A “troubling” breach of Charter rights by police translated into a reduced sentence for a Penticton man convicted of dangerous operation of a stolen motorcycle and three other charges.
The actions of RCMP Const. Andrew Campbell also risked “undermining the integrity of the judicial process,” provincial court Judge Meg Shaw said in a decision this week regarding the arrest of James Colt Wilson. She found Wilson’s Charter right to protection against unreasonable search and seizure was violated upon his arrest Oct. 5, 2014, at a home on Pickering Street.
In her reasons for decision, Shaw said Campbell went to the home that day to look for Wilson, 25, who was the subject of an arrest warrant for failing to appear in court.
Campbell had information that Wilson hadn’t been seen at the residence — his last known address — for two weeks, but went anyway.
Once there, the Mountie knocked on the door and announced his presence, but no one answered. Later, the officer tried the front door and discovered it was open, then took a few steps inside the home and again called out after hearing what he thought was movement on the upper floor.
According to Shaw, a woman who lived at the home showed up soon after and, without any invitation to do so, officers followed her back inside. Wilson was later discovered hiding in the attic and arrested.
“I find the police conduct clearly breached Mr. Wilson’s Charter rights,” said the judge, adding she found it “particularly troubling” that Mounties also violated the rights of the woman whom they followed into the house without permission.
Shaw did not, however, find the breaches to be serious enough that she had to throw out the case against Wilson, as his lawyer had argued for. Instead, she took the wrongful arrest into consideration at sentencing.
Wilson admitted to twice breaking a court-ordered curfew and possessing and crashing a stolen motorcycle in the parking lot of the Penticton Community Centre, all during the month of August.
While the Crown wanted Wilson sent to jail for a total of 11 months, defence counsel James Pennington instead asked for a token one-day sentence.
“I say that because as you have found, as the evidence clearly showed, the Charter breach was flagrant (and) egregious. It wasn’t inadvertent, it was deliberate,” said Pennington.
Shaw, however, cited Wilson’s “significant” criminal record and added 60 new days behind bars to the 110 days with which she credited him.
“I have specifically reduced Mr. Wilson’s sentence because of the Charter breaches,” she noted.
Upon his release, Wilson will also have to pay $334.87 in restitution to cover repair costs incurred by the owner of the motorcycle and will be prohibited from driving for a year. He will also be banned from being in any private vehicle unless the registered owner is present.