FILE PHOTO - Summerland brothers Bradley and Darren Besler pose for a photo outside the Penticton courthouse in 2021.

(DAN WALTON / iNFOnews.ca)

Two Summerland brothers will get a second chance to argue they were victims of malicious prosecution seven years after their dispute with a neighbouring mushroom farm began.

The pair took their civil claim against Crown prosecutors to the BC Court of Appeal coming out with a win.

After successfully appealing criminal mischief charges related to the dispute with their neighbours in 2022, they sued the initial Crown lawyers for malicious prosecution. On March 10, the province's highest court found a previous judge incorrectly dismissed the claims and brothers Darren and Bradley Besler will now get another shot. 

The panel of appeal court judges found a BC Supreme Court judge made two mistakes.

The judge relied too heavily on their overturned criminal convictions to justify the prosecutors had probable cause and he misunderstood a package of evidence the Beslers claim should have forced the Crown to drop the case before it reached criminal court at all.

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The appeal comes five years after their criminal convictions were overturned and seven years after the dispute with their mushroom farming neighbour.

It was in 2019 when the District of Summerland gave What the Fungus farm approval to operate. The farm happened to be next door to the Beslers, who launched efforts to disrupt the farm over the stench that emanated from it.

They put up signage and posted to social media stating the farm didn't meet zoning requirements, they used rotting waste to build a maggot farm immediately adjacent to their neighbour's property, and Darren parked his truck in front of his neighbour's property, while they had guests over, and played loud music through the speakers.

Police responded to the spat between the neighbours numerous times that summer, culminating with charges of mischief and harassment against the Besler brothers. They were convicted of mischief in 2021 after a 12-day provincial court trial. Those convictions were overturned a year later. 

The Beslers claim in 2020 they gave prosecutors evidence that included videos of their neighbour Thor Clausen threatening them and their families. They argued it was ignored by Crown lawyer Ann Lerchs, but it would "undermined any suggestion that any of the complainants, including Mr. Clausen, feared for their own safety," the decision reads.

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As such, it would have undermined the criminal harassment charges against the Beslers at the time.

Exactly what those videos showed isn't clear, but Clausen allegedly told police at one point he had a gun near his bed and was willing to use it if needed. It came from a decision that followed the Beslers complaints against RCMP officers who responded to the dispute between neighbours.

Then-RCMP commissioner Brenda Lucki said he would be entitled to "use reasonable force to remove and unwanted trespasser." 

The previous civil court judge seemed to believe the Beslers used the evidence to suggest Clausen should have been charged. Instead, the point was to absolve themselves of blame, according to the appeal court decision.

Lawyers for the prosecutors on defence argued the videos weren't enough to undermine charges against the Beslers should have been dropped. They also argued the entire premise that prosecution was done maliciously was "lacks merit" and didn't deserve the time or resources needed for litigation.

But the appeals court found they'll have to make those arguments in another setting, likely before another BC Supreme Court judge, if a settlement can't be reached with the Besler brothers.

It's not clear if or when the malicious prosecution lawsuit will end up before a judge again.

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