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APPEALS - Question of law - Powers of appellate court - New trial

Monday, February 04, 2019 @ 9:32 AM  

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Appeal by the Crown from the accused’s acquittal of possession of proceeds of crime, possession of marijuana for the purpose of trafficking and possession of a weapon for a dangerous purpose. Police responded to a call by a convenience store clerk who indicated a male with a knife was refusing to leave. When they arrived, the clerk indicated the male had gone to the store next door. The officers attended next door and approached the accused, who matched the description of the male. The accused indicated he had a knife when asked by the officers. When officers removed the accused from the store, they smelled marijuana. The accused indicated he had a little marijuana on him. The officers arrested and searched the accused. The trial judge excluded from evidence the 200 grams of marijuana and $885 in cash seized by the police after searches of the accused’s backpack and wallet on the basis the searches were in breach of section 8 of the Charter.

HELD: Appeal allowed, and new trial ordered. The standard of review that applied to the trial judge’s determination of whether there was a Charter breach was correctness. The trial judge failed to consider the correct legal principles in determining whether the searches violated section 8 of the Charter. The trial judge erred by failing to consider whether the searches of the backpack and wallet were lawful searches incidental to arrest.

R. v. Land, [2018] M.J. No. 327, Manitoba Court of Appeal, F.M. Steel, H.C. Beard and J.A. Pfuetzner JJ.A., December 10, 2018. Digest No. TLD-February42019001