B.C. court tosses out convictions, orders new trial for accused Vancouver drug trafficker

The Law Courts building, which is home to B.C. Supreme Court and the Court of Appeal, is seen in Vancouver, B.C., Nov. 23, 2023. THE CANADIAN PRESS/Darryl Dyck

British Columbia’s highest court has tossed out more than a dozen criminal convictions against a Vancouver man accused of drug trafficking and weapons offences after a judge ruled police did not have sufficient grounds to search his apartment and seize evidence in the case.

Justice Joyce Justice DeWitt-Van Oosten on Wednesday ordered a new trial for Khamphou Khamvongsa, who was found guilty of 13 drug and weapons charges after Vancouver police entered his Downtown Eastside apartment in May 2019 and seized 56 grams of cocaine, more than $28,000 in cash, two Glock handguns and a shotgun.

Investigators also found and confiscated a prohibited butterfly knife and a prohibited martial-arts weapon known as nunchaku, along with pistol ammunition, drug-trafficking legers and other paraphernalia, according to a summary of the case published by the B.C. Court of Appeal on Thursday.

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Writing on behalf of the three-member Appeal Court panel, DeWitt-Van Oosten found the trial judge who convicted Khamvongsa allowed items seized from his apartment to be submitted as evidence, despite having concluded that the police search and seizure were unreasonable and breached the accused’s charter rights.

“Notwithstanding the constitutional violation, the judge admitted all of the contested evidence… on the basis that doing so would not bring the administration of justice into disrepute,” DeWitt-Van Oosten wrote in the decision.

Evidence from police informants

Investigators obtained the warrant to search Khamvongsa’s East Hastings Street apartment, which he shared with his mother and sister, using information gleaned from three confidential informants, as well as observations during a police surveillance operation.

Upon review of the Information to Obtain (ITO) – the police document that outlines the grounds for obtaining a search warrant from a judge – the trial judge found the document contained “no direct evidence from anybody” indicating drug offences were occurring in the apartment, according to the Appeal Court’s summary of the decision.

The trial judge also found the ITO provided “little” evidence of the credibility of the police informants or whether their information had resulted in successful prosecutions in the past. It also failed to explain how the informants knew the information they provided to police or how current the information was.

As for the evidence gleaned through police surveillance, the trial judge found the ITO contained “erroneous and misleading” statements about an interaction between an unknown man and a woman who was alleged to be a drug-trafficking accomplice of the accused.

The police ITO said the unknown man was seen providing something wrapped in fabric to the woman, an interaction the ITO described as “consistent with a hand-to-hand street-level drug transaction,” according to the Appeal Court summary.

‘Presumptively valid warrant’

The trial judge found “no evidentiary basis” to reach the conclusion the fabric contained drugs, concluding the ITO offered only “strong information that (Khamvongsa) was associated with people who were suspected of drug trafficking.”

“I cannot conclude that, based on the information, that there is a credibly based probability that evidence of a drug offence would be located in that location that the search warrant related to,” the trial judge ruled.

“I find there were insufficient grounds for the issuance of the search warrant at that location.”

Despite reaching that conclusion on the validity of the search warrant and the information used to obtain it, the trial judge ruled the police were acting on “a presumptively valid warrant” issued by a judge when they searched the apartment and “uncovered evidence of serious offending.”

“The impact of the charter breach on Mr. Khamvongsa’s privacy interest was very significant, but in view of the nature of the breach, the police conduct, the reliability of the evidence, the importance of the evidence, and the toll that excluding the evidence would take on the truth-seeking function of the trial, I conclude that admission of the evidence would not bring the administration of justice into disrepute,” the trial judge concluded.

‘Irreparably flawed’

But the Appeal Court overruled that decision, finding the trial judge failed to properly assess the seriousness of the charter breach on the decision to allow the evidence.

“The end result, in my view, was an irreparably flawed assessment of where the charter-infringing conduct properly lay on the culpability spectrum and, importantly, whether it weighed in favour of exclusion or admission,” DeWitt-Van Oosten wrote.

Allowing the seized items into evidence at trial was effectively game over for Khamvongsa’s legal defence, with the remainder of the trial proceeding through an agreed statement of facts to a conviction on the charges.

“The defence effectively acknowledged that once the seized evidence was admitted, all essential elements of the offences had been proved,” the Appeal Court judge wrote, quashing the convictions and ordering a new trial on the charges.