DRUG CASE DIES; JUDGE CRITICAL OF POLICE OFFICER

Says Suspect's Rights Were Violated

A Manitoba judge chastised a Winnipeg police officer yesterday for
"unacceptable" behaviour that led her to dismiss the case against two
men caught with a loaded handgun and crack cocaine.

In a strongly worded, 12-page written decision, Queen's Bench Justice
Brenda Keyser said "a reasonable person would not condone the type of
conduct" that led to the men's arrest.

She found Const. George Ehr "flagrantly" breached the Charter of
Rights and Freedoms when he deliberately misled the accused about
their reason for detention, failed to tell them of their right to
remain silent or call a lawyer and then conducted an illegal search of
their vehicle without a warrant.

The judge's concerns about police conduct were similar to those
expressed when several previous cases were thrown out of court,
causing Winnipeg police Chief Jack Ewatski to announce last month he
was ordering an internal review of police conduct, policy and training
procedures.

Yesterday, the judge also disregarded Ehr's claim he saw the men with
tinfoil packages of crack cocaine in their vehicle prior to searching
it, saying she doesn't believe the officer's testimony on that point.

"These breaches are numerous, not inadvertent and not merely of a
technical nature. Furthermore, the breaches were not motivated by
urgency or to prevent the loss of evidence," said Keyser. "The end
result of attempting to keep our streets free from drug dealers,
laudable as that may be, cannot be used as the basis for randomly
infringing the rights of citizens to go about their business,
unobstructed by police."

A committee of several senior police officers plans to study the
recent judgments in depth and meet with senior justice officials,
including federal Crown prosecutors, to discuss mistakes that may have
been made.

Ewatski told the Free Press last month he is deeply troubled by the
decisions that have allowed seemingly guilty people to walk free.

"This certainly has gotten my attention, and we have to play by the
rules. We will change the way we do business if we have to," he said.

"We're not going to ignore what the courts have to say."

But Ewatski said he is also concerned the legal system has created
unrealistic expectations of police officers, and that judges aren't
looking at the "big picture" when handing down their decisions. He
noted judges are allowed to use discretion and can still allow
evidence even if they find police breached the Charter of Rights and
Freedoms. He said the test -- whether allowing the case would bring
"the administration of justice into disrepute" -- seems to get
distorted in some cases.

"Let's be realistic here. These technicalities aren't being done for a
malicious purpose. Our officers don't come to work wondering how
they're going to railroad an innocent person and put them in jail,"
said Ewatski.

Keyser said Ehr showed an "astounding indifference" to the rights of
Clayton Abraham and Devron Brown during the May 2003 incident.

"That is unacceptable for an officer of 18 years' experience," she
said.

"He no doubt had a hunch, which turned out to be accurate, that drugs
and/or weapons would be found in the vehicle. However, a hunch,
however well-intentioned and accurate it might turn out to be, is not
sufficient to detain."

Keyser made no mention yesterday of a suggestion by defence lawyers
that police stopped the accused only because they were black -- a
claim police strongly denied.

Police spokeswoman Const. Shelly Glover said yesterday police will
closely study this latest case.

"Like other recent court cases in which judges have questioned our
tactics, this one will be reviewed to determine what exactly the
courts are telling us specifically and the citizens of Winnipeg in
general," she said.

Keyser said yesterday the officer's initial decision to stop the
vehicle carrying Abraham and Brown was lawful. Ehr admitted in court
he might pull over 16 or 17 cars per night without making any seizures
or arrests. He testified that he looks for "suspicious" behaviour
while patrolling the inner city.

On the night in question, Ehr was alone in a patrol car and said he
noticed the white vehicle on several occasions and decided to stop it
to ensure it wasn't stolen.

Ehr said he couldn't see who was inside the car until he approached
the driver's side window, including whether the occupants were male or
female, black, white or otherwise.

He also claims to have noticed the man in the passenger side appearing
to stuff tinfoil packages between the seats.

"I believed it to be crack cocaine," Ehr testified.

Keyser said yesterday she doesn't accept Ehr's claim he saw the men
handling crack cocaine, saying the lighting was poor, he had an
obstructed view of the vehicle, didn't specifically mention it at
first to the accused and appeared to be on a fishing expedition for
evidence.

Ehr questioned both men, who claimed they didn't know what he was
talking about and denied having drugs in the car. He placed them both
under arrest, initially saying it was for a seatbelt violation, and
sat them handcuffed in the back of his patrol car.

Ehr then searched their vehicle, finding the 12 crack rocks, a loaded,
high-powered handgun and about $1,700 cash under the seats.

He called for backup, then returned to his car and advised both men of
their charter rights, including the ability to contact a lawyer and
remain silent. Ehr defended his actions under cross-examination.

"I didn't require a warrant because I had seen what I believed to be
drugs," he said.

"I didn't require permission to search the vehicle."

Ehr claims it was only a short period of time between when he removed
the men from their car and advised them of their rights. Neither made
any incriminating statements in the meantime.