RCMP violated charter rights

A territorial court judge has excluded several pieces of evidence from a high-profile grow-op investigation conducted in 2005.

A territorial court judge has excluded several pieces of evidence from a high-profile grow-op investigation conducted in 2005.

Police manipulated court documents, arrested people without grounds and failed to follow established rules for processing the accused after arrest, ruled territorial court judge Karen Ruddy this week.

Police also breached the arrested men’s rights to legal counsel, wrote Ruddy in her 81-page report.

The RCMP’s method of obtaining search warrants, detaining and arresting the accused men, photographing, fingerprinting and finding legal counsel for the accused was scrutinized and found to violate the Canadian Charter of Rights and Freedoms, said Ruddy.

“Many of the breaches before me are serious ones, others less so, but the totality of breaches clearly creates a picture of a general lack of respect for the individual rights of the charter,” wrote Ruddy.

“In my view, such a pattern of behaviour cannot be condoned by this court.”

Ruddy’s judgment means some of the evidence compiled through RCMP actions such as an “unlawful arrest” and an “invalid search warrant” will be excluded from an upcoming trial. Seven accused men are slated to face more than 100 charges in Yukon court in May.

The charges stem from Project Mobile, an investigation that ended with the RCMP charging nine men for possessing and producing marijuana following busts in which more than 4,500 pot plants were seized.

One of the nine accused was also charged with stealing electricity.

Ruddy’s decision comes a few months after a voir dire hearing in Yukon court.

The hearing was held to determine what evidence will be admissible at the trial.

At that hearing, defence lawyers challenged the validity of the RCMP’s search warrants and the admissibility of evidence obtained in breach of the charter against six of the accused — Kiu Tin Yeung, Guang Xian Zhu, Min Shan Jiang, Kwok Yin Cheung, Jian Xiong Zhou and Wei Xiong Wen.

Ruddy considered the Crown’s evidence and examined each alleged breach of the charter in her judgment.

For example, she tossed out a search warrant that led to the arrests of two of the accused at 16 Sitka — the address of one of the suspected grow-ops — after she examined the evidence used to obtain the search warrant

To get the warrant, lead case co-ordinator Cpl. Thomas Wyers compiled reports from several officers into one report known as an Information to Obtain, which was presented to a justice of the peace.

In that document, Wyers altered the evidence provided by other officers, adding or omitting words, said Ruddy.

“Each of these alterations or omissions has the effect of strengthening, at least on paper, the impression that the home is the site of a marijuana grow operation,” she wrote.

“While I don’t feel that Corporal Wyers set out to mislead the justice of the peace in a deliberate and calculated manner, it is clear to me that he was both careless and reckless with respect to his obligations within the prior judicial authorization process.”

And other police procedures were also found lacking.

For example, Ruddy cited a police officer’s decision to stop two of the accused while they were in a green van on the Alaska Highway on September 18, 2005.

“In my view, any connection between the green van and its occupants and the suspected grow operation is simply too remote to objectively amount to anything more than a hunch,” Ruddy wrote.

The traffic stop was an “arbitrary detention” in breach of the charter, said Ruddy.

She excluded all evidence obtained from the stop except for the vehicle registration.

Ruddy also examined another traffic stop that took place four days later.

This time, police arrested one suspect after he drove away from a suspected grow operation at 208 Falcon with $11,400 tucked in between the driver and passenger seats of his car.

Ruddy found the arrest “unlawful” and excluded all evidence flowing from his arrest.

Next Ruddy examined how the RCMP photographed and fingerprinted some of the suspects before they were formally charged with a crime.

Although she calls the issue a “relatively minor breach,” Ruddy found the photographs and fingerprints must also be excluded from trial because of “the multiplicity of breaches in this case.”

Finally, Ruddy examined whether some of the accused had their right to counsel breached.

She found that three of the accused had their right to counsel violated because their lawyers were “pre-chosen” by the police.

And one of the accused was asked to translate the advice he received from his lawyer to another one of the accused.

“It is grossly inappropriate, in my view, for the police to put an accused in the position of having to disclose confidential discussions with his or her legal counsel to anyone,” Ruddy wrote in her judgment.

“Such a violation renders the right to counsel utterly meaningless,” she added.

Taken as a whole, Ruddy’s judgment may impact the Crown’s case against the accused.

“There are significant parts of the evidence that have been excluded from the trial, but there’s more to the case than what was heard in the voir dire process,” said Crown lawyer Noel Sinclair on Wednesday.

It is too early to tell what the impact may be and whether the Crown will appeal the judgment.

“We need more time to analyze the impacts of the ruling to each of the seven accused men who are before the court,” said Sinclair.

“This judgment is part of the trial, but more of the trial is to come,” he added.

Vancouver-based defence lawyer Mitch Foster, who represented four of the accused at the voir dire hearing, refused comment until he hears from Crown counsel.

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