Mistrial declared after judge questions officer

Defence should have been present, judge conceded in granting request

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 decision.

“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 May.

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 mistrial.

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 interests.”

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 “inadvertent.”

No date has yet been set for the re-trial. syogaretnam@postmedia.com

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