Pubdate: Wed, 25 May 2016
Source: Ottawa Citizen (CN ON)
Page: A3
Copyright: 2016 Postmedia Network Inc.
Author: Andrew Seymour


Appeals Court Says Charter Violations Necessitated a Verdict of Not Guilty

For the second time in less than two weeks, Ontario's top court has 
overturned a drug conviction after concluding Ottawa police officers 
seriously violated the rights of a suspect.

Eneida Pino was convicted of possession for the purpose of 
trafficking after Ottawa police seized 50 marijuana plants from the 
trunk of her car following a dramatic takedown in June 2010. The 
officers had been following Pino, a 43-year-old cleaning lady, after 
watching her leave a house on St. Claire Avenue that they suspected 
to be a marijuana grow operation.

Pino and a man who was in the car with her described during the trial 
how an "aggressive" officer wearing a balaclava and police vest 
blocked the path of their car, shouted and pointed a gun at them. The 
officer in question denied that he had pulled his handgun - a claim 
that judge David Paciocco concluded was a lie.

The same officer who pulled the gun then admitted he relied on his 
memory from a decade on the police force when reading Pino her 
rights, but he couldn't recall exactly what he said. Paciocco 
concluded he likely failed to advise Pino of her right to immediate, 
free legal advice.

Pino then spent 5 1/2 hours alone in a cell without a call to a 
lawyer because police feared she might compromise the execution of a 
search warrant on the house.

Paciocco concluded that police violated her rights in multiple ways, 
including carrying out the search in a dangerous, unnecessary and 
unreasonable way and failing to give her prompt access to a lawyer, 
but allowed the marijuana to remain in evidence since the breaches 
weren't serious enough to justify gutting the prosecution's case against her.

But in a decision released Tuesday, the court of appeal disagreed.

Relying in part on a textbook co-authored by the judge himself, the 
appeal judges found that the Charter breaches, taken as a whole, were 
close to the "extreme end of seriousness" and the seized marijuana 
shouldn't be used against Pino.

"Admission of the evidence in the light of the seriousness of the 
breaches, and especially the officers' dishonest testimony, may send 
the message that the justice system condones this kind of conduct," 
said the court of appeal. "This is one of those cases in which the 
court's need to disassociate itself from the Police's conduct is 
greater than society's interest in prosecuting Ms. Pino for 
possessing 50 marijuana plants." The court then quashed Pino's 
conviction and found her not guilty.

It was the second time the appeal court has overturned a decision 
this month after finding police violated an accused's rights. An 
accused drug dealer who should have been found guilty of trafficking 
cocaine instead had his conviction wiped out after the appeal court 
found there had been repeated and serious breaches of his Charter rights.

In that case, the court found Philip McGuffie not guilty after Ottawa 
police arbitrarily detained him for half an hour without reasonable 
grounds to arrest him, failed to let him to call a lawyer when they 
should have and searched him illegally.

Both Pino and McGuffie were represented by Ottawa lawyer Howard 
Krongold. "Both of these cases involve police misconduct so serious 
that the Court of Appeal felt that it had the potential to bring the 
administration of justice into disrepute," said Krongold.

"In both cases the trial judges were limited by the evidence before 
them, but it is interesting to note that in each case the trial judge 
found there was no evidence of a systemic problem. I think it's fair 
to ask how many 'isolated incidents' there must be before we 
acknowledge that there may be a problem with how police are trained, 
and with the policing culture at work in our city."
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