Pubdate: Wed, 04 Jun 2003
Source: Surrey Now (CN BC)
Copyright: 2003 Lower Mainland Publishing Group Inc., A Canwest Company
Author: Tom Zytaruk


A Surrey man charged with possession of marijuana for the purpose of
trafficking was acquitted after a B.C. Supreme Court judge in
Vancouver decided the arresting Mountie had unlawfully detained him
and searched his van.

Justice Lynn Smith's decision followed a voir dire hearing on
admissibility of certain evidence. Because the Crown had no other
evidence to call, Lindh Carlson was found not guilty.

The charge stemmed from December 2000 when Surrey RCMP Const. Gidda
was called to 121st Street and 100A Avenue to locate a white van and
two men reportedly masquerading as members of Surrey RCMP's "green

The court heard the constable drove around looking for the van then
parked to finish paperwork and watch the driveway of a house the bogus
drug squad cops were apparently interested in. She stopped a brown van
after it left the house, testifying she did so because its licence
plate was dangling by one screw - and not because she thought it might
be associated to a drug house.

The court heard she found the accused alone in the van and after
smelling pot, told him to get out, arrested him for possession of
marijuana, and recited his Charter Rights.

"She said that she looked into the front of the vehicle and then, by
stepping into the driver's side, looked into the back and observed
about 100 marijuana plants in pots filling the back compartment. She
said there was no divider between the front and back of the van," the
judge noted.

According to a court document, the accused testified he and a friend
had a partnership in a grow-op at 12166-101A Ave. and the van had been
loaded with up to 135 plants. Police estimated the pot worth up to
$13,500 as live plants and $33,750 when harvested.

Carlson testified there's a wooden partition between the front and
back of the van and that one must reach back and part a curtain to see
in back.

He also told the court the plates were properly affixed as far as he
could tell, and that the constable didn't tell him he was under arrest
when he got out of the van but told him to go open the rear door. At
first he refused but relented after the constable told him he had to.
When he did, a marijuana plant fell out.

The defence maintained the constable didn't stop the van due to a
possible Motor Vehicle Act offence but rather because it came from a
residence she'd been watching for suspicious activity, and the
detention infringed on Carlson's Charter rights.

Smith said she was satisfied "on a balance of probabilities," that the
constable stopped the van "not because she observed an unsecured
licence plate and wished to check the vehicle's registration and
insurance documents, but pursuant to a criminal investigation."

Smith noted the Mountie had been watching a residence she was told was
possibly a drug house and her notes indicate she was taking down
licence plate numbers of all the vehicles there, whereas she'd
testified she checked the van's number after stopping it. Further, the
Mountie's notes made no reference to any Motor Vehicle Act infraction
nor was a ticket issued.

Smith found both the arrest and the search breached Carlson's Charter

"There is no general right to detain and search based on a hunch,"
Smith said. "In general, citizens of Canada are to be free to go about
their business and not to be detained by the police except for lawful
reasons. Here there was more than one Charter violation, and the
evidence did not suggest that the violations were motivated by urgency
or necessity. The constable's stated reason for stopping the van was
not, I have found, the real reason for her doing so, which shows bad

The judge added, "given my conclusion about bad faith on the part of
the police, there is no doubt that the admission of the evidence would
bring the administration of justice into disrepute."

Because of the breaches, she ruled evidence regarding the pot found in
the van and the accused's statement should be excluded, and found
Carlson not guilty after the Crown had no further evidence.
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