-Review of search warrant application confirms past RCMP statement, but small details raise interesting questions
-After promising a statement, RCMP then decline, refuse an interview and say they won’t comment further on the case.
-B.C. Solicitor General’s office says public should educate themselves on cannabis laws
-B.C. lawyer who handles many cannabis cases says she hasn’t seen one like this
This story builds on previous stories published on revelstokemountaineer.com about an Aug. 2 Revelstoke RCMP search of a home after police spotted cannabis plants during a garden tour. If you haven’t read them already, we recommend reading this story first and this one for background.
It looked like classic Hollywood foreshadowing of a final act, one that promised resolution and redemption.
Police searched the home and property of Anna Minten and Emmanuel Levesque-Dupere on Aug. 2 and seized three cannabis plants that were spotted on in their garden by an off-duty RCMP constable. He was attending the July 28 Revelstoke Art & Garden Tour, an annual event hosted by the Revelstoke Local Food Initiative, a local non-profit that supports food security and grassroots agriculture. Stunned by a heavy-handed approach over plants she thought were legal, Minten took to social media and local media to protest. After the story was first reported on revelstokemountaineer.com, it soon had national media uptake and was featured in national outlets, such as CBC’s As It Happens and the Globe and Mail, among many others.
Two days later the story became public, after criticism of police actions on social media, Revelstoke RCMP Cpl. Mike Esson, the ranking officer at the detachment while other senior staff were on vacation or leave, visited Minten’s home for a conversation. He even gave her a lift to work after. Minten said that Esson had shown “remorse” over the search, saying it didn’t go down the way police had planned. Minten said she wanted to help the RCMP restore their reputation, which had taken a big hit in various public forums; the police approach was criticized as misguided and over-the-top. In an Aug. 7 interview, Esson said the RCMP would be issuing a statement on Aug. 8.
With a new rapport and some healing words, there were signs of some kind of rapprochement was underway and the Thursday announcement could bookend the incident, perhaps with a happy ending.
But Thursday, Aug. 8 came and went without a statement from the RCMP (other than their original Aug. 6 statement, and a conversation marked with misunderstanding). So did most of Friday. Late Friday, Revelstoke RCMP referred us to an Okanagan-based RCMP communications specialist. We emailed, heard back by email on Saturday, but were told the RCMP wouldn’t have a spokesperson available on the weekend. We emailed questions on Aug. 10 and requested a spokesperson for an interview. It wasn’t until after business hours on Monday, August 12 that they replied, declining an interview and issuing a brief statement.
Here are the questions we posed to Kelowna-based RCMP spokesperson Cpl. Jessee O’Donaghey by email on Aug. 10:
-As policy, will the Revelstoke RCMP be seeking search warrants for homes and properties if four or fewer cannabis plants are spotted on private property and deemed to be visible from a public place?
-Does the RCMP have a statement to address residents’ concerns that responding to cannabis visible from a public place with a search warrant of a property and the home on it is an excessive response when other less intrusive options are available, such as starting with a warning or a compliance discussion?
-Can the Revelstoke RCMP state what their operational policy will be if they receive complaints or observe cannabis growing on private property that they deem is visible from a public place?
-Has the RCMP sought or executed search warrants on other homes on the July 28 Local Food Initiative Garden & Art Tour, a tour that supports the organization’s goals of increasing local food production and helping the less fortunate, that had visible cannabis due to the fact that the tour invited participants onto private properties, thus making them a public space for the day?
-Has the RCMP received policy direction from the Ministry of Public Safety and Solicitor General on policing policy for four or fewer cannabis plants on a private property that is visible from a public place? If so, what is that direction?
-On Wednesday Revelstoke RCMP said they would be releasing an update on the search on Thursday afternoon. Since then, the officer currently in charge of communications said police got busy with other incidents and was unable to follow through. Will the Revelstoke RCMP be releasing a statement?
-Does the RCMP have any other statements regarding this Aug. 2, 2019 search warrant incident?
Here is Kelowna-based Media Relations officer Cpl. Jessee O’Donaghey’s reply:
“Thank-you kindly for your invitation for an interview over the phone, however I must respectfully decline. The News Release disseminated by the BC RCMP on August 6, 2019 provides the full details available for public disclosure with respect to this event.
“This particular case serves as an excellent reminder to those, members of the public who choose to cultivate, possess or consume cannabis to be mindful of the full legislation enacted in October 2018. The RCMP will continue to work closely with local, provincial and federal partners to ensure education, support and mechanisms are in place to address the still new legislation and regulations. Although I am not in a position to discuss internal policies, I can tell you that keeping any and all cannabis out of the hands of the youth in the BC communities we serve is our priority.
“No further information will be released with respect to the above matter.”
Search warrant application confirms story, with a few interesting new details
The search warrant application, known as an ‘information to obtain,’ confirmed much of the details already known in the case.
The application became available to the public on Aug. 12, although it took a drive to Salmon Arm to access it as the courts won’t email them.
The application states the off-duty constable attended the art and garden tour and saw the plants there, leading to the investigation.
“Cst. Ling could observe the cannabis plants from the roadway that is accessible to the public at (sic) there was nothing obstructing the view.”
The same officer returned to the area on July 31, saying he could observe the cannabis plants from the roadway.
The officer returned again on August 1: “Cst. Ling conducted a recce of 903 Farrell Road in Revelstoke, BC by photographing the property from a distance with a telephoto lens, while concealed by a forest across the street from the residence,” it states. ‘Recce’ is an informal term for reconnaissance.
Much of the police procedure described in the warrant application seems focused on establishing residency. The search warrant notes the residents’ names were on the Art & Garden Tour brochure, even quoting the entry: “903 Farrell Rd. Anna & Emmanuel’s happy house garden combines forms, food and colours in their high producing geodesic Greenhouse. Artist Channen Cripps focuses on creating bold colorful work that showcases the strength in femininity.” The application details the officer’s google search for their names, then a police check for their driver’s licences, then checking the licence plates on a truck parked in the driveway that police found was registered to Minten.
There is no indication in the application of any wrongdoing by anyone living on the property besides the cannabis plants.
Another document in the search warrant package states the RCMP seized four plants from the property. From the start, Minten has said three plants were seized. The legal limit is up to four, so there isn’t any legal difference between three and four. When asked, Minten maintained three plants were seized. She said they did have four at one point, but had cut a small one down and hanged it to dry in the shed. The police entered the shed but didn’t take the drying plant, she said, estimating it was about three grams.
The Aug. 6 RCMP media release said police confiscated cannabis plants, but didn’t say how many. It also said police seized “other items to support charges” but didn’t say what. The search warrant provides for an itemized list of seized items, but nothing else is listed, other than the four plants. Minten said she spoke with police about the other items and was told it was her mail. Why the seized mail wasn’t listed on the court form is unclear.
The most interesting detail is the timing of the search warrant application and its issuance. The form said the application was received at the Justice Centre in Burnaby at 6:27 p.m. on Aug. 2, the same day the warrant was issued. The warrant authorized the RCMP to search the property between 7 a.m. and 9 p.m. on Aug. 2, yet it wasn’t received by the justice until 6:27 p.m. that day, leaving only about two-and-a-half hours for the justice to grant the warrant, police to search the property then be off the property by 9 p.m. The timing of the warrant remains unexplained (a date error on the form?), but it appears the Revelstoke RCMP had to act quickly to complete the search on time. The timing offers some answers to why the Revelstoke RCMP did the search on Friday night of a summer long weekend when downtown is its busiest and accidents are common on the Trans-Canada Highway.
Also of note is the use of a search warrant and ‘telewarrant.’
Unless they have been sealed by the courts, search warrants are public documents — anyone can go to the courthouse and ask to see them. I asked the court clerk to pull all unsealed Revelstoke RCMP search warrants from the past year. There were only three including the warrant for 903 Farrell Road.
Of the other two, one was a search warrant filed at the Revelstoke Courthouse authorizing police to search three cell phones. They had been seized following a late-night altercation at a local motel. The case revolves around allegations an Okanagan-based pimp was operating out of a motel room, part of a ring that brought Okanagan prostitutes to motels in Revelstoke, Golden and Canmore, where they operated for a few days at a time.
The third search warrant was related to an alleged sexual assault at another Revelstoke motel. A woman told police she was raped by a man in his motel room, so police wanted into the room to collect evidence such as sheets, pillows and other items for DNA analysis. In this instance, police applied for a remote telewarrant. In B.C., the Burnaby-based Justice Centre offers 24-hour court services for pressing matters, such as police needing a warrant urgently before evidence is destroyed. There, provincially designated Judicial Justices (who are not judges) can issue warrants.
In the case of the search at 903 Farrell Road, the Revelstoke RCMP filed a telewarrant. The application form requires police to give reasons why they are using the expedited service. The Revelstoke RCMP state the local courthouse was closed, the Salmon Arm Courthouse was closed and that even if it was open, the Salmon Arm Courthouse is a 208-kilometre round trip. There were no further reasons given as to why the warrant was needed urgently, justifying the after-hours court services.
Would a Judicial Justice based in the Lower Mainland who is dealing with many court items from across B.C. make a different judgement call on this warrant than a local judge?
Solicitor General’s office recommends people educate themselves on the laws
The Mountaineer reached out to the B.C. Ministry of Public Safety and Solicitor General to find out about the ministry’s direction to police on the still-new cannabis laws. The law stating the plants can’t be visible from a public place is a B.C.-specific law.
Ministry spokesperson Jason Watson fielded the response. He provided a statement from the ministry that didn’t address the specifics in the questions. We did email back noting the response didn’t address the specifics in the questions; we received no response.
Here are our questions to the ministry:
-Does the government/ministry support the use of search warrants for the entire property, including dwelling residences, if four or fewer cannabis plants are spotted on private property and deemed to be “visible” from a public place?
-Does the ministry intend to take any action to address residents’ concerns that responding to visible cannabis with search warrants is an over-the-top reaction?
-Minister Farnworth is on the record last year saying that enforcement around the public display of cannabis would be complaint driven, and start with warnings, then could escalate to fines if complaints persisted. Has the provincial government’s policy changed since then?
Watson’s response follows. He said the quote was attributable to the Minister Mike Farnworth:
“As noted, we are unable to speak to police investigations that are underway, you would need to contact the RCMP directly. Noting that police work at arms length from government and we do not direct police operations.
“As we move forward in a legal market I believe it makes the most sense to educate the public around the new laws. When the Community Safety Unit started out they began by educating retail store owners on the rules and regulations to help inform them on how to be compliant — this has worked out well.
“We encourage British Columbians to visit the Get Cannabis Clarity website for the most up to date information on cannabis rules in B.C., such as growing at home, where it’s legal to consume, how to store in your vehicle, etc. https://cannabis.gov.bc.ca/“
Cannabis focused lawyer says police, courts dealing with change
Sarah Leamon is a Vancouver-based lawyer who often comments on cannabis law-related matters in the media. She estimates she’d defended as many cannabis-related cases as any other lawyer in B.C.
Leamon said she was unaware of any cases of B.C. residents being prosecuted for cannabis visible from a public place.
She said police are adapting to the new cannabis laws and the judicial system will be busy with them in coming years. “It really needs to be interpreted by the courts,” she said.
“A lot of these laws in my view are completely unnecessary and unjust,” she said. “We need to have the police showing discretion. There is an adjustment period and police officers are having difficulty interpreting the new laws.”
She added: “It’s important for the police to bring themselves up to speed and educate themselves and the public about the laws.”
Homeowner left in limbo
Following the sometimes hateful backlash against the RCMP on social media, Minten, who operates an alternative healing focused business in downtown Revelstoke, gave an interview saying she’d forgiven the RCMP and wanted to focus on healing and helping the local detachment restore its reputation.
She was disturbed by the revelation that the police had photographed her home from the bushes with a telephoto lens.
From the start, Minten said she took the issue to social media and local media because she didn’t want others to go through the same experience.
Now, she says she’s just waiting to hear back from the RCMP about what happens next and she doesn’t know what’s going to happen to her, her husband and others who may get caught up in a similar situation.
“I have no idea where to go with this,” Minten said. “I don’t know if I now reach out. I don’t want them to let this just float over and then they cause trouble for someone else. I want to see this still move forward, not sit for six months.”
The couple has retained a lawyer, but in an effort to keep legal costs down, they’re waiting for the RCMP’s next step before incurring more legal costs.
“Why didn’t you just knock on my door and say, ‘Hey’ … instead of spending time hiding in the bushes with a camera?” she asked.
After the corporal’s visit to Minten’s house resulted in promising words from Minten, some hoped the RCMP statement would tie up loose ends in the incident.
Instead, the search warrant application reveals the RCMP were taking steps to build a case against the homeowners that would lead to a successful prosecution. That is provided the Crown prosecutor agrees to take on the case, something they have the discretion to do or not do under B.C. laws.
For now, Minten and Levesque-Dupere will have to wait on word from the RCMP to find out what happens next, and Minten is still searching for the magic word so crucial to begin the healing process.
“[Cpl. Esson] showed remorse, but he never said sorry,” Minten said.
Why does it matter?
Nationally: In the years ahead, Canadian courts will hear many cases related to newly legalized recreational cannabis. Many will deal with cases with unusual circumstances not anticipated by the laws. This is one of them, and should it proceed in court it could set a precedent for future police and court decisions.
Locally: It’s unclear what the Revelstoke RCMP’s policy will be moving forward when it comes to cannabis they deem is visible from a public place, or those in violation of other cannabis laws. Starting with a search warrant is a severe tactic; residents don’t like police going through their homes, especially when better, simpler options are abundant. Like the rest of Canada, Revelstoke is dealing with a significant culture shift that comes with recreational cannabis legalization and many of the new cultural norms are still being worked out.
Correction: An earlier version of this story stated Minten had three ounces of cannabis drying in the shed on her property. Minten said it was about three grams.
Correction: An earlier version of this story misnamed the Justice Centre.
Update: Aug. 14, 11:30 p.m.
Revelstoke emergency services including the RCMP have had a busy summer as usual with major incidents such as fatal MVIs on the Trans-Canada Highway and missing person searches. They work hard in difficult circumstances. The incident is unusual; however, I believe most Revelstokians feel they have a good police service. I believe the police were short-staffed and working on priorities, causing communication issues reflected in the story. It’s the busy summer travel season and work can be time consuming. They’re not in a position to answer policy questions, either. Earlier, I was thinking of writing that in; I thought I’d add a condensed version here, better late than never. — Aaron Orlando