HTTP/1.0 200 OK
Content-Type: text/html
Judge Scolds Officer For Lying In Court
Pubdate: Thu, 08 Sep 2005
Source: Chronicle Herald (CN NS)
Copyright: 2005 The Halifax Herald Limited
Contact: http://www.herald.ns.ca/
Details: http://www.mapinc.org/media/180
Author: Sherri Borden Colley
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
JUDGE SCOLDS OFFICER FOR LYING IN COURT
Charter Violations Lead To Dropped Charges
A metro man who admitted in court to being involved in criminal
activity will not be prosecuted on a slew of drug and weapons charges
because a Halifax Regional Police officer lied on the stand and
officers unlawfully searched the man's home.
In a strongly worded decision made public Wednesday, Justice Gordon
Tidman of Nova Scotia Supreme Court particularly rapped the knuckles
of Const. Scott Fairburn, whose testimony the judge found was less
than truthful in the criminal case against Steven Douglas Skinner.
Mr. Skinner, 32, formerly of Lake Charles Drive in Dartmouth, was
arrested on Nov. 30, 2003, after Halifax Regional Police searched his
home looking for his friend, Stephen Francis Anderson, for a parole
violation.
In May, Justice Tidman, after hearing a pretrial motion by the
defence, ruled that evidence police seized from Mr. Skinner's home
without a warrant was inadmissible at trial. The judge found that
police waited too long to advise Mr. Skinner of his rights and did not
have reasonable grounds to get a search warrant.
"In the court's view, both the initial trespass on the property and
the entry of the home of the accused were unlawful," Justice Tidman
wrote in a 16-page decision.
That exclusion of evidence left the Crown with no case, and in July it
formally withdrew the charges.
Until now, a publication ban has prevented this court proceeding from
being reported.
In his decision, Justice Tidman said he "had great difficulty" with
the police evidence, noting that four officers who were at the scene
disagreed on all but one element of what occurred at the time of Mr.
Skinner's arrest.
"What I found most disconcerting was the evidence of Const. Fairburn,
which I have found to be not wholly credible," the judge said. "Const.
Fairburn's testimony at the hearing in the court's view was directed
to what he thought would best serve to save this case."
Const. Fairburn had testified that Mr. Skinner was read his rights
after a second gun was found in his home but he changed his statement
and said it took place immediately after he found the first gun.
Const. Fairburn also indicated that he searched the attic before
finding any guns, but at the hearing he said the attic had not been
searched when the first gun was found.
At the hearing, Const. Fairburn also said the first gun was standing
uncovered in the corner of the laundry room closet, but he had earlier
indicated, as others testified, that the gun was found under clothing.
"All of these inconsistencies and the testimony of Const. Fairburn
lead me to conclude that Const. Fairburn was being less than frank
with the court," Justice Tidman wrote.
"With very few exceptions, my experience is that police officers make
a sincere effort to recall events accurately. Unfortunately, I find
Const. Fairburn's testimony to be another exception."
Const. Fairburn was one of seven officers who went to Mr. Skinner's
home looking for Mr. Anderson. Police did not have a warrant to search
the home but Const. Fairburn told Mr. Skinner it would be "easier" if
he allowed them to do so.
Mr. Skinner told the officers that Mr. Anderson was not there but
allowed them in to look for him. When Const. Fairburn and Const. Joel
Allen went to the bedroom, Const. Fairburn pulled a blanket off the
bed and discovered more than $6,000 lying loose, along with a white
bulletproof vest. Const. Fairburn then went to the laundry room, where
he found an unloaded double-barrelled shotgun and ammunition.
After that gun was found, Mr. Skinner led police to a loaded
pump-action shotgun under the bed. Moments later, Const. Fairburn
retrieved from under the bed a kit bag containing pills and a bag of
marijuana.
Mr. Skinner never asked police to leave his home.
It wasn't until after the second gun and drugs were found that Mr.
Skinner was arrested, given a police caution and told of his right to
speak to a lawyer, which he chose not to do.
He was subsequently charged with one count each of possessing
marijuana and PCP for the purpose of trafficking, possession of a
12-gauge Maverick pump firearm and another 12-gauge shotgun without a
licence, two counts of careless storage of the firearms and careless
storage of ammunition.
The judge called the charter violations by police "serious."
"What makes the violation more serious in the court's view is that the
police knew they had no grounds to legally search the accused's
premises but proceeded regardless and then obtained entry only after a
veiled threat to the accused that it would be 'easier' if he consented
to their entry," the judge wrote.
Crown attorney Tim McLaughlin argued that a warrant was unnecessary as
Mr. Skinner consented to the search of his home so police could look
for Mr. Anderson. But the judge found that the Crown had not
established that Mr. Skinner's consent was voluntary.
Josh Arnold, one of Mr. Skinner's lawyers, said Wednesday that the
ruling means Mr. Skinner is "completely acquitted of all charges" and
some property will be returned to him.
It's not known whether any sanctions have been imposed on Const.
Fairburn or if Halifax Regional Police have undertaken an
investigation into his conduct. Spokesman Const. Mark Hobeck said the
deputy chief is reviewing the judge's decision.
"Having a kind of cursory glance at it . sometimes (officers) make
decisions based on what's presented in front of them without the
luxury of hindsight," Const. Hobeck said.
- ---