JUDGE DISMISSES GROW-OP CHARGES

Home Searched Without Warrant

Charter Rights Abused, Court Rules

Durham Region police took a "casual approach" to the Charter and used
two vicious dogs as an excuse to bust a marijuana grow operation
without a search warrant, a judge concluded yesterday in dismissing
charges against Edmond Kim.

"Inclusion of the evidence would bring the administration of justice
into disrepute," Justice Barry MacDougall said, concluding the
evidence obtained in the search was not admissible.

Defence lawyers have been winning a number of cases involving accused
grow operators because judges are ruling that search warrants are
invalid. Police say that's one of the difficulties in containing the
spread of grow ops.

Kim, 30, had pleaded not guilty to one count each of possessing and
producing marijuana, possessing it for the purpose of trafficking and
possessing the proceeds of crime.

Kim's lawyer, Leora Shemesh, argued that police violated her client's
Charter rights by entering the Highview Rd. home in Pickering without
a warrant.

Crown Attorney Sevag Yeghoyan argued the officers didn't require a
warrant because they believed that someone may be injured inside the
home.

"I find there was no risk of safety ... and a warrant should have been
obtained" before entering the house, the judge said.

Police could have contained the scene and obtained a warrant before
entering, MacDougall said yesterday in Whitby Superior Court. "Genuine
attempts" to get a warrant were not made, he said.

He also noted that information supplied to a justice to obtain the
warrant the next day was misleading and contained inaccuracies.

At the trial, court heard from officers who were called to the scene
on April 20, 2003. It had been reported that two vicious dogs were
loose in the neighbourhood and someone had been attacked.

Court heard that the dogs went in the house and an officer shut the
door behind them. That officer, Const. Bob Elliott, testified the door
was unstable and he was worried someone inside could be injured. He
also said there was a strong smell of marijuana coming from the home.

Elliott testified that because of the broken door, he believed there
had been a break and enter. MacDougall said the officer's testimony on
that point was not credible.

The judge said the officer never checked the back of the home for
evidence of a break-in and never called in to ask if one had been
reported. Court heard the officers, despite their belief that someone
could have been injured inside, waited several hours before entering
the home.