COPS LET OFF HOOK FOR VIOLATING MAN'S RIGHTS

B.C. Supreme Court Justice Nancy Morrison convicted a Saanich man of
possessing cocaine for the purpose of trafficking, despite the fact that
Saanich police violated his Charter of Rights and Freedoms protections.

Darrin John Patterson, 23, will be sentenced May 14 in Vancouver.

"The violation was serious," the judge said of the actions of Saanich
police, in denying Patterson a telephone call for nearly eight hours on
Sept. 13, 2002. "But it falls short of what I would have to term
'flagrant', given all the evidence before me."

Constable Phillip Richmond, one of the Saanich police officers who served
Patterson with a three-month driving prohibition issued by the
Superintendent of Motor Vehicles in August of 2002, pulled him over on Sept.13.

Police testified that Patterson, the driver, and his front-seat companion
switched seats after they were stopped shortly before noon. When Richmond
did a pat-down search of Patterson, he found 13.8 grams of a white powder
that turned out to be cocaine.

Patterson was arrested for possession of cocaine for the purpose of
trafficking and was read his rights by Richmond at 1 p.m. Patterson
immediately requested to speak with his lawyer, Peter Firestone.

Patterson arrived at the Saanich police station at 1:24 p.m. and a warrant
to search Patterson's Laval Avenue residence was obtained by fax from the
Vancouver courthouse at 5:01 p.m.

The search, which was completed at 7:16 p.m., turned up scales, a kitchen
knife and coffee grinder containing cocaine residue, $5,330 in cash (in a
briefcase under a bed), as well as other evidence.

Richmond testified that he offered Patterson the use of a telephone for the
first time at around 7:30 p.m., when he advised Patterson he was going to
be released. Patterson was released at 8:47 p.m. and Justice Morrison ruled
that Patterson did not have access to a phone for seven hours and 45 minutes.

The judge said that no explanation was given by Saanich police for the
49-minute delay in executing the search warrant on Patterson's home.

"In my view, once the warrant is received, the police have an obligation to
act as quickly as possible," Justice Morrison said, "and once the residence
has been entered, the premises are secured and the accused should have been
given (telephone) access at that time."

She added that, given modern cell phone communications, Saanich police at
Patterson's residence could have called the police station to ensure that
Patterson was immediately given his required access to legal counsel.

"Defence counsel Mr. Firestone points out quite correctly his client was
held incommunicado from the time of the arrest until certainly 5:50, almost
five hours, and thereafter for a further three hours, according to the
defence, to 8:47 p.m."

Justice Morrison noted that the words "without delay" are in Section 10 of
the Charter of Rights and Freedoms.

"If the police have reasonable and probably grounds to obtain a search
warrant and do so expeditiously, as they appear to have here, I am of the
view that denial of counsel did not occur until after the police were in
control, that is, on the premises beginning a lawful search at 5:50 p.m.

"But from that moment on, there was no reason to deny the accused his
rights under (the Charter). This is not a right to be treated casually. The
red flag is automatically up once the police deny the right to counsel,
even though it may be for a valid reason, officer safety and/or
preservation of evidence.

"But once those concerns are addressed in an expeditious manner, the rights
of the accused must be observed. In this case, they were not."

Under Section 24 (2) of the Charter, the judge had the power to throw out
the evidence found at Patterson's home.

The section states: "Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that infringed or denied
any rights or freedoms guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to all the circumstances,
the admission of it in the proceedings would bring the administration of
justice into disrepute."

The judge agreed with Crown counsel Michael Mark that the admission of the
evidence would not bring the administration of justice into disrepute.

"We look at what caused or created the violation: urgency, necessity or
carelessness, an undue casualness over Charter rights," said Justice
Morrison. "Were there other investigative techniques available to the
police as defence counsel has suggested, such as posting one or more
officers as surveillance on the premises until such time as a warrant
allowed lawful entry? There was one officer posted for surveillance
purposes, but that still would not answer the concerns that there may be
others within the premises, or the concerns with regard to weapons, if
there were indeed other persons in the residence, or the possible
destruction of evidence.

"Was it a mere technical violation? It would have to be rather trivial to
qualify as that, in my opinion."

Justice Morrison said that she might accept Patterson's testimony that he
used one to 1.5 grams of cocaine daily, but she rejected his explanation
that the $5,330 in cash under his bed was his life savings.

"That explanation, to be kind, was improbable."

Chief Derek Egan of the Saanich Police Department said Friday that the case
was not brought to his attention until the Saanich News called.

"I haven't really read it yet, so I really can't comment," Egan said. But
he stated that he would review the judge's remarks "very carefully" and see
if Saanich police will have to change any of their policies.