The admissibility of drugs and guns seized by the Vancouver police from a downtown eastside apartment was central to the conviction of a suspected drug dealer. A motion judge admitted the evidence although it was tainted by a police officer who attempted to influence the issuing judge to draw unsupported inferences in the search warrant application. But the British Columbia Court of Appeal ordered a new trial because the motion judge incorrectly assessed the seriousness of the state conduct that violated the defendant’s constitutional right to be secure against unreasonable search and seizure.

1. Introduction

On January 27, 2023, Khamphou Khamvongsa was convicted of multiple drug, firearm and weapon offences in the Provincial Court of British Columbia at Vancouver, B.C. The charges stemmed from the execution of a search warrant at his East Hastings Street apartment where the police seized cocaine, cash, two Glock handguns and a Remington shotgun. The warrant was issued by a justice of the peace under s. 11 of the Controlled Drugs and Substances Act. (here) Mr. Khamvongsa brought a pre-trial evidence exclusion motion challenging the validity of the warrant. The motion judge concluded there were insufficient grounds for the warrant to issue under s. 8 of the Charter of Rights and Freedoms but held that the admission of the evidence in the trial would not bring the administration of justice into disrepute under s. 24(2) of the Charter. On February 5, 2025, the British Columbia Court of Appeal reversed in reasons for judgment indexed as R. v. Khamvongsa finding that the motion 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.” (here) A new trial was ordered.

2. Background

In Canadian constitutional law, the decision whether to exclude evidence on the basis of a Charter violation requires a motion judge to consider a three-step inquiry developed by the Supreme Court of Canada in R. v. Grant: (a) the seriousness of the state conduct; (b) the impact on the constitutional rights of the defendant; and, (c) society’s interest in an adjudication on the merits. (here) In assessing the seriousness of the state conduct, the motion judge stated that his finding about insufficient grounds for the warrant was “primarily based on a facial assessment” of the Information to Obtain. The information from three confidential informants and four days of surveillance by the police did not establish a credibly-based probability that evidence of drug trafficking would be found in Mr. Khamvongsa’s apartment. It was not the facts asserted in the ITO that was concerning but the affiant’s opinions that disclosed “an attempt to influence the authorizing justice of the peace to draw unsupported inferences”. The attempt to influence “through an overreach of opinion” did not constitute good or bad faith but fell “more in the middle” on the spectrum of seriousness and did not favour exclusion. That finding on the seriousness of the state conduct was the crux of the appeal. In my following comments I will refer to the justice of the peace as the issuing judge.

3. Principles of Law

Writing for a unanimous panel, Justice Joyce DeWitt-Van Oosten drew upon R. v. Morelli, R. v. Rocha and R. v. Booth for the general principles governing an assessment of the seriousness of the state conduct in the context of a violation of s. 8 of the Charter based on insufficient grounds for a warrant. In Morelli, an ITO was “improvidently and carelessly drafted” and the fact that the executing officers acted on the basis of a search warrant did not mean the problems with the ITO that led to the s. 8 violation were inconsequential. (here) In Rocha, it was held that, although the fact that the police sought a warrant “tells in favour of admitting the evidence”, it is not the case that, whenever a search warrant has been granted, the first line of inquiry will favour admission. (here) In Booth, it was emphasized that, although an attempt to obtain a search warrant is ordinarily the antithesis of wilful disregard for Charter rights, the ITO must nevertheless be considered to determine whether it is “an exercise in advocacy, rather than disclosure.” (here) The governing principles were condensed by Justice DeWitt-Van Oosten that I will summarize as follows.

First, the fact that a search was conducted pursuant to a warrant is attenuating but not determinative. Its mitigating effect may be outweighed by countervailing factors unique to the case that also impact the assessment of seriousness. Second, the assessment of seriousness is fact-intensive, determined case-by-case, and contextually informed. All material findings made regarding the s. 8 violation are relevant to the assessment of seriousness including findings that necessitated the excision of information from the ITO. Third, although a finding of intent to mislead is likely to result in the state conduct landing at the top of the culpability ladder, that is not the only route to getting there. The fact that an ITO is factually misleading, irrespective of intent, can also move the state conduct to the more serious end of the spectrum. It depends on the nature and number of the errors that includes the nature of the privacy interest at stake and the significance of the state intrusion authorized by the warrant. Although rulings under s. 24(2) of the Charter attract deference, Justice DeWitt-Van Oosten concluded that the motion judge erred in principle by adopting “too narrow of a focus in assessing seriousness” under the first step of the Grant analysis.

4. Assessment of Seriousness

In assessing seriousness, the motion judge stated that he was “less concerned” about the factual statements in the ITO than he was about the “conclusions drawn from those statements”. The conclusions were advanced by the affiant as opinions about the consistency between drug trafficking and the observations made by the police during surveillance. For example, the affiant asserted that Mr. Khamvongsa’s interaction with a car parked outside his apartment building was “consistent with a hand-to-hand drug transaction and a drug trafficker using a designated residence as a stash house to store drugs, drug trafficking material, and drug proceeds.” The motion judge found that some of the affiant’s opinions, such as this one, were not borne out by evidence which showed an attempt to “influence the authorizing judicial justice of the peace to draw unsupported inferences“. The motion judge therefore held that the state conduct was neither “trivial” nor “minor”.

Justice DeWitt-Van Oosten concluded that this assessment of seriousness was “too narrow and therefore incomplete.” The first step of the Grant analysis is properly informed by all the conduct that is found to have contributed to the s. 8 violation. In R. v. Reilly, the Supreme Court of Canada held that “[t]rial judges cannot choose which relevant Charter-infringing state conduct to consider” in assessing seriousness. (here) Although that comment was directed to ensuring that all Charter violations are considered under the first step, Justice DeWitt-Van Oosten held that the principle is equally applicable to individual aspects of the state conduct that underlie a violation. “A court’s analysis of seriousness must consider every part of the relevant state conduct, not just some parts, and this includes conduct that necessitated excision in the s. 8 voir dire,” she said. Justice DeWitt-Van Oosten went on to address five specific findings by the motion judge that were not considered in the s. 24(2) ruling. One finding that stands out was the affiant’s description of the first day of surveillance that was “written to be erroneous and misleading” and therefore necessitated excision.

5. Conclusion

When an exclusion ruling is set aside due to an error in principle an appellate court will most often undertake a fresh Grant analysis. However, in this case, the ruling was set aside because, in applying the first step of the analysis, the motion judge failed to account for various findings regarding the s. 8 violation that may have supported a finding of intent to mislead the issuing judge. A correct consideration of the “overreaching opinions” and the “factual misrepresentation” may have moved the state conduct further up the culpability ladder. A new trial was therefore ordered because that analysis would require a factual determination that a trial court is better suited to make in the context of a full record. Paul Ferguson, a partner at Ferguson Allington who represented the defendant, told Canadian Lawyer magazine that the ruling “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.” (here)