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CONSTITUTIONAL ISSUES - Protection against unreasonable search and seizure - Exclusion of evidence

Tuesday, December 03, 2019 @ 6:25 AM  


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Appeal by the federal and provincial Crown from the respondent’s acquittal on multiple weapons and drug-related offences. Police entered and searched the home the respondent shared with S pursuant to a provision in S’s recognizance order that permitted the police to undertake a cursory search of his residence for alcohol, drugs or weapons. Both the respondent and S were considered high-risk offenders, and both were bound by the terms of their respective recognizance orders. Each was prohibited from purchasing and consuming alcohol and drugs and from possessing weapons. Only S’s recognizance permitted police to search his residence. Officers located a sawed-off shotgun behind a sofa cushion. A further search revealed more weapons, drugs and drug paraphernalia. The trial judge found that the respondent had a reasonable expectation of privacy in his shared dwelling and that his expectation of privacy in his home was not diminished or attenuated by the search clause in S’s recognizance. He also held that the used syringes lying about and the shotgun shell on a window ledge were enough to show that S was not in compliance with his recognizance and that the conducted search went beyond a cursory search and was thus not authorized by law and excluded all the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.

HELD: Appeals dismissed. The trial judge adequately responded to the live issues that were before him. He properly framed the s. 8 analysis by first determining that at the time of the search the respondent had a reasonable expectation of privacy in his home. He then turned his mind to the legal arguments concerning the reasonableness of the search, the evidence that was drawn to his attention by the Crown to rebut the presumption associated with a warrantless search and whether S’s recognizance authorized the police to enter the shared residence. There was no failure to provide adequate reasons. Even if a resident had the right to permit the police to enter the common areas of a shared home, seizure of the items from the respondent’s residence could not be justified under the plain view doctrine. It was not clear the police could lawfully rely on S’s recognizance to enter the home vis-à-vis the respondent. The trial judge’s reasons for excluding the evidence under s. 24(2) were responsive to the issues raised and showed that he was alive to the relevant legal principles required to be considered.

R. v. Arnault, [2019] S.J. No. 422, Saskatchewan Court of Appeal, G.R. Jackson, P.A. Whitmore and L.M. Schwann JJ.A., October 18, 2018. Digest No. TLD-December22019004