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Drug Charges Thrown Out For 'Judge Shopping'
Pubdate: Sat, 01 Jan 2005
Source: Vancouver Sun (CN BC)
Copyright: 2005 The Vancouver Sun
Contact: http://www.canada.com/vancouver/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Chad Skelton
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
DRUG CHARGES THROWN OUT FOR 'JUDGE SHOPPING'
Rejected Once, Officer Sought Search Warrant From Second
Official
VANCOUVER - A provincial-court judge has thrown out marijuana-growing
charges against a Vancouver man after finding the investigating
officer engaged in "judge shopping" by sending virtually the same
application for a search warrant to two separate judicial justices of
the peace.
According to the written judgment, after having his first application
for a search warrant denied, Vancouver police Const. Blair Canning
waited until four minutes before midnight -- when the first justice
went off shift -- to fax an essentially unchanged application to the
next justice on duty.
"Clearly, there was a very real risk that JJP Blackstone [the first
justice] would again refuse the warrant," Judge Frances Howard wrote
in her ruling. "The constable avoided that risk by submitting the
second application for a warrant just shy of midnight, when it would
be too late for the first justice to hear the application."
Police officers are permitted to resubmit search warrant applications
that have been previously denied but, by law, resubmissions must
contain substantive changes -- to prevent officers from shopping
around for a favourable decision.
Howard found that "the two [applications] prepared by Const. Canning were
factually identical," which, she said, led her to conclude that Canning "was
prepared to seek out a second and more favourable opinion on his
application, even though he knew that it was improper to do so."
"In the end, I am satisfied that Const. Canning probably did engage in
a form of judge shopping in this case," wrote Howard.
Vancouver police spokeswoman Const. Sarah Bloor said the department
believes Canning acted properly.
"He was just following protocol," said Bloor. "He was not shopping
around for a JJP. He had to obtain additional information to get the
warrant granted and he did that."
While Howard's ruling only came down last month, the case began on
February 28, 2002, when Vancouver police received a request from
Richmond RCMP to arrest Xuan Tien Nguyen, 31, for an outstanding
marijuana production charge.
Canning and his partner went to a home in east Vancouver where Nguyen
was believed to be living and noticed several things that made them
suspect it contained a marijuana growing operation -- including the
window blinds being shut and condensation on the windows.
On March 22, 2002, Canning and his partner visited the home again and
began surveillance on the address.
At about 5 p.m., Nguyen arrived home in his car with a young
boy.
Canning approached the car and arrested Nguyen. He noted the strong
smell of marijuana coming from Nguyen's clothing but a search of
Nguyen and his car turned up no marijuana.
The six-year-old boy said he was Nguyen's nephew and that he and his
four-year-old brother lived in the east Vancouver home with Nguyen.
The young boy told police they weren't allowed to go into the basement
because it was "very dirty."
The officers called the children's aid worker on duty, who decided
they should check the house to see if the four-year-old boy was inside.
Using the keys taken from Nguyen during his arrest, Canning and the
social worker entered the house.
Looking around the main floor of the house, Canning and the social
worker did not find the boy, but Canning did notice the faint scent of
bulk marijuana and the loud sound of fans coming from the baseboard
vents.
At 10:38 p.m., Canning presented his first application for a search
warrant, in person, to JJP Blackstone at her Cordova Street office.
The written application, known as an information to obtain (ITO), was
based in part on what Canning saw inside the house with the social
worker.
Twelve minutes later, Blackstone informed Canning that the application
was denied.
She also mentioned that she was heading home at midnight and so if
Canning wanted to resubmit his application he would probably have to
do it by telewarrant -- which allows officers to fax in their
applications to a JJP on duty.
Canning did not ask Blackstone why the application was
denied.
However, in his second application for a warrant, he implied that he
knew, noting on his cover sheet that he believed "that the warrant was
declined because [Canning] did not state that he believed that the
information received from other police witnesses was true to the best
of his knowledge."
Apparently addressing that concern, the only substantive change
Canning made to the warrant was the addition of a line saying that
"where [Canning] has received information from other police officers,
he believes that to be true to the best of their knowledge."
The second application was granted.
Canning testified at court that his conclusions about what was wrong
with his first warrant application came from talking to fellow officers.
However, Howard ruled that "Const. Canning's testimony as to why he
thought his original application had been refused was, in my view,
utterly unpersuasive."
Howard found that Canning's second application for a warrant was
misleading -- leading the second justice to believe the first
application was rejected on a simple technicality.
"He drafted that explanation in such a way as to imply there was only
one reason for the refusal and he knew what it was, even though he did
not," ruled Howard. "He knew that the factual grounds underlying the
application for a warrant had not been changed or improved upon since
the first application. He also knew that, once his application for a
warrant had been refused, it would be unethical for him to submit the
same application to a different justice. Yet this is what he did."
Howard also found the timing of Canning's second application was
suspicious.
"The constable began typing in his very brief amendment to the ITO at
[10:55 p.m.] It is difficult to see how the amendments in question
could have taken more than 20 minutes, 30 minutes at most," ruled
Howard. "Had the constable been keen to do so, he could have placed
his amended ITO before the original justice well before the midnight
deadline. In fact, the constable did not fax the telewarrant ITO to
the second justice until [11:56 p.m.], that being 61 minutes after he
began typing his amendments, and just four minutes before the midnight
departure of the first justice."
The search warrant on Nguyen's home was executed on the morning of
March 23, 2002. Police found 441 marijuana plants inside the house,
which led to Nguyen facing further charges of marijuana production.
However, Howard found that Canning's actions meant the search of
Nguyen's east Vancouver home should be quashed and that the evidence
gained from it thrown out.
Howard also ruled that the original search of Nguyen's home with the
social worker was unlawful because social workers are only permitted
to force their way into a home to protect a child if other methods --
like knocking on the door -- have failed.
With little evidence against Nguyen, the charges were
dropped.
"The sum total of the evidence came from Constable Canning's
unconstitutional behaviour so Judge Howard dismissed the charges,"
Nguyen's lawyer Neil Cobb said in an interview.
Cobb said while he has challenged several search warrants in the
courts, he knows of very few cases of "judge shopping" like this one.
"It's a rarity but it's certainly not unheard of," said Cobb.
Search-Warrant Timeline
Two very similar applications in two hours to two different justices
of the peace lead to a "judge shopping" ruling and the dropping of
marijuana growing charges.
- - March 22, 2002, 10:38 p.m. : Vancouver police Const. Blair Canning
makes his first application for a search warrant on an east Vancouver
address suspected of containing a marijuana-growing operation;
- - 10:50 p.m. : The first application for a search warrant is denied.
The justice tells Canning she is heading home at midnight;
- - 11:56 p.m. : Const. Canning sends virtually the same search-warrant
application in by fax;
- - 12 midnight : The first justice goes off shift;
- - March 23, 2002, 12:05 a.m. : Canning's application is handed to a
second justice;
- - 12:35 a.m. : The warrant is granted by the second justice of the
peace.
- ---
MAP posted-by: Larry Seguin