NEW WESTMINSTER — A B.C. Supreme Court judge has found that a justice of the peace didn't have "sufficient credible and reliable evidence" to find reasonable and probable grounds there was indeed a theft of electricity at a Surrey house police searched as part of a marijuana grow operation investigation.
Thi Thuy Hoang and Thanh-Phuong Le were charged with possession, possession for the purposes of trafficking and theft of electricity at a house in Newton, at 7069 150th St., which was owned by one of the accused's parents. The accused successfully challenged the validity of the search warrant.
The case was heard in B.C. Supreme Court in New Westminster, with Justice Elliot Myers revealing his decision last Thursday.
The court heard the Surrey RCMP's request for a search warrant relied on an investigation by a B.C. Hydro investigator and an electrician who did a service check on the property in November 2012. The defence raised the issue that the power was measured at a service line in a junction box serving two residences, and this wasn't disclosed in the RCMP's information to obtain a search warrant.
Myers noted that a search warrant can be issued only if a justice of the peace concludes police have established reasonable and probable grounds a crime was committed and there is evidence to be found at the place police want to search. "The affidavit used to obtain the warrant must provide full and frank disclosure of material facts," Myers noted. The police's request, he found, did not provide proper disclosure.
"That would have required disclosure of the fact of the multiple outlets from the box and the method of determining which home the tested feed went to," the judge said. Nevertheless, he added, this was not why he "set aside" the warrant.
Myers noted the B.C. Hydro employees agreed the service box had feed lines extending from it to more than one home, with one of them being the target. However, he found, "Their evidence was inconsistent with respect to how the correct line was identified." The Crown argued the justice of the peace could have assumed the correct wire was tested because the two B.C. Hydro employees "had the expertise to do the test and therefore must have done it correctly.
"In the face of their contradictory evidence I do not agree," Myers decided.
"There was not sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds that there was a theft of electricity at the target home."
tom.zytaruk@thenownewspaper.com