POLITICIANS BLOWING SMOKE ON GROW-OPS: LAWYERS

Drug Farms Not Driven by Organized Crime, Defence Attorneys Argue

TORONTO - Despite the shooting deaths of four RCMP officers at a
marijuana grow operation in northern Alberta last week, many in the
legal community say the claim by politicians and police that grow-ops
are violent vehicles for sophisticated, organized crime is a "cheap
shot" that does not stand up to "10 minutes of fact-checking."

Several lawyers who defend these cases in court suggest Public
Security Minister Anne McLellan is misleading the public about the
dangers of grow-ops with recent comments following the Alberta killings.

The deputy prime minister said last week that "almost all grow-ops are
run by organized crime."

She warned judges who don't impose tougher sentences that "all of us,
including the judiciary, need to understand what is at stake here."

"Anne McLellan does not live in the real world," said Toronto defence
lawyer Peter Zaduk. "She just does not know what is going on.

"The judges who hear these cases routinely have a much better handle
on the reality of the situation than the minister does. It is also a
myth to say these judges are liberal pushovers."

"For a former justice minister, who should know better, to criticize
the judiciary on this issue, is both a cheap shot and it is dead
wrong," said Vancouver defence lawyer Neil Cobb.

The two experienced lawyers have defended hundreds of grow-op cases in
British Columbia and Ontario, and they say the evidence in court never
matches up to the "myths" spread by politicians and the police.

It is inaccurate to suggest that raiding grow-ops is a high risk
procedure for police, said Mr. Cobb.

"I have had hundreds of cases. I can't recall one with a violent
struggle," said Mr. Cobb.

Two days after the officers were killed in Alberta in what was
originally thought to be a grow-op raid, Ontario Provincial Police
Det. Staff Sgt. Rick Barnum said the tragedy wasn't entirely a surprise.

"We've predicted this, we've seen this coming," he
said.

However, a month earlier, in a low-profile trial in Barrie, Ont., the
officer admitted under cross-examination that the OPP had encountered
violence in only two out of 800 grow-op raids in the past four years.

Det. Staff Sgt. Barnum conceded violence is rare, but said, "It is
because we are prepared for the threat."

He said the OPP uses battering rams in about 50 per cent of its
grow-op raids.

"We have very little knowledge of who is behind the door," he
said.

The OPP claims to have seized nearly 2,000 "weapons" in grow-op raids
in the past three years. But the Criminal Code definition of weapon
includes anything used to threaten or intimidate a person, cautioned
Mr. Zaduk.

He said he once had a case where a piece of fruit was classified as a
weapon.

The British Columbia Court of Appeal also cautioned against excessive
force by police during grow-op raids, in a landmark 2003 decision
written by Justice William Esson, one of the most experienced and
respected judges in the province.

"I have never seen violence in my grow-op cases, except for the
violence meted out by police," said lawyer Stanley Tessmer of Kelowna,
B.C., who successfully represented a B.C. couple in the 2003 appeal.

Mr. Tessmer added he hasn't seen any real evidence that organized
crime groups are the real force behind grow-ops in Canada.

"There is no Mr. Big. You can call it organized crime when there are
two people, but the bulk of these things involve independent
operators," said Mr. Tessmer.

While he conceded there are "loose networks" involved in marijuana
production, he stressed "they are not the Mafia or the Hells Angels."

If an organized crime group was actively involved in a grow-op, "You'd
think I would have heard of it by now," said Mr. Cobb.

"I just don't know where police get their statistics. Police press
releases wouldn't stand up to 10 minutes of fact checking."

Don Johnson, a defence lawyer in Cornwall, Ont., had a similar
opinion.

"I have yet to have a grow-op case with a biker. They are into 'more
sinful' crimes.

"It is all political now," added Mr. Johnson, who offered to show
McLellan the "mom and pop" grow operations she has suggested make up
only a small fraction of the illegal marijuana production in Canada.