DRUG SEARCHES ILLEGAL: LAWYER

Court Decision Could Impact Future Cases

The practices of Winnipeg police officers are under a microscope this week
in a drug case in which they are accused of "trespassing" on city homes
using illegal search warrants.

Queen's Bench Justice Perry Schulman is expected to deliver a decision as
early as today which could have far-reaching implications on current and
future drug cases in Manitoba courts.

Defence lawyer Sheldon Pinx argued yesterday the case against his client,
Wendell Duncan, should be thrown out of court based on an unlawful search
by police -- despite the fact police seized cocaine and large quantities of
cash.

"A strong message must be sent to police by the courts, that we are not
going to condone police in this city obtaining fishing licences. Their
conduct in this case was nothing short of outrageous," said Pinx.

"They must be told and they must be given limits to their conduct."

The Crown will respond with its argument this morning. Pinx urged Schulman
to rule the police search illegal, along with the current process used to
obtain drug search warrants.

If Schulman agrees the search is illegal and the case goes up in smoke,
police will be forced to change their methods used in obtaining and
executive search warrants.

The status of other drug cases currently before the courts, where similar
searches were conducted, could also be in jeopardy.

Armed with a search warrant, investigators found a small quantity of
cocaine and $50,000 cash allegedly from the sale of drugs inside Duncan's
home in July 2000.

Duncan was charged with trafficking cocaine and possession of the proceeds
of crime.

His trial began yesterday with Pinx's motion for dismissal. Police had
obtained the warrant a day earlier from a magistrate, who issued a standard
form under the Controlled Drugs and Substances Act (CDSA) which gives
police the authority to search the property "at any time."

Police executed the warrant at 12:25 a.m.

Pinx is challenging the validity of the warrant, and others like it, saying
the magistrate is required by law to impose conditions upon police when
issuing warrants.

In the Criminal Code, a warrant must be executed between 6 a.m. and 9 p.m.
unless otherwise stated by the magistrate, who must provide reasons for the
exception.

Earlier this year, a case involving the seizure of explosives was dismissed
because police were several minutes too late in acting on the search warrant.

No such time limit provisions exist in the CDSA, but Pinx said the Charter
of Rights and Freedoms should offer the same protection to all citizens.

He said it's ridiculous that magistrates like the one in his case give
police "carte blanche" to act on the warrant whenever they feel like it.

"It flies in the face of the constitutional principles we've been taught to
employ. The (magistrates) can't simply be handing out access cards to the
Winnipeg police department to enter a home at any time they want, all willy
nilly," he said. Pinx said officers should be forced to outline special
circumstances or an urgent need to act on a warrant at night before they
get permission.

"This is an affront to all of us. To me, it's frightening that police can
get a warrant like this, without providing any information, and walk into
someone's house at 12:25 in the morning," he said.

"The facts of this case speak to a lack of urgency, if anything."

Pinx said it doesn't matter that police found items in his client's home
which led to charges.

"You don't look at what was found after the fact to justify whether or not
the police acted reasonably," he said.

Pinx cited several cases from other jurisdictions, including a U.S. court
ruling which called nighttime searches without valid reasons
"extraordinarily intrusive" and becoming of a "police state."

"An important and integral component of the process is placing limit on
times. As part of the judicial process, there must be direction from the
magistrate," he said. "Otherwise, you're doing nothing more than trespassing."