Posted in The Globe & Mail

By: Timothy Appleby and Kim Mackrael

A group of Peel Regional police officers “essentially colluded and then committed perjury en masse,” in their handling of a drug case that began more than two years ago, a judge has found.

Tan-Hung Dinh, now 28, was arrested and charged with possession for the purpose of trafficking after a 2009 sting operation at a Mississauga motel. Police said they found nearly a kilo of cocaine in Mr. Dinh’s car and another two kilos when they searched his house.

Although Mr. Dinh pleaded guilty to trafficking the cocaine found in his car, an Ontario Superior Court Justice ruled on Friday that he will face no jail time, in part because the officers who arrested him and searched his home violated his Charter rights. The judge said the offence would normally result in a sentence of five to eight years.

“The police showed contempt not just for the basic rights of every accused but for the sanctity of a courtroom,” Justice Deena Baltman wrote in giving her reasons for Mr. Dinh’s conditional sentence. She said the officers’ misbehaviour “strikes at the heart” of justice administration and undermines society’s confidence in police and the courts.

In early September 2009, an undercover police officer arranged to meet Mr. Dinh in a motel room, ostensibly so the officer could buy a large quantity of cocaine. When Mr. Dinh arrived, he was pulled inside the room by several officers and beaten, the judge found.

Mr. Dinh told court that five or six officers punched and kicked him for about two minutes, and that at one point one of them climbed up onto the nightstand and tried to jump on him (he rolled clear). They also interrogated Mr. Dinh without a lawyer and ignored his requests for medical attention, the judge found.

The officers denied using any more force than was necessary to make the arrest.

After finding nearly a kilo of cocaine in Mr. Dinh’s car, several officers searched his house without a warrant, where they found two more kilos, together with an ecstasy-pill press, more than 2,000 grams of ecstasy and assorted drug paraphernalia.

When drug-trafficking charges were subsequently laid, Mr. Dinh sought to have them stayed, on the grounds that his Charter rights had been violated.

“He has always admitted that it was his drugs. This case was never about whether they belonged to him,” Mr. Dinh’s lawyer, Leora Shemesh, said on Friday. “For my client, it was about [the fact that]they violated [his]rights by the way in which they dealt with him.”

Last fall, Judge Baltman ruled that she would not stay the charges, because they were too serious. At the same time, however, she said the evidence found in his home was inadmissible because police had not obtained a search warrant first and subsequently lied about it in court.

The officers said they found the drugs in Mr. Dinh’s home only after obtaining the warrant, a claim the judge said was “designed to mislead the court.”

She concluded that Mr. Dinh’s rights had indeed been disregarded, in three different ways.

First, the level of force used by police in the motel room was “excessive.”

Second, Mr. Dinh was denied access to a lawyer after he had been grabbed and dragged inside the motel room, and it was not clear that statements he made there were given voluntarily. As such, they were deemed inadmissible as evidence.

Third, Peel police had no search warrant when they descended on his house. In some circumstances, a warrantless search is legally permissible, the judge noted, but this one was not.

On Friday, Judge Baltman handed down a conditional sentence of two years less a day, with the first year to be spent under house arrest.

Judge Baltman said she recognizes that police have to exercise discretion in difficult and changing circumstances, but said in this case, the officers’ treatment of Mr. Dinh and their decision to lie under oath was “calculated, deliberate and utterly avoidable.”

Mr. Dinh has been under house arrest for the past two and a half years. He had no criminal record before the offence, has complied with his bail conditions and maintained a job, factors the judge said also played into her decision to issue the conditional sentence.

After a publication ban was lifted in the case Friday afternoon, Peel Police Chief Mike Metcalf announced that an internal inquiry into the actions of the five officers, launched last September by the Professional Standards Bureau, was under way and would continue.

In the meantime, all five remain on active duty, Chief Metcalf said in a news release.

By: Chistie Blatchford

Meet the alleged tip of the proverbial iceberg: Edmond Young Dun Kim is an accused grow-op producer, and if the estimates of police forces across the country are accurate, and as the Bible puts it, his name is legion, for they are many.

Mr. Kim’s criminal trial on four charges under the federal Controlled Drugs and Substances Act — production of marijuana; production for the purposes of trafficking; possession; and possession of property obtained by crime — began here yesterday before Ontario Superior Court Judge Barry MacDougall.

The charges date back to April, 2003, the year after Durham Regional Police in a record-breaking year busted 120 grow operations.

The area is one of several regions that ring Toronto and which police say are plagued by the proliferation of grow houses in otherwise nondescript residential suburbs. According to recent testimony from Ontario Provincial Police drug expert Rick Barnum, the best estimate is that there are 25,000 grow-ops in Ontario alone.

Mr. Kim’s trial is typical in some significant regards.

For one, his lawyer, the very able Leora Shemesh, is alleging a breach of his Section 8 rights under the Canadian Charter of Rights and Freedoms, Section 8 being the one that guarantees against unreasonable search or seizure.

Defence lawyers have long argued, frequently with success, that police are careless or misleading in the information they use to obtain grow-op search warrants, and while Ms. Shemesh’s complaint in this case is unique in its circumstances, the Charter breach allegation itself is not uncommon.

If the judge finds there was a breach, some or all of the evidence against Mr. Kim could be kicked out, or the judge could find that the breach is “saved” by Section 24, which holds that evidence is excluded only if a breach is serious enough that admitting the impugned evidence would bring the administration of justice into disrepute.

For another, while it appears there is some evidence that Mr. Kim, a handsome and clean-cut 30-year-old, was either living or had lived in the Pickering, Ont., house where police found more than 500 marijuana plants, he was not the registered owner.

This, too, is the usual course in grow-house busts, The Globe and Mail has learned, with police facing the choice of either charging everyone connected with a property — owner, tenant, anyone who had keys — or merely the occupant. So enormous and resource-consuming is this paper chase that at least one Toronto-area force reportedly has stopped laying charges, and is content merely to shut down an operation, while another allegedly now has a policy of executing a warrant to enter a private house only if there is someone actually in the house at the time.

Ordinary, too, are the items on the long list seized by police at the Highview Road house, as described yesterday by exhibits officer Detective-Constable Cyril Gillis: 190 mature marijuana plants; 196 vegetative plants; 183 seedlings; bread racks where the marijuana buds were set to dry; a weighing scale; nine copies of High Times magazine; all the hydroponic growing equipment (32 ballasts; 28 high-intensity grow lights; 15 timers); $3,300 in cash, mostly in $50 and $20 bills, and, the pièce de résistance, the “pirate panel” — the illegal box by which electricity was diverted to run all the gear.

Mr. Kim was not at the Highview Road house, located on a quiet court, when police arrived on the evening in question and first entered the house without a warrant or when they returned the next day, with one.

But from the other items now in evidence at the trial, and which were also seized there, it appears he had surely been about the place.

There were various documents there with his name on them, albeit many with a different address in Toronto, and a raft of pictures of Mr. Kim, in albums and a curious little book called Couples: A Hot Little Book About Us, which appears to have been put together by a girlfriend of Mr. Kim’s, and featured sections called Things We Do Together, Our Most Exciting Date, Our Future, Celebrations, Affectionate Pet Names and Favourite Rainy Day Activities.

“The real crime here,” one of my colleagues whispered, “was putting together that book.”

Police were first called to the house, Constable Bob Elliott testified yesterday, to investigate a 911 report of two vicious dogs running loose, a Rottweiler and a Labrador cross.

And sure enough, Constable Elliott said, when he and his partner got there, they soon spotted one of the dogs running about, with a crowd of neighbours gathered on the streets outside. To abbreviate a very long story, suffice to say that the officers chased the dogs, Constable Elliott with his gun out at one point, and that, with the Lab on the front lawn and the Rottweiler snarling at the front door, his partner fired at the Lab, missing him, but sending both dogs scurrying into the house, where the door was open.

Constable Elliott then raced to the house to shut the door to contain the dogs, and it was then, he said, that two things really struck him.

One was that the door wouldn’t secure, and appeared to be broken; the other was the strong smell of “fresh, unburned marijuana,” a smell he described as distinct and pungent. “You could smell it in the courthouse today,” Constable Elliott added, startling Ms. Shemesh and everyone else, but Constable Elliott said he thought he could smell it when he walked in the building.

In any case, he said that the open door and its insecure lock led him to conclude there might have been a break-in, and later to worry that perhaps the person or persons who had broken in were perhaps now trapped in the house.

That, he said, gave him the “exigent circumstances” — the term means an immediate threat to life or evidence — that are required by law for police to conduct a warrantless search, and in fairly short order, the two officers accompanied animal control personnel into the home to “clear” each floor — that is, to make sure nobody was there.

In the process, one dog was shot and killed, the other tranquillized such that he too later died, and the officers saw the hydroponic operation. That, in turn, gave police grounds for the search warrant, which was later signed by a justice of the peace and executed the following day.

Ms. Shemesh alleges that the dogs-cum-break-in were but a trumped up rationale for an illegal search. “You were looking for more evidence of a marijuana grow-op, weren’t you?” she asked Constable Elliott.

“My entering the house had nothing to do with evidentiary observations whatsoever,” he replied.

The late Rottweiler appears in some of the pictures with Mr. Kim, while documents from a vet clinic and a tag identifying the Lab as “Montana Kim” confirm he was the owner of the other.

The trial, which could fairly be said to be a bit of a dog’s breakfast, continues tomorrow.