FILE PHOTO

(CHARLOTTE HELSTON - REPORTER / iNFOnews.ca)

VERNON - Serious breaches of an accused’s charter rights by police caused a judge to throw out key evidence in a recent child pornography case in Vernon.

Justice Hope Hyslop says in recently released reasons for judgement in the three-count child pornography case against alleged serial arsonist William Murray Phelps Munton that police left out important information when requesting the warrants and made assumptions without a basis in fact.

Munton was arrested alongside Jordan Holcroft, who was originally charged with obstruction of justice. The B.C. Prosecution Service confirmed Tuesday that the Crown directed a stay of proceedings against Jordan Holcroft on June 10, 2016 because, “after a careful review of the available evidence, we determined that our charge approval standard was no longer met.”

Holcroft gave a police statement on June 2, 2016 in which he admitted his involvement in the arsons — although he initially denied it — and confessed to being with Munton when they picked up containers, fire starters and gasoline used to start the fires. Using Holcroft’s statement and other evidence, police applied for and obtained two search warrants on June 3, 2016 allowing them to seize a number of items including a Rubbermaid container, fire starting bricks, computers, cell phones and a drone. It was during the search that police found images on an HP computer that allegedly constituted child pornography.

Hyslop ruled those two search warrants invalid last September, but postponed giving her reasons until April 10, 2018. Without the evidence obtained through those warrants, the child pornography case against Munton crumbled and he was acquitted.

In reasons for judgement released online, Hyslop says there were facts omitted by police in the information to obtain a warrant, which is used by judges and justices of the peace to determine if such a warrant can be granted by law.

The police theory, according to Hyslop’s judgement, was that Munton was using Rubbermaid containers and fire starter bricks to light fires around the Vernon area. Hyslop said there was a 19-month gap between the last suspected arson and the issuing of the warrant, during which time Munton changed residences.

“Just because the applicant had containers in the past, when he was starting fires, does not support that he had the containers currently at the time of issuing the warrant. During this 19-month period there are no further arsons or any evidence of continued offences, or plans to continue setting fires,” Hyslop said.

Hyslop said the information supplied by RCMP in request for the warrant also omitted facts that, if included, could have resulted in the justice making a different decision.

William Munton

Image Credit: Facebook

She said in one case, the officer who submitted the information to obtain set out a series of unconnected events in an attempt to “create a suspicion” that a drone was used to take pictures of the arsons. She said that was not supported by reasonable and probable grounds.

Police also believed that Munton had photographs of the arsons stored on computers, but Hyslop said there weren’t probable grounds for that either. She pointed out that Holcroft, in his statement to police, said they didn’t take pictures of the fires.

“These assumptions made by the police are undermined by Mr. Holcroft’s statement and the lack of any evidence that these events took place. The (Information to Obtain) does not establish a credibly-based probability that the applicant took photographs or images of the fires, transferred them to this computer or other electronic devices and stored them for 19 months after the arsons,” Hyslop said.

Hyslop was also concerned about how police gathered some of the information used to apply for the warrant, which included one officer interviewing Holcroft, another officer taking notes, and a third officer drafting the Information to Obtain based on the notes.

“This method of obtaining facts for an ITO (Information to Obtain) cannot be condoned. To do otherwise, would permit the affiants to isolate themselves from the facts known to the police, pleading they did not know certain material facts,” Hyslop said.

Hyslop said the police conduct that led to the breaches was “picking and choosing the facts” that found their way into the information to obtain and called the breaches “very serious.” She said the officer did not purposely exclude the information from the information to obtain, he “simply was not providing the information from Mr. Holcroft’s statement so as to make full and frank disclosure for the judicial justice to consider.”

“Having regard to all the circumstances, including failing to have reasonable and probable grounds, the expectation of privacy, the failure to disclose reliable material facts in the ITO for the judicial justice to consider and despite the serious charges faced by the applicant, I concluded that the price paid by society in the acquittal of the applicant, by maintaining Charter standards, outweighs society’s interest for a trial and the evidence be adjudicated on its merit,” Hyslop said.

The B.C. Prosecution Service confirmed that it "does not anticipate appealing" Hyslop's decision on the child porn case. 

Munton is scheduled to stand trial before a judge and jury in Vernon Supreme Court starting Oct. 1 on 19 counts of arson. 

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