HTTP/1.0 200 OK
Content-Type: text/html
'Flagrant' Charter Violations Cited In Bacon Acquittal
Pubdate: Thu, 17 Jul 2008
Source: Vancouver Sun (CN BC)
Copyright: 2008 The Vancouver Sun
Contact: http://www.canada.com/vancouversun/letters.html
Website: http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Kim Bolan
Bookmark: http://www.mapinc.org/find?216 (CN Police)
'FLAGRANT' CHARTER VIOLATIONS CITED IN BACON ACQUITTAL
Judge Donald Gardiner Had No Choice But To Throw Out Evidence Against
Eldest Brother, He Wrote In Reasons Released Wednesday
Abbotsford police used misleading information about three suspected
drug traffickers when officers applied for a search warrant after
arresting the trio three years ago, a provincial court judge says.
Judge Donald Gardiner said he had no choice but to throw out the
evidence obtained against Jonathan Bacon, Rayleene Burton and Godwin
Cheng because the Charter violations by police were "deliberate,
wilful and flagrant."
Gardiner finally released his lengthy reasons Wednesday for siding
with defence lawyers in the high-profile case and acquitting the
eldest member of the notorious Bacon brothers last month along with
two of his associates.
The trio had been charged with numerous firearms offences and
drug-trafficking counts after sensational evidence was uncovered in
their vehicles and in an Abbotsford condo used by Burton and Bacon in
August 2005.
Federal prosecutors have already filed an appeal in the case even
though they did not have the chance to see the 65-page written
reasons until Wednesday.
Gardiner said police did not have a warrant when investigators pulled
over Cheng's car, in which Bacon was a passenger.
"The vehicle was searched and police located marijuana, ecstasy pills
and cash," Gardiner said.
"Some 20 minutes after the arrest of Cheng and Bacon, Rayleene Burton
was pulled over as she was driving her vehicle away from the
residence at Unit 41 - 2068 Winfield Drive in Abbotsford, British
Columbia. Her vehicle was searched and a large sum of cash was seized."
Gardiner said the three were held in custody and denied the right to
talk to lawyers for nine hours while police obtained a warrant to
search the condo, where automatic weapons and ammunition were found.
"There is no evidence which could support the notion that in ordering
the arrests, Cst. Forster [one of the officers involved] was acting
in good faith," Gardiner wrote in his reasons.
"His conduct was based on a hunch and a need to obtain potentially
additional grounds to further his attempt to gain entry into the
residence, for which there were no grounds whatsoever," Gardiner said.
"Forster's violation of the accused's Charter rights was deliberate,
wilful and flagrant. There was no urgency or necessity as Forster had
no evidence that the accused had done anything wrong."
The officers testified at a voir dire during the trial of the
threesome that an anonymous caller had complained about drug
trafficking and suspicious activity around the condo, but Gardiner
said that wasn't enough to justify the conduct of police.
And he said officers hyped the criminal connections of the three --
particularly 27-year-old Jonathan Bacon -- to support their case for a warrant.
"The defence contends it is clear that Cst. Forster's intention was
to link Bacon and Burton to numerous identified third parties and
paint the third parties as criminals with his object to have the
Justice conclude that both Bacon and Burton must be criminals," Gardiner said.
He wrote that the Charter violations in the case were too serious to
allow the evidence to remain on the record, something the Crown had argued for.
"Admitting evidence obtained as a result of a serious Charter
violation may be seen as judicial condonation of unacceptable police
conduct," he said. "It is my opinion that the disrepute that would be
caused by admitting this evidence obtained by such a serious breach
of the Charter, is greater than the disrepute that would result from
excluding it."
- ---
MAP posted-by: Jay Bergstrom