Gun charges against two Burnaby residents dismissed over illegal search

Thirty gun charges against two Burnaby residents were recently stayed after a judge ruled police illegally entered their suite, making four seized firearms inadmissible at their trial.

Lawyers for Damion Ryan, a violent criminal with gang affiliations, and his girlfriend Theresa Latham successfully argued that RCMP violated their Charter rights when the Emergency Response Team forcibly entered their suite in August 2010 after shots were fired outside.

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The Crown told Vancouver Provincial Court Judge Brian Bastin that officers were concerned someone might be injured inside the basement suite after a 911 call reporting shots fired and the discovery of three firearms in the bushes outside.

Prosecutor Kathy Murphy also argued that Latham's mother had given permission for police to search her house, pointing out that her daughter and Ryan lived in the basement and she was concerned about their wellbeing.

But Bastin ruled that while police "were clearly entitled to look anywhere in the suite where an injured person could be," they were not allowed to look for hidden weapons.

He accepted that the three handguns and an AK-47 were not in "plain view" when the ERT first entered the suite in the 3700-block of Oxford Street.

In fact, two of the handguns were covered by a large stuffed animal that officers had no legal right to move, he said.

And police only found the assault rifle by lifting a mattress, Bastin said in his reasons for judgment, released Friday.

"The critical issue regarding the lifting of the mattress is the reasonableness of that act to look for an injured person," Bastin said. "In my opinion, it was not reasonable to believe that a person injured or otherwise could have been under the mattress. There was no lump in the mattress."

After the ERT first entered Ryan and Latham's suite, police applied for and obtained a search warrant. But the application contained "very serious" errors, Bastin found, as well as information about the guns that police never should have included.

"Had the true state of affairs been presented to the Judicial Justice of the Peace, it is my opinion that the search warrant should not have been issued," he said. "I have found that police exceeded their powers both in entering the basement suite in question and in the manner in which they searched the suite thereafter."

He said both issues amounted to "serious collective carelessness by the police officers involved."

Bastin also weighed whether the guns should be admissible because of the broader interests of society. "I conclude that the long-term repute of the justice system is better served by the exclusion of the challenged evidence," he said. "Therefore I rule that all of the evidence seized from the Oxford Street residence in the course of the execution of the search warrant is not admissible at trial."

Bastin ordered the guns, magazines and ammunition seized at the residence to be forfeited.

The gun charges were laid against Ryan and Latham in November 2010. But they weren't arrested until after Ryan was wounded in a gangland shooting at an Oak Street restaurant in Vancouver on Dec. 12, 2010.

Ten people were wounded in the unprecedented gangland shooting, which Vancouver police said at the time was in retaliation for the Oct. 16, 2010 assassination of Gurmit Singh Dhak at Burnaby's Metrotown Mall.

Ryan was sentenced to five years in 2005 in connection with a violent home invasion involving a marijuana-growing operation.

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