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Rights were violated by the manner in which the police entered
By Hempology | February 14, 2008
The Now, BC
08 Feb 2008
Tom Zytaruk
APPEAL GROW-OP RULING: FARNWORTH
An accused pot grower caught a big break from a B.C. Supreme Court judge this week when his case was tossed out after the judge ruled the Surrey RCMP acted unreasonably during the raid on his house.
Mike Farnworth, the provincial NDP’s public safety critic, has called on the attorney general to appeal the decision.
“I don’t agree with this ruling,” he said, fearing it might potentially hamper the ability of the police to take down grow ops.
Van Dung Cao was charged with growing marijuana for the purpose of trafficking after six members of the Surrey RCMP drug squad executed a search warrant at 11143 157A Street in March 2004 and found 704 plants in the basement.
Cao maintained his Charter Rights were violated by the manner in which the police entered.
In her reasons for decision, Justice Catherine Bruce noted that the police didn’t do a “risk assessment” of the residence first and found that they went in through a side door with a battering ram without doing a “knock and announce,” as they had at the front door shortly before.
The accused testified that he was on his way to answer the pounding on the front door when he heard the commotion at the side door.
After the cops entered through the side door, with their guns drawn, they found the accused in the laundry room, pointed their guns at his head and arrested him.
Cao’s lawyers argued that the police violated his Charter rights by failing to knock at the side door and announce their intent, and not giving him sufficient time to respond before barging in. Bruce decided that the police hadn’t assessed safety risks before entering the house to justify such a show of force.
“This so called ‘knock and announce’ rule is not a mere formality,” she noted. “This rule is necessary to ensure the personal safety of anyone inside the residence at the time of entry as well as the police.” There was nothing, she found, to warrant such a “dynamic entry.” Moreover, she decided, police hadn’t given Cao time to answer the door.
“In my view, a shocking entry without a prior ‘knock and announce,’ with guns drawn and ready to be discharged, and pointed at the accused’s head, could have produced disastrous consequences,” the judge remarked. “I find the violent entry executed by the police was unnecessary in all of the circumstances and clearly created a danger for the accused and the police.”
In the end, Bruce decided that admitting the evidence – the plants seized – given the circumstances of the raid, “would bring the administration of justice into disrepute.”
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