Pubdate: Fri, 27 May 2016
Source: Record, The (Kitchener, CN ON)
Copyright: 2016 Metroland Media Group Ltd.
Contact:  http://www.therecord.com/
Details: http://www.mapinc.org/media/225
Author: Colin Perkel
Page: B4

DRUG CONVICTION QUASHED BECAUSE OFFICERS LIED

TORONTO - A woman found with marijuana in her car trunk has won an
acquittal on appeal, in part because police violated her rights with
an unnecessary high-risk takedown and then lied about what had happened.

In a decision this week, Ontario's top court rejected prosecution
arguments that the rights violations were minor or only happened after
police had already found the drugs.

"The admission of the marijuana would bring the administration of
justice into disrepute," the Appeal Court said.

"This is one of those cases in which the court's need to disassociate
itself from the police's conduct is greater than society's interest in
prosecuting (the accused)."

The case arose in June 2010 when Ottawa police saw Eneida Pino, 43,
leave a suspected grow-op and put a box in the trunk of her car. As
she and a man were driving, two officers in an unmarked cruiser forced
them to stop.

One officer, Det. Jason Savory, was dressed in black, his face was
covered with a balaclava. With his gun pointed at the occupants,
Savory yelled at them to get out of the car. Pino was arrested and
handcuffed before Savory and Const. Marco Dinardo searched the car and
found the marijuana.

At trial, Ontario court Judge David Paciocco concluded the officers
had lied about whether Savory had drawn his gun and that the stop had
been routine.

In all, Paciocco found three violations of Pino's rights: that the
arrest by way of a dangerous and unnecessary masked takedown at
gunpoint was unreasonable, that the officers misinformed her about her
right to counsel, and that police held her in a cell for more than
five hours before allowing her to call a lawyer. Nevertheless, he
refused to exclude the marijuana evidence and convicted Pino of
possession for the purposes of trafficking.

In quashing the conviction, the Ontario Court of Appeal agreed with
Paciocco's findings, but not his conclusion to allow the drug
evidence. That the violations of her right to counsel occurred only
after discovery of the drugs did not automatically mean the evidence
should be admissible given all the circumstances, the Appeal Court
found.

"This is a difficult issue (but) the court should consider the entire
'chain of events' between the accused and the police," the Appeal Court 
said.

"The marijuana seized from the trunk of Ms. Pino's car and all three
Charter breaches are part of the same transaction ... Ms. Pino's arrest."

The Appeal Court also rejected the prosecution argument and the
judge's finding that the violations were relatively harmless, finding
instead that the breaches were close to the "extreme end of
seriousness."

The fact that the officers had lied at trial was especially
problematic, the Appeal Court found. "For the purpose of assessing the
seriousness of the Charter breaches and the overall assessment of
whether the marijuana should have been excluded from the evidence at
trial, the officers' dishonest testimony should not be understated,"
the Appeal court ruled.
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