October 30, 2014 - 7:36 AM
LAKE COUNTRY - Police in B.C. may find it a little tougher to obtain a search warrant after a B.C. Supreme Court justice in the Okanagan put a roadblock on a common short cut used by police for years.
Justice Gary Weatherill tossed out a search warrant in a Lake Country pot case Oct. 23, deeming it unlawful because of how it was obtained. The investigating officer in the case used what's called a telewarrant. Rarely do police see judges or judicial justices of the peace anymore because it's easily done over the phone and by simply filing information to obtain the warrant. Weatherill said that has to stop.
“(Police) evidence is that telewarrants have now become the default and standard method of obtaining search warrants," Weatherill said. "If that is the case, such practice is misguided and, short of an amendment to the Code, should not be condoned.”
In this case, Kelowna RCMP Const. Doug Marshinew had plenty of opportunity to get a warrant through regular means, but instead chose to apply at 2 a.m. for a warrant to search a suspected grow operation in Lake Country. He said he needed a telewarrant because the Kelowna Courthouse was closed, he was off duty the following day and he needed it then to get a search team together. He testified that even during business hours, there are typically no judges or Judicial Justices of the Peace available to sign search warrants at the Kelowna, Vernon and Penticton Courthouses and added telewarrants have become ‘standard practice.' The justice of the peace he spoke with advised him to include those explanations in the application. An hour later, the warrant was issued.
Frederick Allen Clark, represented by defence lawyer Julian van der Walle, challenged the warrant, saying the justice of the peace offered inappropriate guidance and advice on the warrant procedure.
“By providing this guidance the justice was not acting judicially....” Weatherill said. “The inference I draw is that (the justice of the peace) was in favour of the telewarrant being approved even before he had seen it.”
Judges or justices of the peace must be able to assess a warrant application in an entirely neutral and impartial manner, Weatherill said.
Weatherill said the constable did not make a reasonable attempt to obtain a warrant in person and noted there was no urgency to the search and seizure of the suspected grow-op. To justify a telewarrant, officers must show that obtaining one in person is impracticable. Making telewarrants standard practice, or citing ‘mere inconvenience’ does not justify overruling the regular warrant process, Weatherill said.
Because the warrant was quashed, all the items seized by police—including hydro bypass equipment, 707 marijuana plants, $5,000 in cash and two gold rings, one of which was later appraised at a value of $15,525—will not be admitted as evidence either.
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—This story was edited at 8:48 a.m. Oct. 30.
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