Pot Grower's Rights Violated: Judge

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.