Pubdate: Thu, 03 Mar 2005
Source: Mission City Record (CN BC)
Copyright: 2005 The Mission City Record
Contact:  http://www.missioncityrecord.com/
Details: http://www.mapinc.org/media/1305
Author: Cheryl Wierda
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)

LOCAL COUPLE ACQUITTED BY JUSTICE JOYCE

A B.C. Supreme Court justice acquitted a couple arrested for running a 
marijuana grow operation in Mission because RCMP forced their way into the 
home too quickly.

On Jan. 12, 2003, Mission RCMP officers armed with a search warrant arrived 
at 32993 Hawthorne Avenue. Inside the home, Li Qing Mai and Zhi Wen Tang 
were watching television.

A "second or two" after officers knocked on the door and shouted "Police. 
Open up." and "Search warrant. Open up," they used a 90 pound battering ram 
to force open the door.

The couple said they did not hear police knocking, an argument the court 
found to be "plausible."

"While the police attended the residence with a valid search warrant, I am 
of the opinion that the search was carried out in an unreasonable manner 
and that the police breached the accused's rights under section 8 of the 
Charter (of Rights and Freedoms)," Justice Brian Joyce said in his 
decision, published last week.

Persons inside the home should have a "reasonable opportunity" to respond 
to the demand before force can be used, Joyce noted.

"A second or two is insufficient warning for an occupant to realize what is 
happening and to understand and appreciate the police are at the door and 
intending to enter," he said.

"It gives insufficient time to prepare oneself and certainly insufficient 
time to comply with the demand to open up."

Police claimed the manner of searching the home was necessary for officer 
safety, but Joyce said a "satisfactory explanation" of the police officers' 
concerns was not provided.

The search warrant came after Const. Duplissie, who lived in the area, 
noted a smell of pot emitting from the house, and used a FLIR device to 
detected a heat source in the basement and near the hydro meter, which he 
thought was a hydro bypass.

Joyce felt Duplissie "let his zeal and his desire to do something about the 
situation overcome what he knew was his duty."

"While I do not conclude he acted with the expressed intention of violating 
the accused's rights, I do not think it can be said that he acted in the 
belief that he was observing it," said Joyce, who called the forced entry 
"highly intrusive and frightening" for the accused.

In denying to admit the evidence found during the search, Joyce acquitted 
the couple of unlawful production of marijuana, possession for the purpose 
of trafficking and theft of electricity.
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