Pubdate: Fri, 20 Feb 2009 Source: Vancouver Sun (CN BC) Copyright: 2009 The Vancouver Sun Contact: http://www.canada.com/vancouversun/letters.html Website: http://www.canada.com/vancouversun/ Details: http://www.mapinc.org/media/477 Author: Neal Hall DRUG, GUN CONVICTIONS REVERSED Court Of Appeal Judges Cite Police Mistakes During Investigation Sun A man convicted of cultivating marijuana and possessing a .357 revolver and stun gun has had his convictions overturned on appeal. Three judges of the B.C. Court of Appeal allowed the appeal of Michael Donald Ling, finding police made serious mistakes while executing a search warrant and gathering evidence. "In my view, in this case, to admit the evidence gathered pursuant to this warrant would bring the administration of justice into disrepute in the minds of right-thinking citizens. I would exclude the evidence and in the circumstances enter an acquittal on the counts before the court," Justice Robert Bauman ruled in a judgment released Thursday, with Justices Ian Donald and Carol Huddart in agreement. Ling, 48, who lived at Christina Lake, was convicted in Grand Forks Provincial Court of cultivating marijuana, possession for the purpose of trafficking, unlawfully possessing a .357 revolver, which is a restricted weapon, and possessing a prohibited weapon, a stun gun. He was also convicted of improperly storing a 12-gauge shotgun and ammunition found at Ling's residence. On Oct. 11, 2004, RCMP Const. Thomas Erickson was golfing on the 12th green of the Christina Lake Golf Club outside Grand Forks when he noticed what he believed to be growing marijuana plants. On closer inspection, he saw a small building covered by a blue tarp. From previous dealings in the community, Erickson believed the building was on land where Ling resided. After completing his round of golf, Erickson reported his observations to his colleague, Cpl. Everett McLachlan. It was learned a previous search warrant had been executed in 1999 at Ling's home, a marijuana-growing operation was found and Ling was convicted. McLachlan began preparing an application for a search warrant under the telewarrant provisions of the Criminal Code. It was faxed to the Judicial Centre in Burnaby on Oct. 15, 2004, and was approved at 5:05 p.m. that day. The warrant authorized police to search two lots owned by Ling. During the search, they unknowingly crossed a third lot owned by Ling which wasn't listed on the warrant, thereby trespassing on his property. The Mounties found pot growing indoors and outside. Officers also seized two weight scales, the revolver, stun gun, Crossman air pistol, a holster with five live rounds of ammunition, a Winchester shotgun and six live shotgun shells. On appeal, Ling's lawyer argued his client's Charter rights were breached so the evidence should be excluded. The trial judge dismissed the argument. But the appeal court excluded the evidence and acquitted Ling after finding the trial judge erred in his assessment of the serious police mistakes: n The marijuana plants found outside, which the officer had first observed while golfing, were actually on Crown land between Ling's property and the golf course; police never measured the property. n Police should have tried to obtain a warrant locally, rather than over the phone; police failed to inquire at the Grand Forks courthouse about the availability of a justice of the peace. The appeal court cited a previous judgment, which said "we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he actually committed those crimes, is entitled to the full protection of the Charter. "Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system." The full judgment is available online: http://www.courts.gov.bc.ca/jdb-txt/CA/09/00/2009BCCA0070 - --- MAP posted-by: Larry Seguin