JUDGE THROWS OUT GROW OP CHARGES

Police Ammeter Use Ruled Illegal, A Rights Violation

Two men have been acquitted of charges relating to a 354-plant
marijuana grow operation in an Airdrie home because the judge ruled
police violated their charter rights.

Court of Queen's Bench Justice Sal LoVecchio ruled, in quashing a
warrant to search the home in October 2004, that it was granted
through evidence obtained by having illegally installed a device to
measure the amount of electricity used in the home.

He said the digital recording ammeter, placed by Epcor at the request
of police on a power box off the property, was an invasion of privacy.

"This is a case where the police officer knew that she lacked
sufficient evidence to obtain a search warrant and, in fact, had only
a suspicion of illegal activity," LoVecchio wrote.

"It is my view the breach of the accused's rights in this case was serious

. . . it is clear that the privacy interest violated by the
installation and operation of the (ammeter), in itself, constituted
breach of informational, and not territorial, privacy."

LoVecchio said the information obtained through use of the ammeter
must be excluded from trial as, having regard to all circumstances,
its inclusion "would bring the administration of justice into disrepute."

Hon Van Nguyen and Thi Thu Hein Pham had each faced three charges:
unlawful production of cannabis marijuana, possession of cannabis
marijuana for the purpose of trafficking and theft of electricity.

Charlie Stewart, counsel for Pham, said the judge has sent a message
to police that if they continue to use the digital recording
ammeters, as they have done routinely for three years, they'll lose
any search warrants in legal proceedings.

He said there is yet no indication if the Crown will appeal the decision.

"It's a significant development in law in Alberta," said Stewart. "I
suspect it won't be resolved until it goes to the Supreme Court of Canada.

"Police will not want to give up such a valuable tool, but we won't
let them keep using it."

During the trial, the court heard that in the last 400 grow
operations that city police have used the device, only once has it
not correctly predicted that there was a grow operation inside a home.

The device records the large amount of power being consumed at
various time intervals consistent with the drug industry.

The only mistake, said Stewart, involved a complaint that caught in
the net an older couple who were growing orchids in their basement.

Stewart and Pat Horner, Nguyen's lawyer, won a similar case in
Saskatchewan last year, and LoVecchio based much of his reasons on
that decision. It is now under appeal.

"Execution of the search warrant clearly affected the territorial
privacy interest of the accused," said the judge.

"Insofar as the search was itself unconstitutional, it clearly
violated interests which have a very strong claim to constitutional
protection."

Calgary Police Service spokeswoman Lesley Gronow said Thursday she
was not able to comment on the decision, which could affect the way
drug unit officers operate in this city.

"We haven't heard from federal Justice and it is still within the
30-day appeal period," said Gronow.