DRUG, GUN CONVICTIONS REVERSED

Court Of Appeal Judges Cite Police Mistakes During
Investigation

Sun A man convicted of cultivating marijuana and possessing a .357 revolver
and stun gun has had his convictions overturned on appeal.

Three judges of the B.C. Court of Appeal allowed the appeal of Michael
Donald Ling, finding police made serious mistakes while executing a
search warrant and gathering evidence.

"In my view, in this case, to admit the evidence gathered pursuant to
this warrant would bring the administration of justice into disrepute
in the minds of right-thinking citizens. I would exclude the evidence
and in the circumstances enter an acquittal on the counts before the
court," Justice Robert Bauman ruled in a judgment released Thursday,
with Justices Ian Donald and Carol Huddart in agreement.

Ling, 48, who lived at Christina Lake, was convicted in Grand Forks
Provincial Court of cultivating marijuana, possession for the purpose
of trafficking, unlawfully possessing a .357 revolver, which is a
restricted weapon, and possessing a prohibited weapon, a stun gun.

He was also convicted of improperly storing a 12-gauge shotgun and
ammunition found at Ling's residence.

On Oct. 11, 2004, RCMP Const. Thomas Erickson was golfing on the 12th
green of the Christina Lake Golf Club outside Grand Forks when he
noticed what he believed to be growing marijuana plants.

On closer inspection, he saw a small building covered by a blue tarp.
From previous dealings in the community, Erickson believed the
building was on land where Ling resided. After completing his round of
golf, Erickson reported his observations to his colleague, Cpl.
Everett McLachlan.

It was learned a previous search warrant had been executed in 1999 at
Ling's home, a marijuana-growing operation was found and Ling was convicted.

McLachlan began preparing an application for a search warrant under
the telewarrant provisions of the Criminal Code. It was faxed to the
Judicial Centre in Burnaby on Oct. 15, 2004, and was approved at 5:05
p.m. that day.

The warrant authorized police to search two lots owned by Ling. During
the search, they unknowingly crossed a third lot owned by Ling which
wasn't listed on the warrant, thereby trespassing on his property.

The Mounties found pot growing indoors and outside. Officers also
seized two weight scales, the revolver, stun gun, Crossman air pistol,
a holster with five live rounds of ammunition, a Winchester shotgun
and six live shotgun shells.

On appeal, Ling's lawyer argued his client's Charter rights were
breached so the evidence should be excluded.

The trial judge dismissed the argument. But the appeal court excluded
the evidence and acquitted Ling after finding the trial judge erred in
his assessment of the serious police mistakes:

n The marijuana plants found outside, which the officer had first
observed while golfing, were actually on Crown land between Ling's
property and the golf course; police never measured the property.

n Police should have tried to obtain a warrant locally, rather than
over the phone; police failed to inquire at the Grand Forks courthouse
about the availability of a justice of the peace.

The appeal court cited a previous judgment, which said "we should
never lose sight of the fact that even a person accused of the most
heinous crimes, and no matter the likelihood that he actually
committed those crimes, is entitled to the full protection of the Charter.

"Short-cutting or short-circuiting those rights affects not only the
accused, but also the entire reputation of the criminal justice system."

The full judgment is available online:
http://www.courts.gov.bc.ca/jdb-txt/CA/09/00/2009BCCA0070