The province’s top court is ordering a new trial for a Saskatoon couple acquitted of trafficking meth.

Thomas James Arendt and Kayleigha Shaneih Bear were set free after a Saskatoon provincial court judge identified discrepancies between police surveillance logs and the application used by officers to get the search warrant used to eventually seize two kilograms of meth, cash and drug paraphernalia from the couple’s home.

The Court of Appeal ruled the judge went too far in the review of the warrant application.

Police had put the couple under surveillance in 2022 after a tip they were dealing drugs. After watching “several short duration meetings between [Arendt] and various unknown persons,” police applied for a warrant to search the couple’s house.

They took that application, which is called an Information to Obtain (ITO), to a judge, who initially rejected it, identifying the shortcomings. Police revised the application, re-submitted it and were granted a warrant.

The problem is that elements in the revised ITO did not match the information in the police’s own daily surveillance reports of the couple.

“[Arendt] contended that because of these discrepancies, and the resulting exclusion of information from the ITO, there was insufficient evidence to have permitted the issuing judge to authorize the warrant,” wrote Barrington-Foote.

The Court of Appeal did not dispute there were issues with the warrant.

The judge reviewing the warrant said the police overstated their evidence by including elements that were “entirely fictional,” including a description of one person emerging from Arendt’s house, hunched over and manipulating what police believed to be drugs.

This “observation” has no basis in the evidence, the judge wrote.

But the Court of Appeal ruled the judge’s role was to remove pieces of the warrant application that were inaccurate — not to determine the overall credibility of the investigators.

The reviewing judge “decided that the affiant (applying officer) was not reliable,” Barrington-Foote wrote.

“By doing so, he substituted his view for that of the issuing judge.”