HTTP/1.0 200 OK
Content-Type: text/html
Judge
Pubdate: Thu, 07 Feb 2008
Source: Vancouver Sun (CN BC)
Copyright: 2008 The Vancouver Sun
Contact: http://www.canada.com/vancouver/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Kim Bolan, Vancouver Sun
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)
Bookmark: http://www.mapinc.org/topics/Charter+rights
POT GROWER'S RIGHTS VIOLATED: JUDGE
700 Plants Found, but RCMP's 'Dynamic Entry' Not Justified
A Surrey pot grower's Charter rights were violated when police used a
battering ram to break down his door and find more than 700 plants in
his basement, a B.C. Supreme Court judge just ruled.
Police are unhappy with the ruling, and hope the Crown will appeal
it.
Justice Catherine Bruce said even though marijuana production is a
huge local problem, Surrey RCMP should have given more warning to Van
Dung Cao after they knocked, called out "police" and entered by force
a couple of minutes later.
Cao, who was acquitted of all charges Monday, argued that he was on
his way to the front door to answer after hearing police call out back
in March 2004. But before he could get there, he said the police
bashed through a garage door, guns pointed at him and made the arrest.
Two of the officers involved in executing the search warrant testified
at Cao's trial in December that they waited at least two minutes after
announcing their presence before making their way to the other door
and entering.
But Bruce said that even though Cao's house hosted a suspected
marijuana-growing operation, there were "no exigent circumstances
justifying a dynamic entry."
"I am satisfied the evidence should be excluded. Notwithstanding
production of marijuana is a serious offence and the Crown will be
unable to prove its case without the evidence secured by the entry to
the residence, to admit the evidence would bring the administration of
justice into disrepute," Bruce said in her ruling, released Wednesday.
"The manner of entry employed by the police in this case potentially
endangered lives without any exigent circumstances to warrant their
actions."
Surrey RCMP spokesman Cpl. Roger Morrow said he hopes the ruling will
be appealed.
"Once again, we are seeing a judgment being ruled on a point of law
that is potentially hampering the role of the police in enforcing the
laws of the country," Morrow said. "And I don't think from what I've
read what the members have done is unreasonable. But obviously I am
not the justice."
Morrow said police are facing increasing threats of violence from
those involved in drug trafficking. "We know that the people involved
in the drug trade arm themselves. We know they arm themselves not only
with handguns, but with submachine guns," he said.
"They are also arming grow-ops with booby traps. We know that. We are
seeing drug violence on our streets on a weekly basis."
He said the ruling makes it clear that Surrey RCMP did knock and
identify themselves.
"I am looking here at a two-minute interval from the time they pound
on the door and say: 'Police. Search warrant,' until they go to a
second door and that door is taken out and they gain entry," Morrow
said.
"At what point then, when there has been that two-minute interval, are
we permitted to go in when we are under the authority of a search warrant?"
Bruce said the police admitted they had no particular evidence
suggesting that anyone in the Cao house might be armed.
"To attempt to justify the routine use of a battering ram to violate,
unannounced, a private residence on the grounds that there have been
weapons found in some homes where there have also been marijuana grow
operations does not come close to meeting the onus upon the police to
show why they concluded such force and surprise were necessary in a
particular entry," she said.
Bruce said she considered the rampant drug problem in Metro Vancouver
in making her ruling.
"It is well known that in the Lower Mainland the existence of
marijuana grow operations in private residences is an ever-increasing
problem that in some municipalities has become epidemic. As a
consequence, society's interest in bringing those charged with serious
offences to justice is a significant factor in this case," Bruce said.
"Coupled with the high expectation of privacy accorded to persons in
their homes, the police created an extremely dangerous situation by
forcing entry without any regard to the particular circumstances
before them. Moreover, this kind of violent and forceful entry with
guns drawn appears to be standard practice for the Surrey RCMP."
The Crown had argued that police can't wait too long before entering
because a suspect could attempt to destroy evidence or arm themselves,
but Bruce rejected that position as well.
The Public Prosecution Service of Canada has 30 days to file an
appeal.
- ---
MAP posted-by: Richard Lake