Pubdate: Thu, 12 Mar 2015
Source: Sun Times, The (Owen Sound, CN ON)
Copyright: 2015 Owen Sound Sun Times
Contact: http://www.owensoundsuntimes.com/letters
Website: http://www.owensoundsuntimes.com/
Details: http://www.mapinc.org/media/1544
Author: Scott Dunn
Page: A1

JUDGE EXCLUDES EVIDENCE FOUND IN SEARCH OF HOME

No good reason for looking into freezer where pot was found

An Owen Sound judge found the rights of two people were violated 16
months ago when one of two firefighters acting as "agents of police"
looked in their freezer, found what looked like marijuana there and
reported it to an officer.

Police and firefighters were responding to a report of a home invasion
and house fire at a Chatsworth Township residence where Carol Newton,
then 59, and Steven Molody, then 47, lived on Nov. 1, 2013. Both were
present when the emergency workers arrived.

The pair were ultimately charged with possession of marijuana for the
purpose of trafficking, illegal possession of a firearm and improper
storage of a firearm as a result of what police seized.

Pretrial motions were heard during a voir dire Feb. 26 and 27 which
contended the searches and seizures were unreasonable under the
Canadian Charter of Rights and Freedoms and so all the evidence found
should be excluded. One lawyer also asked for charges against his
client be stayed.

Superior Court Justice Clayton Conlan, in a March 2 decision, excluded
some but not all evidence collected. Conlan decided the search of the
house violated the pair's right under Section 8 of the Charter to be
secure against unreasonable search or seizure.

Conlan said there was no evidence supporting the prosecution argument
the home was searched under the authority of a warrant.

But Conlan admitted evidence found outside the home. That included 25
pounds of what appeared to be pot and a crossbow found in a van
outside the home and an insecure rifle, another crossbow, ammunition
and a small amount again of what looked like marijuana in an
outbuilding.

Police would have searched the van and outbuilding for signs of an
intruder anyway, regardless of the unreasonable searches in the house
and the discovery of marijuana there, he concluded.

Newton and Molody were subsequently acquitted on March 9 but details
of that appearance were unavailable Wednesday. Conlan's voir dire
decision did note he was shown no evidence they had anything to do
with the van or outbuilding.

Conlan found that Grey County OPP Const. Kenneth St. John, through the
fire chief, asked two firefighters to re-enter the house to ventilate
it of pepper spray. That made the firefighters agents of the police
when they went back inside, Conlan found.

Chatsworth firefighter Adam Bell testified during the voir dire, or
hearing to determine admissibility of evidence, he and another
firefighter were also searching for anyone hiding inside, such as intruders.

Bell opened a basement freezer and found 726 grams of marijuana. But
he testified in cross-examination he wasn't looking for anyone hiding
in the appliance. Bell immediately told the officer, who came down and
had a look for himself.

"There was no legitimate reason for Bell to open the freezer," Conlan
wrote. It was done without permission of Newton or Molody and without
a search warrant but it led to other searches in the house, the
decision said. The officer's own inspection was "an unreasonable
search," Conlan found.

Conlan wrote Bell didn't act "maliciously."

He "made a mistake and acted carelessly and beyond the scope of his
authority when he opened that freezer." It wasn't made clear to the
firefighters they "were expected to do nothing else to assist the
police," Conlan found.

Conlan noted federal Crown attorney Elizabeth Barefoot acknowledged
the Charter breach would be "considered nothing short of egregious" if
the facts were found as Conlan found them concerning the search of the
home. She had argued Bell wasn't acting as a "state agent" when he
opened the freezer.

Conlan then found that allowing evidence as a result of the subsequent
search "would indeed send the wrong message to society that I condone
such conduct."

He also found there was "no bad faith" but that the occupants were
entitled to privacy in the absence of a search warrant.

"The accused had their home rummaged through by firefighters and
police," Conlan wrote. "The accused were arrested on the basis of the
unlawfully obtained evidence in the basement. Admission of the
evidence would indeed engender public cynicism and bring the
administration of justice into disrepute."
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