The B.C. Court of Appeal has set aside acquittals of a Vernon man charged with drug offences. And it’s conceivable that this ruling could make it easier for police to obtain search warrants in future cases.
In came after a trial judge, Mayland McKimm, ruled in 2014 that a search warrant was inadmissable. This resulted in the case against Christopher Brant Loewen collapsing.
The information to obtain the warrant maintained the confidentiality of police informants and didn’t disclose how much they were paid.
Chief Justice Robert Bauman’s decision overturned McKimm’s ruling and ordered Loewen to face trial again for possession of cocaine, heroin, and cannabis for the purpose of trafficking.
According to Bauman’s written ruling, the trial judge failed to assess the information to obtain the search warrant ‘in light of the totality of the circumstances’.
‘In my view, the record which was before the issuing justice leads to an inescapable conclusion: that the justice could have granted the authorization,’ Bauman wrote.
The case involved an alleged dial-a-dope operation in which Mounties posed as customers for lower-level drug dealers. This yielded confidential informants, who were cited by the Crown to obtain the search warrant that led to Loewen being charged.
However the trial judge, McKimm, deemed that the search warrant was inadmissable because the document had been ‘heavily edited to remove any information that could disclose the identity of the confidential informants’.
The trial judge invited the Crown to submit an unedited version, but prosecutors refused to do that.
McKimm concluded in his 2014 ruling that the ‘vast majority of the information provided…was nothing more than bald assertions with no way in which the authorizing justice could assess their reliability’.
In addition, the trial judge ruled that there was ‘no information provided with respect to whether or not the information provided by these informants was dated, frequent or infrequent’.
While police disclosed that confidential informants were paid, the amounts were not disclosed in the information to obtain the search warrant.
‘It is fundamental to our fair trial process that information ought to be disclosed if it is relevant to a matter in issue,’ McKimm ruled in 2014, citing the 1991 R. v. Stinchcombe ruling in the Supreme Court of Canada. ‘The threshold for disclosure is very low….One of the few exceptions to this broad requirement of disclosure is if the disclosure risks the identity of the informant, subject to certain limitations such as the ‘innocence at stake’ exception which does not apply here.’
However in the recent B.C. Court of Appeal decision, Bauman wrote that a search warrant ‘is an investigative tool’.
‘Its justification rests on reasonable grounds, not proof beyond a reasonable doubt,’ declared the chief justice, who was appointed to this position by former prime minister Stephen Harper.
Bauman’s ruling was endorsed by the two other members on the panel: Justice David Tysoe and Justice Mary Saunders.
Because the B.C. Court of Appeal decision was unanimous, it lessens Loewen’s likelihood of obtaining leave to appeal this ruling before the Supreme Court of Canada.
‘In criminal cases, there is an automatic right of appeal where an acquittal has been set aside in the provincial court of appeal or where one judge in the provincial court of appeal dissents on a question of law.’ the Supreme Court of Canada website states. [Emphasis added.]
If the Supreme Court of Canada does not hear the case, it means that the country’s top court will not assess the recent B.C. Court of Appeal ruling in light of the Stinchcomb decision, which placed a high onus on the Crown to provide disclosure to the accused in criminal cases.
