The B.C. Court of Appeal has ordered a new trial for a Vernon man acquitted of drug charges after a lower court threw out a key search warrant.
The decision written by Chief Justice Robert Bauman sets aside the acquittal of Christopher Loewen and orders a new trial on charges of possession of cocaine, heroin and marijuana for the purpose of trafficking.
Those charges were dismissed in January 2015 when a provincial court judge in Vernon rejected a warrant that led to the seizure of drugs, cash and other evidence vital to the case against an alleged dial-a-dope operation.
The unanimous decision by three appeal justices finds Judge Mayland McKimm was wrong to reject the warrant for what he considered a lack of “independently verifiable information” and “bald unsupported assertions.”
The warrant had been heavily edited to prevent identification of confidential informants and the Crown refused a request to provide an unredacted version.
In overturning Loewen’s acquittal, Bauman writes that McKimm wrongly dissected details that supported the warrant, instead of assessing the material “in light of the totality of the circumstances.”
In the 14-page judgment, Bauman says McKimm “should have found a very strong case for issuing the warrant.”
“A search warrant is an investigative tool. Its justification rests on reasonable grounds, not proof beyond a reasonable doubt,” writes Bauman.
“In my view, the judge’s reasons for finding the warrant insufficient simply do not reflect the detailed and compelling evidence.”
The Canadian Press