Even biker gangs have privacy rights that need to be respected, Ontario's highest court has ruled in a case in which police found guns, drugs, cash and ammunition behind a fake wall in a barn leased to a member of the Hells Angels. Police, acting on a tip about the fake wall, obtained a warrant to conduct the search. But earlier in their investigation, police had picked a lock and broken into the same barn – with no warrant.
In a 3-0 decision, the Ontario Court of Appeal quashed multiple convictions against Frank Strauss of Perth County, west of Kitchener, Ont., for which he had been sentenced to 11 years in jail. The court said the justice system's reputation needs to be protected from what it described as blatantly illegal police behaviour. The Canadian government had argued that the case was especially serious because the Hells Angels are a criminal organization, and that the public deserved to have the evidence heard.
"A senior investigating officer and his team made a conscious decision to 'gamble' with the law and the courts," Justice Mary Lou Benotto wrote in her ruling. "To admit the evidence under these circumstances would reward and ultimately permit this conduct."
The case sheds light not only on the Charter right to be protected from unreasonable police searches, but on judges' authority, under the Charter of Rights and Freedoms, to allow prosecutors to use illegally obtained evidence in a trial. Under Section 24(2), which has little public profile but has a big impact on criminal trials, the judges need first to decide what would cause more harm to the justice system's public reputation – including or excluding the evidence.
The case was complicated by the two searches – one with a warrant and one without. Aware that 29 guns were missing because of a break-in at a home in Cambridge, Ont., senior members of the Waterloo Regional Police had set out on what they considered a needle-in-a-haystack search. They wandered onto properties despite not having a warrant to do so. Eventually a senior officer, who testified that he considered it an emergency when the Hells Angels are in possession of guns, picked a barn lock and found 17 firearms and 4,500 rounds of ammunition. (The officer was working with a Crown attorney, but had not mentioned the lock picking to her before doing it.) Later, after Mr. Strauss himself mentioned the fake wall to a man who found himself in court alongside him on an unrelated matter, police obtained a search warrant.
The judge who conducted Mr. Strauss's trial did not permit the 17 firearms and 4,500 rounds of ammunition from the first search to be used as evidence, ruling that the illegal police behaviour was deliberate and blatant and that using the evidence from it would bring the justice system into disrepute. But the judge said he would allow in the evidence from the second search (four long guns, five handguns, 10,000 rounds of ammunition, 10 kilograms of cocaine, 106 grams of crystal meth and $29,000), ruling that it came about because of the tip, and not because of the first search.
The trial judge also said, citing the seriousness of the charges, that it would harm the system's reputation to keep out the evidence. And the judge stressed that, when police sought the warrant for the second search, the officer was up front about the picking of the lock. This officer had no previous record of illegal searches. Appeal courts usually defer to trial judges' discretion under 24(2), but in this case the judge got the legal principles wrong, Justice Benotto wrote.
She said the officer's acknowledgment of the break-in did not lessen the seriousness of his behaviour.
"To rely on an after-the-fact acknowledgment of wrongdoing as a way to diminish the seriousness of a breach, and thereby achieve admission of the evidence, would give the police a licence to engage in misconduct and render the Charter's protection meaningless."
The Supreme Court has said that when judges look at the system's public reputation, they need to consider the reasonable and well-informed person and the long-term impact of civil-rights violations.
"The [Ontario] court says such a member of the public would not be prepared to tolerate the police conduct of entering onto people's properties unlawfully," James Lockyer, a Toronto lawyer who represented Mr. Strauss, said in an interview.
University of Alberta law professor Steven Penney, who specializes in criminal law, called the police behaviour "pretty shocking misconduct, to deliberately and knowingly violate the Charter just because they felt it was in some general public interest."