Charter Violation

For police officers who testify that they have been inadequately trained to observer the letter of the law in attempting to pursue their profession upholding public safety and security, it may be a subterfuge attempt to distract legal authorities from their course of action.  It certainly doesn't work very well.  There is an obvious conflict between professional conduct that seeks to painstakingly ensure that no laws have been disrupted in the pursuit of acquiring evidence against society's maladjusted anti-social elements, and police anxious to bring them to justice.

As has been evidenced yet again where a justice has dismissed evidence of a fairly serious nature obtained by an zealous law enforcement officer, enabling the accused to walk away from charges brought against them.  Ontario Court Justice Heather Perkins-McVey ruled that Const.Nicholas Benard of the Ottawa Police Service was guilty of committing a "serious" breach of Charter rights when he obtained a warrant to search the Robinson Avenue residence of Michael Parks.

Police have long relied upon a network of underworld characters who would be agreeable to releasing information to them that might prove to be useful in obtaining evidence against criminals.  That these informants are part of the criminal network of any city is obvious; they are on the inside of the wrong side of the law and as a result are privy to information not known to law enforcement agents.  Those law enforcement agents value the information given them furtively by informants.

And, when possible, use that valuable information to the best they are advantaged to.  In the case of Constable Benard, information he received from members of the criminal underworld alerted him to the fact that an illegal drug-handler was in possession of forbidden weapons.  The tip Constable Benard received from two confidential informants led him to seek a warrant from a justice of the peace.  Informed there was a backlog of such requests, he decided, after conferring with colleagues and superiors, to try another tack.

The second time around he informed the justice of the peace that the matter was one of urgency, involving a prohibited weapon.  Which enabled him to obtain a telewarrant, one issued in recognition of urgencies where it is impracticable for the applicant to appear before a justice of the peace or a judge. 
"I do question how the situation all of a sudden became urgent just hours after leaving the courthouse except that urgency is necessary to get a warrant", wrote the judge disparagingly.

"The officer said at no time did he receive information that the gun was going to be used or more.  Clearly no urgencies or exigencies existed or the warrant would have been submitted earlier", she wrote.  The grounds leading to the warrant request were lacking urgency.  Both informants described the man whose house was searched as a "back-end supplier" of cocaine to street dealers, with a handgun in his residence.  With ample time involved to proceed along approved methods.

The judge, while admitting she was "acutely aware" of a societal interest in prosecuting gun crimes, could not see her way clear to permitting the seizures from the home of the individual charged in view of the illegal manner of seeking and issuance of the search request warrant.  Exculpating himself, Constable Benard claimed never to have taken a search warrant course, with no formal education about warrants.

The issue here is that despite what has been taken as a "serious" breach of required methodology, police had seized a stolen semi-automatic Beretta handgun along with a Taser, six rounds of .22-calibre ammunition, two 12-gauge shotgun shells and a quantity of Oxycocet pills.  The charges brought against two men, the home owner, Michael Parks and his friend Michel Gallinger included possession of a loaded prohibited firearm which charge alone carries a three-year mandatory minimum prison sentence.

The evidence, however, was dismissed.  All counts against the two men were discharged.  And, although the judge was supremely concerned with the letter of the law, and had she not been and the men had faced justice with the help of the evidence, it is likely the lawyer retained by the two men might have invoked the very issue that the judge had identified.  Either way, it represents a travesty that criminals of this ilk can be identified, evidence brought, charges laid, and because of shoddy police work, they walk away.