Pubdate: Sat, 22 Jul 2017
Source: Ottawa Citizen (CN ON)
Copyright: 2017 Postmedia Network Inc.
Author: Shaamini Yogaretnam
Page: A3


Defence should have been present, judge conceded in granting

I ... mistakenly permitted him to bring the drug exhibits into my
office where he remained with those exhibits for approximately 20 minutes.

An Ottawa judge has declared a mistrial in a drug case after privately
questioning an investigating officer in chambers violated an accused's
right to be at his own trial.

Paul Masilamany filed the mistrial application on May 12, 2017, the
day the court was to decide on drug trafficking charges against him.

But just two days before, the lead drug officer, acting on a request
from the judge himself, attended Superior Court Justice Paul Kane's
office and brought drug exhibits for the judge's use in rendering his

"Regardless of the purpose or intention at the time, it is not
appropriate for a judge in a criminal trial to meet with or have a
verbal conversation with one of the investigating and testifying
officers about any evidence in that trial in the absence of the
accused and his counsel prior to rendering a decision," Kane wrote in
his decision to order a new trial. "To condone that would undermine
the public's confidence in the administration of justice."

In April 2013, the Ottawa police drug squad received reports of drug
activity by a man who police later identified as Masilamany. Police
began conducting surveillance, which continued, after a confidential
informant told police in December 2013 that Masilamany was selling
heroin and oxycodone. Police raided Masilamany's Porsche and home in
January 2014.

During the search, they found nearly 2,000 grams of marijuana split up
into bags; a 27-gram block of heroin mixed with caffeine under a sofa
cushion; $8,000 in cash hidden in the oven; another $725 in cash.
Police also found drug trafficking paraphernalia and a list of names
of multiple people with numbers beside each. Police alleged it was a
list of customer debt.

Masilamany was arrested and charged with possession of marijuana and
heroin for the purpose of trafficking, possession of money obtained by
crime and breaching conditions.

His trial ended in February 2017. And a decision date was set for

His co-accused in the drug charges, Chantelle Boudreau, was acquitted
of all charges against her.

"In finalizing its 28 page reasons for judgment for May 12, 2017, the
court wished to … observe the size of 9 bags of (marijuana) seized
during a warrant search … and … confirm the number of quantities of
substance seized during the warrant search … which subsequently tested
positive as containing heroin," Kane explained in his decision.

Kane said he wanted to see the "visual size" of the marijuana bags and
wanted to clarify what "appeared to be conflicting evidence whether
police during the warrant search of the residence seized one or two
quantities of heroin."

He asked the registrar to get the exhibits for his review. Drug
exhibits are kept by police and are not in the court's possession.

"I did not know or consider how the drug exhibits would be brought to
me," Kane said.

The Crown subsequently advised defence lawyers that Det. Doug Hill
"who was the team leader in this OPS drug investigation and had
testified in this trial would bring the drug exhibits to (Kane) at
10:30 a.m. on May 10, 2017."

Hill was one of eight officers who had testified during trial, was
part of the surveillance team watching Masilamany prior to the raid at
his home and had also been one of the officers who conducted the search.

In his decision, Kane said he was advised that an officer was at
reception on May 10 with the drug evidence. That officer was Hill.

"I did not request and had no knowledge that he or any other officer
who had testified in this trial would transport the drug exhibits
without another person being present," Kane wrote.

"I however mistakenly permitted him to bring the drug exhibits into my
office where he remained with those exhibits for approximately 20
minutes during my examination.

"In hindsight, upon seeing Det. Hill, I should have cancelled the
appointment to exam the drug exhibits, adjourned May 12, 2017 to
deliver my decision and requested production of such exhibits in open
court with the attendance of counsel and the accused given the
appearance of a testifying officer being alone with me prior to
rendering my decision on the charges."

The police evidence, as it turned out, didn't include the bags. Police
practice when multiple large quantities of weed are seized is to
remove a sample from each bag for testing, then empty what remains
into one large container.

Another officer had already testified at trial that this was the
process followed in this case. A court error marking the heroin
certificate of analysis meant that the same document was marked as an
exhibit twice, which Hill confirmed to Kane meant only one substance
seized during the search of Masilamany's home contained heroin.

Kane wrote that there was no discussion in his office about the
accused, the charges, the trial, the testimony at trial, how the drugs
in the office related to trial issues or his decision.

When court resumed days later, Masilamany requested a

While Masilamany had no issue with Kane wanting to see the drug
exhibits in both his and his lawyer's absence, he requested the
mistrial because conversation between a testifying officer and the
judge deciding his fate occurred without him, which contravened his
right to be present in court during all of his trial.

Masilamany argued the conversation involved evidence upon which
prosecutors were seeking his conviction, that the trial wasn't over
when the meeting happened, that the comments weren't recorded, were
made in his absence and involved evidence that impacted his "vital

Masilamany also argued that he was prevented in hearing the full case
against him, being able to respond in a"fair and open process" and
that mistrial was the only remedy.

Masilamany called no evidence during his trial and waived his right to
recall and cross-examine Hill.

Kane called the accused's exclusion from part of his trial

No date has yet been set for the re-trial.
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