DEALER'S PARENTS FIGHT SEARCH PROVISION

THE parents of a convicted drug dealer are crying foul at the young
man's conditional sentence, which allows police to search their home
without a warrant.

The Manitoba Court of Appeal is weighing whether the trial judge was
out of bounds when the unique sentence was imposed earlier this year.
A three-judge panel reserved its decision following arguments last
week.

Defence lawyer Mike Cook said the parents of his client, Ryan Demchuk,
deserve to keep their privacy intact despite the criminal actions of
their son.

The Crown argued this week the condition is justified because the
conditional sentence is akin to a jail term in your home, which makes
mom and dad "cellmates" of their son.

"This will create disharmony in the home, and that is not
rehabilitation as intended by the judge," said Cook.

"This is not justified in a free and democratic society." Demchuk was
arrested in July 2001 with several rocks of crack cocaine on him and
in his vehicle. He pleaded guilty in March, and the Crown requested a
prison term.

But the so-called "dial-a-dealer" was instead given a two-year
conditional sentence that allowed him to remain free in the community.
The Crown didn't appeal.

One of Demchuk's court-ordered conditions is to live in a home with
his parents, Fred and Geraldine.

Another condition gives police the ability to search Demchuk's car, or
the home, without a warrant from 9 a.m. until 9 p.m.

"We don't have a problem with the search of the car, because the
office in this case was the vehicle. But the home had nothing to do
with this case, and mom and dad are not co-accused," said Cook. The
Crown suggested Demchuk's parents could sue police if they felt their
rights were being violated.

"All we'd be doing is creating more litigation," said appeal court
Justice Barbara Hamilton.

Cook said the warrantless search condition is becoming increasingly
common in drug cases, but this case will have a major impact on future
decisions.

"If parents are forced to undergo searches such as this, you might see
them coming to court and objecting, and then their kid goes off to
jail instead of a conditional sentence," he said.

University of Manitoba law professor David Deutscher said to his
knowledge this is the first time someone not convicted of a crime is
arguing it's wrong they must suffer a virtual sentence along with the
convicted person.

"The case is unique in the sense that this is somebody else's home.
They've got certain privacy rights that the accused person does not,"
Deutscher said.

"The homeowners are not before the court. It has significant
implications for people's privacy, people who are not the accused. It
seems to me that the parents have a good argument that the police
should not be coming to their home," Deutscher said.

The professor drew a distinction between conducting random searches of
the parental home and another common condition of house arrest, which
allows the police to phone or knock on the door to speak to the
convicted criminal while he is under house arrest.

Those actions are legitimate; the problem is entering and searching
the house itself. It's a ruling that will have implications across the
province and perhaps even across the country depending on how the
court rules, the law professor said.

"The question is how far can the state interfere because it's not the
homeowners who are before the court," Deutscher said "Think about it.
If it was your kid and the police could come into your home any time
- -- it's unique in that way."

No date was given for the appeal court's decision.