A case against a Gibsons man caught at the scene of a 500-plant marijuana grow operation has been thrown out by Vancouver Supreme Court, citing violations of his charter rights.
On May 22, 2009, Sun-shine Coast RCMP officers executed a search warrant on a house at 1119 Chaster Rd., where they placed Van Dang Truong under arrest.
He was charged with production of a controlled substance, possession for the purpose of trafficking and fraudulent consumption of electricity.
A Sept. 7, 2011 decision by Justice Nathan Smith concluded the officers breached the accused's Charter rights by entering the home too hastily, as well as initially failing to honour his request for a specific lawyer.
"I have found the police took what can best be called a casual approach to the accused's rights under the Charter, doing the minimum necessary to honour them in form while effectively ignoring them in substance," Smith expressed in his decision to exclude the evidence against Truong.
Police had obtained the search warrant after an officer observed the smell of what was described as vegetative marijuana in the area of the home.
Returning six days later with other officers, the origin of the odour was determined to be the home on Chaster Road after a hole cut from the two-storey home's garage was found to be producing the smell.
The officers were able to make the observation from a vacant lot on Rosamund Road.
While the evidence was found to provide reasonable grounds to justify the search warrant, the judge called its execution into question because police waited 45 seconds before using a battering ram to open the door.
"Police in their eagerness to execute the warrant treated the 'knock and announce' rule as a formality to get out of the way as quickly as possible," Smith said.
He added that the fact Truong had been located upstairs in the home bolstered the argument that police failed to give him enough time to respond to their request for entry.
Upon reading him his rights, Truong was asked if he wanted to contact a lawyer and he reportedly replied "Cobb," referring to the counsel he later retained to defend himself.
It was concluded that officers on the scene failed to communicate his wishes and Truong, a Vietnamese man, was instead placed in contact with legal aid and an interpreter.
Given these two Charter violations, Smith concluded that admitting the evidence would discredit the administration of justice against Truong.
The case was thus dismissed on the basis of no evidence.
"In response to the decision, the Sunshine Coast RCMP is disappointed in the verdict and recognizes that the decision to exclude the evidence is a discretionary one for the court," said Cpl. Steve Chubey. "Firstly, it is to be noted that the court upheld the search warrant based on the evidence gathered by the police. With respect to the section eight Charter breach, it is to be noted that there is no defined set time for entry on a search warrant."
Chubey said under the circumstances, the RCMP investigators had felt that the time allotted was appropriate.
"With respect to the section 10(b) Charter breach, Mr. Truong was afforded legal counsel by the RCMP, although defence had argued that the appropriate legal advice was not afforded to his client, which was upheld by the Court," added Chubey. "Even though this had no bearing on the discovery of the evidence, the court held that the two breaches combined warranted an exclusion of the evidence. Police did recognize the language barrier and an interpreter was provided to Mr. Truong."
Chubey said the Sunshine Coast RCMP recognizes the serious risk to the public and police presented by marijuana grow operations along with their negative impact on society and will remain committed to vigorously investigating these matters with a focus on quality.
"As in every decision, the Sunshine Coast RCMP has made themselves aware of the issues and will be utilizing the knowledge brought forth by the decision in future investigations," he said.
