POLICE SEARCH WARRANT WAS LEGAL

Even if sections of the Charter of Rights and Freedoms are violated,
judges may rule in favour of the prosecution by ruling 'it would not
bring the administration of justice into disrepute.'

Law & Order

If an officer knocks on your door and asks to come inside, then smells
a marijuana growing operation, can he obtain a search warrant and
lawfully arrest the occupant?

Yes, three judges of the B.C. Court of Appeal recently ruled,
upholding the conviction of Lyle William Kennedy on three counts -
producing marijuana, possessing marijuana for the purpose of
trafficking and fraudulently consuming electricity.

Kennedy's lawyer, John Cheevers, argued at appeal that, given the
circumstances at the time, Kennedy gave the officer consent to enter
his premises but he did not waive his rights under Section 8 of the
Charter of Rights and Freedoms, which protects against unreasonable
search and seizure.

He also argued that Kennedy's consent was not based on a voluntary and
informed decision, so the trial judge erred by not adequately
considering the intimidating nature of police action.

The incident that led to the search began on Oct. 22, 1997, when a
Kelowna RCMP officer operating a speed trap observed a Ford
Thunderbird make a U-turn as it approached.

The constable activated his lights and sirens, and began pursuing the
T-Bird, which later stopped in a cul-de-sac. The driver jumped out and
hopped over a fence into the backyard of nearby house, which contained
a big dog. Pausing to determine whether the dog was dangerous, the
officer lost sight of the suspect.

After climbing over a fence, the officer entered the backyard of
Kennedy's property and saw the rear door was open. Kennedy appeared at
the door and the officer asked Kennedy if he had seen anyone. No,
Kennedy replied.

The officer asked if he could look inside for the driver. Kennedy
later testified: "I didn't think he would find anything when he came
into my house." He said he did not let the officer check the basement
because he didn't want the officer to find the growing operation.

Once he was inside the house, the officer detected a strong odour of
"fresh marijuana". He also noticed the presence of fabric softeners to
mask the odour, planting materials and plugged furnace vents. When
the officer asked to look in the basement, Kennedy said: "No, I don't
have a key for that."

The officer then left and a search warrant was obtained. Police later
found an extensive hydroponic marijuana growing operation - more than
500 plants - and an electrical system bypass.

At trial, the judge found that the appellant's rights were violated
under Section 8 of the Charter, but the judge decided the evidence was
admissable because it would not bring the administration of justice
into disrepute.

The appeal court upheld the trial judge's decision, which led the
court to consider the second legal question: Did the destruction of
the growing operation equipment, which was smashed and bent by
officers to render it inoperable violate the accused's Charter rights?

Police smashed the growing light bulbs in a garbage can, bent metal
lamp shades in half, broke up the pipes and snipped the electrical
wires on timing devices and pumps.

The officers who carried out the search testified the "dismantling"
procedure was carried out in accordance with a policy, then in force
to prevent use of the equipment in another growing operation - and
because police had no room to store it.

The appeal court said of the destroyed equipment" "There was no
evidence of malice or the wanton destruction alleged by the appellant.
The dismantling was orderly, some of it done by an independent
electrician."

The court, noting police have since abandoned the practice, decided
the seriousness of the Charter violation "was not great," so dismissed
this ground of appeal.

"I am of the opinion that the remedy of this appellant in regards to
the destruction of the equipment is in the civil courts rather than
under the Charter," B.C. Appeal Court justice Tom Braidwood concluded
in his written judgment. Justices Ian Donald and Mary Newbury agreed.

A Burnaby man accused of killing his drug-dealer roommate with a
crossbow in 1993 has been found not guilty by a jury.

Barry Lowns, 37, was charged with committing the second-degree murder
of Cory William Fieret, 24, a cocaine dealer who was found dead Oct.
4, 1993 in the basement suite of a home he shared with Lowns - and
where they jointly had a marijuana growing operation.

Police found Fieret's decaying body inside a surfboard bag. Forensic
evidence showed Fieret had been shot in the chest with bolts fired
from a crossbow, and subsequently had his throat cut by a knife or
other sharp instrument.

The Crown's case against the appellant was based on evidence of Lowns'
flight to Indonesia shortly after Fieret's death and an alleged
confession to a witness described as an unsavoury character.

Lowns was convicted at his first trial in 1996. He won a new trial
after the appeal court decided the trial judge did not give adequate
instruction to the jury on what constitutes reasonable doubt.