Oct. 7, 2011.

Greater Sudbury firefighters called police Oct. 6, 2011, after they 
discovered a marijuana grow operation while putting out a fire in a 
Kingsway apartment. Humphrey said officers could have obtained a 
search warrant properly, but failed to do so.

"On the evidence before this court, it is clear that the unauthorized 
searches conducted by the police service were not inadvertent," 
Humphrey ruled. "Rather, they were purposive and repeated. The phone 
call to Staff Sgt. (John) Somerset by Platoon Chief (Tony) Thibeault 
amounted to an invitation to attend at the scene of the fire, in 
effect to have a look-see. That invitation was quickly and casually accepted.

"The design and sole purpose was to search for potential evidence. 
There was no articulable reason for the two officers to conduct their 
searches except for the purpose of gathering evidence to substantiate 
the warrant. The unauthorized entry into the private residence 
involved the evidentiary aid of a camera and the seizure of the 
business card identifying the accused. Const. Castle's presence in 
the residence was for a period of several hours. Officers with 
experience in investigating drug cases were purposely tasked to attend.

"The police service had ample time to properly investigate further 
into the evidence of the fire officials, which if done might have 
been used to substantiate the warrant. Given the circumstances of the 
fire, the ongoing investigation and the presence of police personnel 
guarding the scene, there was little or no chance of interference 
with the evidence which would have precluded them."

Humphrey also said information police presented to a Justice of the 
Peace to obtain the search warrant was misleading.

"It suggested in paragraph 4(b) that the purpose of police attendance 
at the resident was to 'assist' the fire department at which point 
evidence of the grow operation was located," the judge said. "This is 
contrary to this court's conclusion as gleaned from the 
cross-examination of Staff Sgt. Somerset. To argue otherwise is to 
completely discount his evidence that he asked Const. (Ryan) Hutton 
to attend with the camera and to provide any findings to the Drug Unit.

"The information to obtain prepared by Const. Hutton lacked any 
reference to the effect that he himself had unauthorized entry into 
the residence. It contravened the principle of full and frank disclosure."

While charges against Kitchin were dropped, Zylberberg did ask for a 
forfeiture order concerning all of the items seized by police from 
the apartment and Humphrey granted it.

Defence lawyers Berk Keaney and Michael Venturi did not oppose the request.

Kitchin was facing 18 drug and weapons charges, including marijuana 
possession,marijuana production, unauthorized possession of a weapon, 
possession of a weapon for a dangerous purpose, careless storage of a 
firearm and possession of a prohibited weapon.

While fighting a fire in a 10-unit apartment building at 1264 The 
Kingsway on Oct. 6, Greater Sudbury firefighters came across a 
40-plant marijuana grow operation in one the apartments. The next 
day, Greater Sudbury Police officers executed a search warrant and 
seized 40 plants with an estimated street value of $40,000, packaged 
marijuana, growing equipment, three handguns, a prohibited knife and 
a collapsible baton.

Keaney said in an interview after court closed that Kitchin's rights 
under the Charter were violated based on how police went about 
collecting their evidence, and Humphrey acknowledged that in his decision.

"What's occurred here is the court upheld the Charter right and the 
importance of Charter rights is not to be just overlooked in a 
warrant case," said Keaney. "It's the recognition in the long-term, 
the administration of justice takes precedence."

Keaney said the ruling reaffirms that police must collect evidence in 
a proper manner.

"What's the purpose of the Charter if the court doesn't look at (how 
police went about) collecting the evidence," he said. "It's about all 
of our rights."
- ---
MAP posted-by: Jay Bergstrom