Ontario Court Justice Louise Botham dismissed charges of possession of cocaine for the purpose of trafficking against brothers Eduardo and Jesus Aguilar-Mellado and Jesus’ girlfriend, Maria Martinez, finding that the officers displayed a “cavalier” attitude toward their Charter rights.
She said the three individuals were subjected to an unlawful detention and search of their car after they parked it at a police detachment last year. Officers also violated Eduardo and Maria’s right to a lawyer, Botham found.
The case raises the question of what — if anything — happens within a police force when a judge has found that police officers infringed on a person’s rights and then presented the court with questionable testimony.
Police spokesman Staff Sgt. Dan Richardson declined to comment.
Speaking generally, he said “the process as it stands right now is that the Crown contacts Peel police if something is required.” When asked what action Peel police then takes, Richardson said: “It depends on the situation. Every situation is different.”
A spokeswoman for the Public Prosecution Service of Canada, the federal agency that prosecutes drug crimes, said “the PPSC, as a matter of practice, does not confirm or deny whether it has referred a matter to the police.”
“I think what defence lawyers find frustrating is when they see judges make rulings like this and then sometimes don't see any kind of follow up by the police or accountability,” said lawyer Matthew Friedberg, whose firm represented Eduardo Aguilar-Mellado. “I hope the Peel police have already been examining this case and deciding what remedial steps it feels are appropriate.”
Alexander Hope, who represented Martinez, said “Justice Botham got it right.” Jesus Aguilar-Mellado’s lawyer, Juan Lopez, did not return a request for comment.
All details in this story are from Botham’s decision.
The Aguilar-Mellado brothers and Martinez parked their car at Peel police’s airport detachment on June 14, 2014. Const. Paul Correia and Const. Vito Montesano approached the vehicle, and were soon joined by other officers. Judging by the contents of the car, it appeared that the three passengers had been living in it. They were ordered out of the car.
Correia testified that he had “safety concerns” — he said the driver, Eduardo, told him they were being followed — as a way to explain the way officers handled the three passengers.
But Botham noted “significant differences” in content between Correia’s initial notes and his typed witness statement prepared sometime later, as well as contradictions between his evidence at trial and his post-arrest notes.
“It is difficult to be satisfied as to when the comment about being followed was made, or satisfied that it played any role at all,” she said.
Botham said she did not ignore the fact that all notes were “clearly not” being made while the accused were being investigated, but some time after all the officers had participated in a briefing session where the events of the encounter were discussed.
Correia agreed that he had not provided Eduardo Aguilar-Mellado with a reason for why he was being told to get out of the car or why he was being subjected to a pat down search.
“He acknowledged there can be times when detention will trigger an obligation to provide rights to counsel, but in his view that obligation varies depending on the circumstances, and in this case he didn’t feel rights to counsel applied,” said Botham.
Staff Sgt. Kelly Kippen testified he decided to search a purse he saw sticking out from underneath the front seat, and found inside a baseball cap containing what appeared to be cocaine. All three were then arrested.
Martinez denied it was her purse, but Kippen searched it anyway thinking it might be hers. Alternatively, if it was not her purse, he said he believed it could potentially be stolen, and wanted to investigate that scenario.
“I found Staff Sgt. Kippen to be a less than credible witness,” said Botham. “I was troubled by his willingness to offer multiple rationales for his actions, all equally implausible. I think that he wanted to see what was in the purse, so he did.
“This cavalier attitude toward the scope of an officer’s power to search an individual and his property during the course of an encounter was consistent with the lackadaisical attitudes displayed by the arresting officers toward the section 10 obligations,” meaning the right to be told of the reason for the detention and reminded of the right to a lawyer.
She later described Kippen’s testimony as “self-serving.”
At some point after all three were arrested, Correia said he provided Eduardo with an “informal right to counsel,” but the judge did not accept his evidence on this point, “given the nature of his notes on that issue and the overall contradiction between his evidence and his notes.” Eduardo ultimately spoke to duty counsel.
Const. Gavin Hesson, who dealt with Martinez, read her her right to a lawyer, but ended up asking her a series of questions after she began to cry on her way to the detachment. He said that during this time she said that she owned the purse, knew the drugs were in it and that it was supposed to be a quick drop that the driver knew nothing about. She later spoke to duty counsel.
“The officer acknowledged that he has an obligation to hold off when a detainee asks to speak to counsel,” Botham said, noting he did not hold off in this instance, “because he wanted to ask her questions, and she wanted to provide information, and he wanted to hear what she had to say.”
Jesus was read his right to a lawyer, and spoke to duty counsel, but Botham threw out his statement because she found had it not been for the unlawful detention and search, there would have been no basis to question him.
Source: thestar.com/
Author: Jacques Gallant, Wendy Gillis
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