Pubdate: Fri, 19 Oct 2007 Source: Vancouver Sun (CN BC) Copyright: 2007 The Vancouver Sun Contact: http://www.canada.com/vancouver/vancouversun/ Details: http://www.mapinc.org/media/477 Author: Ian Mulgrew JUDGE RULES AGAINST SEARCH Cocaine Evidence Thrown Out; Police Violated Stabbing Victim's Privacy When They Returned To His Home Hours Later 'To Turn It Upside Down,' Judge Decides SURREY - Three kilograms of cocaine found in a stabbed Surrey man's garage can't be used in evidence against him because the RCMP violated his privacy. B.C. Supreme Court Justice Harry Slade says the local Mounties had no right to look in the man's garage, hours after the knifing, and discover the illicit narcotics. A man's home is his castle. The Horsemen had been summoned to Roy Donald McCormack's home after a neighbour called 911 on Sept. 18, 2004 and reported two men fighting on the lawn, one with a gun. McCormack himself called 911 moments later, saying he'd been stabbed and needed an ambulance. Two RCMP officers found him lying in the foyer of his home, hemorrhaging in a pool of blood. They made a cursory search of the residence to see if the assailant was still inside. They couldn't see a knife or a gun, but there were blood trails throughout the house, including one to the garage. McCormack, who was uncooperative, protested loudly when police started looking around and demanded they leave his house. He kept it up until carted away by the ambulance crew. A few hours later, after the Mounties had left the home as well, the ranking officer at the Surrey detachment decided a search team would go back and turn it "upside down" looking for weapons or other evidence. At about 6:30 a.m., Sept. 18, a search team returned to McCormack's home and several hours later they found a black canvas bag in the garage containing three one-kg bricks of blow. In doing so, Slade concluded this week, the Mounties stepped on McCormack's Charter rights and ordered the cocaine excluded as evidence from his trial in New Westminster. The Supreme Court of Canada long ago said warrantless searches were unreasonable in all but exceptional circumstances. It has also decreed the Charter of Rights and Freedoms constrains police power: Police must demonstrate they are acting in the course of their duty and that their conduct amounts to a justifiable use of police powers associated with that duty. Slade decided that the first cursory look around the home by the RCMP, though warrantless, was okay because of the risk posed by the gun call. "Given the patent danger reported in the first 911 call and the urgency of the second 911 call, it is plain that the initial entry into the residence to protect the life and safety of the accused was justifiable," the justice ruled. He went on: "The accused's express withdrawal of the implied licence to enter the premises, conferred by his 911 call to the ambulance service, is of no consequence in the face of a clear police and public safety basis." The second search, hours later, was a different matter. "The difference between the two searches is that the second search did not appear to be motivated by a concern for immediate officer or public safety," the justice said. "The second search interfered with the same privacy right as the first. "The nature and extent of the interference with the accused's right to privacy was significant. . . . I conclude that there was no lawful basis for the second search." As a result, Slade decided to exclude any evidence about the discovery of cocaine in McCormack's garage from his trial: "The unreasonable search violated a core expectation of freedom from state interference by gravely disappointing the accused's expectation of privacy in his own home, an expectation that the law has sedulously fostered." Admitting the evidence, he added, would bring the administration of justice into disrepute. - --- MAP posted-by: Jay Bergstrom