CONSTITUTIONAL CHALLENGE LAUNCHED OVER SEARCH WARRANT

WINDSOR - Windsor defence lawyer Frank Miller has brought a
constitutional challenge over the way Windsor police put together
search warrants in drug cases, citing s. 8 of the Charter, which
protects against unreasonable search or seizure.

Miller brought the motion at the onset of a drug trial in which he
says the information on a warrant used to search his client's house
was extremely similar to one issued in the case of a completely
different client - and through the same investigating officer -
throwing the credibility of the information used in the search warrant
process open to question.

Miller says he has long been skeptical of information used by Windsor
police for search warrants but now he thinks there is enough
"evidentiary foundation" in this case to challenge. "I've been trying
to find the case for a long time and now I've got the situation where
I think I've got a tipster who's clearly wrong," he says.

The current case is against Fred Pritchard, aka "Daweedking," charged
with providing marijuana to his former local marijuana compassion
club. In May 2005, police raided his home and seized 26 plants as well
as grow-op equipment such as hydroponic lights. Miller said the search
warrant's information alleged Pritchard had 50 to 80 three-foot-high
marijuana plants in the basement. His wife, Renee Pritchard, who was
also charged.

But Miller says information for the warrant happened to be very
similar to that for another client of his - one where police found 180
three-foot-high plants and 261 one-inch-high seedlings.

"They're so out of whack," he said. "The variance is sufficiently
large to raise questions." Miller's contention is that no plants were
seen at all. He says it's time to challenge the police. The lawyer
said it's far from the first time he has encountered vagueness in
Windsor police search-warrant applications.

"What they say is that anytime they find any drug then they put that
drug down as showing [the informant's] reliable," he says. "It doesn't
matter whether it's what they wanted, it doesn't matter whether it's
what he predicted, it doesn't matter whether it's the quantity in the
place, as long as they've found anything they say he's reliable."

Miller thinks the police should provide some background as to the
informants' past credibility. "I have never seen a police force which
spells out the guy's track record," he says. Instead, what police say
is, "'If the guy has come up with anything at all then he's
reliable,'" according to Miller.

What makes his motion "novel," Miller adds, is that the trial judge
has ordered an investigating officer to gather information to come up
with just such a track record to test the informants' credibility. "So
the judge on the review can say, 'Wait a minute, this guy isn't
reliable."' But Assistant Crown Nicole Lamphier says the informants
obviously led police to the marijuana plants in question.

"Everything proved accurate except for the number of plants seen by
the sources and what were seized by the officers," she says. Despite
the discrepancy in what was reported and the number of plants found
"it doesn't mean it was wrong, it just means when the warrant was
issued it was a different number" suggesting some plants had been
removed in the interval.

Miller rejects the generality. "What they're saying is, 'If this guy
gives us any information that results in the seizure of any drugs
regardless of how far away from the predicted seizure, that tells us
that's he's reliable.'"

Information in search warrants is largely protected by police-informer
privilege to protect the identity of informants. But Miller argues
that the privilege is so well entrenched police can easily take
advantage of it, cutting corners in their investigations by simply
saying the informant is reliable without proving it.

"There's a serious question in my mind as to whether the police are
using the statement that the guy's reliable to hide situations or to
deal with situations where they really know the guy's not reliable,"
he says. Or, it could simply be a cover for "sloppy investigation
work, or [a way] not to have to do an investigation."

University of Toronto law professor Peter Rosenthal says the issue of
police-informer privilege "arises a lot, but the courts are very
strongly protective of the privilege." A rare exception is the
"innocence at stake" test where no disclosure could result in a false
conviction.

But in the significant 1997 Supreme Court search warrant ruling R. v.
Leipert, the court said the protection originated because of "the
importance of the role of informers in the solution of crimes and the
apprehension of criminals. It was recognized that citizens have a duty
to divulge to the police any information that they may have pertaining
to the commission of a crime."

Based on this, the importance of informants' confidentiality arose
"both for his or her own protection and to encourage others to divulge
to the authorities any information pertaining to crimes."

Osgoode Hall law professor James Stribopoulos, who teaches criminal
procedure, says informants are essential to the criminal justice
system. "As I tell my students, they're the grease in the machinery of
criminal justice," he says.

And while there is a potential risk of abuse by police, "from an
administration of justice standpoint, it's better to run that slight
risk rather than expose informants to the disclosure of their
identity." The fear, he says, is that information used by police
investigations would "dry up."

But he adds, the Ontario Court of Appeal court "has consistently
emphasized the need for the police to be frank and forthright" in
applying for warrants. "The obligation is to be fulsome about sharing
details about the informant."

Stribopoulos says a problem can arise when police use the term that an
informant is "proven and reliable" and "that becomes the catchphrase"
or "boilerplate" that "really gets transplanted from one application
to the next." He points to the 1996 Ontario Appeal Court case R v.
Hosie, where "the police officer got into trouble" for doing just that.

Said the court: "Blind reliance upon ritualistic phrases without
regard to the facts of the particular case robs the judicial officer
of the ability to perform this vital function in the administration of
justice." Miler is using Hosie in his argument.

"It's coded language and the Court of Appeal tells us it's coded
language," he says. Stribopoulos says, "The danger that I think police
get into is, because it's easy, they'll recycle prior applications and
in the process - inadvertently, quite often - they end up not
providing full and fair disclosure of the circumstances."

But, he suggests, informants' identities can still be protected by
careful editing. "You can provide particulars about success rates in
sufficiently generic terms -- without providing specifics - to reveal
to the judge a person's track record, without disclosing so much that
anyone looking at the information would be able to tell who the
informant is."

And he says that in a situation where the nature of the case calls for
the informant being identified, a judge can impose a sealing order
"and ultimately when the defence seeks access to it, the identity of
the information will be blacked out."

Rosenthal also says the privilege could "encourage officers to
exaggerate or otherwise misuse information that they allege came from
an informant." He suggests the Windsor case is an example where
information should be strictly parsed.

"Thus, in a case where the surrounding circumstances suggest the
possibility that the information is not accurate, such as where the
information alleged to have been supplied by the informant bears a
striking similarity to the information supplied . . . about a
different and unrelated accused, the basis for the information should
be carefully scrutinized."

For Miller, the matter comes down to a fundamental. "The police can go
and tell the justice of the peace anything they want to tell him. It's
all on the basis of 'trust us."' Absent protections against such a
cavalier approach, he says, "in the long run we'll have a police state."

Stribopoulos agrees that the privilege "could be problematic in the
hands of a police officer who is less than scrupulous," with the
"greatest danger" being that the information is "made up." He says
it's "all contingent on the police being honest."