A man convicted of various drug and related offences won a new trial on
Tuesday because a judge wouldn’t allow a high-quality voice recording of a
police officer the accused alleged had set him up.
Court records show
Brett Dunstan argued York Regional Police had staged a break-in at his
Markham, Ont., home in September 2011, and that an officer had then
anonymously reported the incident.
Staff Sgt. Cyril Gillis has been accused, by defendent Bret Dunstan, of
making an anonymous call that led police to break into his Markham home. (Vince
Talotta / Toronto Star)
Evidence was the caller reported seeing eight men running from the home. He
gave the address, said they looked suspicious, and hung up. Because the call
was to a non-emergency police number, its origin could not be traced.
Responding to the call, police entered the home without a warrant and found
marijuana, cocaine and other drugs, as well as $100,000 in cash.
Dunstan argued the police entry had violated his rights and what they
found was inadmissible as evidence. He alleged Staff Sgt. Cyril Gillis had
been the anonymous caller, something the officer denied.
To make its case, the defence wanted to compare Gillis’s voice with that of
the caller by way of expert spectrographic analysis. Such analysis depends,
among other things, on the ability of a microphone to capture a full range
of vocal sounds in an undistorted fashion.
However, Superior Court Justice
Michael McKelvey nixed a pretrial request for an order allowing the defence
to use a high-quality microphone to record testimony from Gillis. McKelvey
said he had no authority to make such an order in part because of a general
ban on in-court audio and video recordings.
He also said it was up to Dunstan to prove the entry was illegal.
In overturning the conviction, the Appeal Court found the judge was wrong
to conclude he did not have the power to order the high-quality audio
recording of Gillis’s testimony — especially given the accused’s right to
properly defend himself in a fair trial.
“The pretrial application judge concluded that the circumstances of the
anonymous call were suspicious, that it was unlikely the call was made by a
concerned citizen and that it was reasonable to question whether Staff Sgt.
Gillis was the caller,” the Appeal Court said. “In the end, however, he was
not persuaded that Staff Sgt. Gillis was in fact the caller.”
But the Appeal Court said McKelvey should have allowed the defence request
for a good quality voice sample, saying the general ban on recording was
largely aimed at preserving decorum in the courtroom and didn’t apply in
this case. In any event, the judge had the authority to make the order
sought.
In any event, the court noted, Gillis’s testimony was being
recorded with a low-end microphone for normal court purposes anyway.
“The rights of an accused should not turn on the particular level of
technology utilized by the court,” the court said.
The Appeal Court also
agreed with Dunstan that he should not have had to prove that the
warrantless search violated his rights.
Because police admitted going into the house without a warrant, it was up
to the prosecution to justify the entry, particularly in light of the “air
of reality” to the allegation that Gillis had made the anonymous phone call
and that he or his team was responsible for the initial break-in.
The Appeal Court did stress that its order for a new trial didn’t mean it
had concluded it believed Dunstan’s allegations against the officer or that
he might be able to prove them at trial.
Source
Ontario Judges, in particular Ottawa Judges, like "the Smiling Assassin"
Diane Lahaie has a long record of covering up for rotten cops.
What many Ontario Judges do is "cover it up". The officer was a credible
witness when the evidence was that he was professional at fabricating
evidence etc.
Ontario is the worst place in Canada for judges who simply, cover up, for
"rotten Cops".
like
Det.
Peter Van Der Zander of the Ottawa Police to fabricate evidence and get
away with it, when even the judges KNOW he is a "rotten cop".
Ottawa Mens Centre.com
