NEW TRIAL ALLOWED IN DRUG CASE

The Alberta Court of Appeal has ordered a new trial for a man who had
three of four drug charges dismissed, because the trial judge erred in
excluding evidence obtained in the search of the accused's house as a
result of charter breaches.

The Crown had argued in its appeal that city police were acting
properly when they sent heavily armed, masked members of the tactical
unit to use a battering ram to break down the door of Shaker
Al-Fartossy's home on April 30, 2004, and thus the fruits of their
search should have been accepted as evidence.

The officers found marijuana, cocaine, crack cocaine, some cash,
rifles and ammunition after their takedown.

In a 2-1 decision released on Friday, the province's top court said
the judge was wrong to conclude that the officers should not have been
masked, because it was not an issue by either Crown or defence at
trial and police were not given an opportunity to explain.

"It appears there may well have been a compelling reason for the
police to shield their identity," wrote Justice Peter Martin, also
speaking for Justice Bonnie Rawlins.

"Before the search warrant was obtained, the (accused) and his
partner, Salah Rashid, had sold cocaine and crack cocaine to
undercover officers on five different occasions. During one such
transaction, the undercover officer was threatened that he would be
killed if he was found to be a police officer."

Provincial court Judge Sandra Hamilton had also ruled police were
wrong to not carry a copy of the search warrant with them and did not
immediately show it to the homeowner when he requested it.

Court heard the officer who had the warrant was a short distance away
from the home and produced it some 15 minutes later.

"The trial judge's finding that the masking of the police was
unreasonable, together with the failure of police to carry the warrant
with them on entry, resulted in the exclusion of the drug evidence,"
Martin wrote.

"The equation leading to that result would be quite different without
the masking issue as a factor. I am therefore of the view that the
Crown has established that the verdict would not necessarily have been
the same but for this error."

In dissent, Justice Carol Conrad concluded there were no errors by the
trial judge and the acquittals should stand.

"The trial judge is not required to tell the parties, as she is
deliberating, which facts she finds significant, nor is she required
to ask for argument on every fact upon which she may ultimately choose
to reply," wrote Conrad.

"She is simply required to consider all the facts in evidence and come
to a decision."