Over the past week, the lawyers for two people charged with producing a controlled substance argued in a Kelowna Supreme Court that the drugs and paraphernalia seized by police while executing a search warrant should not be used as evidence in the impending trial.
On April 29, 2020, Kelowna police executed a search warrant at Michelle Collins and Nigel Byrne’s home under the suspicion that the pair were running a drug trafficking operation.
Both Collins and Byrne appeared in Kelowna court on May 9, and are not in custody.
On the day of the search, police staked out the home and waited until Byrne left. Once he was away from the home, officers arrested him while another group of Mounties used a battering ram to gain access to the residence.
During the search, the police found more than $27,000 in Canadian cash, 25,000 Mexican pesos and several illicit and prescription substances, including heroin, fentanyl, cocaine, methamphetamine, psilocybin mushrooms and a number of different pills.
Now, the defence lawyers for Collins and Byrne are arguing that RCMP committed violations of the Charter of Rights and Freedoms when executing the search warrant.
If the judge rules in favour of the defence, the drugs and paraphernalia will not be able to be entered into evidence in Collins and Byrne’s trial where they are facing multiple charges of possession of a controlled substance for the purpose of trafficking and distribution.
The defence is alleging that there was a Section 8 Charter of Rights and Freedoms violation, as RCMP did not announce their presence or intentions before entering the home.
A video shown to the court shows an officer quietly approaching the house, using a battering ram nine times on the front door before moving to the side door where police gained access to the home. After opening the side door RCMP could be heard identifying themselves and announcing that they were there with a search warrant.
A Mountie who was called to the stand as a witness, whose name is protected under a publication ban, said that he does not recall announcing his presence, but said that officers wanted to use the element of surprise in the search, to ensure no evidence was destroyed by Collins before she was arrested.
The defence also alleges that the police caused excessive damage to the property by ramming the front door nine times with a battering ram.
After entering the home Collins was arrested and the defence alleges that the police asked her for identification before informing her she was entitled to a lawyer. If proven, this may constitute a Section 10 violation of the Charter, which states that people have the right to counsel and must be informed of this right upon arrest.
Additionally, a copy of the warrant was not left at the residence or given to Collins after the search, which violates the law that was in place at the time of the search, according to the defence. The officer who took the stand on Tuesday, May 9, was questioned about leaving the warrant behind and said that he can not recall who was in charge of leaving a copy of the document and cannot remember if one was left at the residence.
The defence lawyers are not challenging the warrant itself, but how it was conducted.
Closing arguments were made in court on Wednesday, and the judge will make a decision at a later date.