OFFICERS DON'T KNOW RIGHTS OF ACCUSED, JUDGE SAYS

Drug suspect wasn't asked if he could swim

Ottawa police committed flagrant breaches of the Charter rights of
two men, including one who was sent into the Rideau River by an
officer to recover a syringe, a judge said Friday, according to
lawyers who were in court.

Ontario Court Justice Heather Perkins-McVey said the officers either
had a complete lack of training or didn't care about the rights of
Sydney Cranham, 37, and Patrick Tobin, 40. She then stayed drug
charges against them at the request of a federal Crown prosecutor
VEronique Rousseau.

That's according to the three lawyers involved in the case, who spoke
to the Citizen after the hearing. They all agreed on the judge's conclusions.

According to evidence presented, the two men were sitting by the
Rideau River in Bordeleau Park near King Edward Avenue on July 24
when they were approached by Const. Tyler Munro, who had been doing
"pro-active policing," according to the defence lawyers.

Munro testified he saw the men throw needles into the river and some
tall grass along the water's edge. The two men were immediately
arrested, the lawyers said.

Munro was then joined by Const. Daniel Levesque, and the two officers
began to search the men, said their lawyers.

The officers alleged they found a baggie containing about three grams
of marijuana on Cranham and a small amount of crack cocaine on Tobin,
according to their lawyers. Police said they found the drugs in
Tobin's pocket, although Tobin's lawyer, Michel Bisson, said outside
of court his client denied the allegation and that the crack was
actually found in a duffle bag on the ground.

Following their arrest, Levesque testified that he directed Cranham
to wade into the river up to his chest to recover the dirty needle on
the grounds of officer and public safety, noting that some geese were
floating toward the syringe, said Cranham's lawyer, Leo Russomanno.

Russomanno said Levesque never asked his client if he could swim,
didn't check whether there was a current in the water, didn't know
how cold the water was or if it was environmentally safe to do so.

Munro directed Tobin to pick up the needle from the tall grass, said Bisson.

"It's an abuse of state power to force someone into that situation,"
said Russomanno.

"The state has to investigate independently," said Bisson. "You can't
do that. He's under arrest, he's compliant, you can't force him to
produce evidence against himself. You certainly can't do that when it
puts his safety at risk. They were made to retrieve these potentially
hazardous items."

That, coupled with the failure of police to immediately afford them
their right to counsel after placing them under arrest, violated
their Charter rights, Perkins-McVey said, according to the lawyers.

Bisson added the immediate arrest of the two men was also problematic
since the officer saw nothing more than the alleged tossing of the
syringes. The officers had arrested them first and then discovered
the drugs later, said Russomanno, which he says is another violation
of their rights.

"The police, in my view, had trouble establishing the reasonable and
probable grounds (for an arrest) at that point," said Bisson. "It
could have been deemed suspicious activity worthy of investigation,
but not enough to arrest them."

Court heard the officers waited about 25 minutes before reading the
two men their rights, the lawyers said.

Russomanno said police continued questioning his client even after he
said he wanted a lawyer. Case law states that an accused person
cannot continue to be questioned until after a lawyer is consulted.

Bisson and Russomanno said there were also problems with the
continuity of evidence, including the mislabelling of some of the
alleged drug evidence.

Tobin, who had charges of possession of crack cocaine and morphine
stayed at the Crown's request, was relieved by the decision, Bisson said.

Cranham, who had charges of possession of marijuana and morphine
along with several breaches of recognizance stayed, remains in
custody on other charges, said Russomanno.