KITCHENER — A ruling by Ontario’s highest court quashing gun and drug trafficking convictions against a member of the Hells Angels sends a “strong message” to police, the biker’s defence lawyer says.
“It tells police officers across the country that they cannot engage in unlawful conduct in carrying out investigations,” James Lockyer said in an interview Thursday.
“And if they do, any evidence they obtain as a result of their unlawful conduct will be excluded from court and will not be allowed to be heard by the court. So it’s a strong message, and I think it’s an important message.”
In 2014, Frank Strauss, who grew up in Kitchener and is a full-patch member of the Hells Angels in London, Ont., was convicted in a judge-alone trial of 17 offences.
Strauss, 41, walked out of prison a free man on Tuesday after the Ontario Court of Appeal entered verdicts of acquittals on all counts. It did not order a new trial.
The case dates back to February 2012 when 29 guns and a large quantity of ammunition were stolen from a Cambridge home. An investigation led to the arrest of Jordan Thomas, who told police he brokered the sale of the guns and ammo to Strauss.
Thomas told police Strauss took the guns and ammo to a “safe house.” Thomas did not know the location.
The Kitchener court case heard that Waterloo Regional Police twice searched a barn connected to Strauss.
They did not have a warrant for the first search. They picked the lock and found more than a dozen long guns, one handgun and 4,500 rounds of ammunition. The evidence was not allowed at trial.
They got a warrant for a second search — which found five handguns, three rifles, one shotgun, 9,873 rounds of ammo and more than $500,000 worth of drugs — and that evidence was allowed by the trial judge.
But the Appeal Court this week ruled the evidence should have been excluded.
The Canadian Charter of Rights and Freedoms guarantees protection against unreasonable search and seizure.
“They (police) knew what they were doing during the first search was unlawful,” Lockyer said. “The second search was tainted by the first search. It would never have happened but for the first search.”
Appeal Court Justice Mary Lou Benotto concluded the trial judge, Justice Gerald Taylor, “impermissibly diminished” the seriousness of the charter breach and erred in his analysis of whether excluding evidence from the second search would bring the administration of justice into disrepute.
“He considered matters that were irrelevant, didn’t consider matters that were relevant and had he done it properly, he would have excluded the evidence, so they (the Appeal Court) excluded it,” Lockyer said.
He added that when police got the warrant from a justice of the peace for the second search, “they were less than candid about how the first search had come about. Put all that together, it was a series of decisions made by the police and police conduct that was all done in bad faith.”
Lockyer acknowledged not everyone will applaud a motorcycle gang member being acquitted, but said the decision reaffirms that everyone has the same rights: “If you’re the Queen or a Hells Angel. Poor or rich. I’m sure not all citizens would approve of what happened, but if you really think it through, you should approve.”
The prosecution has 60 days to file an application for leave to appeal to Canada’s highest court.
“What they can do is ask the Supreme Court of Canada to review the decision of the Court of Appeal that the evidence should be excluded,” Lockyer said.
Waterloo Region Crown attorney Mark Poland said in an email, “We are still reviewing the matter to determine our next steps.”
The Supreme Court of Canada hears only about 10 per cent of cases in which leave to appeal is sought, Lockyer said.