A B.C. Supreme Court justice has reserved her decision on whether a former Abbotsford school vice-principal should have the evidence thrown out in his child-porn trial.
Lawyers from both sides presented their arguments Friday (Oct. 22) in New Westminster over the admissibility of evidence in the proceedings for Mike Haire.
He 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.
Haire’s 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 Crown prosecutor Dorothy Tsui.
The focus was on whether Haire’s charter rights had been breached when a search warrant was granted and executed at his residence in September 2018.
RELATED: Former Abbotsford vice-principal charged with child porn had charter rights breached, judge rules
Madam Justice Heather MacNaughton ruled in July of this year that the search warrant had been invalidly issued and Haire’s charter rights had indeed been breached.
Friday’s proceedings focused on whether the evidence collected by police after they had breached Haire’s rights should be allowed at trial.
Michaels argued, as he did at the voir dire on the charter breach, 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 Abbotsford Police Department was notified in July 2018 by the Canadian National Child Exploitation Coordination Centre that a six-second video file containing child sexual abuse had been uploaded from a cellphone 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.”
Nugent confirmed with Telus that the customer connected to the IP address was Mike Haire with an address on Whatcom Road, the court previously heard.
But Michaels said on Friday that Nugent made several errors in the investigation, 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.
Other people who might have been in the home could have easily known Haire’s wifi password and used it, Michaels said.
He said that when Nugent completed an “information to obtain a search warrant” (ITO) in September 2018, 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.
He said he does not believe that Nugent was being deliberately deceptive, but his actions could be characterized as “careless, indifferent, negligent, unaware.”
“He was aware that the user could have been any one of a wide number of persons. He stopped there, when he should have gone further and considered whether the ‘who’ meant that more information needed to be provided to address the question of whether evidence would be found,” Michaels said.
He said the issuing of the search warrant resulted in seven police officers spending three hours scouring Haire’s residence and seizing 26 electronic devices, Michaels said.
The search was a serious intrusion on Haire’s privacy, he said.
Previous court documents stated that images and videos constituting child pornography were located on six of the devices or hardware seized.
Michaels argued that none of the evidence that followed the charter breach should be admissible in court.
RELATED: Abbotsford middle school vice-principal charged with child porn offences
But Tsui countered that the severity of the charges outweighs the severity of the breach.
She said that, although the police work could have been more diligent, investigators proceeded on what they thought was a valid warrant and their actions did not constitute “flagrant or abusive conduct.”
Tsui said the information that Nugent left out of the ITO wasn’t as “egregious or as aggravating” as Michaels was making it out to be.
She said the breach was not serious enough that allowing the evidence would “undermine the reputation of the administration of justice.”
Tsui acknowledged that if the judge rules the evidence should not be allowed, the Crown will no longer have a case against Haire.
The parties are due back in court Nov. 18 to set a date for the judge’s decision.
vhopes@abbynews.com
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