Another loony decision

[Wilber]

METRO VANCOUVER/CKNW(AM980) - Attorney-General Wally Oppal says he understands any frustration the RCMP must feel after a Judge threw out marijuana trafficking charges against a Surrey man after Mounties broke down a door of his home and entered with guns drawn.

Justice Catherine Bruce ruled the RCMP team violated the knock and announce rule, giving the person inside the home enough time to answer the door before police move in.

In March 2004, police knocked on the front door of Van Dung Cao's home, while another team bashed down a garage door and entered with their guns out. The Mounties did have a search warrant.

Pppal says he wants to review Bruce's ruling before offering more comment, but: "Should we as a society condone police going into people's residences without any kind of proper authorization? That's the other side of the coin."

Police discovered more than 700 pot plants in the basement of the home, but won't be able to use them as evidence since Bruce ruled them inadmissible.

[M.Dancer]

It seems to me that the police going in without announcing who they are could be quite dangerous to the police. What if the suspect happens to be armed and he thinks he's being hit be a rival gang? Or if the police got the worng address and they happen on to a law abiding citizen who happens to own a shotgun?

I don't think the charges should be dropped but I do think the policy should be abided by.

[Wilber]

It seems to me that the police going in without announcing who they are could be quite dangerous to the police. What if the suspect happens to be armed and he thinks he's being hit be a rival gang? Or if the police got the worng address and they happen on to a law abiding citizen who happens to own a shotgun?

I don't think the charges should be dropped but I do think the policy should be abided by.

Since it is the police who are putting their lives in danger, it is their judgement call. Not some donkey sitting on a bench wearing a black robe.

[guyser]

Since it is the police who are putting their lives in danger, it is their judgement call. Not some donkey sitting on a bench wearing a black robe.

So you are okay with a bunch of dead cops who stormed the wrong house and got blown away?

And, no charges against the homeowner?

The "donkey" is upholding your rights. Shame you dont see that.

[Wilber]

So you are okay with a bunch of dead cops who stormed the wrong house and got blown away?

And, no charges against the homeowner?

The "donkey" is upholding your rights. Shame you dont see that.

The police had a warrant from a judge to enter that house. Are you saying that a judge is more qualified to access the risks involved than the police? It's not the judge who is going to wind up dead if the judge is wrong.

Edited February 7, 2008 by Wilber

[FTA Lawyer]

Since it is the police who are putting their lives in danger, it is their judgement call. Not some donkey sitting on a bench wearing a black robe.

I don't know anything about the facts of this case, but police can get express authorization in a search warrant to do a "dynamic entry". That is, if the police have reason to justify not following a knock and announce procedure in a given case, all they have to do is tell that to the authorizing judge and then someone objective can make the decision...not some donkey carrying a machine gun who joined the force to kick ass and take names.

Keep in mind that a search warrant execution on a house is a form of state-sanctioned home-invasion. A home invading criminal with no prior record is looking at 8 years jail simply because of the violation of the security of a person in their home...the exact same conduct with a badge should not be something we routinely allow and should not be decided by a potentially overzealous front-line police officer.

FTA

[Wilber]

I don't know anything about the facts of this case, but police can get express authorization in a search warrant to do a "dynamic entry". That is, if the police have reason to justify not following a knock and announce procedure in a given case, all they have to do is tell that to the authorizing judge and then someone objective can make the decision...not some donkey carrying a machine gun who joined the force to kick ass and take names.

Keep in mind that a search warrant execution on a house is a form of state-sanctioned home-invasion. A home invading criminal with no prior record is looking at 8 years jail simply because of the violation of the security of a person in their home...the exact same conduct with a badge should not be something we routinely allow and should not be decided by a potentially overzealous front-line police officer.

FTA

The police have to deal with the situation as transforms at the time. Perhaps a judge should accompany them to the site so they can get a ruling on the spot. He can take the heat if he gets it wrong and someone gets hurt as a result of his decision, because the police sure will if they get it wrong.

Please show me a case where a home invading criminal with no prior record has received anywhere near 8 years without committing murder or other major mahem.

Let me ask you a question about part two of this loony decision, the judge not allowing the pot plants as evidence. If by pure chance while exercising this warrant, police had found the body of a stab victim with a person holding a knife standing over it, would that have been disallowed as well and if not, why not?

[blueblood]

It seems to me that the police going in without announcing who they are could be quite dangerous to the police. What if the suspect happens to be armed and he thinks he's being hit be a rival gang? Or if the police got the worng address and they happen on to a law abiding citizen who happens to own a shotgun?

I don't think the charges should be dropped but I do think the policy should be abided by.

It's dangerous nonetheless if they would have announced. Suspect has time to arm himself and barricade himself. If the cops get the wrong address, it shouldn't be a problem, that homeowner has rights and it would be shown in court and he gets an apology from the cops and they get egg on their face again.

[guyser]

It's dangerous nonetheless if they would have announced. Suspect has time to arm himself and barricade himself. If the cops get the wrong address, it shouldn't be a problem, that homeowner has rights and it would be shown in court and he gets an apology from the cops and they get egg on their face again.

Sorry. It doesnt work that way.

They come in, tear the place apart, upturn everything you own , hold all your family at gunpoint.......then realize ..oops we have the wrong house.

No apology, no discipline meted out, and you are left to clean up your house. While it is not a daily occurence here...yet....it certainly is south of us.

If they announce at the wrong house, likely the person opens the door and says what do you want?

[Wilber]

According to the newspapers.

Police knocked on the front door and, receiving no answer, went to the side entrance, where they used a battering ram to knock down the door. They entered the house with guns drawn. Inside, they found a grow-op containing the 704 plants.

[blueblood]

Sorry. It doesnt work that way.

They come in, tear the place apart, upturn everything you own , hold all your family at gunpoint.......then realize ..oops we have the wrong house.

No apology, no discipline meted out, and you are left to clean up your house. While it is not a daily occurence here...yet....it certainly is south of us.

If they announce at the wrong house, likely the person opens the door and says what do you want?

If the announce at the wrong house, the owner would walk out and could get tossed around like a rag doll as well and get zip tied up, they can never be too safe.

The Comissioner of the RCMP apologized to the family of the polish individual who got tasered. To get an apology even though they had a defensible position (how good it the position is, is up for debate) from an organization as proud as them is remarkable.

If you have nothing to hide if you are the wrong house, the worst is you get dragged to the station get to explain yourself and are free to go on your merry way to the press with an interesting story.

In my opinion it is far better off to go crashing into a house unannounced and seriously inconvenience somebody than to give someone the chance to shoot a cop who is doing his duty.

With the intense scrutiny police officers endure in the media nowadays, the odds of them accidently shooting an innocent person in these circumstances is very very small. Those ERT guys are very good at what they do.

But if it was me, I'd just lay seige to the house and wait the guy out. If it's the wrong house it would be found out pretty quick.

[FTA Lawyer]

The police have to deal with the situation as transforms at the time. Perhaps a judge should accompany them to the site so they can get a ruling on the spot. He can take the heat if he gets it wrong and someone gets hurt as a result of his decision, because the police sure will if they get it wrong.

Please show me a case where a home invading criminal with no prior record has received anywhere near 8 years without committing murder or other major mahem.

Let me ask you a question about part two of this loony decision, the judge not allowing the pot plants as evidence. If by pure chance while exercising this warrant, police had found the body of a stab victim with a person holding a knife standing over it, would that have been disallowed as well and if not, why not?

This case is a direct on-point example from Calgary...it's only 8 pages, so I recommend you read the whole thing as it gives a pretty good analysis of the issues, including how a judge is to decide when to exclude evidence as a remedy for a Charter breach:

TAC Team Search Warrant Case

As for the home-invasion thing, the 8 year number is considered a "starting point" for sentencing in Alberta. Therefore, depending on the aggravating or mitigating circumstances, you can go up or down from there. You are correct that many first offenders will therefore ultimately get less than the starting point, but it's not that easy to argue down too much lower than 6 years no matter how good the facts are.

FTA

[rbacon]

I agree with the judge. The cops need to obey the law. Maybe if they did, they would get the right address. Many times in the news thay brutalize innocent people at the wrong address. Put them in jail as well as the drug dealers.

[Wilber]

I agree with the judge. The cops need to obey the law. Maybe if they did, they would get the right address. Many times in the news thay brutalize innocent people at the wrong address. Put them in jail as well as the drug dealers.

They had the right address. What thread are you reading.

[Wilber]

This case is a direct on-point example from Calgary...it's only 8 pages, so I recommend you read the whole thing as it gives a pretty good analysis of the issues, including how a judge is to decide when to exclude evidence as a remedy for a Charter breach:

TAC Team Search Warrant Case

As for the home-invasion thing, the 8 year number is considered a "starting point" for sentencing in Alberta. Therefore, depending on the aggravating or mitigating circumstances, you can go up or down from there. You are correct that many first offenders will therefore ultimately get less than the starting point, but it's not that easy to argue down too much lower than 6 years no matter how good the facts are.

FTA

Because your example gives no other information on this suspects criminal history and perceived risk it is difficult to say whether the police over reacted in this case and if so, by how much. I find it interesting that judges feel they are qualified to access the risk involved in entering a residence inhabited by known drug dealers. Something they don't hesitate to do. I also find it interesting that judges will ignore the fact a crime has been committed in order to put a higher importance on censoring the police and then say it is in society's interest. I also find it interesting that this judge would ignore the fact there is a small child living in a drug house with known dealers knowing that disallowing this evidence would ensure that child stays in the same environment and claim this is also in society's best interest.

On the question of dynamic entry warrants, my police sources say that judges will not issue dynamic entry warrants for suspect grow ops, only for cases involving hard drugs. In other words heavily armed grow operators with booby trapped buildings are not a threat to the police. Heavily armed meth lab operators with booby trapped buildings are. How they come to this conclusion is known only to them.

On the question of knock and announce, it is solely at the discretion of the judge. For all my police source knows it could be based on some sort of formula based on the square footage of the building or whatever else that judge feels is appropriate. In other words there is no fast rule the police can go by.

In the words of my police source, the judge will quite possibly be found wrong and the evidence will be allowed. The police will be also be found to be wrong, because they always are. But that's OK, they're used to it.

I can't speak to Alberta but in BC sentences are almost always near the bottom of the sentencing range for a first offense for just about anything. The promise of starting points and maximums are mere insults to the victims of these crimes because they bear no relationship to the sentences handed down. I doubt you could find a case of second offense home invasion that didn't involve murder or aggravated assault resulting in a sentence approaching eight years. Added in edit: Which because of mandatory release after 2/3 sentence, we know aren't real sentences anyway.

Edited February 8, 2008 by Wilber

[Wilber]

FTA

By the way, you didn't answer my question.

[Borg]

It is not a justice system - it is a legal system.

And depsite the arrogance of those within the system who say the common people do not understand law - for justice to be done, it must be seen to be done. This did not happen here.

There is little to no recourse for the average little person to turn ludicrious decisions into something that would at leaast appear to make sense.

It has always been my opinion a judge should have a board review at least once every two years to see if they are to be considered competent. I am sure those with legal experience will take a deep breathe and state that idea is so full of schitte as to be discarded. But for a judge to be awarded a "cash for life" position and no recourse is also ludicrous.

However, legal precedent has now been set and this will be used again and again as a defence in future similar situations.

No wonder the average person has so little faith in the legal system.

This judge should be taken out and publicly spanked for this decision.

Borg

[FTA Lawyer]

FTA

By the way, you didn't answer my question.

Before I do, I note that in the case I cited the judge found the dynamic entry to be acceptable...but not police wearing masks and not producing a warrant etc.

As for your question...my lawyer answer is that it depends on the circumstances. But, really, that's true. Basically the judge has to decide in any case which would bring more disrepute to the administration of justice...excluding the evidence, or allowing it in knowing it was discovered by illegal activity on behalf of the police.

There are several other factors that play in...for example...real evidence (that which exists independent of any Charter breach) is less likely to be excluded whereas conscriptive evidence (like a confession) that only exists because of the Charter breach is more likely to be tossed.

If the admission of the evidence would lead to an unfair trial it will probably be out. If the police would have discovered the evidence inevitably in their investigation it will probably go in.

In the case I cited, this is what the judge said:

[34] The charges here are very serious and the articles seized by police are items which it

would be in the public’s interest to have removed from circulation. The prosecution of drug

dealers who provide these illicit substances is also in the best interest of our society. However,

the courts must not fall into the trap of letting the serious nature of the evidence seized by

unlawful means result in forgiveness being granted for the police tactics employed, when

permission for such tactics would not have been afforded at first instance.

[35] While it is in society’s interests that drugs dealers be apprehended and prosecuted, the

administration of justice would be brought into dispute if deliberate disregard of the lawful

precursors for the execution of search warrants were accepted by the courts. Such an

untrammelled use of police powers would, in my view, cause public concern over the erosion of

freedoms cherished in this country. For those reasons, the items seized from Mr. Al-Fartossy’s

residence will not be admitted into evidence.

Would a dead body and a knife be excluded from evidence? Practically speaking...unlikely. But, the possibility that it could should be incentive enough for police to follow the law shouldn't it?

FTA

[blueblood]

Before I do, I note that in the case I cited the judge found the dynamic entry to be acceptable...but not police wearing masks and not producing a warrant etc.

As for your question...my lawyer answer is that it depends on the circumstances. But, really, that's true. Basically the judge has to decide in any case which would bring more disrepute to the administration of justice...excluding the evidence, or allowing it in knowing it was discovered by illegal activity on behalf of the police.

There are several other factors that play in...for example...real evidence (that which exists independent of any Charter breach) is less likely to be excluded whereas conscriptive evidence (like a confession) that only exists because of the Charter breach is more likely to be tossed.

If the admission of the evidence would lead to an unfair trial it will probably be out. If the police would have discovered the evidence inevitably in their investigation it will probably go in.

In the case I cited, this is what the judge said:

Would a dead body and a knife be excluded from evidence? Practically speaking...unlikely. But, the possibility that it could should be incentive enough for police to follow the law shouldn't it?

FTA

What's wrong with the cops wearing masks? Aren't they allowed to protect themselves from potential debris and protect their individual anonymity from retaliation from organized crime. They already have the warrant (in other cases), and the case has to go to court anyway where officers present are under oath.

[Wilber]

Before I do, I note that in the case I cited the judge found the dynamic entry to be acceptable...but not police wearing masks and not producing a warrant etc.

As for your question...my lawyer answer is that it depends on the circumstances. But, really, that's true. Basically the judge has to decide in any case which would bring more disrepute to the administration of justice...excluding the evidence, or allowing it in knowing it was discovered by illegal activity on behalf of the police.

There are several other factors that play in...for example...real evidence (that which exists independent of any Charter breach) is less likely to be excluded whereas conscriptive evidence (like a confession) that only exists because of the Charter breach is more likely to be tossed.

If the admission of the evidence would lead to an unfair trial it will probably be out. If the police would have discovered the evidence inevitably in their investigation it will probably go in.

In the case I cited, this is what the judge said:

Would a dead body and a knife be excluded from evidence? Practically speaking...unlikely. But, the possibility that it could should be incentive enough for police to follow the law shouldn't it?

FTA

Re paras 34 and 35. In other words the greater crime was committed by the police. The rest is pure lip service which does nothing to help the police do their job and a lot to help criminals do theirs.

I don't know how to interpret your answer. Are you saying the 704 pot plants wouldn't exist but the dead body would? If so, that is a leap of logic only a lawyer could make.

A. Judges decide what constitutes reasonable risk when it comes to the police entering suspected crime scenes occupied by known or suspect criminals even though they have no qualifications to do so and are not on site to evaluate the circumstances. Don't even ask for a dynamic entry warrant for a grow op because in the judiciaries opinion, they present no risk.

B. Adequate time the police must give under Knock and Announce is at the discretion of the individual judge and the police are expected to know what that is or according to you, they are breaking the law.

In view of the above my advice to the police would be, if they determine the risk warrants it, kick the damn door down. Far better a judge makes himself look like a fool and sets a criminal free than a cop gets shot.

[FTA Lawyer]

I don't envy police officers for a second. They have a mostly thankless job and are always under intense scrutiny...especially through 20/20 hindsight in later court proceedings.

However, regardless of what your police buddy might tell you, police get a considerable amount of leeway in court. Most judges are mindful of not making rulings that "handcuff" the cops...for want of a better term.

That said, a group of machine-gun toting men, wearing ski-masks, all dressed in black (with no identifiable police insignia) storming into a drug house and not being able to produce a warrant may give them the element of surprise, but in every other way drastically increases the risk that they will be shot by the resident.

Think about it...you're at home and you get a loud authoritative knock and "Police open the door". You look out and see police uniforms and badges. You comply. The officers advise you they are there to search the home. You ask for the warrant and they give it to you. You comply.

Other scenario...the group I described above comes crashing through your door and tells everyone including your mentally challenged kid to get on the fucking ground (I'm not making this up by the way...this is a current pending case one of my colleagues has in Calgary). You comply because of the working end of a sub-machine gun and then when you can't see a police uniform or badge and the guys have ski-masks and you ask for a warrant and they don't have one...

I'd be expecting to get executed by the apparent armed robbers and I'd make a play for one of their guns and take as many out as possible trying to protect my family.

If I was a cop...I would want to avoid this scenario.

As to the pot versus the body...they are both considered real non-conscriptive evidence...and the fact is that most drug cases see the drugs remain in evidence in spite of the Charter breaches for that very reason. What I meant to imply was that practically speaking, it is alot easier for a judge to take a principled stand which results in some dope being tossed out than for a body.

Many call it disingenuous or results-oriented reasoning, but losing the body as evidence is going to be extremely rare.

FTA

[Wilber]

However, regardless of what your police buddy might tell you, police get a considerable amount of leeway in court. Most judges are mindful of not making rulings that "handcuff" the cops...for want of a better term.

I realize this isn't a simple issue and I'm sure there is leeway but what is it? Is there some sort of gentleman's agreement which they can all depend on? Have they sat down together and come up with some solid guidelines that both can be expected to follow unless circumstances make them impractical or are they at the discretion of each individual judge? I'm not trying to imply that the police never screw up because like everyone else they occasionally do, but perhaps the courtroom is not the proper place to be establishing policing procedures. That being said, IMO the police should act in a manner that doesn't put their members at unnecessary risk regardless of the consequences for a particular case. Particularly if that risk isn't going to be supported by the courts.

Think about it...you're at home and you get a loud authoritative knock and "Police open the door". You look out and see police uniforms and badges. You comply. The officers advise you they are there to search the home. You ask for the warrant and they give it to you. You comply.

Unless of course, I may be an armed criminal who doesn't want to open the door or one who may just want to use the defense, "they didn't give me enough time" or "I didn't hear them".

Other scenario...the group I described above comes crashing through your door and tells everyone including your mentally challenged kid to get on the fucking ground (I'm not making this up by the way...this is a current pending case one of my colleagues has in Calgary). You comply because of the working end of a sub-machine gun and then when you can't see a police uniform or badge and the guys have ski-masks and you ask for a warrant and they don't have one...

I'd be expecting to get executed by the apparent armed robbers and I'd make a play for one of their guns and take as many out as possible trying to protect my family.

If I was a cop...I would want to avoid this scenario.

Perhaps the police did overstep their bounds. No offense but I would want to hear the whole story, not just that of their accusers. One reason is because I think they would want to avoid it as well.

and the fact is that most drug cases see the drugs remain in evidence in spite of the Charter breaches for that very reason.

That was pointed out to me as well including the number of a section which I have since forgotten. I get the impression they have just accepted that being told they were wrong is something they often have to put up with in order to do their job.

I meant to imply was that practically speaking, it is alot easier for a judge to take a principled stand which results in some dope being tossed out than for a body.

There you have me confused. Is the stand practical or principled? If the principles contained in the Charter are paramount as these decisions claim, why would there be a difference? Or are there limits to judicial principles?

Edited February 10, 2008 by Wilber

[FTA Lawyer]

Well, I keep being confusing because I'm crossing the two terms "principled" and "practical".

If we were truly principled 100% of the time, then it would not matter at all. If drugs should be excluded because of a serious breach of the law by police entering a home then so should anything else.

In fact, the quote I pulled from the Alberta case says exactly that...don't let the seriousness of what you find operate to excuse what the police did wrong.

What I am saying is, the "principles" and they way they are applied will very likely become more "practical" when a judge is faced with the possibility of a dead body being excluded from evidence as opposed to mere pot plants.

Hopefully I have cleared up my point on that.

On the "leeway" shown to police...you are right there is no hard and fast rule...it is more of an unwritten respect for the job that they have to do. If an officer searches a car before the warrant actually is signed...that's technically illegal.

Under section 24 of the Charter, the results of such a search will almost certainly be allowed...because the warrant was in fact signed and no true harm falls to the accused.

The leeway comes in where the judges in my experience will go out of their way to say that they find no bad faith on the part of the police and that they thank them for their good job (as opposed to reading them the riot act over a simple mistake).

FTA

[Keepitsimple]

I know we've veered off course a bit but the awy they announce sentences in Canada always tick me off. A sentence announced as 9 (nine) years is actually anywhere from 3-6 years. You can be paroled after 3 years (one third of your sentence) and Statutory Release is your get-out-of-jail card after 6 years (two-thirds). So really, the sentence should be announced as "sentenced to 3 to 6 years" - not 9 years.

[Wilber]

I know we've veered off course a bit but the awy they announce sentences in Canada always tick me off. A sentence announced as 9 (nine) years is actually anywhere from 3-6 years. You can be paroled after 3 years (one third of your sentence) and Statutory Release is your get-out-of-jail card after 6 years (two-thirds). So really, the sentence should be announced as "sentenced to 3 to 6 years" - not 9 years.

You forgot double credit for time already served. Another thing that is totally misleading when sentences are handed out.