CAN OFF-DUTY COPS REMAIN ANONYMOUS?

A Multimillion-Dollar Drug Bust in Southern Ontario Could Decide
Whether Police Can Conceal the Names of Fellow Officers WHO Tip Them
Off, Writes Douglas Quan.

When Niagara Regional Police took down one of Ontario's largest
marijuana-grow operations three years ago, they compared it to
"winning the World Series."

But last month, the case unravelled when a judge stayed charges
against two of the accused after it came to light that detectives had
deliberately withheld from the Crown the fact that their tipster was
an off-duty cop from another police agency.

Now, federal prosecutors are appealing the decision in a case that
raises questions about whether offduty police officers are entitled to
the same protections of confidentiality that are given to citizen informants.

In December 2007, off-duty Hamilton police detective Aivars Jekabsons
was visiting relatives in the Town of Lincoln. While walking by a
house, he smelled marijuana and jotted down the licence plate of a
Ford pickup in the driveway.

He later phoned Niagara Regional Police to pass along his
observations, but said he would prefer that his name be kept out of
the investigation because he had relatives in the area and believed
that organized crime might be involved.

With that tip, Niagara police uncovered a massive operation involving
thousands of marijuana plants spanning multiple locations. An expert
later estimated the value of the plants and marijuana seized to be
between $8 million and $16 million.

However, when Niagara police investigators Det.-Sgt. James Leigh, Det.
James Malloy and Det. Chris Lemaich handed over their notes to the
Crown, there was no mention of Jekabsons as being the original
tipster. The Hamilton detective's name was either redacted or he was
referred to as an anonymous source.

In a scathing 39-page decision last month, Ontario Superior Court
Judge Peter Hambly wrote that there was "no justification" for the
Niagara police detectives to not disclose Jekabsons' identity.

"The police are obligated to produce all information that they gather
in an investigation to the Crown," the judge said, adding that it is
the Crown -- not the police -- that decides what is to be disclosed to
the defence.

Hambly stayed charges against two of the accused, Massimo Spagnoli and
John Shore, saying this was one of the "clearest of cases" to justify
staying charges.

"If police lying is tolerated by the courts, they will soon lose the
respect of the community," he said.

However, in a four-page notice of appeal filed this month, federal
prosecutors said the judge "erred in finding that an abuse of process
had occurred" and that he failed to appreciate the safety concerns of
the police officer-tipster.

Asked to elaborate, Nathalie Houle, a spokeswoman for the Public
Prosecution Service of Canada, said in an e-mail Monday that the Crown
is asking the Court of Appeal to "clarify that off-duty police
officers may be protected by informer privilege."

"While police officers cannot be confidential informants in cases
related to their official duties, it is appropriate that their
identities be protected when they provide information obtained in
their purely personal lives," she said.

But Steven Fishbayn, a Toronto lawyer representing one of the accused,
said Monday that officers encounter risks all the time -- "that's the
nature of the job that they're in."

"Every police officer could have that concern (about possible
retaliation) with every case," he said.

Fishbayn added that Jekabsons, the Hamilton detective, did not meet
the definition of a true confidential informant because he never
explicitly told Niagara police at the outset that he was giving the
information only on the condition of confidentiality.

A spokesman for the Niagara Regional Police Service said he couldn't
comment on the case because the conduct of the three detectives was
under investigation by the London Police Service.