CHARGES WITHDRAWN IN $1 MILLION MARIJUANA CASE

Search Likely Wouldn't Stand Up to Charter Of Rights And Freedoms
hallenge, Crown Says

Charges against four men accused of growing more than $1 million worth
of marijuana northwest of Kemble last fall were withdrawn Thursday.

On Sept. 24, police found marijuana cut and drying in a barn and in a
field between Kemble and Big Bay where it had been grown. The pot was
not visible from the road.

Grey County OPP reported at the time they had seized 3,355 mature
plants of high quality.

But federal Crown attorney Doug Grace told Justice Julia Morneau in
Ontario Court of Justice in Owen Sound that concerns about charter
rights and a recent Ontario Court of Appeal decision made it clear he
should withdraw the charges.

Weidong Su, 37, whose address wasn't available, Kofung Fu, 37, Yukyuen
Lee, 51, both of Markham, and Waimeng Liew, 42, of Toronto, had been
charged with production of marijuana and possession for the purpose of
trafficking.

The men smiled, shook hands with their lawyers and the matter was
done.

Later, Grace said in an interview that the case was reviewed at a
pretrial hearing and the presiding judge advised that a conviction was
unlikely.

The marijuana case hinged on the search of a cube van and the property
where the accused men had been, he said. "The police did an excellent
job," he said. "They acted quickly and seized the drugs."

But now it appears they should have done more to ensure a legal search
because of a recent Ontario Court of Appeal decision which "raised the
bar" for the Crown in cases in which there's an allegation of unlawful
search and seizure.

"Without that case we'd be going to trial," Grace said.

Grace said police got an anonymous tip that asians had moved to a
rural property and they might be growing marijuana. No trespassing
signs had been put up and a mailbox had been removed. A rental cube
van sat on the property. That was all police had to go on, Grace said.

Police arrived and found a Vietnamese man leaving in a pickup truck,
but the man didn't or wouldn't roll down the window for police,
seemingly indicating he didn't understand. Grace said the man instead
made calls on his cellphone.

Shortly after, three men piled into a cube van and left the property,
so police left the pickup truck and headed toward the van. They
stopped it on Grey Road 1 near Presqu'ile Road. Grace said police
didn't have reasonable and probable grounds to stop the van for drugs.

Police did search the van and it "stank of marijuana, but there wasn't
much in it, just pieces of leaves." A German shepherd was in the back.

Police then entered the property and found the marijuana.

The marijuana was forfeited, as were a generator and pumps associated
with pot production.

"As they're following it up, people are leaving the property. So they
act fast," Grace said. "It's unfolding before their eyes."

But the court requires police to have more than a suspicion. It says
they must, for example, receive information from a trusted informant
who'd been on the property and seen the drugs. Police must see the
marijuana from the air or obtain a general search warrant to enter the
property, Grace said.

Even when a judge rules a police search was illegal, evidence found
could still be admitted. But the March 18 Court of Appeal case and the
pretrial judge's view about the legality of the search convinced Grace
to withdraw the charge, he said.

The Court of Appeal decision, R. v Clayton and Farmer, stemmed from an
incident in 1999 in which Peel Regional Police had received a tip
about four black men with handguns, which are prohibitted weapons, at
a Brampton strip club and gave descriptions of the men and their vehicles.

The issue at trial and appeal was whether police had the right to stop
and search the accused.

Police arrived, blocked off the area and the first car they searched,
a black Jaguar, contained two black men, both with loaded handguns.
But their car wasn't one the tipster told them to watch for. They were
convicted in Superior Court, but the appeal court acquitted them.

The appeal court judge who wrote the decision warned of "the negative
effect of routinely admitting evidence obtained as a result of
institutionally engrained disregard for individual constitutional
rights" and blamed "institutional failure to equip officers with the
training necessary to perform their duties within the strictures of
the Charter."