ACQUITTAL STANDS, THANKS TO COPS' BREACH OF CHARTER RIGHTS:
COURT

Appeals/Officer Showed 'careless Disregard For Fundamental
Rights'

The B.C. Court of Appeal has upheld the acquittal of two men whose
Charter rights were breached by police during an investigation into an
alleged marijuana grow op in rural Surrey.

Ronald Michael Lauriente and Allan Ronald Catalano were tried and
acquitted in B.C. Supreme Court on charges of producing and possessing
marijuana for the purpose of trafficking. The trial judge found that
police had violated their Charter Rights.

The Crown appealed, seeking a new trial on grounds the judge had erred
by excluding evidence that was obtained as a result of the breaches.
However, the Crown didn't challenge her finding that the accuseds'
Charter rights had been breached.

Justice Jo-Ann Prowse upheld the acquittal on Friday, in
Vancouver.

"I find no basis for interfering with the decision of the trial judge
and I would dismiss the appeal," she said. Chief Justice Lance Finch
and Justice Daphne Smith agreed.

The court heard that police received a Crime Stoppers tip about an
alleged grow op on five-acres in rural Surrey, where Lauriente lived
with his wife and two children.

Following a week's investigation, police executed a search warrant on
the property on May 27, 2004 and arrested Lauriente as he was driving
away. The court heard Catalano was found standing among marijuana
plants inside an outbuilding.

Ms. Lauriente was arrested inside the house but charges were stayed
against her midway through trial in November 2007.

The trial judge found the police had breached provisions of the
Charter of Rights and Freedoms several times.

The court heard that on May 20, 2004, the lead police investigator
checked out the property, after receiving the Crime Stoppers tip, and
trespassed by walking off a public road and along a fence on
Lauriente's property. It was from there that she'd spotted something
that led her to conclude there was a grow op on the property.

"Having some suspicion that she may have trespassed on the property,
she went to City Hall and confirmed that this was the case by means of
a property search," Prowse noted.

The constable disclosed the trespass on the Information to Obtain a
Search Warrant and upon review the trial judge upheld the validity of
the warrant, but concluded the constable's trespass amounted to a
breach of Section 8 of the Charter.

The trial judge found that the trespass resulted from "significant
carelessness" and demonstrated "a careless disregard for fundamental
rights which cannot be justified by a need for haste."

Five days later, the police stopped Lauriente as he was driving on the
highway. The court heard a constable had "guestimated," without radar
equipment, that Lauriente had been speeding. The court heard that
during this "orchestrated" stop the police "surreptitiously" took a
photo of him for surveillance purposes. The trial judge found he'd
been "arbitrarily detained" against his Charter Rights, as the highway
stop wasn't based on a concern for safety but rather was a "ruse" to
get information out of him related to the drugs case.

The police had also violated Section 10 of the Charter by not advising
Lauriente why he was being detained, the judge found.

Moreover, she found, Catalano's Charter rights were breached when, two
days later, police questioned him after he'd asserted his right to
legal counsel, but before he'd had a chance to exercise that right.

Though charges against Ms. Lauriente had been stayed, the judge found
her Section 9 Charter rights were also breached because police didn't
have reasonable and probable grounds to arrest her when they'd
executed the search warrant.