Police treatment of suspect leads judge to throw out evidence


From Thursday's Globe and Mail

June 5, 2008 at 5:18 AM EDT

An Ontario judge has tossed out evidence of illegal firearms and cocaine trafficking because Ottawa Police Services drug officers flagrantly violated the defendant's constitutional rights.

In a ruling yesterday, Ontario Superior Court Judge Timothy Ray said Wasseem Said Gebara was denied the right to speak to his lawyer for almost seven hours while police were raiding his home.

Worse still, Judge Ray said, the episode was part of a routine policy carried out by Ottawa drug officers.

"It falls into a category of being part of a larger pattern of disregard for Charter rights, rather than an isolated error of judgment," Judge Ray said. "This police conduct was egregious and contumelious."

Mr. Gebara was arrested on Nov. 3, 2005, after his car was boxed in by officers who had been keeping him under surveillance. He was arrested and taken to a police station, where his requests to contact his lawyer were persistently refused.

Out of concern for his brother and sister, Mr. Gebara informed police that he had a shotgun and a semi-automatic pistol stored at the home that he shared with them, and asked to have the weapons procured peacefully.

Despite not having a warrant to search the home, drug squad officers immediately converged on the residence, battered the door down, and found the guns.

"The warrantless search of a person's home offends one of the core values of our society," Judge Ray said.

Citing police testimony yesterday, Judge Ray said suspects are routinely denied legal counsel until a raid is over, as part of a police tactic to prevent defence lawyers from potentially alerting friends of their clients to dispose of potential evidence.

"Society has great anxiety about guns," he said. "These guns are central to the case against Mr. Gebara. To exclude them would result in an acquittal. On the other hand, the police conduct is egregious.

"To fail to exclude the guns would signal to the members of the Ottawa Police Drug Squad that their practices have no consequences, and would amount to a sanction of their conduct on the evening of Nov. 3, 2005."