Drug charges dismissed against Okanagan man because of search warrant problems

The evidence seized in a large marijuana grow-op bust in Lake Country is not admissible in court because RCMP took a short cut in obtaining the search warrant.

The raid on a rented home on Beaver Lake Road in December 2011 resulted in 707 marijuana plants, growing and hydro bypass equipment, $500 and two gold rings being confiscated by police.

Drug and theft charges were laid against Frederick Allen Clark.

Police obtained permission to search the residence over the phone through a telewarrant application to a Judicial Justice of the Peace center in Burnaby. The judge ruled the warrant application should have been made in person at a courthouse but that wasn’t even contemplated by the investigating officer.

“Of greater concern is Cst. Marshinew’s evidence that applications for telewarrants rather than conventional warrants have now become standard practice of the RCMP. In essence, his evidence is that telewarrants have now become the default and standard method of obtaining search warrants. If that is the case, such practice is misguided and, short of an amendment to the Code, should not be condoned,” wrote Mr. Justice Gordon Weatherill in quashing the search warrant. “The seizure of the Plants, equipment, Cash, and Rings was unlawful.”

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As well, Weatherill noted the JJP wrongly provided guidance to Cst. Marshinew regarding what to include in the search warrant application saying it “offends the absolute requirement that JPP’s remain meticulously independent of the police and not be seen to be assisting them.”

Defence lawyer Julian van der Walle says all three charges against his client were dismissed.

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