A Supreme Court judge has ruled that the evidence should be thrown out in a drug and weapons case involving a man who was previously convicted in a similar case involving Jonathan Bacon.
Justice Brian Joyce ruled Wednesday in B.C. Supreme Court in Chiliwack that Godwin Cheng, 39, had his charter rights breached when police conducted a search of his residence on Aug. 12, 2005.
Any evidence gathered from the search is now invalid and cannot be used in court.
Cheng was living at a home in the 35000 block of Hawksview Place in Abbotsford when police executed a search and seized brass knuckles, a switch blade, a loaded Glock semi-automatic handgun, cocaine and marijuana.
He was charged with two counts of possession for the purpose of trafficking, two counts of possessing a prohibited weapon, possession of stolen property, and four counts of breaching his bail conditions.
Cheng argued in court that the information police used to obtain the search warrant was not reliable enough to have the warrant granted.
Crown argued that the warrant was correctly granted based on observations by police that included seeing several people and vehicles at Cheng's residence that were believed to be associated with the illegal drug trade and Cheng's association with two other drug investigations.
Police believed the Hawksview Place home was being used as a "transfer house" for the distribution of drugs.
But the judge said there was no evidence to suggest that any drugs had been transferred from the home. The only evidence in the Information to Obtain (ITO) a search warrant concerning anything going in or out of the home was when an unknown man went in with a Rubbermaid tote and came out with nothing.
The following day, the same man entered the home with nothing and came out with a cardboard box.
"The ITO … does not contain sufficient reliable information that could have supported the issuance of a warrant to search Hawksview Place for the presence of marijuana and drug trafficking materials," Joyce stated in his written decision.
Prior to the Hawksview Place investigation, Cheng was arrested on Aug. 4, 2005, when he and Jonathan Bacon were seen transferring packages between vehicles and driving to a meeting point.
Bacon and Cheng were arrested, and among the item's found in Cheng's vehicle were marijuana, meth and ecstasy pills, cocaine, $2,600 cash and cellphones.
Also searched was the home on Winfield Drive in Abbotsford that Bacon shared with his girlfriend, Rayleene Burton. That search turned up marijuana, cash, four firearms, a bulletproof vest and a police uniform.
Burton was also arrested that day, when she was stopped in her car and found with $84,000.
All three were charged with various offences, but the charges were dismissed in June 2008, when the judge ruled that the searches of the home and vehicles had not been properly conducted, and the trio's charter rights had been breached.
Crown appealed that decision, and a new trial was ordered. That decision was then challenged by the trio through the Supreme Court of Canada, which ordered that the trial should proceed.
It had not yet begun when Bacon was killed in a targeted shooting in Kelowna in August 2011.
Cheng went to trial and was sentenced last December to 18 months' house arrest on a charge of possession for the purpose of trafficking. Charges against Burton were stayed.