Evidence thrown out in court case due to charter breach

   - Tribune file photo
— image credit: Tribune file photo

A provincial court judge has ruled evidence gathered by Williams Lake RCMP inadmissible due to what she called serious charter breaches committed against the accused.

Judge J.T. Doulis delivered her 37-page reasons for judgement in Williams Lake Provincial Court Wednesday in relation to the Crown’s case against a young adult man named Cole Harry.

Following the decision, Harry’s lawyer, Richard Kaiser, said he took the summary matter to trial because he feels there has been a systematic disregard by police for the Charter of Rights and Freedoms.

“This is a really important case for Williams Lake,” Kaiser said outside the courtroom. “This is not a police state. The police are acting as if they can just stop and frisk anyone walking at night, and they can’t.”

The case dates back to the early morning hours of Oct. 20, 2015 when an alarm on a police bait vehicle, which was parked unlocked in the 200 block of Fourth Avenue for several days and equipped with video surveillance technology, was triggered at 12:45 a.m.

Doulis said police responded to the alarm activation and found one of the props, a pair of $25 binoculars, missing, however, there was no damage to the vehicle’s windows or locks. Police removed the bait vehicle from the staging area and retrieved the card containing the video recordings which showed someone wearing a hoody and glasses removing an item with a lanyard attached.

Doulis said Const. Bradley Leforte, who testified during the two-day trial held Nov. 29, 2016 and again Jan. 10, 2017, was on duty when he received a dispatch of the bait truck alarm activation and parked near the hospital area to watch for a suspect described as someone wearing a green coat.

Having not seen anyone from his stationary position, Leforte resumed making patrols, noticing a group of three people, two walking and one riding a bike, headed east on Gibbon Street.

Const. Leforte was still looking for the bait vehicle suspect when he encountered the same group of three, this time walking nonchalantly north on Western. He testified they did not match the description of the bait vehicle suspect.

Leforte was continuing down Western Avenue when he noticed a dome light on in a truck parked at a residence. Stopping to investigate, Leforte noted the vehicle’s passenger door was unlocked and undamaged but that it appeared the glove box contents had been moved around. At that time the group he saw earlier were about 20 to 30 feet away.

Doulis said Leforte told the court that he radioed police dispatch that he was going to talk to the group of three and found them at the corner of Boundary and Dodwell Street. Although he was suspicious of the group, Leforte said he did not believe he had sufficient evidence to detain the group for anything relating to the truck on Western Ave.

The group consisted of Harry and two other males, one estimated to be 12 or 13 on an oversized bicycle.

While Leforte talked to the group, who he described as polite, co-operative and unaggressive, another officer, Const. Cropley, arrived on scene.

Cropley took the youngest person aside and questioned whether his bike was stolen, while Leforte started asking for names and birth dates of the others.

In the course of this encounter the three were searched and a can of bear spray was found on Harry. Also, a set of keys which were identified as being from the truck on Western Ave. were also found in Harry’s possession.

Harry was arrested and ultimately charged by Crown with theft of a motor vehicle, attempt to commit theft of a motor vehicle, theft of binoculars, possession of stolen property (the keys), possession of a weapon (bear spray) and carrying a concealed weapon (the bear spray).

No evidence was presented by Crown on the theft and attempted theft of the motor vehicle (the bait vehicle), while Doulis found the evidence in the last three charges inadmissible due to the Charter breaches; namely that everyone has the right to be secure against unreasonable search and seizure and everyone has the right not to be arbitrarily detained or imprisoned.

Both officers said they believed they had the right to search a person for “officer safety.”

“The troubling aspect of the … Charter breaches in this case is that the investigating officers did not seem to understand the parameters of their right to search a person for officer safety,” Doulis said. “They seemed to believe the police are entitled to conduct safety searches with or without grounds for an investigative detention and with or without reasonable concerns for their own safety or the safety of others. The fact that both officers shared their unrestrained view suggests a systemic misunderstanding of the police power to stop, detain and search people milling about late at night,” Doulis said.

“Given the seriousness of the breach in this case, the court must disassociate itself from police conduct which shows a reckless disregard to Mr. Harry’s personal integrity.”

The trial has been adjourned to find another date where Harry can be present for its conclusion.

When asked why Harry was charged with theft of a motor vehicle and attempted theft, Crown media spokesperson Dan McLaughlin said Crown cannot comment on cases until the matter is complete.

Insp. Jeff Pelley of the Wiliams Lake RCMP did not return calls for comment by press time.

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