Photo: File photo

Brad and Darren Besler, pictured in 2021.

A pair of Summerland brothers who have become well-known in the community for their litigious activities won part their appeal in this week to pursue a case against Crown prosecutors.

Brad and Darren Besler have been in and out of court for years, facing charges and filling lawsuits over their volatile relationship with What the Fungus, a Summerland farm that borders the Besler property.

They successfully overturned a conviction for criminal mischief in 2021, and have since gone after the police and prosecutors, alleging wrongdoing during the investigation and ensuing trial.

The Beslers named more than a dozen defendants in their civil lawsuit, including RCMP officers and members of the provincial Crown's prosecutorial arm.

Claims included that the defendants "violated the Crown Counsel Act”, “conspired to mislead the Court”, “acted in bad faith and displayed unmistakable bias and negligence”, “had conflicts of interest”, “violated the BC Prosecution Service’s charge assessment guidelines", “failed to objectively and fairly assess all available evidence” and “engaged in Misfeasance in Public Office," according to court documents.

The RCMP and the Crown both filed a request that the claims against them be dismissed.

BC Supreme Court Justice Steven Wilson ruled that while there was enough evidence to proceed with a lawsuit against the police, he blocked the case against Crown prosecutors.

After Wilson's decision, the Beslers told Castanet they would be filing an appeal based on "factual and legal errors" in the decision.

That appeal hearing took place in Vancouver on March 4, and judgement was delivered on March 10.

The named Crown counsel defendants were Ann Lerchs, Andrew Vandersluys, Kurt Froehlich, and Debra Drissell. Only Lerchs and Vandersluys were stated as having conduct of the prosecution of the Beslers.

On behalf of a three-judge unanimous ruling, Justice Karen Horseman wrote that the trial judge "erred in finding that the [Beslers] had not adequately pleaded an absence of reasonable and probable cause for the prosecution."

The Beslers are now permitted to proceed with the claims of malicious prosecution against the Crown.

Justice Horseman, however, ruled the the trial judge was correct to strike the claim of misfeasance.

The claim of misfeasance was in relation to the Penticton Crown Counsel office manager handling evidence from the Beslers' and stating whether Crown had reviewed it. Horseman said their appeal does not show the manager deliberately engaged in unlawful conduct or caused damages to their case.

One of the errors alleged in the appeal that Horseman agreed should be reviewed is in regards to the importance of the material contained in the evidence package the Besler's delivered to the Crowns office.

The Beslers alleged the package wasn't believed to be reviewed properly and it "was highly exculpatory because it demonstrated that the complainants... did not fear for their safety."

Horseman wrote that the original judge "erred in dismissing the appellants’ claims against the Crown respondents on the basis it was plain and obvious that they were bound to fail."

She ruled that the order dismissing the claim against the Crown respondents is to be set aside, and the Beslers are allowed to re-file their claim of malicious prosecution against the Crown prosecutors.