Abuse of Process

To the ordinary person on the street, the individual who reads newspapers, someone who is not familiar with the letter of the law, nor the manner in which our local security agents proceed in assembling evidence and data to enable criminal prosecutions to take place to make ours a better and safer community, it comes as a shock to read that a judge, upholding the law, tosses critical evidence to try a case.

It's happened often enough, and each time it does occur, it seems like a surprising outcome. Criminal prosecution cannot proceed without the critical evidence, or prosecution proceeds, but fails to make the impact it should, to produce a meaningful result, holding criminals to account for their actions. So why does this happen? Police officers unaware of the need to secure a warrant?

Police officers in such hot pursuit of evidence that they feel side-lining lawful requirements will be overlooked? Whatever the cause the end result is unfortunate. Ontario Superior court Justice Julianne Parfett issued a written ruling that two police officers, detectives Kevin Jacobs and Doug Edgar, committed acts that would "shock the conscience of the community".

One suspects the judge attributes far too tender a sensibility with respect to the community's conscience in this instance. More people are more likely shocked by the fact that she has decided to set aside evidence against four men accused of running a massive drug ring. So the bricks of cocaine and the handguns unearthed are to be exempted from the evidential file.

The search the two detectives undertook of a private home that they were informed had been vacated, and indeed presented as empty of its former residents, was unlawful according to Justice Parfett, for they hadn't secured a prior warrant. The detectives testified that there was no response to their knock at the door. A neighbour informed them the house was empty of occupants.

They discovered the doors to be unlocked and decided to enter, they testified, to see if squatters were present or whether a break-and-enter had occurred. What they found in their search was 12 kilograms of cocaine along with wrappings from other bricks of cocaine, cocaine and handguns on a closet shelf, along with ammunition and $900 in cash.

The discovery not totally unexpected in light of the fact that the former occupants were well known to the detectives as being involved in drug activities. Furthermore an internal police database indicated drug activity. Nonetheless Justice Parfett ruled the evidence to be excluded:

"A private residence is sacrosanct. It is trite law that 'a man's home is his castle' and that residents are free from state interference when they are in their homes."

This was evidence to be used as part of a 16-month undercover operation targeting a network distributing drugs, with ties to the Hells Angels and the Montreal mafia. The men involved have pleaded not guilty to 35 charges, including conspiracy to traffic drugs, association with a criminal organization, weapons offences, drug trafficking and possession of the proceeds of crime.

The judge decided to exempt the evidence from use at trial, understanding quite well that to do so would lead in all likelihood to the dismissal of some of the charges. How does that benefit society and justice?