Pubdate: Fri, 27 Oct 2006
Source: Surrey Leader (CN BC)
Copyright: 2006 Surrey Leader
Contact:  http://www.surreyleader.com/
Details: http://www.mapinc.org/media/1236
Author: Dan Ferguson

FAXED SEARCH WARRANTS SLAMMED BY JUDGE

Surrey RCMP drug section officers regularly violated the Charter of 
Rights by routinely faxing a judicial justice of the peace in Burnaby 
to get search warrants approved, a Surrey provincial court judge said.

In a toughly worded written decision, Judge Ellen Gordon said the 
Criminal Code requires police officers to personally appear in front 
of a judge or justice of the peace to explain their application 
unless there is no other practical way to obtain a warrant except by 
using a fax.

Instead, she said, Surrey drug section officers were routinely faxing 
warrant applications to the Justice Centre in Burnaby.

It showed, she said, "an absolute lack of respect, not only for the 
constitutional requirements that searches be conducted only with 
prior authorization, but also to the sanctity of an individual's home."

A Leader inquiry has determined that the practice of commonly faxing 
warrant applications was a response to a lack of full-time judicial 
J.P.'s (justices of the peace) assigned to the Surrey courthouse.

There are only four non-judicial J.P.'s on duty in the Surrey 
courthouse who handle various duties including the swearing out of 
criminal charges, but do not have the authority to issue search warrants.

Judicial J.P.'s are only infrequently available at the Surrey court 
house, and Mounties have been advised to phone the courthouse to see 
if any are present before they make an in-person warrant application.

Instead of being able to walk across the street from police 
headquarters to the courthouse, Surrey Mounties had to either drive 
to the distant Burnaby centre or fax it.

Judge Gordon's comments were made during a trial that saw an accused 
marijuana grower acquitted because of the way an RCMP officer 
obtained a search warrant.

Tai Phuoc Nguyen was charged with possession and production of 
marijuana after Surrey RCMP raided a house at 19110 64 Avenue on 
August 26, 2004 and seized 649 pot plants.

The search warrant was obtained by faxing Burnaby rather than making 
an in-person application, something judge Gordon said was "apparently 
for reasons of policy and laziness and not impracticality."

Because of that, and a "serious" number of errors of fact in the 
warrant, the judge acquitted Nguyen.

Gordon called the officer who obtained the warrant an "exceptionally 
honest witness" who did not intend to mislead the court.

However, those who taught him how to apply for a search warrant 
"cared not one whit about the warnings of the Supreme Court of 
Canada..." Gordon said.

The judge concluded by noting the police have since ceased the 
practice of routinely faxing warrant applications.
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MAP posted-by: Elaine