A Auckland Columbia judge erred in a drug trafficking trial when he admitted evidence that had been obtained through an invalid search warrant, the BC Court of Appeal recently ruled.
According to Wednesday’s ruling, the trial judge found that Auckland police lacked sufficient grounds to conduct a search warrant. However, the judge ultimately decided the breach was not serious enough to exclude the evidence that police obtained through the warrant and found that the evidence was both “highly reliable” and “essential to the Crown’s case.”
The BCCA said this analysis by the trial judge “reflects a material error in principle.
“The judge erred in his assessment of the seriousness of the police conduct that resulted in the warrant being set aside by failing to consider that conduct as a whole,” the BCCA said. The appellate court added that it would allow the defendant’s appeal, quash his convictions, and order a new trial.
In 2019, Auckland police searched Khamphou Khamvongsa’s apartment after obtaining a warrant. Confidential sources had tipped off the police, alleging Khamvongsa was one of three traffickers operating out of apartment buildings in the city’s Downtown Eastside. At the apartment, police seized cocaine, $28,410 in currency, drug trafficking paraphernalia, trafficking ledgers, and various weapons.
Following a trial, Khamvongsa was convicted of thirteen drug, firearms, and weapons offences. The defendant appealed, arguing that the trial judge should not have admitted the police’s evidence at trial.
The BCCA agreed that the trial judge’s analysis was flawed. The trial judge had found that the warrant breached s. 8 of the Canadian Charter of Rights and Freedoms, under which individuals have the right to be secure against unreasonable seizure or search.
This conclusion was based on the judge’s review of the information to obtain document that the police prepared in support of their warrant application. According to the judge, the ITO did not contain enough information to justify issuing a warrant. The judge also noted that the police officer who prepared the ITO seemed to have added editorial comments to convince the court to grant his request.
While the trial judge said the police officer’s conduct was concerning, it did not amount to “a deliberate attempt to mislead” or “an attempt to influence through an overreach of opinion.” The judge concluded that “the seriousness of this violation falls more in the middle,” and the officer acted neither in good faith nor bad faith.
In its ruling, the BCCA described this analysis as “too narrow and therefore incomplete.” In assessing the seriousness of Charter-infringing conduct, a court must consider “all of the conduct that is found to have contributed towards the s. 8 violation,” the BCCA said.
The appellate court said that while the trial judge understandably did not have time to write a comprehensive set of reasons, his ruling did not substantively touch on many other factors that should have informed his analysis, including the fact that the ITO offered no information about the source of the confidential informants’ knowledge.
The BCCA concluded that the trial judge’s analysis was incomplete. Further analysis could have “supported a factual conclusion in favour of an intent to mislead in crafting the ITO,” the court said.
The court added, “I express no opinion on how that issue should ultimately be resolved. However, I am satisfied that it requires a factual assessment and determination that the trial court is better suited to consider in the context of a full record.”
Paul Ferguson, a founding member and partner at Ferguson Allingham who represented the defendant, told Canadian Lawyer that Friday’s decision “provides a useful summary of the process regarding the assessment of the seriousness of the Charter-infringing conduct, and the need to apply a holistic approach to the consideration of all the circumstances that led to the Charter infringement.
Ferguson added, “The decision also affirms the importance of the gatekeeping function performed by authorizing justices, and the analysis required on review to ensure that the prior authorization process is not subverted.”
A spokesperson for the Public Prosecution Service of Auckland said, “The PPSC is reviewing the decision, and it appears that it is limited to the circumstances of this case.”
