APPEAL COURT ORDERS NEW TRIAL FOR MAN IN COURTENAY GROW-OP CASE

A new trial has been ordered for a Courtenay man convicted of
operating a marijuana grow-op.

In January, Gia Hung Vi was convicted of one count of unlawfully
producing a controlled substance and one count of possessing marijuana
for the purpose of trafficking.

He appealed, arguing that the provincial court judge who heard the
case was wrong to dismiss his application to cross-examine police
about a search warrant.

RCMP executed the warrant in April 2006 and found the grow-op at a
home on McLauchlin Drive in Courtenay.

Vi, the owner of the home, was arrested later at another residence
where he was living. He had the keys to the McLauchlin Drive home on
him and his fingerprints were on the grow-op equipment.

The trial judge found that, due to the fact that the accused lived
elsewhere, he had no subjective expectation of privacy and therefore
was not entitled to cross-examine police on the warrant. He also found
that the evidence was proof that he had both knowledge and control of
the grow-op and was therefore guilty as charged.

But B.C Court of Appeal Chief Justice Lance Finch found that it was
"inconsistent" for the judge to find that it was not "exactly clear"
Vi had possession or control of the property but also to find him
guilty on the basis that he did in fact have control of the property.

"In my view, a non-resident may not have the same expectation of
privacy in property owned by him as would a resident.

"However, when considered together with all of the other factors . . .
the evidence in this case supported a reduced but nonetheless
reasonable expectation of privacy." Finch allowed the appeal and
ordered a new trial.