A judge has ruled that an Abbotsford middle school vice-principal had his charter rights breached when a search warrant was invalidly issued for his home in 2018.
The ruling, issued July 2 in B.C. Supreme Court in New Westminster, means any evidence seized as a result of the search warrant will be inadmissible in court, which usually leads to Crown staying the charges.
Mike Haire was the vice-principal of W. A. Fraser Middle School when he was charged in September 2018 with making child porn available and possessing child porn.
His trial began May 3 but opened with a three-day voir dire (a trial within a trial) initiated by defence lawyer Vincent Michaels and agreed to by the Crown over the admissibility of evidence.
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Michaels argued that there were no grounds for a search warrant to have been issued against Haire.
Court documents state that Abbotsford Police were notified in July 2018 by the Canadian National Child Exploitation Coordination Centre – who had been contacted by U.S. authorities – that a six-second video file containing child sexual abuse had been uploaded to Instagram on July 28, 2018 from a user in Abbotsford.
Instagram indicated that the user was “Maddie Mackenzie” and the username was “Maddie.mack3000.”
Abbotsford Police Det. Keith Nugent was assigned as the primary investigator, and confirmed with Telus that the customer connected to the IP address was Mike Haire with an address on Whatcom Road.
Nugent concluded, through surveillance and records, that Haire lived at the residence, and was the only person associated to that address – located in a multi-level condo building.
Nugent completed an “information to obtain a search warrant” (ITO), which was approved by a judge on Sept. 12, 2018.
The court documents state that the warrant was executed the following day, at which time police seized 32 items, mostly electronics, including a hard drive.
“Images and videos constituting child pornography were located on six of the devices or hardware seized,” the documents state.
Michaels argued in court that the search warrant was invalid because there should have been no basis for the issuing judge to conclude that evidence of the offences would be found at the residence.
Madam Justice Heather MacNaughton agreed, stating in her ruling that Nugent’s ITO was incomplete because it didn’t include details such as Nugent’s belief that the Instagram upload was made from a cellphone – “an inherently mobile device, which was less likely to remain at the residence.”
The judge said the ITO also did not disclose that the device referenced by Telus was a router/modem that, “according to Nugent, was of no evidentiary value and would not assist in the investigation.”
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“The issuing judge may have proceeded on an understanding that the device referred to was a computer or a laptop.”
MacNaughton also said the ITO did not disclose any steps to investigate whether “Maddie Mackenzie” existed nor did it consider how many other people might have lived at the residence. The records that Nugent used only named people who had prior contacts with police, the judge said. (Haire had previously requested police attend the school over a student-related matter.)
She also said the ITO did not indicate whether the router or modem had a password and, if so, whether anyone else could have known it.
“While there was evidence on which the issuing justice could have reasonably inferred that Mr. Haire lived at the residence, and was the owner of the IP address, there was no other evidence connecting Mr. Haire as the user,” she said.
MacNaughton concluded that Haire’s rights were breached under section 8 of the charter, which states: “Everyone has the right to be secure against unreasonable search or seizure.”
The parties are due back in court on Oct. 22.
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