COURT SAYS RCMP OVERZEALOUS WITH BATTERING RAM AT DOOR

A judge dismissed charges of growing marijuana when he ruled that a
battering ram entry by the Mission RCMP into a couple's home was a breach
of the Charter of Rights and Freedoms prohibiting unreasonable searches.
The case was thrown out even though the police had a search warrant.

In a Jan. 20 ruling at Chilliwack Supreme Court, Justice B. M. Joyce
dropped charges of unlawful production of marijuana, possession of
marijuana for the purpose of trafficking and theft of electricity.

Joyce also noted the RCMP officer who filed the search warrant, Const. D.
M. Duplissie, had a personal interest in the matter. The officer testified
he lived in the neighbourhood and he had smelled pot when he was walking in
the area.

"In my view, he let his zeal and his desire to do something about the
situation overcome what he knew was his duty," Joyce said.

The couple, Li Qing Mai and her husband Zhi Wen Tang of Mission, asked the
court to exclude the "modest size marijuana grow operation in the basement"
under Section 24 of the Charter. Section 24 directs courts to exclude
evidence obtained in a manner that infringes or denies any rights
guaranteed in the Charter.

On Jan. 12, 2003, RCMP officers arrived at the couple's home with a search
warrant and a 41-kilogram battering ram. The police knocked but smashed
through the door within "a second or two," which didn't give the occupants
enough time to answer the door.

The judge said it was plausible the couple did not hear the police.

Joyce also said he did not believe the evidence from one of the officers,
who testified he could tell the couple was not responding by looking
through a semi-opaque, coloured glass window beside the front door, nine
metres from where the couple were sitting.

Joyce said the police had no reason to fear for their safety as the couple
were at the back of the house watching television.

In order to protect both police and the public from violence, police are
required to knock and identify themselves, and then give the occupants a
reasonable amount of time to respond.

Defence lawyer David Tarnow said the judge's decision is significant as it
underscores the importance of the knock and announce rule.

"He's not the first judge to say it, but he's the first judge to make it
clear. It's common sense to allow people to get to the door in a reasonable
amount of time and these police officers didn't realize that," he said.

"Terrible things have happened," Tarnow said, citing an incident in North
Vancouver where people rushed in to a home and shot a teenager who had a
fake gun.

Abbotsford had its own controversy, when Abbotsford police officer David
Schmirler shot a dog when the drug squad burst in on Centre Street child's
birthday party Jan. 3, 1999. When the family dog attacked, Schmirler shot
the animal, within a few feet of the children. On Nov. 14, 2003, an
Abbotsford officer shot a dog in front of several teenagers, when he and
another officer were investigating complaints about a loud party, which
turned out to be next door.

Tarnow said that while the police have a tough job to do, they still need
to exercise their judgement.

"There was zero indication that there was any problem [in terms of
violence] with these people. The police didn't need to do it in this
manner," said Tarnow.

- - With files from the Vancouver Sun