JUDGE FINDS 'FLAGRANT BREACHES' OF MEN'S RIGHTS

Crown prosecutors will need time to decide how to proceed after
territorial court judge Karen Ruddy ruled there were a number of
Charter violations in the arrests and search warrants used in 2005
against eight men over a number of marijuana grow operations around the city.

In an interview Tuesday afternoon, prosecutor Ludovic Gouallier said
the decision certainly favours the defence counsel's arguments to
leave certain evidence out because of the Canadian Charter of Rights
and Freedoms breaches. However, the Crown needs time to analyze the
83-page document and consider what the implications will be, he said.

Crown prosecutors will continue with the evidence that hasn't been
ruled out, Gouallier said.

Kiu Yeung, Guang Zhu, Jian Zhou, Min Jiang, Kwok Cheung and Wei Wen
brought forward the Charter challenges. Each is charged with six
counts of producing marijuana, possession of marijuana and stealing
electricity. Wen also faces a charge of possession of property
obtained by crime.

The trial officially began last October with another man, Zhu Liang,
pleading guilty to producing marijuana, stealing more than $5,000 in
electricity and possession of cocaine. He was sentenced to one year in jail.

In January, the voir dire over evidence was held, with Ruddy
indicating at the earliest she would hand down her decision in
February. A voir dire is a trial within a trial to determine what
evidence will be admitted.

The decision didn't come down until last Thursday, but Gouallier said
the continuation of the trial is still set for May.

"We're going to have to make some decisions," Gouallier said, adding
defence lawyers are also likely analyzing the decision as well for
how it will impact their cases.

"This decision relates to a number of preliminary applications
brought on behalf of the defendants, which challenge the validity of
search warrants and the admissibility of evidence allegedly obtained
in breach of the Charter," Ruddy wrote. She went on to note the
decision came down to eight parts, including:

* A traffic stop on Sept. 18, 2005 involving Yeung and Zhu;

* A traffic stop on Sept. 22, 2005 involving Wen;

* The lawfulness of the arrest of Zhou and Jiang at 16 Sitka Cres.

* The admissibility of fingerprints and photos of Zhou, Jiang, Yeung,
Zhu and Zhai;

* The Charter's 10(b) rights involving Wen, Zhou, Jiang, Yeung, Zhu
and Zhai. Section 10 (b) is the right on arrest or detention to
retain and instruct counsel without any delay and to be informed of that right;

* The validity of the search warrant for 16 Sitka Cres.;

* The validity of the search warrant for 86 Falcon Dr.; and

* Section 24(2) of the Charter which allows for the exclusion of
evidence if it is established that the administration of justice
would be brought into disrepute where rights or freedoms under the
Charter have been denied.

Going through the issues one by one, Ruddy first dealt with the Sept.
18, 2005 traffic stop that she found breached section nine of the
Charter, which gives everyone the right not to be arbitrarily
detained or imprisoned.

Yeung and Zhu were stopped by Cpl. Rod Hamilton on the Alaska Highway
near Wolf Creek after Hamilton had a discussion with another officer
about the green van they were in being connected to 16 Sitka Cres.,
near where both officers also live.

Neither officer was connected to the investigation regarding grow
operations in Whitehorse, but had forwarded concerns about the
residence on to lead investigators in the case.

Hamilton decided to stop the green van.

"He defined his purpose and authority for the stop as follows: he was
aware of suspicious activity at 16 Sitka Cres.; he was aware there
was a drug investigation; and he felt it was his duty to stop the
vehicle and identify its occupants under the Controlled Drugs and
Substances Act," Ruddy wrote.

When he pulled over the vehicle, the driver and passenger provided
him with driver's licences and vehicle insurance and registration.
After checking the documents for criminal records and the motor
vehicle check, he talked to the pair about what the driver was doing
in the Yukon and where the passenger lived.

From a number of cases, Ruddy ruled the territory's Motor Vehicles
Act provides that traffic stops can occur only when it is related to
highway safety and not for general investigation of criminal activity.

"In this case, Cpl. Hamilton was clear in his evidence that the
purpose of the stop was to ascertain the identity of the occupants of
the vehicle as he believed the vehicle to be connected to a suspected
marijuana grow operation. His purpose had nothing whatsoever to do
with the Motor Vehicles Act or highway safety measures," Ruddy determined.

She also went on to rule that investigative detention can only be
authorized where there is a "reasonable suspicion", that goes beyond
a hunch. In this case, she noted, the evidence falls short of
establishing the grounds needed.

"In my view, any connection between the green van and its occupants
and the suspected grow operation is simply too remote to objectively
amount to anything more than a hunch," Ruddy noted.

Identification evidence and statements made by Yeung and Zhu during
the stop ought to be excluded, the judge noted.

She did, however, allow the evidence from the motor vehicle
registration despite concerns "about the seriousness of the breach in
light of Cpl. Hamilton's lack of understanding of the limits of his
authority as a police officer."

The stop, though, was minimally intrusive, she noted.

"When I weigh the seriousness of the offences before me as against
the nature of the breach, I am satisfied it is appropriate to admit
the motor vehicle registration into evidence," she wrote.

Any evidence coming out of what she has ruled was the unlawful arrest
of Wen will be excluded.

The decision states that at 1:30 p.m. on Sept. 22, 2005, a briefing
for police on the grow operation investigation was held to discuss
search warrants at 208 Falcon Dr., 22 Tigereye Cres. and 23 Black
Bear Lane and the duties of officers around those warrants.

Cpl. Tom Wyers, who was leading the investigation, directed officers
to stop and arrest anyone leaving the residences.

Wen was later arrested after he was seen leaving 208 Falcon and
proceeding to a green Camry. He was not seen carrying anything or
putting anything in the vehicle's trunk, it's noted in the decision.

Wen was stopped in the vehicle and arrested for the alleged
production of marijuana and theft of electricity.

"Cpl. McGowan advised Mr. Wen of his rights both from memory and by
reading the RCMP Charter card. It was clear both to Cpl. McGowan and
to Cpl. Hamilton that Mr. Wen did not understand what was being said
to him," the decision says.

At some point during the stop, Hamilton noticed a bag between the
car's driver and passenger seat. He tore it open and found it
contained money, later counted at $11,400. Officers, Ruddy noted, had
no knowledge of Wen's connection to the property.

"Absent individualized information as to Mr. Wen's involvement in the
commission of the suspected offence, I fail to see how Cpl. Wyers can
in any way be said, on an objective basis, to have had reasonable
grounds to believe that Mr. Wen had committed the offences of
production of marijuana and theft of electricity.

"Having so concluded, I am of the view that the stop of the green
Camry cannot be justified on the basis police had reasonable grounds
to arrest Mr. Wen," Ruddy wrote. While Wen's arrest was deemed
unlawful, the arrests of Zhou and Jiang were lawful, the judge stated.

They were arrested on Sept. 28, 2005 after police arrived in the
morning at 16 Sitka Cres. to execute a search warrant.

While Zhou was immediately detained when he answered the door, Jiang
was arrested by Wyers and McGowan after he was found in the
residence's master bedroom.

As the search of the house continued, three small trays of marijuana
clones were found in a spare bedroom with a commercial grow operation
located in the basement.

While Jiang responded with one-word answers to his arrest, it was
clear to McGowan that Zhou didn't understand what was being said.

Pointing to the factors of the case, Ruddy noted there's enough
evidence to support that they were living at the house and as
residents were aware and had some control over the grow operation.

While Ruddy does note some concern around the locked door to the
basement, she adds it doesn't undermine the evidence to the point
officers didn't have reasonable and probable grounds for the arrests.

The photographs and fingerprints taken from Zhou, Jiang, Yeung, Zhu
and Zhai must be excluded, Ruddy determined.

"Many of the breaches before me are serious ones, others less so, but
the totality of breaches clearly creates a picture of a general lack
of respect for the individual rights enshrined in the Charter," Ruddy wrote.

Such a pattern cannot be condoned by the court, she continued before
concluding the pictures and fingerprints would be excluded.

In looking at the section 10(b) rights under the Charter, Ruddy found
all but Wen's rights had been breached.

In her ruling, Ruddy pointed to numerous issues around the accused
getting counsel, having to translate for one another in Jiang's and
Zhou's cases and other issues.

Jiang was told to translate advice from duty counsel to Zhou.

"Of all the concerns raised with respect to the right to counsel in
this case, this was perhaps the most shocking. It is absolutely
appalling that Cpl. Wyers would consider this procedure to be in any
way appropriate police practice in facilitating an accused person's
right to counsel. It is equally appalling that duty counsel
apparently condoned this suggestion," Ruddy ruled.

In the end, it meant Zhou received Jiang's legal advice.

"I find this procedure adopted by Cpl. Wyers to be a flagrant breach
of Mr. Zhou's right to counsel. In addition, I find it a breach of
Mr. Jiang's right to counsel. It is grossly inappropriate, in my
view, for police to put an accused in the position of having to
disclose confidential discussions with his or her legal counsel to
anyone. Such a violation renders the right to counsel utterly
meaningless," Ruddy continued.

Finally, on the search warrants for the houses, the judge ruled that
the 86 Falcon Dr. warrant was admissible due to evidence consistent
with a grow operation, vehicles connected to other known grow
operations being on the property, humming sounds believed to be fans
and a high electricity consumption record.

The warrant for 16 Sitka Cres., however, was quashed after Ruddy
determined a number of parts of the Information to Obtain a warrant
had to be taken out for a number of reasons.

"What we are left with is little more than some indicators which
raise suspicious about whether there is normal usage of the property
and some potential links between the property and other drug
investigations in B.C. and the Yukon. This is simply not enough to
support a warrant," Ruddy noted.

She later went on to determine that "any and all evidence flowing
from the warrantless search of 16 Sitka Crescent must be excluded."

The trial is currently scheduled to continue from May 7 to 25.