Criminal Law

Weapons acquittal proves the value of persistence: Fennel

By Peter Small, AdvocateDaily.com Contributor

Thoroughly exploring each avenue of defence, no matter how slim the chance of success seems, can bring significant results, says Toronto criminal lawyer John Fennel, who recently secured an acquittal for a client on multiple gun charges after demonstrating police had breached the man’s constitutional rights.

A tough trial seemed to await the accused, who faced firearms charges after police found a loaded handgun in his car, says Fennel, an associate with Hicks Adams LLP.

Fennel and co-counsel Tyler Smith believed his privacy rights had been breached after police seized his property, but they knew they had an uphill battle proving it.

“This case was kind of a lesson — if you have an issue you need to exhaustively explore it even though it looks unlikely,” Fennel says.

The lawyers filed a motion before an Ontario Superior Court judge asserting that police had breached the defendant’s privacy protections under the Charter by confiscating certain items and holding onto his car for six months without judicial authorization.

“People are often aghast at what lawyers do, saying that a certain argument or line of inquiry has no chance of winning,” Fennel tells AdvocateDaily.com.

“But one of the problems for us is we don’t know upfront whether a line of questioning will bear fruit. We’ve got to do it, and either have the door slammed on us, or get through to the promised land if it works out,” he adds.

Police obtained a valid warrant and searched the defendant’s car and west Toronto townhouse, Fennel says. They were looking for evidence in a break and enter case.

In the car’s trunk they found a 9 mm Smith and Wesson pistol not related to the break and enter. They seized the car and took it to a forensic garage.

Investigators charged Fennel’s client with the gun counts, including illegal possession of a loaded firearm. In his mid-30s, the defendant had previous brushes with the law, and was under a firearms ownership prohibition.

Fennel says guns are abhorred in the Canadian justice system for good reason, and it’s hard to get them excluded from evidence even when police breach Charter rights in seizing them.

In a recent Ontario Court of Appeal case, however, a majority held that there is no “firearms exception” to Charter rights, signalling that police need to be more fastidious in seeking judicial authorization, he says.

The defence still rarely succeeds in getting guns excluded, Fennel adds.

“But even though the odds looked bleak, a lot of things ended up breaking our way,” he says.

The judge heard evidence on the motion over three days, during which the defence cross-examined multiple police officers.

“We just kept getting more and more information, and the Crown had to keep giving us more disclosure that hadn’t been given to us,” Fennel says.

That included a series of emails showing that the detective responsible for reporting to the judiciary had been repeatedly warned of the necessity to seek authorization for the seizure of an Apple iPad and the continued holding of the car, but had not done so, he says.

The defence cross-examined the detective on this issue, confronting him with the emails. “He didn’t have an adequate response.”

Fennel says the Crown prosecutor had earlier told the judge he would be relying on the “good faith” exception under s. 24 (2) of the Charter to admit the gun into evidence. He took the position that although police made procedural errors, they had acted in good faith.

“But the Crown learned about the emails, and was forthright, and met his disclosure obligations,” he says. “Once he learned about them, and produced them, it ended up being an embarrassing paper trail.”

The Crown withdrew the charges. The defence then moved to have them dismissed, and the judge granted the motion, resulting in the acquittal.

The lesson here is that if the defence believes there is a breach, it must pursue it even if the chances of success look slight, Fennel says.

Lawyers are often forced to challenge the admissibility of evidence without knowing what the result will be, he says. “But we do it because we know there’s a violation of our client’s rights. We have to litigate this thing, that at the outset, looks unlikely.”

“Will I ever win on this argument again in my life? Probably not. But I won once and it matters a great deal for my client, even though a cost-benefit analysis would say, ‘Don't bother,’ ” Fennel says.

“I think everyone knew we had an uphill battle, but with persistence and methodical questioning the door started opening and we succeeded in pushing it open.”

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