Police breached accused’s rights, drug case tossed
A Mill Bay man has been acquitted of drug trafficking and firearms offences after a judge found police breached his charter rights in almost every step of their investigation.
Frank Whitton was arrested on April 24, 2014, and charged with possession of cocaine, MDMA and marijuana for the purpose of trafficking, production of marijuana, and several firearm offences.
On Tuesday, B.C. Justice Brian MacKenzie acquitted Whitton after finding that admitting evidence in the face of multiple charter breaches would bring the administration of justice into disrepute.
But before he left the courtroom, MacKenzie had strong words for Whitton.
“I want to emphasize that no one in this courtroom is naive and there’s little doubt you were involved in the serious business of drug trafficking in the spring of 2014. But as I referred to in many, many cases, you have been the beneficiary of our criminal justice system. Charter rights are guaranteed to all people accused of criminal offences, even when that means persons who commit offences are not convicted.
“You should, however, be under no illusion. I think that given this history you might well be under the scrutiny of law enforcement for some time in the future. You should be aware that if you are ever convicted of offences similar to these ones, I would anticipate a lengthy period of incarceration if convicted.”
In previous rulings, MacKenzie agreed with defence lawyer Richard Neary that West Shore RCMP officers withheld important information from an authorizing judge when they applied for a tracking warrant on Whitton’s vehicle. Police had information that Whitton ran a courier business — which would account for the numerous of short stops made by his truck — but they failed to include that information in their application for a search warrant.
MacKenzie also found Whitton was arrested on the basis of alleged observations made by police officers on April 24, 2014, but no officers made any written record of what they actually observed.
The application for warrants to search Whitton’s house and apartment no longer had enough evidence to justify the searches, said the judge.
MacKenzie noted an overall pattern of charter breaches and unprofessional conduct by police during the investigation, including their lack of concern for record keeping and details.
“Justice is blind … but justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct.
“The public must have confidence that invasions of privacy are justified in advance by a genuine showing of probable cause,” MacKenzie said. “To admit the evidence in this case and in similar cases in the future would undermine that confidence in the long term.”
West Shore RCMP said Tuesday that they were unable to respond to a request for comment.