A judge has thrown out evidence, including a loaded firearm, that was seized during a raid on a meth lab at a Vancouver home after finding police had violated the rights of two residents charged in the case.
After B.C. Supreme Court Justice Nigel Kent concluded that the evidence was inadmissible, the Crown dismissed charges that had been laid against Shu Tshung Wong and Lena Truong.
The accused were charged with seven drug and firearm offences following the discovery of the methamphetamine lab and the handgun at their home in the 2900-block East 15th Avenue on June 15, 2012.
During the execution of a search warrant, members of the Vancouver police and the RCMP clandestine lab team found in the upstairs of the home items associated with the manufacture of meth, including Reactine pills, pipes used for smoking meth and several baggies containing about 28 grams of meth.
In a bedside table police located a Glock firearm in a gun case, with a magazine loaded with 17 cartridges.
Other meth lab equipment, including glassware, precursor chemicals and air filtration masks, was also located in the home.
In pre-trial rulings, the judge found that police had committed eight Charter of Rights breaches against the two accused.
The judge ruled that while both accused were promptly informed of the reasons for their arrest and of their right to retain and instruct a lawyer without delay, they were nonetheless wrongly denied those rights.
Court heard that before the arrests, police had decided that the accused would be detained before the search warrant was executed and that they would be held until the warrant was actually executed.
Police also decided that the accused would be held incommunicado between the time of the arrest and the execution of the warrant, some six hours, during which time their access to a lawyer would be withheld.
The police said the decisions were made to ensure officer and public safety and to prevent any outside communications to destroy evidence.
But the judge said there was no reasonable factual basis for police to believe there was a safety issue or that the destruction of evidence might happen if they were given access to lawyers.
He said the rights violation was “wilful” and “flagrant” and dismissed the police officers’ “dissembling testimony” purporting to justify their decision.
“There can be no doubt the conduct constituted a major and deliberate departure from Charter standards,” said the judge.
“It was conduct expressly approved by senior decision-makers within the police department and perhaps worse still, it was a not uncommon tactic employed by the police on ‘project’ investigation files such as the one in this case.”
Kent said the violation fell at the most serious end of the spectrum and had a significant impact on the accuseds’ interests.
“Society has a very strong interest in detecting, prosecuting and convicting those individuals who operate ‘meth labs’ and who commit firearms offences,” he said.
“Sometimes, however, police misconduct in investigating these crimes is such that evidence critical to the prosecution must be excluded and the accused set free as a consequence.”
The judge said the police misconduct surrounding the arrest and detention of the accused was enough on its own to exclude the evidence.
But he added that if he was wrong about that, he would hold that the cumulative effect of all of the breaches, which also included covert surveillance of the home and swabbing of Wong’s vehicle, would produce the same result.
