Two Summerland brothers have won the right to pursue claims of malicious prosecution by the Crown, following a successful appeal.
Plaintiffs Bradley Besler and his brother Darren Besler have named Crown prosecutors Ann Lerchs, Kurt Froehlich, Andrew Verdersluys, Cindy Curtain, Debra Drissell, Assistant Deputy Attorney General of B.C. and B.C. Prosecution services as defendants in their civil lawsuit.
The civil suit also claims misconduct on the part of RCMP.
The Beslers鈥� claims stem from a dispute with their neighbours that escalated into a criminal investigation and prosecution in 2019.
The brothers had objected to the commercial mushroom production facility on their neighbours鈥� property, claiming that it created noxious odours, and in response had allegedly committed acts of criminal harassment and mischief.
The criminal trial resulting from the dispute was held in May 2021 and lasted for 12 days in provincial court. It included the testimony of 23 witnesses, as well as a number of exhibits including multiple video clips.
At the time, the Crown said mischief was a lesser included offence to the charge of criminal harassment, while the Beslers said it was not.
The judge at the time had agreed with the Crown and concluded that mischief was an included offence within criminal harassment.
The brothers later successfully appealed their convictions.
The summary conviction appeal judge found that the trial judge had erred in finding that mischief was an included offence within criminal harassment.
The brothers, after their successful appeal, filed a civil lawsuit against the Crown prosecutors involved in the criminal case and the RCMP. They alleged that the Crown prosecution had maliciously prosecuted them and that the RCMP had also engaged in police misconduct.
In 2024, a judge granted the Crown鈥檚 application to strike the malicious prosecution claims. The Beslers appealed the decision to strike the claims.
In a judgement from the British Columbia Court of Appeals in Vancouver on March 10, Justice Karen Horseman overturned the 2024 decision to strike the claims of malicious prosecution. A panel of three judges heard the appeal.
Speaking about the decision, Brad Besler said the decision sets an important legal precedent.
鈥淭his is the very first time in Canadian legal history that a lawsuit against Crown prosecutors has been allowed to advance for the claim of malicious prosecution,鈥� he said. 鈥淭his means I will be questioning Crown prosecutors under oath during oral discovery and the trial itself. It is unprecedented.鈥�
