A rural Fort St. James man has been acquitted of running a marijuana grow operation after a provincial court judge found that RCMP had violated his Charter rights in the process of seizing 235 plants from his property.
Joseph Ricardo Sordini had been facing charges of production of a controlled substance and possession for the purpose of trafficking from the Nov. 5, 2010 seizure but Judge Darrell O'Byrne ruled the evidence obtained was inadmissible and, as a result, the case was thrown out.
According to O'Byrne's reasons for judgment, a Fort St. James RCMP constable had long suspected Sordini was cultivating marijuana and started an investigation in August 2009.
In October 2009, heat imaging technology was used to detect a growop but without success, although the officer testified he could smell marijuana at the time.
Then, in November 2010, he learned that a woman who was serving a conditional sentence had been given permission to stay with Sordini and as part of her conditions, she was subject to curfew checks by police.
Seeing his opportunity, the officer and one other RCMP member showed up at Sordini's property, where the other officer dealt with the woman and he engaged in small talk with Sordini about dogs and the new shop he constructed.
Eventually, Sordini invited the constables into the shop to have a look around and while one could smell marijuana, the odour disappeared within a few minutes.
However, he noticed a wood stove and asked if he could look inside and, when given permission, found what he believed to be marijuana plants or stalks. Sordini then blurted out words to the effect that the stalks were from an outdoor grow op that he should have burned some time ago.
The officer then kicked at some landscaping fabric he found on the floor while standing in front of the stove and underneath found a green dried leaf-like material, commonly called shake.
Sordini and the woman, as well as one other woman also staying at the property, were arrested and placed in police vehicles and the outbuildings and Sordini's home were searched, all in the name of "officer safety," said O'Byrne.
They then went back to Fort St. James where Sordini was placed in cells and the process of securing a search warrant was begun. They were successful, but they did not tell the justice of the peace they had already conducted a room-by-room search of the house, O'Byrne noted.
Moreover, O'Byrne found that although the warrant was for a search of the outbuildings only, they also went into Sordini's home again once back out at the property, they misspelled the name of the road where the property was located, and Sordini was fingerprinted without being charged.
Crown prosecution conceded that the officer's failure to ask permission before kicking the landscape fabric was a charter breach and O'Byrne found that "all of the subsequent actions by the police have to be examined in light of that breach."
Any subsequent search in the name of officer safety is limited to Sordini's person and his immediate surroundings and expanding that action to include his house is "preposterous," O'Byrne said.
He went on to label the arrest of the two women as "even more egregious" and "totally without legal justification" and an "indication of the total lack of good faith" demonstrated by RCMP in the case.
"The law is clear that absent any exigent circumstances, and none exist here, a warrantless search of a dwelling house is one of the most serious Charter breaches and a serious invasion of a person's privacy interests," O'Byrne said in the judgment.