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POWERS OF SEARCH AND SEIZURE - Warrantless searches - Validity

Thursday, February 18, 2021 @ 6:10 AM  

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Appeal by Reilly from his conviction on six counts of robbery and firearms-related offences. Another individual arrested for robbery identified the appellant as one of the four masked perpetrators and the robber who held a gun. Based on surveillance video from that robbery and a second robbery, the police determined the appellant was a suspect for both robberies. The police entered the appellant’s home, entered his closed bedroom, tackled and arrested him. The police then conducted a 10-minute clearing search of the home, during which they observed evidence useful to their investigation. The police used the information seen in their search, together with other evidence, to obtain a search warrant. They searched the home again and seized the items of interest to their investigation including clothing, a mask, a rifle, cigarettes and vape products. The Crown conceded the police breached the appellant’s rights under s. 8 of the Canadian Charter of Rights and Freedoms (Charter) when they entered the residence, entered the appellant’s bedroom and conducted the clearing search. The trial judge found the warrant was valid and admitted the items seized from the home into evidence.

HELD: Appeal allowed; new trial ordered. The trial judge did not err in finding the warrant was valid. There was reliable information in the excised ITO from which the issuing justice could infer the appellant was one of the perpetrators of the two robberies and that items connected to the robberies would be in the appellant’s residence. The trial judge erred in his s. 24(2) Charter analysis. The trial judge erred by considering the Charter-compliant conduct of the police as mitigating the seriousness of their Charter breaches. By considering the effect on the administration of justice of each Grant factor independently, rather than considering all three of the factors collectively, the trial judge overly compartmentalized what was meant to be a broad analysis. Had the trial judge conducted the correct analysis, he would have properly concluded that, considered together, the seriousness of the cumulative breaches and their impact on the Charter-protected rights of the appellant favoured exclusion of the evidence and outweighed society’s interest in the adjudication of the case on its merits. Dissenting reasons were provided.

R. v. Reilly, [2020] B.C.J. No. 2095, British Columbia Court of Appeal, P.M. Willcock, L.A. Fenlon and S.A. Griffin JJ.A., December 17, 2020. Digest No. TLD-February152021005