That’s after the Supreme Court of Newfoundland and Labrador Court of Appeal accepted a Crown appeal and ordered a new trial in the case of Stephen Paul Parsley.
The decision was made public earlier this week by a panel, made up of Justice Lois Hoegg, Justice Malcolm Rowe and Justice Michael Harrington.
Parsley was charged with five offences — possessing and trafficking cocaine and marijuana and possessing ecstasy.
The drugs — including five kilos of cocaine and 22 kilos of marijuana — were in found May 2014 after officers obtained a search warrant, issued by a provincial court judge.
The discovery was based primarily on information provided by two informants, who each provided confidential information to a police officer.
They each gave information about Parsley — aka Snips — such as details about his residence, his drug operation and property surveillance.
Police took steps to independently corroborate the information.
At trial, Parsley’s lawyer challenged the validity of the warrant, arguing that the grounds set out in the Information to Obtain (ITO) it were insufficient.
The judge agreed, saying he found that the ITO the search warrant did not meet the threshold requirement of “credibly based probability” and should not have been issued.
He ruled that the evidence from the search would be excluded from trial, as it breached Parsley’s Charter rights to be free from unreasonable search and seizure.
The ruling gutted the Crown’s case and resulted in Parsley’s acquittal.
During the appeal hearing in June, Crown prosecutor Paul Adams argued that the judge was wrong to conclude Parsley’s rights were breached. He said the ITO contained sufficient reliable information to justify issuance of the warrant.
The court of appeal judges agreed.
They concluded that the informants were highly credible and provided reliable information, which helped investigators.
They said the trial judge focused too much on the fact that the informants’ information resulted only in a few arrests.
“(That) belies a misunderstanding of how informer information is used,” Hoegg said in the panel’s written decision.
“Many factors go into a police decision to seek a search warrant or to arrest someone, and because they do not choose to do so every time they are provided with information does not mean the information is not reliable.”
They also said that while the ITO disclosed Parsley’s association with four people, on whom no further information was provided, “the fact that meaningless information was included in the ITO does not render the ITO invalid.”
As well, the trial judge noted that the judge who issued the warrant could not have relied on information relating to a traffic stop incident in New Brunswick in 2013. That information could connect Parsley to an illegal drug.
“While the information was dated and of slight weight, it is not irrelevant,” Hoegg said, adding that a breach was not considered at that time.
She said the judge also focused on the differences in the information provided by the two informants, saying that the variances in description of Parsley’s drug operation and his property "make it impossible to conclude that there were drugs on the accused’s property.”
She disagreed, noting the information was not contradictory.
“Minor differences in description are expected when information comes from different people,” she said. “In fact, such minor differences may enhance the credibility of the information. Two people seldom use the same words to describe the same event.”
Hoegg went on to say, “There is sufficient detailed information provided by two reliable informers independently of each other and some other information in the ITO on which the search warrant was lawfully issued."
In conclusion, she said, there was no breach of Parsley’s Charter rights and no basis to exclude evidence obtained by the search.
Rowe agreed, adding that the trial judge in reviewing the ITO substituted his view for that of the judge who issued the warrant.
“That is not his role,” Rowe said. “It is, rather, to determine whether there was a proper basis on which the issuing judge could have authorized the search warrant.
“Thus, the trial judge erred in law … I would allow the appeal, set aside the acquittal and refer the matter back for a new trial.”
No date has yet been set for the case to return to court.
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