Pubdate: Fri, 17 Jul 2015
Source: Province, The (CN BC)
Copyright: 2015 Postmedia Network Inc.
Contact: http://www2.canada.com/theprovince/letters.html
Website: http://www.theprovince.com/
Details: http://www.mapinc.org/media/476
Author: Keith Fraser
Page: 3

CHARTER RIGHTS VIOLATED DURING SEARCH, SURREY COUPLE CLAIMS

A Surrey couple is claiming their rights were violated when police
searched their home for a marijuana grow-op and found $129,000 in a
safe in their child's bedroom.

B.C.'s director of civil forfeiture wants to retain the money seized
by RCMP when they executed a search warrant on June 11, 2009, at the
home of David and Jennifer Johnson on 86 A Avenue.

The director also wants $2,600 in U.S. currency and $925 in Canadian
currency found in Jennifer Johnson's purse.

The warrant was executed during an investigation into an alleged theft
of electricity. Police found a hydroelectric bypass and evidence of a
grow-op on the premises.

In particular, police found 276 marijuana plants in various stages of
growth and 18 pounds of dried marijuana in three hidden rooms in the
basement. Also seized was grow-op equipment including ballasts,
lights, shrouds, fans, timers and other paraphernalia.

The bypass was the power source for the grow-op, allowing electricity
to be used without B.C.'s Hydro's knowledge or compensation, according
to a B.C. Supreme Court ruling in the case.

The Johnsons were charged with production of marijuana and theft from
B.C. Hydro, but in March 2012, a provincial court judge found there
had been an unreasonable delay in getting the case to trial and
ordered that the charges be stayed.

After the stay of proceedings, the civil forfeiture action was begun
and the Johnsons applied to have a summary trial, a proceeding where
witnesses are not called to testify.

A B.C. Supreme Court judge found that it was not appropriate to have
such a proceeding; the Johnsons appealed, but the B.C. Court of Appeal
refused to hear the appeal.

The Johnsons then filed an application to have the Charter arguments
heard before the civil forfeiture arguments.

Among their Charter arguments, they're claiming there was an incorrect
date on the search warrant and that the search exceeded the scope of
the warrant.

"With respect to the manner of the execution of the warrant, the
Johnsons submit that having the Surrey RCMP draw their guns on Mr.
Johnson as he travelled from the family home to the local Tim Hortons
at 7:30 in the morning, with his three-year-old son in the car, was
unnecessary in the circumstances," noted B.C. Supreme Court Justice
Miriam Maisonville in a ruling in which she agreed to hear the Charter
case separately.

The Johnsons also allege they were not permitted to contact a lawyer
at the scene, that they were detained without being provided with a
reason for the detention and that only when they were taken to the
police station were they able to get a lawyer.

The property was purchased in 2003 by David Johnson and another man
named Anthony McCluskey. The Johnsons then built a home and lived
there until it was sold.

The ruling notes that proceedings involving McCluskey and the director
have been settled.
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