HELICOPTER FLIGHT VIOLATED PRIVACY, JUDGE SAYS

RCMP officers violated a man's right to privacy by flying over his backyard
with a helicopter while searching for illegal drugs, a B.C. Supreme Court
judge ruled Wednesday.

But Justice Robert Metzger said it would be a greater injustice to not
allow 13 marijuana plants found in the man's backyard by the aerial flight
to be admitted as evidence in his trial.

As a result of the ruling, Clinton Robert Acheson pleaded guilty to
production of marijuana and was fined $500.

Acheson was charged after RCMP received an anonymous Crime Stoppers tip in
September 2000 about a possible backyard marijuana plot on Ord Road.

Const. Jeffrey Hum testified he drove through the neighbourhood but was
unable to see anything suspicious. He then took a flight in the RCMP's
helicopter and spotted the distinctive plants in a small compound at the
back of Acheson's property.

Hum told the judge that after the flight, he drove back to the
neighbourhood and saw the tops of marijuana plants poking over the top of a
1.8-metre-high fence at the back of Acheson's yard.

Following the visual confirmation, Hum got a search warrant and police
raided the property. Thirteen plants were seized from the outside compound.

Officers found more than 160 small marijuana plants inside the house, but
Acheson was not held accountable for growing those plants at the trial
because the federal Crown conceded the search warrant did not give
authority to search inside the house.

During the trial, defence lawyer Rob Bruneau argued the low-level
helicopter flight over the neighbourhood amounted to a violation of
Acheson's right to the expectation of privacy, something guaranteed by
Canada's Charter of Rights and Freedoms.

A key issue in the argument focused on the altitude of the helicopter, with
Bruneau conceding the potential for a breach of the right to privacy
decreased as the altitude of the helicopter increased.

Hum testified he believed the helicopter hovered about 152 metres above
Acheson's property.

In the end, Metzger said the flight should not have been made without a
search warrant, adding police should have taken additional investigative
steps to confirm the property as a target.

Despite the breach, Metzger said more damage would be done to the
administration of justice by excluding the evidence against Acheson.

He noted the officers acted in good faith and believed they had the legal
ability to do what they did.

"Cultivation (of marijuana) is a serious offence," he said.

Metzger fined Acheson $500 and prohibited from possessing firearms for 10
years.

After, Bruneau said the ruling will impact how the RCMP conducts
investigative flights.

Officers must now consider whether they need a warrant to do low-level
flights over private property while searching for contraband items or
activities.

While the drug evidence against Acheson was admitted, future cases could
see similar evidence thrown out if officers do not bear this ruling in
mind, he said.