[420 Girl]

A new trial has been ordered for a Courtenay man convicted of operating a marijuana grow-op.

In January, Gia Hung Vi was convicted of one count of unlawfully producing a controlled substance and one count of possessing marijuana for the purpose of trafficking.

He appealed, arguing that the provincial court judge who heard the case was wrong to dismiss his application to cross-examine police about a search warrant.

RCMP executed the warrant in April 2006 and found the grow-op at a home on McLauchlin Drive in Courtenay.

Vi, the owner of the home, was arrested later at another residence where he was living. He had the keys to the McLauchlin Drive home on him and his fingerprints were on the grow-op equipment.

The trial judge found that, due to the fact that the accused lived elsewhere, he had no subjective expectation of privacy and therefore was not entitled to cross-examine police on the warrant. He also found that the evidence was proof that he had both knowledge and control of the grow-op and was therefore guilty as charged.

But B.C Court of Appeal Chief Justice Lance Finch found that it was "inconsistent" for the judge to find that it was not "exactly clear" Vi had possession or control of the property but also to find him guilty on the basis that he did in fact have control of the property.

"In my view, a non-resident may not have the same expectation of privacy in property owned by him as would a resident.

"However, when considered together with all of the other factors . . . the evidence in this case supported a reduced but nonetheless reasonable expectation of privacy." Finch allowed the appeal and ordered a new trial.

http://www.420magazine.com/forums/in...w-op-case.html