JUDGE RULES POLICE WENT TOO FAR

SUSSEX - A provincial court judge ruled police went beyond their
authority and therefore deemed evidence collected during a search of a
couple's Apohaqui home inadmissible.

As a result, federal Crown prosecutor Gerry McCracken dropped a charge
of marijuana production that had been laid against Jason McGrath and
Angela Bernard.

The couple was represented by defence lawyer Peter White during a voir
dire hearing in late May. At the time, White argued McGrath and
Bernard's rights were violated when Sussex RCMP officer Const. Justin
Helm searched their home looking for a grow operation. Helm had been
asked by social worker Michelle Campbell to accompany her to ensure
her safety during a home inspection in February.

She was there following up on a complaint that children in the home
were not being parented properly and there were drugs in the house.

In his decision in Sussex provincial court on whether or not there was
a rights violation, Judge Henrik Tonning ruled that while Campbell
acted within her authority under the Family Protection Act to
investigate the complaint and inspect the home, the police went too
far.

The police officer was right to accompany the social worker, which she
requested the day before the visit, Tonning said, but he was only
supposed to be there to ensure peace was maintained between the
parents and the social worker. The children were not home at the time.

However, the officer accompanied Campbell partway through her tour of
the home on Feb. 12 even though there was no apparent volatile
situation with the homeowners and became overly involved when they
came to the entrance of the basement.

Tonning said while the police did not have enough information from the
individual complaint against the family alone to get a search warrant,
the officer went to the house with finding a drug grow operation in
mind.

Tonning said while "a grow op is no place for a kid," the police
officer was not permitted by law to do more than accompany Campbell on
her tour and did not have the authority to participate in a criminal
investigation without a search warrant. At one point, when McGrath
said he didn't want the basement visited and therefore was not
offering his consent, Helm went so far as to ask him why. After being
pushed by the visitors to allow them downstairs, "McGrath finally
threw his arms up and said 'screw it,'" Tonning said.

"McGrath clearly didn't consent to the search of the
basement."

The judge said "there was a fair amount of coercion on the part of the
social worker and the police officer to carry out the search." He
said, "It was almost inevitable they were going to get the search
done. They were there looking for a criminal activity.

"As far as I'm concerned it was not very cordial at this time," he
added. "That's where the thing went off the rails."

Tonning cited evidence by Helm that said not only was the officer
looking for ways to get a search warrant before he went into the home
because of the "bare allegation" about drugs inside, but he even had
other police officers on standby that day in case he found a grow op
inside.

What was supposed to be an inspection turned into a search, the judge
said.

"He had no reasonable and probable grounds to get a search warrant,"
Tonning said.

"Although righteous in his desire to find this grow op, he had no
authority to start looking around the house," the judge added. "(It is
clear) he was only there to find a grow operation.

"He (Helm) went beyond what he was allowed to do while he was there.
He could not be there trying to find a grow operation legally."

Tonning said he believed the police made a deliberate attempt to find
a grow op "on the back of the social worker."

Under the Charter of Rights and Freedoms, the judge said, a person's
home is sacred and people are "not entitled to be invaded by police
unless they have clear authority to do so."

It wasn't until after McGrath was arrested and put in cells that
police got a search warrant. Bernard was not held because she was due
to deliver the baby she was carrying at the time.

Tonning said had Helm gone inside the home simply to look out for
Campbell and happened to smell marijuana, or had the social worker
smelled it and alerted police, then he may have had grounds for a
search warrant without intruding on the home and the couple's rights
as he did.