A Supreme Court of B.C. justice has ruled that the evidence will be allowed in a child pornography case involving a former vice-principal of an Abbotsford middle school.
Justice Heather MacNaughton ruled Thursday (Dec. 2) in New Westminster that although Mike Haire’s charter rights had been breached during the police investigation, “the admission of the evidence would not bring the administration of justice into disrepute.”
“While the serious impact of the breach on Mr. Haire’s privacy interest weighs heavily in favour of excluding the evidence, the strong public interest in the adjudication of this criminal trial on its merits weighs strongly in favour of the admission of the evidence,” MacNaughton said.
A conviction is expected to be issued at a later date, followed by sentencing. The parties are due back in court Jan. 20 to set the next date for the proceedings.
Haire was an administrator at W.A. Fraser Middle School when he was charged in September 2018 with making child porn available and possessing child porn.
His trial began on May 3 of this year with a voir dire (a trial within a trial) that at first addressed whether Haire’s charter rights had been breached when a search warrant was granted and executed at his residence in September 2018.
Defence lawyer Vincent Michaels argued that the warrant to search Haire’s home had been granted based on incomplete information provided to the issuing justice by the primary investigator, Det. Keith Nugent.
The investigation began after a six-second video file containing child sexual abuse was uploaded from a cellphone to Instagram.
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Instagram indicated that the user was “Maddie Mackenzie” and the username was “Maddie.mack3000.”
Nugent confirmed with Telus that the customer connected to the IP address was Mike Haire with an address on Whatcom Road.
But Michaels argued that Nugent made several errors, including failing to try to identify “Maddie Mackenzie” and not confirming who else might have been in the residence – such as a roommate or short-term guest – at the time of the video upload.
Michaels said that in Nugent’s “information to obtain” (ITO) a search warrant he omitted details such as that the upload had come from a cellphone and that other people could have been within range of the router at the time.
If that information had been provided, the search warrant likely would not have been granted, Michaels said.
The execution of the warrant resulted in the seizure of 26 electronic devices. Images and videos constituting child sexual abuse were found on six of the devices or hardware seized, according to court documents.
MacNaughton ruled in July that the search warrant had been invalidly issued and Haire’s charter rights had indeed been breached.
Michaels and Crown lawyer Dorothy Tsui returned to the courtroom in October to argue whether the evidence should be deemed inadmissible.
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Michaels said because the search warrant was invalid, any evidence found as a result of it should not be allowed.
Tsui countered that the severity of the charges outweighed the severity of the breach. She said the police work could have been more diligent, but investigators proceeded on what they thought was a valid warrant, and their actions did not constitute “flagrant or abusive conduct.”
The justice agreed with Tsui in her ruling on Thursday, saying that Nugent’s conduct was not a “wilful or flagrant disregard” of the charter.
“Det. Nugent’s conduct was not at the egregious end of the culpability spectrum. His conduct was the omission of evidence from the ITO, and the failure to follow certain lines of inquiry that was available to him in advance of seeking the warrant,” she said.
“His conduct was closer to the lower end of culpable police behaviour.”
vhopes@abbynews.com
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