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Accused drug traffickers get new trial
The B.C. Court of Appeal has ordered a new trial for a Burnaby couple accused of drug trafficking after it ruled the search warrant for their home violated their rights.
Both Zhen Qian Liu and Ngoc Oanh Le were convicted of two counts of possession of a controlled substance—cocaine and heroin—for the purpose of trafficking.
They appealed their convictions on several grounds including that the "information to obtain" (ITO) was inadequate to issue the search warrant for their Burnaby home.
The search of their Metrotown-area condo and storage space at 6240 McKay Ave. led to the discovery and seizure of about 740 grams of cocaine, 140 grams of heroin and $45,000 cash.
The police investigation of Liu, Le and Petros Soiles, started with information provided by police informants, B.C. Appeal Court Justice Nicole Garson said in her reasons for judgment. Several informants had stated that Soiles—who was also convicted of possession for the purpose of trafficking—was trafficking drugs on behalf of Le.
In applying for the search warrant, police cited police surveillance that showed Liu and Le repeatedly visiting Soiles' home, a condo at 131 Regiment Square in downtown Vancouver.
Le's lawyer argued that the search warrant for their home was nothing more than a "fishing expedition," Garson said. On the other hand, Crown prosecutors argued that "by the process of elimination, the drugs had to be at McKay Avenue."
The appeal court disagreed, siding with Liu and Le.
Garson noted that in their surveillance, the police did not see the accused leave their McKay Avenue home before visiting Regiment Square. It's an important point as the police theory was that the drugs were stored at McKay and delivered to the other address.
The ITO filed in support of the search warrant "did not disclose a basis on which the issuing justice could conclude that there was a reasonable probability drugs were being stored at the McKay Avenue residence," Garson wrote.
A new trial was deemed appropriate because at the original trial, the two sides agreed on an "unconventional process." That is, if the defence succeeded at the time (which it did not) in a voir dire to have the search warrant deemed unlawful, a further voir dire would be held to decide whether the evidence found in the search would be excluded from the trial.
The decision was unanimous, with Appeal Court justices Harvey Groberman and Richard Goepel in agreement.