CONTROVERSIAL GROW-OP RULING DID EVERYONE A FAVOUR

Just about every week, we seem to hear of some court judgment that
provokes public outrage. Last week, the controversial judgment was
written by B.C. Supreme Court Justice Catherine Bruce, who declared
unconstitutional a police search of a marijuana growing operation.

And while the judgment isn't perfect, it has received more than its
fair share of unfair criticism.

The case concerned Van Dung Cao, who was charged with producing
marijuana and possession for the purpose of trafficking after police
discovered 704 pot plants in the basement of his house.

Police had the house under surveillance and obtained a search warrant.
They arrived at the Surrey property on March 10, 2004, knocked on the
door, identified themselves and said they were in possession of a
search warrant.

Since the front doors of grow-ops are often barricaded, the police
decided to enter the residence through a side door. They used a
battering ram to break down the door, and Bruce found that between one
and two minutes passed from the time police knocked on the front door
to the time they breached the side door.

She also found that the police did not announce their presence at the
side door, a violation of the well-established "knock and announce"
rule. The rule exists to protect both the police and residents,
because residents may react violently if they believe someone is
breaking into their home.

Bruce noted that the police had little reason to believe anyone was in
the house since they never saw anyone or any vehicles coming or going
when the residence was under surveillance. Further, she explained that
the police did not have to worry about the destruction of evidence if
they announced their presence at the side door and waited for an
answer, since it's impossible to destroy hundreds of pot plants in a
few minutes.

Finally, Bruce noted that the police did not conduct a risk assessment
to determine what security measures were necessary to enter the
dwelling safely.

For these reasons, Bruce concluded that there were no exigent
circumstances that necessitated dispensing with the knock-and-announce
rule. And while the owners of grow-ops are often armed, Bruce cited
case law that makes it clear that that fact is not sufficient for
police to ignore the rule.

She therefore held that the police violated the Charter, and that the
violation was aggravated by the fact that police entered with house
with their weapons drawn and arrested Cao at gunpoint.

Given that both police officers and suspects have been shot and killed
in situations similar to this, Bruce's judgment is not unreasonable.
While critics of the judgment have said that the decision protects
criminals, it's important to understand that it protects everyone,
because police could mistakenly break down an innocent person's door
and place the homeowner in grave jeopardy.

That said, the judgment is problematic given that there is no explicit
discussion of s. 1 of the Charter, which allows a court to uphold a
Charter infringement in certain circumstances. The failure to discuss
this section is a glaring omission.

Further, while Bruce said admitting the evidence obtained during the
Charter breach would bring the administration of justice into
disrepute, one could argue that that's exactly what has occurred as a
result of her decision to exclude the evidence. The Crown made that
very argument during the hearing.

Reasonable people can indeed argue about the appropriate remedy for
the Charter violation. But in finding the violation, Bruce did us all
a favour by ensuring that our homes remain our sanctuaries.