Evidence admissible against man despite charter rights issue: court

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This article was published 11/07/2022 (1212 days ago), so information in it may no longer be current.

Although a man facing weapons, voyeurism and child pornography charges had his charter rights violated when a warrant was served on his The Pas home, the evidence RCMP found is still admissible at trial, a Manitoba court has ruled.

RCMP began investigating Trent Dean Swanson, 51, in August 2020, after the Canadian Border Services Agency intercepted an overseas package addressed to his home, which appeared to contain a firearm suppressor (or silencer).

On Sept. 1, 2020, Mounties obtained and executed a warrant on his home, where they found firearms and other items of interest. In a subsequent search, investigators found suspected pornographic images of children on his computer, Court of Queen’s Bench Justice Chris Martin wrote in a June 30 decision.

The person who signed off on that Sept. 1 RCMP warrant was subject to a May 2022 motion of declaration that Swanson’s right to be secure against an unreasonable search and seizure, per the Canadian Charter of Rights and Freedoms, had been violated.

He was seeking an order to exclude all evidence discovered during the course of three searches starting Sept. 1, because the provincial court judge who authorized the initial warrant was biased, Swanson argued.

The court official had a previous working relationship with the accused’s wife that ended badly. Between 2010 and 2018, Martin wrote, the judge was Swanson’s wife’s supervisor when they worked for a legal services agency in The Pas.

“During that time, the now judge had a friendly relationship with Mr. Swanson’s wife and occasionally drove her home (where the warrant was executed). The judge occasionally met Mr. Swanson,” Martin wrote, noting the accused and his spouse have different surnames.

“The relationship between Mr. Swanson’s wife and the judge came to an acrimonious end while they were both still employed at the agency… which coincided with the judge’s appointment to the provincial court.”

The RCMP officers had drafted an information to obtain a warrant Sept. 1 and left it at the courthouse in The Pas for a judge to consider. The officers had no knowledge of who would do so. The local judge reviewed the information and signed off on the warrant.

Martin noted apart from a “vague, unsupported assertion, neither the ITOs nor the warrants per se, are alleged to be faulty,” nor did the RCMP misbehave.

The Crown did not dispute Swanson’s charter right was violated, conceding there was a reasonable apprehension of bias respecting the provincial judge, suggesting “the warrant ought to have been issued by a different judicial officer,” Martin wrote, quoting the Crown’s court documents.

That made the Sept. 1 warrant invalid and the initial search was in effect a warrantless one.

However, the Crown argued in the case’s circumstances the evidence should be allowed at trial, and there was no allegation of an actual bias — just a perceived one — and no evidence the judge was conscious of the old relationship when signing the warrant.

Martin wrote the situation appears to be more innocent or inadvertent than not, rather than inferring actual bias, among other reasoning.

“No doubt the breach was serious, but the conduct was not sufficiently so as to weigh in favour of exclusion of the evidence and the community has an interest in these offences being adjudicated,” the judge wrote, quashing the motion to exclude evidence.

In the second September warrant, which was issued out of Winnipeg, RCMP seized multiple 3D printers, air guns, suppressors, ammunition and digital storage devices, as CBSA believed he was using the printers to turn air guns into firearms. The third warrant, executed in December 2020, was also obtained through Winnipeg, after a The Pas justice of peace advised the Mounties of a conflict of interest.

Swanson was charged with 13 weapons offences and four counts of voyeurism and three child porn-related offences. He will face the weapons charges in an Oct. 3 Queen’s Bench criminal trial in The Pas this year, and the sex charges Dec. 4, 2023.

erik.pindera@freepress.mb.ca

Twitter: @erik_pindera