Pubdate: Tue, 07 Feb 2006
Source: Toronto Star (CN ON)
Copyright: 2006 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Tracey Tyler, Legal Affairs Reporter

GROW-OP CASE STOPPED OVER RACIAL PROFILING

A Superior Court judge has halted criminal proceedings against a man
accused of running a marijuana grow operation, saying police engaged
in racial profiling by targeting the man because he was Vietnamese.

The investigation began when an Ontario Provincial Police officer went
to the Barrie land registry office and looked up people with
Vietnamese surnames who had recently purchased homes.

In doing so, police used race "as a proxy for criminal activity" and
violated Van Trong Nguyen's rights under the Charter of Rights and
Freedoms, Justice Emile Kruzick said.

Nguyen was arrested Feb. 26, 2003, after police searched his
Orangeville-area home and found 596 marijuana plants. He was charged
with three forms of drug possession, theft of hydro and mischief to
hydro wires.

In a Jan. 16 decision, Kruzick stayed all charges, ruling an
individual's right to security and liberty of the person is violated
when police use racial profiling as the sole basis for an
investigation.

Admitting evidence police obtained illegally by violating the Charter
would bring the administration of justice into disrepute, he said.

"The officer engaged in racial profiling when he targeted the
applicant's residence as (a) possible marijuana grow operation,"
Kruzick said. "His only reason for investigating Mr. Nguyen is that he
was living in the home of his wife, Ms Do, and they were Vietnamese.
It is a stereotypical assumption that because some grow operations
have been run by East Asians, that anyone purchasing a new home who is
Vietnamese must be conducting a grow operation."

The officer testified that he was searching only for names of people
who had been previously investigated in connection with marijuana grow
operations. However, Nguyen and his wife, Thi Thanh Do, in whose name
the house was registered, had no known ties to any marijuana grow
operation and no criminal records, the judge said.

The officer "consciously or unconsciously" used race as a sign of
criminal activity, he said.

Richard O'Brien, Nyugen's lawyer, said he believes it is the first
time an Ontario court has found that police engaged in racial
profiling while investigating alleged marijuana grow houses.

In another case last year involving a search of land registry records,
a Superior Court judge concluded race was not the basis for the
investigation.

In Nguyen's case, the officer obtained 17 names from the land registry
office on June 11, 2002. All were Vietnamese.

The officer testified that he kept watch on Nguyen's property in East
Luther Township for the next eight months and concluded it was a
likely marijuana grow operation.

Toronto criminal lawyer Steven Skurka believes Kruzick's ruling was
the first time an Ontario court had implicated police in racial
profiling outside of the black community.

Skurka represented Decovan "Dee" Brown, the former Toronto Raptor at
the centre of a previous racial-profiling case. The Ontario Court of
Appeal ruled in 2003 that racial profiling does exist and may have
been behind an officer's decision to stop Brown on the Don Valley
Parkway in 1999.
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