Judge throws out marijuana evidence
Brodie Thomas, The Gulf News
In a long and detailed ruling read out at Port aux Basques circuit court on Jan. 18, Judge Jacqueline Jenkins ruled evidence obtained after a social worker and police officer asked to come into a woman’s home was inadmissible.
The written ruling was released on March 22. The matter is still on the court docket for April 18.
The woman had been charged with production of a controlled substance after police seized two marijuana plants in the home.
It was the way the police found the plants which the judge took exception to.
In a constitutional hearing held on Oct. 20, 2011, a lawyer for the accused challenged the Crown on how the evidence had been obtained and requested the evidence be thrown out.
The defence did not dispute that two marijuana plants were found in the home. The only witnesses called in the hearing were the social worker and the police officer.
During the hearing, the judge was considering five issues. Did the police “search” the home? Was the search reasonable? Did the accused consent to the search? Were the plants in plain view? If the search was unreasonable, should the evidence be thrown out?
According to the testimony of the two officials, they went to the home unannounced on a tip that people there were using drugs in the presence of a child under the age of five.
When the two knocked on the door, the accused yelled, “come in” without looking to see who was there. Once in the home, the social worker did not advise the woman of what the concerns were, but simply said there were concerns. The accused did not question this and allowed the two officials into the living room and kitchen area.
Once in home, the social worker asked to speak with the child alone. The accused agreed to this request and went to her bedroom, shutting the door behind her.
The social worker then asked the child - whom she described as talkative in her testimony- to see the child’s room. The child agreed.
Once in the child’s bedroom, the social worker asked if the child would open a closed door to another room. The child did this just as the accused came out of her bedroom and asked the social worker and child to stop, however the door had been opened.
The social worker saw a single marijuana plant through the open door and called for the police officer to come see. The officer arrested the woman. Once under arrest the accused admitted to having a second plant in the basement.
The defence argued the search had not been reasonable because it was warrantless. Defence also argued that the marijuana plants had not been in plain view something the Crown disputed.
The judge took side with the defence on all five issues, and noted her concerns with the actions of the two officials that day.
During her testimony- the social worker stated it was “not uncommon” for her office to request the accompaniment of a police officer to make a house visit. In her ruling the judge noted the Children and Youth Care Protection Act allows social workers to bring police officers on a call only if they are denied access to a child and if they get a court order. Neither was the case in this instance.
Judge Jenkins said the plant was not in plain sight because it was behind a closed door in a private residence.
In her ruling, the judge wrote: “The search and seizure in this case was warrantless and presumably therefore unreasonable. The search by the social worker and seizure by the police officer was clearly not authorized in law.”
The judge noted the seriousness of state officials infringing on the rights of citizens.
“An individual’s expectation of privacy in their home is, next to their person, the most respected of rights,” wrote Judge Jenkins. “In this case, not one but two state representatives have testified that they disregarded the rights of [the accused].”
The judge said the testimony of both the social worker and the officer suggest they understood the accused’s rights but chose to disregard them.
“This conduct cannot be categorized as good faith,” wrote the judge. “More accurately, I find that at best it constitutes negligence or possible willful blindness and at worst it constitutes a disregard of [the accused’s] rights. It is not a trivial breach.”
In her conclusion, Judge Jenkins said the admission of the evidence would bring the administration of justice into disrepute and ordered the evidence thrown out.