JUDGE SCOLDS MOUNTIE FOR ILLEGAL SEARCH TACTICS

Evidence Excluded, Drug Case Tossed

A high-stakes drug case has been thrown out of court after the trial judge
faulted RCMP for the tactics used to obtain a search warrant.

Queen's Bench Justice Perry Schulman took aim at one particular Mountie,
accusing him of being "willfully blind, if not deliberate, willful and
flagrant" when he presented evidence to a magistrate.

Following a trial, Schulman ruled the search warrant was illegal and
acquitted Wendell Duncan of several drug charges. His written decision was
released yesterday.

Police found a quantity of cocaine, along with $53,000 cash, during their
July 2000 investigation, but Schulman said he can't overlook the behaviour
of the investigators.

"The evidence suggests, in the absence of an explanation, that Duncan may
be guilty of a serious offence. If the evidence is excluded, the public
will suffer if a guilty man is to go free," Schulman said in his ruling.

"On the other hand, in the long term, harm will be caused, and I think
greater harm, if police conduct such as this court has found to have taken
place in this case is not discouraged in a meaningful way." Schulman said
the officer's application for a search warrant on Duncan's home appeared to
be "carefully worded and lacks a complete or meaningful description that
one expects to see."

"The issue of a search warrant on this meagre information was not proper.
The information amounted to nothing other than suspicion," he said.

RCMP originally relied on a drug user turned informant who claimed Duncan
was running a drug operation out of his home, court was told.

Officers began surveillance of the home, then ran to a magistrate when they
saw what they believed was suspicious activity outside the home -- one man
entering and exiting.

The magistrate granted the warrant, based on the information provided,
which led to the seizure of the drugs and cash.

However, during the trial, the officer who applied for the warrant
testified about eight different facts which were either not disclosed, or
not accurately disclosed, to the magistrate. They included failing to give
information about the unreliability of an untested police informant and
exaggerating the extent of suspicious activity outside the suspect's home.

The officer blamed the errors on rushing to obtain the warrant, but
Schulman wasn't buying.

"One visit (to the Duncan's home) in more than an hour does not suggest a
large number of transactions were taking place. It was night and one can
assume even traffickers sleep," said Schulman.

Earlier in the trial, defence lawyer Sheldon Pinx accused police of
"trespassing" on Duncan's home by executing the search warrant at night.

But Schulman ruled police could continue making overnight house calls on
suspected drug dealers, saying there are no legal grounds to force police
to execute a warrant during daytime hours only.