Case goes to pot over warrant problems
Lawyer says bigger issue is that privacy is being eroded
A Superior Court judge had some harsh words for police as she excluded evidence from a raid on a rural marijuana grow-op.
Justice M.J. Donohue took issue with the warrant that allowed Niagara Regional Police to search a Grimsby farm in April 2016, where they found 521 marijuana plants, 394 morphine pills and 46 oxycodone pills.
Using the evidence after police had breached charter rights of the accused in obtaining the warrant would bring the administration of justice into disrepute, Donohue ruled.
The Crown had no choice but to withdraw charges against a 57year-old man and a 50-year-old woman.
“I find that this misleading and negligent behaviour of the police favours exclusion of the evidence,” Donohue wrote in a decision she issued in September. “These breaches in 2016 are in the face of a number of local cases giving clear instructions to the NRPD on what is required for a proper ITO (information to obtain) issue.”
Veteran criminal defence lawyer Brenda Sandulak, who represented the accused along with her partner Ron Charlebois, said while guilt or innocence of her clients is paramount to her, the public should be concerned as well.
“At the end of the day, yes, the police found drugs, but the shoddy investigation could very well have come up empty — they got lucky,” said Sandulak.
“The investigation was so haphazard that it quite frankly scares me. The police went into a house with a grand total of 32 minutes’ surveillance and a bunch of hydro records they didn’t understand.”
Donohue broke down the list of mistakes by the police into minor and major concerns. The examples filled almost an entire page of the judgment.
“People are of two minds over this,” Sandulak said. “There are a lot of people who say I don’t care what the police do. They are protecting us from the bad guys — until it happens to them, or they have to find a lawyer for their kids.”
Sandulak characterized the judge’s decision as thorough and well written. She said the judge took pains to set out what the
police need to do when they seek a warrant.
“This case was really flawed,” she said. “This one was over the top. I don’t think I’ve ever seen a warrant as bad as this one.
“The sad thing is that there is nothing in the warrant that’s new. They weren’t doing cuttingedge work.”
Nonetheless, there is an art to writing a proper warrant that requires both real-world experience and knowledge of what the court requires.
The NRP has experienced a wave of unexpected retirements in recent years that may also have exacerbated the situation. Sandulak has also heard from some senior officers that resources are an issue.
“Whatever the situation, if you have officers writing ITOs, and they don’t have the skills or training or the experience to do so, it is going to be a problem.”
NRP Chief Bryan MacCulloch has been a police officer for 33 years. Before serving as deputy chief of operations, he oversaw units in such areas as homicide, fraud, tactical and marine. He acknowledged the judge’s decision without throwing his officers under the bus.
“I understand that the court has made a ruling, and we respect that decision,” he said. “We are committed to taking the opportunity to review our investigative processes and what took place in this instance.”
He said it was important to him as the chief — as well as his 640 front-line officers and detectives — that the NRP maintain and implement best practices.
“Some of our officers do carry large caseloads at times, and that can bring challenges. We will continue to work to evaluate the demands on our resources and address those needs as best as we can.”
MacCulloch added it is critical for the NRP to be open and learn from any experience, but that it would be inappropriate as chief to comment further on the specific findings in this case.
“Every once in a while,” said Sandulak, “I will get a warrant, and I will say, ‘Wow, this police officer did a great job — I don’t know what I am going to be able to do for my client.’
“In this case, what officers did amounted to 32 minutes of observations. They had a couple of tips, which were so basic that there wasn’t much to them, and if the tip is weak, as it was here, they need to do some serious corroboration — and that certainly takes more than 32 minutes.”